In R. v. Nguyen, 2012 ONCA 523, the Ontario Court of Appeal issued an endorsement upholding the right of a trial Judge to rely on hearsay evidence at a sentencing hearing.  The burden is on the offender to prove mitigating factors at the sentencing hearing on a balance of probabilities.  This case upholds the principle that a trial Judge may rely on hearsay in determining whether a mitigating factor has been proven.  In dismissing the Crown Appeal, the court held that the Judge was free to make a finding that the offender was an addict and it was his addiction that led to his crime:

[1]          The trial judge is entitled to rely on hearsay to make findings of fact on sentence even if the facts are disputed:  s. 723(5).  Of course, the party relying on the disputed fact carries the onus:  s. 724(3)(b).  We see no legal impediment to a party discharging that burden with disputed hearsay evidence, although trial judges will, quite properly, often decline to rely on hearsay evidence to prove facts in dispute.

[2]          We will not interfere with the trial judge’s findings that the respondent was an addict, “turned to crime to support his habit” and was taking rehabilitative steps.  In light of these facts, it cannot be said that the sentence is unfit.

The fact of an addiction can be highly relevant and mitigate sentencing.  It suggests that a particular crime (often low-level drug trafficking or theft) may have been fueled by the need to support an addiction (as opposed to commercial gain).

This blog post was written by Toronto Criminal Lawyer Adam Goodman. Adam can be reached at 416-477-6793 or by email at adam@aglaw.ca.