On February 13, 2025, the Supreme Court of Canada allowed the appeal set out below with reasons for judgment to follow. Below are those reasons:
Criminal Law: Sentencing; Considerations re Potential Separate Charge
R. v. Di Paola, 2023 QCCA 750, 2025 SCC 31 (40777)
“D, a construction contractor, was charged with giving a reward, advantage or benefit to an official in return for lucrative construction contracts, contrary to s. 121(1)(a)(i) and (iii) of the Criminal Code. Under an agreement entered into with the Crown, that count was abandoned in exchange for a guilty plea on a charge of conferring an advantage or benefit on an official of the government without authorization, contrary to s. 121(1)(b) of the Criminal Code. The judge sentencing D considered, as aggravating factors, the facts related to the offence under s. 121(1)(a)(i) and (iii), that is, the existence of the construction contracts awarded to D’s company. D was given a 15‑month conditional sentence, which he appealed.
The Court of Appeal found that the sentencing judge had made an error in principle by considering the facts related to the abandoned count as aggravating factors. It reduced the conditional sentence to six months. It relied on R. v. Larche, 2006 SCC 56, [2006] 2 S.C.R. 762, to find that s. 725(1)(c) of the Criminal Code, which gives courts the discretion to consider, as aggravating factors, any facts that form part of the circumstances of the offence for which the sentence is being determined and that could constitute the basis for a separate charge, does not permit consideration of any facts that could constitute the basis for a separate charge if such a charge has already been laid, as was the case here.”
The SCC (8:1) held: appeal allowed; Superior Court sentence restored.
The Chief Justice wrote as follows (at paras. 4-8, 46, 56, 58):
“In its decision reversing the trial judgment in part, the Quebec Court of Appeal interpreted R. v. Larche, 2006 SCC 56, [2006] 2 S.C.R. 762, in which this Court analyzed s. 725(1)(c) for the first time, as limiting the application of this provision to cases in which the facts forming part of the circumstances of the offence have never constituted the basis for a separate charge. The Court of Appeal found that the sentencing judge had made an error in principle by accepting, as aggravating factors, the facts related to the offence under s. 121(1)(a)(i) and (iii), for which a charge had previously been laid but had not been renewed. The court reduced the conditional sentence to six months.
The appellant submits that s. 725(1)(c) should not be interpreted so narrowly because, in addition to not being consistent with the text, context and purpose of this provision, such an interpretation would be detrimental to the justice system, which encourages the making of plea agreements, under which the withdrawal of charges is common. If the Court accepts his argument, the appellant invites us to clarify the duties of fairness that lie on the prosecution when the provision in question applies.
At the hearing, a majority of the Court allowed the appeal, with reasons to follow.
This Court’s judgment in Larche does not deal specifically with circumstances like those of this case. An interpretation of s. 725(1)(c) based on the modern approach to statutory interpretation leads to the conclusion that this provision does not exclude from its scope any facts forming part of the circumstances of the offence that have constituted the basis for a separate charge. Interpreting s. 725(1)(c) as having the effect of excluding such facts from its scope could potentially limit the use of the important efficiency tool that plea bargaining represents in the criminal justice system. The application of s. 725(1)(c) in the plea bargaining context can have significant benefits for both the Crown and the accused, in addition to reducing the number and complexity of trials. Section 725(1)(c) has robust procedural safeguards attached to it, and its application relies upon the court’s exercise of its discretion. In addition, in the context of the adversarial process, Crown counsel are subject to duties of fairness that include the duty to act in good faith and to avoid any sharp practice. These protections limit the risk that the application of this provision will result in unfairness or prejudice to the offender.
…
In sum, the context of s. 725(1)(c) weighs in favour of the inclusion of any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge, regardless of whether such a charge has already been laid. In light of the principles of sentencing, there is no principled reason for excluding relevant facts from the scope of s. 725(1)(c) solely because a charge based on those facts was already laid and then withdrawn. Those facts do not lose their relevance as aggravating factors for the purposes of s. 725(1)(c), and their consideration is subject to certain procedural safeguards. Whether they have constituted the basis for a separate charge or not, those facts fall within s. 725’s purpose of enabling the court to assess all the circumstances of both the offence and the offender in order to impose a fit and appropriate sentence.
…
Given the tactical benefits on both sides, the interpretation of s. 725(1)(c) that is most consistent with the interests of the justice system is the one advanced by the appellant. Moreover, as noted by the Attorney General of Alberta, giving s. 725(1)(c) a contrary interpretation would have the effect of further clogging up the courts, because the Crown might hesitate to withdraw charges if it cannot be certain that the court will consider the underlying facts as aggravating factors at the sentencing stage. That situation would lead to a reduction in guilty pleas and a corresponding increase in the number and complexity of trials. For the accused, such an interpretation could mean less bargaining power and a greater possibility of having to stand trial on several counts. The consequences of such an interpretation could be disastrous for the viability of the criminal justice system.
…
In short, the only interpretation consistent with the text, context and purpose of s. 725(1)(c) is the one advanced by the appellant. Section 725(1)(c) gives the court the discretion to consider, as aggravating factors, any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge, regardless of whether such a charge has been laid. This provision is applicable both following a trial and in the context of a guilty plea, to the extent that the charge remains possible at the time of sentencing. The robust procedural safeguards put in place by Parliament allow both the Crown and the offender to benefit from the application of s. 725(1)(c) without there being any unfairness or prejudice to the offender.”