Case in Brief

A Case in Brief is a short summary of a written decision of the Court, drafted in plain language. These summaries are prepared by staff of the Supreme Court of Canada. They do not form part of the Court’s reasons for judgment and are not for use in legal proceedings.

R. v. Di Paola

Case summary

The Supreme Court of Canada declares that a judge can consider facts related to a withdrawn charge if those facts are related to the offence and if the Crown acts fairly.

When a judge sentences a person who has been found guilty, the judge must assess the seriousness of the crime and the person’s responsibility. Certain factors, called aggravating factors, can make the crime more serious and lead to a more severe sentence.

This case was about how a judge can consider the facts related to the offence for which the judge must sentence the offender. Specifically, the question was whether a judge can take into account any facts that gave rise to another criminal charge for a different offence even if it is no longer before the courts.

In 2021, Mr. Di Paola, a construction contractor, was charged with offences for having offered an advantage to an official in exchange for public contracts, in violation of the Criminal Code. He later made an agreement with the Crown that resulted in the most serious charge being withdrawn. He therefore pleaded guilty to a lesser offence. The judge who sentenced him considered the facts of the more serious charge as aggravating factors. Mr. Di Paola was given a 15 month conditional sentence, which means that the person serves their sentence in the community, under certain conditions, rather than in prison. Mr. Di Paola appealed the decision.

The Court of Appeal concluded that the sentencing judge had made an error. In the Court of Appeal’s opinion, the judge could not consider, as aggravating factors, any facts related to the offence for which the charge had already been withdrawn. It therefore reduced the conditional sentence to six months. The Crown appealed to the Supreme Court of Canada.

The Supreme Court allowed the appeal. The judgment was delivered orally by Chief Justice Wagner on the day of the hearing, with reasons to follow.

The sentencing judge could consider, as aggravating factors, any facts related to the more serious charge.

Writing for the majority of the Supreme Court, Chief Justice Wagner stated that section 725(1)(c) of the Criminal Code authorizes a judge to consider any facts forming part of the circumstances of the offence even if those facts could give rise to a separate charge that was laid and then withdrawn. This rule gives the judge a full picture of the offender’s conduct and allows the judge to impose a fit and proportionate sentence.

Chief Justice Wagner also explained that the Crown must act fairly when it intends to rely on section 725(1)(c) of the Criminal Code. It must clearly inform the accused if it intends to raise the facts in question – the facts related to the more serious charge withdrawn – in order to avoid any surprise, and it must refrain from any sharp practice that would result in unfairness. The Criminal Code also provides safeguards: when the facts are considered, they must be noted on the file and can no longer form the basis for further proceedings.

In this case, the evidence showed that Mr. Di Paola knew that certain facts would be presented as aggravating factors. There was no unfairness. Chief Justice Wagner therefore restored the initial 15 month conditional sentence determined by the sentencing judge.