R v R.M., 2019 BCCA 409: When guilty pleas are not really mitigating

In R v R.M., 2019 BCCA 409 the Court of Appeal for British Columbia reminds us that there are circumstances where a guilty plea may not be particularly mitigating on sentence.

A guilty plea often signal remorse. But not always. At times it may be “simply a recognition of the inevitable” (R v Faulds, 1994 CanLII 770 (ON CA)), where “the Crown’s case is strong and the accused is inescapably caught” (para. 8). But finding a lack of remorse should not be based solely on the fact that the Crown’s case is strong; as in Faulds, there should also be an assessment of the offender’s character and the nature of the offence (in that case, the offender was described by the Court of Appeal as “a clever, dedicated, incorrigible and dangerous criminal”).

Moreover, as noted by Justice Rosenberg in Valentini, “a court must be very careful in treating lack of remorse as an aggravating circumstance”, which should only occur in “very unusual circumstances such as where the accused's attitude toward the crime demonstrates a substantial likelihood of future dangerousness”. Otherwise, treating lack of remorse as an aggravating circumstance “comes perilously close to increasing the sentence because the accused exercised his right to make full answer and defence” (R v Valentini, 1999 CanLII 1885 (ON CA).

But even where the plea is not a manifestation of genuine remorse, it often saves judicial resources and spares victims from having to testify. But not always. Losing a Gardiner hearing, as in R.M., is one such instance (para. 13 and para. 9). See also: R v F.H.L., 2018 ONCA 83.

Moreover, because “there is no rule that a sentencing judge must give the same effect to every [guilty] plea” (para. 7), one should not get bogged down in unhelpful mathematical formulas for the mitigating effect of guilty pleas (R v Daya, 2007 ONCA 693 at para. 15). Despite this, Justice Wakeling of the Court of Appeal of Alberta keenly seeks a more predictable approach: a 1/3rd reduction for a guilty plea “at the earliest opportunity” to a 1/10th reduction for guilty plea “at the ‘door of the court’ or after the trial has begun” (see, for example, R v SLW, 2018 ABCA 235 at para. 194 and footnote 118).

R.M. also discusses the absence of a criminal record on sentencing, observing that while it “is generally treated as a mitigating factor” - because “it can be indicative of otherwise good character” (para. 20) - this absence may have little significance where the offending has been repetitious and occurs over a lengthy period of time (para. 23). Even then, while an inference of good character may be displaced, the absence of a criminal record may not necessarily be ignored because a first-time offender has not (yet) had the “benefit of the corrective effect of a previous conviction” (para. 21 & para. 24).