The appeal considered whether Criminal Code s. 725(1)(c) allows sentencing judges to treat as aggravating facts conduct that could ground a separate charge where such a charge had previously been laid but was no longer pending.
A majority held that the provision applies in those circumstances, provided the separate charge remained legally possible at sentencing and procedural fairness is preserved.
The Court emphasized Crown duties of fairness, including timely disclosure of aggravating facts and avoidance of ambush in plea contexts.
It found no reviewable sentencing error and restored the original sentence.
The dissent would have found unfair use of the evidence and upheld the reduced sentence.
