Julien Fitzgerald

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.

The accused voluntarily made admissions during a treatment process concerning acts of a sexual nature committed against a child.

Those admissions were sent to the director of youth protection and then to police with the accused's consent.

The accused was charged with sexual assault and filed a motion to exclude the admissions, which the trial judge dismissed.

The Court of Appeal entered an acquittal on the basis that the admissions were inadmissible.

The Supreme Court, in a majority decision, allowed the Crown's appeal on the sole issue of the accused's consent to disclosure of his admissions, restoring the conviction.

The dissenting judge would have dismissed the appeal substantially for the reasons of the Court of Appeal majority.