R. v. Di Paola, 2025 SCC 31

SUPREME COURT OF CANADA

Appeal Heard and Judgment Rendered: February 13, 2025 Reasons for Judgment: October 17, 2025 Docket: 40777

Between: His Majesty The King Appellant and Enrico Di Paola Respondent - and - Director of Public Prosecutions and Attorney General of Alberta Interveners Official English Translation: Reasons of Wagner C.J. Coram: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.

Reasons for Judgment : (paras. 1 to 77)

Wagner C.J. (Karakatsanis, Côté, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ. concurring)

Dissenting Reasons : (paras. 78 to 131)

Rowe J.

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports .

His Majesty The King Appellant

v.

Enrico Di Paola Respondent

and

Director of Public Prosecutions and

Attorney General of Alberta Interveners

Indexed as: R. v. Di Paola

2025 SCC 31

File No.: 40777.

Hearing and judgment: February 13, 2025.

Reasons delivered: October 17, 2025.

Present: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.

on appeal from the court of appeal for quebec

Criminal law — Sentencing — Considerations — Other offences — Facts forming part of circumstances of offence that could constitute basis for separate charge — Prosecution’s duties of fairness — Whether judge sentencing offender can consider, as aggravating factors, any facts that form part of circumstances of offence for which sentence is being determined and that could constitute basis for separate charge, if that charge has already been laid but it is not pending and no verdict has been rendered on it — Whether duties of fairness lie on prosecution when it intends to prove such facts — Criminal Code, R.S.C. 1985, c. C‑46, s. 725(1) (c).

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.

Held (Rowe J. dissenting ): The appeal should be allowed and the sentence imposed by the Superior Court restored.

Per Wagner C.J. and Karakatsanis, Côté, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.: Section 725(1) (c) of the Criminal Code does not exclude from its scope any facts that could constitute the basis for a separate charge if that charge has already 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. However, the prosecution must act fairly when it intends to rely on this provision, so as to avoid any conduct that would result in unfairness to the offender. In this case, there was no error justifying the Court of Appeal’s intervention.

The Court’s judgment in Larche does not deal specifically with the applicability of s. 725(1) (c) in circumstances where the facts forming part of the circumstances of the offence have already constituted the basis for a separate charge but where, at the time of sentencing, that charge is no longer pending and no verdict has been rendered on it . Therefore, to determine whether Parliament intended to exclude such facts from the scope of this provision , it is important to interpret the provision on the basis of the modern approach to statutory interpretation, that is, by considering its text, its context and its purpose . According to the text of s. 725(1) (c), f or this provision to apply, the facts forming part of the circumstances of the offence must be capable of constituting the basis for a separate charge. In the French version of the provision, the conjugation of the verb “ pouvoir ” in the present conditional (“ pourrait être fondée ”) is indicative of Parliament’s intention, since it suggests the existence of a possibility, as does the use of the term “could” in the English version. Section 725(1) (c) thus provides that the facts the court can consider must be capable of constituting the basis for a separate charge at the time the provision applies, that is, at the time of sentencing. The only condition that Parliament inserted into this provision is that the facts considered must be those forming part of the circumstances of the offence for which the sentence is being determined .

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 . T hose facts fall within the general purpose of s. 725 of the Criminal Code 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. Facts forming part of the circumstances of an offence do not lose their relevance as aggravating factors simply because a charge based on those facts was already laid and then withdrawn . Furthermore, the consideration of those facts is subject to certain procedural safeguards . First, the application of s. 725(1) (c) requires that the facts related to the separate charge in question be proven beyond a reasonable doubt, in accordance with the principle of the presumption of innocence . Second, s. 725(2)(b) introduces protection against double jeopardy by stating that any facts considered by the judge in determining the sentence under s. 725(1) (c) must necessarily be noted on the information or indictment . Once those facts are noted, they can no longer form the basis for further proceedings .

With regard to the purpose of s. 725(1) (c), this provision is intended to advance the search for truth while preserving the fairness of the proceedings at the sentencing stage. It enables sentencing judges to have a fuller picture of the circumstances of the offence so that they can more accurately assess the gravity of the offence to be punished and the offender’s degree of moral blameworthiness. This purpose tied to the search for truth confirms that s. 725(1) (c) can encompass 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. In order for s. 725(1) (c) to be applied fairly, Parliament has conferred considerable discretion on the court, allowing it to decline to apply the provision when its application would result in unfairness to the offender or the Crown, including where the introduction into evidence of the facts in question might take the other party by surprise or where the sentencing process would be unduly prolonged . This discretion plays an important role in the application of s. 725(1) (c) , including in the context of plea agreements . The circumstances surrounding a plea may be brought to the attention of the court, which will then exercise its discretion to ensure that the plea is dealt with fairly .

An unduly narrow interpretation of s. 725(1)(c) would be detrimental to the criminal justice system as a whole. The possibility of a charge being replaced by aggravating facts in exchange for a guilty plea on a lesser charge is a powerful bargaining tool. For the Crown, such a strategy makes conviction certain while conserving precious resources, in addition to letting the Crown bring to the judge’s attention all factors relevant to the determination of a fit and appropriate sentence. For the accused, recourse to s. 725(1) (c) makes it possible to avoid a trial on a more serious charge that could lead to a more severe sentence, and thus allows the accused to close the matter once and for all. A narrow 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. For the accused, such an interpretation could mean less bargaining power and a greater possibility of having to stand trial on several counts.

The prosecution must act fairly when it intends to rely on s. 725(1)(c) . The duties of fairness to which it is subject include the duty to act in good faith and to avoid any sharp practice . It must avoid any conduct that would result in unfairness to the offender. This means, among other things, that it must, in a timely manner, inform the offender and the sentencing judge of the facts it intends to prove as aggravating factors during the submissions on sentencing . In the context of a plea agreement, the offender must be informed of the Crown’s intention to rely on s. 725(1) (c) before the agreement is entered into . In addition, the prosecution must refrain from acting in a manner that prevents the offender from exercising their rights in the sentencing process, for example by failing to disclose the identity of the witnesses it intends to call .

In this case, s. 725(1) (c) allowed the sentencing judge to consider the facts related to the construction contracts as aggravating factors . Nothing in the parties’ agreement indicates that a separate charge under s. 121(1) (a)(i) and (iii) could not have been laid at the time of sentencing. T he evidence clearly shows that D was aware that the Crown intended to demonstrate the existence of the construction contracts as aggravating factors , and there is nothing ambiguous in the parties’ understanding of how the evidence of the contracts was going to be used . While the sentencing judge’s reasons do not explicitly refer to s. 725(1) (c) , they are drafted with sufficient precision and clarity to make it possible to identify the facts that were considered as aggravating factors and the impact that those facts had on the sentence . As for the judge’s failure to have the facts he considered for the purposes of s. 725(1) (c) noted on the indictment as required by s. 725(2)(b), this is an error that can easily be corrected by a court of appeal , as the Court did in this case.

Per Rowe J. (dissenting): The appeal should be dismissed. There is disagreement with the majority as to the purpose and interpretation of s. 725(1)(c) and thus, how it operates. There is also disagreement that the sentencing judge in the instant case properly exercised his discretion under s. 725(1) (c). The Court of Appeal did not err in reducing D’s sentence.

To ascertain the nature and scope of the court’s discretion to apply s. 725(1) (c), the provision’s purpose must be identified, and understanding that purpose hinges on a historically informed appreciation of its exceptional nature. The legislative context in which s. 725(1) (c) appears, specifically Part XXIII of the Criminal Code , is also instructive in ascertaining its purpose. While s. 725(1)(c) aids in the overall task of arriving at a fit sentence, the specific purpose of this provision was to codify a long‑standing practice in sentencing courts in a way that ensures fairness to the offender. In addition to fairness to the offender, s. 725(1)(c) favours the efficient administration of justice and can facilitate an efficient use of judicial resources.

In light of s. 725(1)(c)’s purpose, the sentencing judge’s discretion is subject to certain constraints . The judge should decline to apply s. 725(1)(c) when there would be an injustice to the offender, and should not condone the use of the provision in a way that amounts to abuse of process, or that amounts to using the provision as ambush, to get the accused to plead guilty to a less severe charge and then seek more severe punishment at the sentencing stage. Also, when a sentencing judge considers facts in accordance with s. 725(1)(c), the indictment should be amended, as per s. 725(2)(b).

Three steps can be taken by a sentencing judge to ensure that the Crown behaves fairly and with integrity, none of which should be taken to be determinative of whether discretion was properly exercised. First, a sentencing judge could ensure that the Crown’s intention to rely on facts forming part of the circumstances of the offence that could constitute the basis for a separate charge was disclosed to the offender. Second, a sentencing judge may consider whether such facts increase the sentencing range faced by an offender. If they do, the Crown’s duty to act fairly will be more stringent. Third, because of the exceptional nature of s. 725(1)(c), an indicium of a proper exercise of discretion by the judge would be a recognition in the sentencing reasons that the offender is being sentenced for facts forming the basis of an offence more serious than the one to which he pled guilty.

In the instant case, the finding that D received contracts as consideration for unauthorized gifts should not have been allowed to influence the sentence. Although D’s counsel conceded as part of the plea bargain negotiations that evidence of the contracts could be presented at the sentencing hearing, it was ambiguous how that evidence was going to be used. Moreover, the agreed statement of facts mentioned only evidence of the unauthorized gifts to the government official. It did not refer to the contracts D received, and the Crown did not set out its intention to adduce evidence of another related offence in accordance with s. 725(1)(c). In addition, the sentencing judge was aware that the facts put forward by the Crown demonstrated a more serious offence than what was in the plea bargain. Yet, s. 725(1)(c) was not mentioned in the judge’s reasons, nor did he amend the indictment as per s. 725(2)(b), which is a factor that can indicate that his discretion was not used in a way that recognized the exceptional nature of s. 725(1)(c) and its purpose.

Cases Cited

By Wagner C.J.

Considered: R. v. Larche , 2006 SCC 56 , [2006] 2 S.C.R. 762; R. v. Blok‑Andersen , 2016 NLCA 9 , 376 Nfld. & P.E.I.R. 130; r eferred to: R. v. MacLeod , 2018 SKCA 1 , [2018] 5 W.W.R. 743; R. v. Fehr , 2018 MBCA 131 ; Rizzo & Rizzo Shoes Ltd. (Re) , [1998] 1 S.C.R. 27; Bell ExpressVu Limited Partnership v. Rex , 2002 SCC 42 , [2002] 2 S.C.R. 559; R. v. Lacasse , 2015 SCC 64 , [2015] 3 S.C.R. 1089; R. v. M. (C.A.) , [1996] 1 S.C.R. 500; R. v. Bissonnette , 2022 SCC 23 , [2022] 1 S.C.R. 597; R. v. Hills , 2023 SCC 2 ; R. v. Nasogaluak , 2010 SCC 6 , [2010] 1 S.C.R. 206; R. v. Ipeelee , 2012 SCC 13 , [2012] 1 S.C.R. 433; R. v. Angelillo , 2006 SCC 55 , [2006] 2 S.C.R. 728; R. v. Bjelland , 2009 SCC 38 , [2009] 2 S.C.R. 651; R. v. Varennes , 2025 SCC 22 ; R. v. Anderson , 2014 SCC 41 , [2014] 2 S.C.R. 167; R. v. Parisien (1971) , 3 C.C.C. (2d) 433; R. v. R.V. , 2021 SCC 10 , [2021] 1 S.C.R. 131; R. v. Sciascia , 2017 SCC 57 , [2017] 2 S.C.R. 539; R. v. Jordan , 2016 SCC 27 , [2016] 1 S.C.R. 631; R. v. Wong , 2018 SCC 25 , [2018] 1 S.C.R. 696; R. v. Eizenga , 2011 ONCA 113 , 270 C.C.C. (3d) 168; R. v. Shin , 2015 ONCA 189 , 322 C.C.C. (3d) 554; R. v. MacDougall , [1998] 3 S.C.R. 45; R. v. Zinck , 2003 SCC 6 , [2003] 1 S.C.R. 41; R. v. Gardiner , [1982] 2 S.C.R. 368; R. v. Truong , 2013 ABCA 373 , 304 C.C.C. (3d) 303; R. v. Sheppard , 2025 SCC 29 ; R. v. Friesen , 2020 SCC 9 , [2020] 1 S.C.R. 424.

By Rowe J. (dissenting)

R. v. Larche , 2006 SCC 56 , [2006] 2 S.C.R. 762; R. v. Rafilovich , 2019 SCC 51 , [2019] 3 S.C.R. 838; R. v. Foster (1940), 27 Cr. App. R. 89 ; R. v. Angelillo , 2006 SCC 55 , [2006] 2 S.C.R. 728; R. v. Suter , 2018 SCC 34 , [2018] 2 S.C.R. 496; R. v. Andersen , 2011 NLTD 51 , 2011 NLTD(G) 51, 307 Nfld. & P.E.I.R. 29 ; R. v. Edwards (2001) , 54 O.R. (3d) 737 ; R. v. Kahsai , 2023 SCC 20 ; R. v. Aalbers , 2022 SKCA 105 , [2023] 5 W.W.R. 577; R. v. MacLeod , 2018 SKCA 1 , [2018] 5 W.W.R. 743; R. v. Truong , 2013 ABCA 373 , 304 C.C.C. (3d) 303 ; R. v. G.F. , 2021 SCC 20 , [2021] 1 S.C.R. 801; R. v. Brooks , 2000 SCC 11 , [2000] 1 S.C.R. 237; R. v. Higginbottom (2001) , 156 C.C.C. (3d) 178.

Statutes and Regulations Cited

Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof , S.C. 1995, c. 22.

Canadian Charter of Rights and Freedoms , s. 11.

Criminal Code , R.S.C. 1985, c. C‑46, Part XXIII, ss . 121(1)(a)(i), (iii), (b), 367(a), 380(1)(a), 718.1, 718.2, 721, 722, 722.2, 723(1) to (3), (4), 724(3)(e), 725.

Authors Cited

Canada. Canadian Committee on Corrections. Report of the Canadian Committee on Corrections — Toward Unity: Criminal Justice and Corrections . Ottawa: Queen’s Printer, 1969.

Canada. Department of Justice. Canadian Sentencing Commission. Plea Bargaining and Sentencing Guidelines , by Simon Verdun-Jones and Alison Hatch. Ottawa, 1988.

Ferguson, Gerry. A Review of the Principles and Purposes of Sentencing in Sections 718‑718.21 of the Criminal Code . Ottawa: Department of Justice Canada, 2016.

Reitz, Kevin R. “Proof of aggravating and mitigating facts at sentencing”, in Julian V. Roberts, ed., Mitigation and Aggravation at Sentencing . New York: Cambridge University Press, 2011, 228.

Ruby, Clayton C. Sentencing , 10th ed. Toronto: LexisNexis, 2020.

Salhany, R. E. Canadian Criminal Procedure , 6th ed. Toronto: Thomson Reuters, 2025 (loose‑leaf updated April 2025, release 1).

Sullivan, Ruth. Statutory Interpretation , 3rd ed. Toronto: Irwin Law, 2016.

Vauclair, Martin, Tristan Desjardins and Pauline Lachance. Traité général de preuve et de procédure pénales 2025 , 32nd ed. Montreal: Yvon Blais, 2025.

APPEAL from a judgment of the Quebec Court of Appeal (Gagnon and Beaupré JJ.A. and Dumais J. ( ad hoc )), 2023 QCCA 651 , 429 C.C.C. (3d) 33, [2023] AZ-51937707, [2023] J.Q. n o 4311 (Lexis), 2023 CarswellQue 11416 (WL) , setting aside in part a decision of Boucher J., 2022 QCCS 2155 , [2022] AZ‑51859552, [2022] J.Q. n o 5441 (Lexis), 2022 CarswellQue 9851 (WL). Appeal allowed, Rowe J. dissenting.

Julien Fitzgerald and Mathieu Locas , for the appellant.

Chantal Bellavance , Raffaele Mastromonaco and Jordan Trevick , for the respondent.

Mathieu Stanton and Jeremy van Doorn , for the intervener Director of Public Prosecutions.

Andrew Barg , for the intervener Attorney General of Alberta.

English version of the reasons for judgment of Wagner C.J. and Karakatsanis, Côté, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ. delivered by

The Chief Justice —

I. Introduction

[ 1 ] Sentencing is a delicate and complex exercise. It requires the sentencing judge to consider all of the circumstances surrounding the commission of the offence, including the aggravating or mitigating factors relating to the offence, in order to arrive at a fit and appropriate sentence. To this end, Parliament introduced s. 725(1)(c) into the Criminal Code , R.S.C. 1985, c. C‑46 (“ Cr. C. ”), to give 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.

[ 2 ] This appeal concerns the applicability of s. 725(1)(c) in circumstances where such facts have already constituted the basis for a separate charge but where, at the time of sentencing, that charge is no longer pending and no verdict has been rendered on it. The Court must determine whether, as the Quebec Court of Appeal held in this case, s. 725(1)(c) applies only when the facts in question have never constituted the basis for a separate charge.

[ 3 ] The respondent, Enrico Di Paola, is a construction contractor who was charged with, among other things, giving a reward, advantage or benefit to an official in return for lucrative contracts with the École des métiers de la construction de Montréal (“EMCM”), contrary to s. 121(1) (a)(i) and (iii) of the Criminal Code . Under an agreement entered into with counsel then representing the Crown, the appellant in this appeal, 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 ( s. 121(1) (b) Cr. C. ). The sentencing judge considered the existence of the contracts awarded by the EMCM to the respondent’s company as an aggravating factor and imposed a 15‑month conditional sentence on the respondent.

[ 4 ] 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.

[ 5 ] 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.

[ 6 ] At the hearing, a majority of the Court allowed the appeal, with reasons to follow. These are those reasons.

[ 7 ] 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.

[ 8 ] 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.

[ 9 ] For these reasons, we are of the view that the Court of Appeal erred in interpreting s. 725(1)(c) and that its decision must be set aside. The sentence imposed by the Quebec Superior Court is restored.

II. Background and Judicial History

A. Factual Background

[ 10 ] The respondent is a construction contractor who, from October 2012 to May 2013, had a business relationship with an official, Alain Prud’homme. At the time, Mr. Prud’homme was the principal of the EMCM, a vocational school that was part of the Commission scolaire de Montréal during the relevant period. According to the agreed statement of facts, the respondent conferred certain advantages or benefits on Mr. Prud’homme, including a $5,000 gift certificate for a travel agency, a Montréal‑Paris plane ticket worth $930, a Paris‑Milan plane ticket worth €88 and 3 nights in a Milan hotel with a value of $488. In addition, the respondent authorized the performance of work in Mr. Prud’homme’s personal garage by subcontractors and employees of his company at a cost below its actual value. The total value of the advantages or benefits conferred by the respondent on Mr. Prud’homme was more than $32,000. The sentencing judge found that those advantages or benefits were conferred for the purpose of obtaining lucrative construction contracts with the EMCM having an approximate value of $200,000.

[ 11 ] The respondent was initially charged with four counts in relation to those transactions. The indictment of September 1, 2021, charged the respondent with fraud over $5,000 (s. 380(1)(a) Cr. C. ), forgery (s. 367(a) Cr. C. ), giving a reward, advantage or benefit to an official as consideration for cooperation, assistance, exercise of influence or an act or omission in connection with the transaction of business with the government ( s. 121(1) (a)(i) and (iii) Cr. C. ), and conferring an advantage or benefit on an official without authorization ( s. 121(1) (b) Cr. C. ).

[ 12 ] The day before his trial, the respondent entered into a negotiated agreement with the appellant under which he pleaded guilty to a single count, namely conferring an ad vantage or benefit on an official without authorization (s. 121(1)(b) Cr. C. ). The indictment of September 1, 2021, was replaced by a new indictment dated March 15, 2022, that contained a single count under s. 121(1) (b).

[ 13 ] The fresh evidence filed by leave of the Court reveals that, prior to the guilty plea, counsel for the parties discussed the appellant’s intention to prove the facts surrounding the offence under s. 121(1) (a)(i) and (iii), that is, the existence of the construction contracts with the EMCM, as aggravating factors during the submissions on sentencing. Despite counsel for the respondent’s insistence before this Court, we see no ambiguity in the terms of the agreement entered into by the parties. The agreed statement of facts initially prepared by counsel for the appellant set out points related to the awarding of the construction contracts. Alexandre Bergevin, the lawyer representing the respondent at the time, requested that those points be removed from the agreed statement of facts in light of the guilty plea for the offence under s. 121(1) (b), which does not require proof of consideration. In response to an email from counsel for the appellant asserting the relevance of those points for the sentence, Mr. Bergevin suggested that counsel for the appellant [ translation ] “raise [them] as aggravating factors on sentencing” (A.R., vol. II, at p. 87). Assenting to Mr. Bergevin’s request, counsel for the appellant sent him a new version of the agreed statement of facts that did not contain the points related to consideration, accompanied by an email in which they clearly stated that [ translation ] “these points will nonetheless be among the points raised/put in evidence/pleaded at the sentencing hearing” (p. 99). Mr. Bergevin then replied: [ translation ] “Perfect, we understand each other!” (p. 100).

[ 14 ] I also note the admission made by Mr. Bergevin concerning the existence of consideration. In an email to counsel for the appellant prior to the first sentencing hearing, Mr. Bergevin questioned them about the evidence relating to [ translation ] “200K of contracts from the EMCM” that they intended to file “to demonstrate this uncontested fact” (A.R., vol. II, at p. 125). Mr. Bergevin added that he could [ translation ] “admit the value of the contracts awarded, that is, 166K from 2011 to 2013 if memory serves” (p. 125).

[ 15 ] It is therefore clear from the fresh evidence that counsel for the respondent at the time was well aware of the appellant’s intention to prove the construction contracts with the EMCM as aggravating factors and that he admitted their existence. Counsel for the respondent nonetheless sought to contest the relevance of the evidence relating to the contracts during the first sentencing hearing before the Quebec Superior Court.

B. Quebec Superior Court, 2022 QCCS 2155

[ 16 ] The respondent pleaded guilty to a charge of conferring an advantage or benefit on an official without authorization contrary to s. 121(1)(b). The Superior Court’s judgment was concerned only with the sentence to be imposed on him.

[ 17 ] The agreed statement of facts filed by the parties briefly described the offence to which the respondent had pleaded guilty. As the parties did not agree on certain aspects relating to the circumstances of the offence and on the gravity of the offence, they adduced evidence to enlighten the court on the circumstances surrounding the trip to Italy and the work done in Mr. Prud’homme’s personal garage. The sentencing judge stated that the respondent’s evidence was [ translation ] “weak” and raised “no reasonable doubt on the contentious aspects of the proceedings” (para. 35).

[ 18 ] As they had indicated to counsel for the respondent, counsel for the appellant also sought to establish, as an aggravating factor, the consideration received by the respondent, that is, the construction contracts with the EMCM, through evidence relating thereto. At the first hearing, the respondent objected to the relevance of that evidence for sentencing. That objection was summarily dismissed by the sentencing judge. The appellant called witnesses and introduced into evidence documents showing that the contracts awarded to the respondent’s company were unlawful, first because they had been divided up to stay under the limits on expenditures that Mr. Prud’homme was authorized to incur under the regulations governing the EMCM and the Commission scolaire de Montréal, and second because the respondent’s company was not approved by that school board as a supplier authorized to obtain those contracts.

[ 19 ] In his reasons, the judge confirmed that he had considered certain aggravating factors in determining the sentence imposed on the respondent, including the fact that the respondent had conferred advantages and benefits on Mr. Prud’homme as consideration for the awarding by the latter of lucrative contracts and the fact that the respondent [ translation ] “knew of or was wilfully blind to the improper nature of those contracts” (para. 35).

[ 20 ] In the circumstances, a 15‑month conditional sentence was imposed on the respondent.

C. Quebec Court of Appeal, 2023 QCCA 651

[ 21 ] The respondent appealed his sentence on the ground that the trial judge had erred by taking the facts relating to consideration into account as aggravating factors for sentencing purposes. The Court of Appeal allowed the appeal in part.

[ 22 ] The Court of Appeal faulted the sentencing judge for making an error in principle by considering the facts related to the commission of an offence covered by a count that had appeared in the indictment of September 1, 2021, but that had not been carried over to the indictment of March 15, 2022, on the basis of which the respondent had pleaded guilty. Noting that the sentencing judge’s reasons [ translation ] “are silent about the legal basis for his decision to look to factors extraneous to the constituent elements of the offence for which the guilty plea was entered” (para. 19), the Court of Appeal stated that in any event he could not rely on either s. 725(1) (b.1) of the Criminal Code or s. 725(1) (c) to take those facts into consideration.

[ 23 ] According to the Court of Appeal, s. 725(1)(b.1) applies only to charges that are pending, which was not the case for the offence under s. 121(1) (a)(i) and (iii) because it had not been carried over to the indictment of March 15, 2022. With regard to s. 725(1)(c), the Court of Appeal relied on Larche to find that this provision does not permit consideration of any facts that could constitute the basis for a separate charge if such a charge has already been laid. Given that the respondent had already been charged with an offence under s. 121(1) (a)(i) and (iii), the facts that constituted the basis for that charge could not be considered as aggravating factors.

[ 24 ] In the Court of Appeal’s view, the indictment of March 15, 2022, resulted from concessions on both sides; the respondent agreed to plead guilty to a less serious charge in exchange for an undertaking by the prosecution to limit itself to that single charge. The respondent never admitted being guilty of the offence set out in s. 121(1) (a)(i) and (iii). For reasons of integrity, justice and fairness, in the circumstances of the case, the plea agreement made it impermissible to have recourse to s. 725(1)(c).

[ 25 ] Because the Court of Appeal found that there was an error in principle that had an impact on the sentence, it intervened to reduce the respondent’s sentence so that the aggravating factors relating to consideration were not taken into account. It imposed a 6‑month conditional sentence on the respondent along with the obligation to remain in his residence 24 hours a day during the first 3 and a half months of his sentence. It upheld all the other conditions of the conditional sentence.

III. Issue

[ 26 ] The only issue raised by this appeal is whether s. 725(1)(c) allows the court 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, if that charge has already been laid but it is not pending and no verdict has been rendered on it.

[ 27 ] If the Court answers this question in the affirmative, the appellant invites us to clarify the duties of fairness that lie on the prosecution when this provision is applied.

IV. Analysis

A. Section 725(1)(c) Does Not Exclude From Its Scope Any Facts That Could Constitute the Basis for a Separate Charge if That Charge Has Already Been Laid

(1) Larche Does Not Answer the Question Raised in This Case

[ 28 ] This appeal calls upon the Court to complete the examination of s. 725(1)(c) that it began in 2006 in Larche . The Court of Appeal’s decision interpreting Larche as limiting the application of s. 725(1)(c) to cases in which the facts forming part of the circumstances of the offence have never constituted the basis for a separate charge is part of a certain line of jurisprudence interpreting in this manner our Court’s teachings in Larche (see, e.g., R. v. MacLeod , 2018 SKCA 1 , [2018] 5 W.W.R. 743; R. v. Fehr , 2018 MBCA 131 ). However, an assessment of the facts underlying Larche does not show that that case is helpful on this specific question.

[ 29 ] Indeed, Larche dealt with the application of s. 725(1)(c) in a context where the facts could not constitute the basis for a separate charge because they had taken place outside of Canada. Jean‑Paul Larche had participated in a criminal operation in which marijuana was exported from Quebec to the United States and the proceeds were repatriated to Canada. He was charged in Canada with two counts: first, conspiring to produce, possess and traffic in marijuana and to possess the proceeds; second, committing drug‑related offences for the benefit of or at the direction of a criminal organization. Mr. Larche pleaded guilty to both counts in the Court of Québec. He asked the trial judge, over the Crown’s objections, to apply s. 725(1)(c) in determining his sentence in the hope of avoiding a possible extradition request by the American authorities based on an indictment charging him for having conspired to distribute marijuana in the United States. Although the Crown objected to Mr. Larche’s request, the trial judge granted it and considered, as aggravating facto r s, the facts that had occurred in the state of Vermont in the United States.

[ 30 ] The issue in that case was therefore whether s. 725(1)(c) could be applied despite the Crown’s lack of consent. Because this provision was being considered for the first time, Fish J., writing for a unanimous Court, discussed it more broadly, thereby establishing certain general principles that have guided the application of s. 725(1)(c) ever since. Describing the general scope of the provision, Fish J. stated in particular, at para. 20, that “[s]ection 725(1)( c ) . . . allows the court to take into consideration facts that could constitute the basis for a separate charge that has not — or at least not yet — been laid ” (emphasis added; emphasis in original deleted), and later, at para. 44, that the “finality” (or “ objectif ” in the French version) “of s. 725(1)( c ) is to increase punishment on the basis of an uncharged offence” (emphasis added). It was in reliance on these passages from Larche that the Court of Appeal held that s. 725(1)(c) excludes from its scope any facts that could constitute the basis for a separate charge if such a charge has already been laid, as was the case here for the offence under s. 121(1) (a)(i) and (iii).

[ 31 ] The question of the application of s. 725(1)(c) in a context where a separate charge had already been laid did not arise in Larche , as no charge of conspiracy to distribute marijuana in the United States had been laid against Mr. Larche. The scenario before us was therefore not part of the factual matrix of Larche , and there is nothing to indicate that the Court specifically considered such a scenario. In the absence of similar facts, the Court’s comments, to the extent that they would apply to facts forming part of the circumstances of an offence that have already constituted the basis for a separate charge, are not binding on the Court on this specific question.

[ 32 ] For this reason, it is necessary to complete the initial examination of s. 725(1)(c) carried out in Larche . It is not a matter of reversing that judgment, whose general principles continue to guide the application of s. 725(1)(c). Rather, it is a matter of interpreting this provision to determine whether it applies in the specific circumstances of this case. As Fish J. noted, “[s]ection 725(1)( c ) and s. 725(2) are best understood not by looking to past cases but by considering their plain terms, their evident purpose, and their relationship not only to the rest of s. 725 but also to other provisions of Part XXIII of the Criminal Code and to the scheme of the Criminal Code as a whole” ( Larche , at para. 22 ). This is the exercise that we will now undertake.

(2) The Text of Section 725(1)(c) Does Not Support the Exclusion of Facts Related to a Separate Charge That Has Already Been Laid

[ 33 ] An interpretation of s. 725(1)(c) based on the modern approach to statutory interpretation, that is, based on its text, its context and its purpose ( Rizzo & Rizzo Shoes Ltd. (Re) , [1998] 1 S.C.R. 27, at para. 21 , quoting E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87; Bell ExpressVu Limited Partnership v. Rex , 2002 SCC 42 , [2002] 2 S.C.R. 559, at para. 26 ), does not support the conclusion that Parliament intended to exclude any facts related to a separate charge that has already been laid from the scope of s. 725(1)(c).

[ 34 ] Section 725 of the Criminal Code provides as follows:

725 (1) In determining the sentence, a court

(a) shall consider, if it is possible and appropriate to do so, any other offences of which the offender was found guilty by the same court, and shall determine the sentence to be imposed for each of those offences;

(b) shall consider, if the Attorney General and the offender consent, any outstanding charges against the offender to which the offender consents to plead guilty and pleads guilty, if the court has jurisdiction to try those charges, and shall determine the sentence to be imposed for each charge unless the court is of the opinion that a separate prosecution for the other offence is necessary in the public interest;

(b.1) shall consider any outstanding charges against the offender, unless the court is of the opinion that a separate prosecution for one or more of the other offences is necessary in the public interest, subject to the following conditions:

(i) the Attorney General and the offender consent,

(ii) the court has jurisdiction to try each charge,

(iii) each charge has been described in open court,

(iv) the offender has agreed with the facts asserted in the description of each charge, and

(v) the offender has acknowledged having committed the offence described in each charge; and

(c) may consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge.

(1.1) For the purpose of paragraphs (1)(b) and (b.1), the Attorney General shall take the public interest into account before consenting.

(2) The court shall, on the information or indictment, note

(a) any outstanding charges considered in determining the sentence under paragraph (1)(b.1), and

(b) any facts considered in determining the sentence under paragraph (1)(c),

and no further proceedings may be taken with respect to any offence described in those charges or disclosed by those facts unless the conviction for the offence of which the offender has been found guilty is set aside or quashed on appeal.

[ 35 ] Section 725 is in Part XXIII of the Criminal Code , which deals with sentencing. It allows the court to consider, in determining the sentence, offences other than the one for which the sentence must be determined. In addition to any other offences of which the offender was found guilty by the same court (s. 725(1)(a) Cr. C. ), the sentencing judge is also required to consider any outstanding charges against the offender to which the offender pleads guilty (s. 725(1)(b) Cr. C. ) and, subject to certain conditions, any outstanding charges against the offender, unless the court is of the opinion that a separate prosecution would be in the public interest (s. 725(1)(b.1) Cr. C. ).

[ 36 ] As an exception to the general principle that “[o]ffenders are punished . . . only in respect of crimes for which they have been specifically charged and of which they have been validly convicted” ( Larche , at para. 1 ), s. 725(1)(c) allows the court to consider “any facts forming part of the circumstances of the offence” that “could” constitute the basis for a separate charge. The notion of “facts forming part” was described as follows in Larche :

Both res gestae and the phrase “while committing” are narrower than the expression “facts forming part of the circumstances of the offence” employed in s. 725(1)( c ). The “circumstances” of an offence are more than the immediate transaction in the course of which it transpires. Thus, in addition to encompassing the facts of a single transaction, s. 725(1)( c ) also applies, in my view, to the broader category of related facts that inform the court about the “circumstances” of the offence more generally.

“Facts” (or uncharged offences) of this sort that have occurred in various locations or at different times cannot properly be said to form part of the transaction covered by the charge for which the offender is to be sentenced. Recourse to s. 725(1)( c ) may nevertheless be had where the facts in question bear so close a connection to the offence charged that they form part of the circumstances surrounding its commission. In determining whether they satisfy this requirement of connexity, the court should give appropriate weight to their proximity in time and to their probative worth as evidence of system or of an unbroken pattern of criminal conduct. [paras. 54‑55]

This description is still valid, and determining whether facts form part of the circumstances of the offence always requires a “case‑by‑case” analysis ( Larche , at para. 50 ).

[ 37 ] For s. 725(1)(c) to apply, the facts forming part of the circumstances of the offence must be capable of constituting the basis for a separate charge. In the French version of the provision, the conjugation of the verb “ pouvoir ” in the present conditional (“ pourrait être fondée ”) is indicative of Parliament’s intention. It suggests the existence of a possibility. The English version of s. 725(1)(c) uses the term “could”, which also implies the existence of a possibility. Section 725(1)(c) thus provides that the facts the court can consider must be capable of constituting the basis for a separate charge at the time the provision applies, that is, at the time of sentencing. The prospective nature of s. 725(1)(c) was recognized in Larche when Fish J. wrote, at para. 20, that “[s]ection 725(1)( c ) . . . allows the court to take into consideration facts that could constitute the basis for a separate charge that has not — or at least not yet — been laid” (emphasis added; emphasis in original deleted). This passage is consistent with the grammatical and ordinary meaning of the text of s. 725(1)(c), according to which it must remain possible at the time of sentencing for the facts forming part of the circumstances of the offence to constitute the basis for a separate charge.

[ 38 ] Section 725(1)(c) says nothing about how to deal with facts forming part of the circumstances of the offence that, in the past, constituted the basis for one or more charges that are no longer pending and on which no verdict has been rendered. There is nothing to suggest that such facts are excluded from the scope of this provision. Parliament could have introduced such a condition, but it did not do so. The only condition it inserted into this provision is that the facts considered must be those “forming part” of the circumstances of the offence. Accordingly, an analysis of the text of s. 725(1)(c) does not support the narrow interpretation that the respondent wishes to give it.

(3) The Context of Section 725(1)(c) Does Not Indicate That Parliament Intended To Exclude From Its Scope Any Facts That Have Already Constituted the Basis for a Separate Charge

[ 39 ] Sentencing is one of the most delicate stages of the criminal justice process ( R. v. Lacasse , 2015 SCC 64 , [2015] 3 S.C.R. 1089, at para. 1 ). As this Court noted in R. v. M. (C.A.) , [1996] 1 S.C.R. 500, “[t]he determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community” (para. 91).

[ 40 ] The fundamental principle that underlies all sentencing is proportionality (s. 718.1 Cr. C. ; R. v. Bissonnette , 2022 SCC 23 , [2022] 1 S.C.R. 597, at para. 50 ; Lacasse , at para. 12 ; M. Vauclair, T. Desjardins and P. Lachance, Traité général de preuve et de procédure pénales 2025 (32nd ed. 2025), at para. 47.49). A sentence must be proportionate to the gravity of the offence and the moral blameworthiness of the offender ( R. v. Hills , 2023 SCC 2 , at paras. 56‑59 ; R. v. Nasogaluak , 2010 SCC 6 , [2010] 1 S.C.R. 206, at para. 42 ; R. v. Ipeelee , 2012 SCC 13 , [2012] 1 S.C.R. 433, at para. 37 ). It must also “be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender” (s. 718.2(a) Cr. C. ). As the Court explained in Hills :

The offender’s moral culpability or degree of responsibility should be measured by gauging the essential substantive elements of the offence including the offence’s mens rea , the offender’s conduct in the commission of the offence, the offender’s motive for committing the offence, and aspects of the offender’s background that increase or decrease the offender’s individual responsibility for the crime, including the offender’s personal circumstances and mental capacity . . . . [para. 58]

[ 41 ] Sentencing is an individualized process, which brings a myriad of factors into play ( Lacasse , at paras. 58‑60 ; R. v. Angelillo , 2006 SCC 55 , [2006] 2 S.C.R. 728, at para. 22 ; Nasogaluak , at para. 43 ). It requires the court to take into account not only the circumstances of the offence but also the particular circumstances of the offender. For this reason, “the objectives of sentencing cannot be fully achieved unless the information needed to assess the circumstances, character and reputation of the accused is before the court” ( Angelillo , at para. 22 ).

[ 42 ] It was from this perspective that Parliament enacted s. 725, the general purpose of which is to allow the court to consider, as aggravating factors, offences other than the one for which a sentence must be determined. Paragraphs 725(1)(a) and (b) require the court to consider any other offences of which the offender was found guilty or for which the offender has admitted guilt. The court is also required to consider, subject to certain conditions, any outstanding charges against the offender (s. 725(1)(b.1)). Section 725(1)(c) completes s. 725 by making sure that facts that, for one reason or another, are not the subject of either a verdict or charges at the time of sentencing can also be considered if they are relevant and they allow the court to fully appreciate the circumstances of both the offence and the offender.

[ 43 ] Because the consideration of aggravating factors generally entails the imposition of a more severe sentence on the offender, the application of s. 725(1)(c) is not without risks, especially since it does not require the consent of either the Attorney General or the offender themself. To address these risks, Parliament has attached robust procedural safeguards to s. 725(1)(c).

[ 44 ] First, the application of s. 725(1)(c) requires that the facts related to the separate charge in question be proven beyond a reasonable doubt, in accordance with the principle of the presumption of innocence (s. 724(3)(e) Cr. C. ; Larche , at para. 44 ). It is therefore not sufficient for the prosecution simply to raise the facts forming part of the circumstances of the offence that could constitute the basis for the separate charge at the sentencing stage; the prosecution must also prove them in court if the offender does not admit them, and the offender can present their own evidence regarding those facts (s. 723(1) to (3) Cr. C. ).

[ 45 ] Second, s. 725(2) (b) of the Criminal Code introduces protection against double jeopardy by stating that any facts considered by the judge in determining the sentence under s. 725(1)(c) must necessarily be noted on the information or indictment. Subsequently, “no further proceedings may be taken with respect to any offence . . . disclosed by those facts unless the conviction for the offence of which the offender has been found guilty is set aside or quashed on appeal” ( s. 725(2) Cr. C. ). As the Court explained in Larche :

This protection is essential, since the usual safeguards would not apply: The accused, if later charged with offences considered by the trial judge under s. 725(1)( c ), could neither plead autrefois convict nor, unless charged with what is found to be “the same delict”, invoke the rule against multiple convictions set out in Kienapple v. The Queen , [1975] 1 S.C.R. 729. [para. 26]

[ 46 ] 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.

(4) Section 725(1)(c) Is Intended To Advance the Search for Truth While Preserving the Fairness of the Proceedings at the Sentencing Stage

[ 47 ] One of the essential functions of criminal procedure is to advance the search for truth (see R. v. Bjelland , 2009 SCC 38 , [2009] 2 S.C.R. 651, at para. 3 ). It is from this perspective that s. 725(1)(c) creates an exception to the principle that a sentence may be imposed on an offender only for crimes with which they have been specifically charged and of which they have been validly convicted ( Larche , at paras. 1‑2 ). The existence of this provision enables sentencing judges to have a fuller picture of the circumstances of the offence so that they can more accurately assess the gravity of the offence to be punished and the offender’s degree of moral blameworthiness. This purpose tied to the search for truth confirms that, in keeping with its non‑limitative wording, s. 725(1)(c) can encompass 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. The narrow interpretation of s. 725(1)(c) put forward by the respondent is contrary to this purpose, as it would have the effect of excluding from its scope certain facts that are relevant for sentencing purposes.

[ 48 ] That being said, the search for truth cannot be advanced at all costs. In order for s. 725(1)(c) to be applied fairly, Parliament has conferred considerable discretion on the court. Whereas the court “shall” consider the offences and charges referred to in s. 725(1)(a), (b) and (b.1), the court “may” consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge (s. 725(1)(c)). This discretion allows the court to decline to apply s. 725(1)(c) when its application would result in unfairness to the offender or the Crown, including where the introduction into evidence of the facts in question might take the other party by surprise or where the sentencing process would be unduly prolonged ( Larche , at para. 46 ; C. C. Ruby, Sentencing (10th ed. 2020), at §3.102).

[ 49 ] The respondent argues that the interpretation proposed by the appellant is detrimental to the parties and the justice system in the context of plea agreements. Interpreting s. 725(1)(c) as including offences that have already been the subject of charges but have not become res judicata would interfere with the fair and efficient administration of the criminal justice system by allowing the prosecution to circumvent the application of s. 725(1)(b.1). That provision requires the court to consider any charges pending against the offender at the time of sentencing, subject to certain conditions being met. These conditions include the offender’s consent and the offender’s agreement with the facts asserted in the description of each charge. According to the respondent, the prosecution would be able to withdraw a count before the negotiated guilty plea is entered and then [ translation ] “reviv[e]” it at the time of sentencing on the less onerous conditions set out in s. 725(1)(c) (R.F., at para. 61).

[ 50 ] In addition to disregarding the presumption that Crown counsel exercise their discretion in good faith ( R. v. Varennes , 2025 SCC 22 , at para. 45 ; R. v. Anderson , 2014 SCC 41 , [2014] 2 S.C.R. 167, at para. 55 ), that argument takes no account of the important role of judicial discretion in the application of s. 725(1)(c). An argument identical to that raised by the respondent was made by Fish J. in his dissenting reasons in Angelillo . The majority, per Charron J., ruled out this danger, noting that “proceedings cannot be delayed abusively to increase punishment” (para. 33, quoting Larche , at para. 39 , citing R. v. Parisien (1971) , 3 C.C.C. (2d) 433 (B.C.C.A.), at p. 437). In other words, a manoeuvre like the one described by the respondent could, depending on the circumstances, constitute an abuse of process or at least result in unfairness to the offender. The discretion conferred on the court by s. 725(1)(c) is intended in part to protect the offender from such unfairness. Indeed, in Larche , Fish J. said that judges could be relied on in this regard, and we reiterate this today:

. . . judges can be relied on, in the exercise of their discretion under s. 725(1)( c ), to decline to consider uncharged offences if this would result in unfairness to the accused — or for that matter, to the Crown, for example in taking the Crown by surprise so as to foreclose prematurely the laying of additional charges. [para. 46]

[ 51 ] The decision of the Newfoundland and Labrador Court of Appeal in R. v. Blok‑Andersen , 2016 NLCA 9 , 376 Nfld. & P.E.I.R. 130, provides a good illustration of the important discretionary role played by judges in this regard. In that case, the Crown had chosen to charge the person concerned with committing an indictable offence for the benefit of or at the direction of a criminal organization (s. 467.12(1) Cr. C. ) without, however, charging him on two related counts, that is, recruiting a person to join a criminal organization (s. 467.111 Cr. C. ) and, as a member of a criminal organization, instructing any person to commit an offence for the benefit of or in association with the criminal organization (s. 467.13(1) Cr. C. ). The trial judge had declined to consider the facts underlying those two offences as aggravating factors under s. 725(1)(c) on the ground that the Crown should have laid those charges if it wanted to prove that the accused held a leadership position in a criminal organization. The Court of Appeal found no reason to interfere with the trial judge’s exercise of her discretion.

[ 52 ] As the intervener the Attorney General of Alberta notes, there are many reasons why the Crown may decide to withdraw a charge. This Court has pointed out that it is incumbent upon the Crown “to make the trial process less burdensome, not more” so, particularly through the needless duplication of counts ( R. v. R.V. , 2021 SCC 10 , [2021] 1 S.C.R. 131, at para. 78 ). In this regard, “[s]creening out marginal charges that add complexity is a particularly important function given the strains of our overburdened criminal justice system” ( R. v. Sciascia , 2017 SCC 57 , [2017] 2 S.C.R. 539, at para. 32 , citing R. v. Jordan , 2016 SCC 27 , [2016] 1 S.C.R. 631, at para. 79 ). The withdrawal of a charge therefore does not necessarily mean that the charge is not supported by sufficient evidence; it may result from a tactical choice by the Crown, from a lack of resources or from a guilty plea on another count, as in this case. These circumstances may be brought to the attention of the court, which will then exercise its discretion to ensure that the plea is dealt with fairly.

[ 53 ] It should also be noted that, even though society has a strong interest in the finality of guilty pleas ( R. v. Wong , 2018 SCC 25 , [2018] 1 S.C.R. 696, at para. 3 ), an accused can apply to withdraw their guilty plea before sentencing ( R. v. Eizenga , 2011 ONCA 113 , 270 C.C.C. (3d) 168, at para. 44 ; Vauclair, Desjardins and Lachance, at para. 24.43). According to Wong , in cases where an accused seeks to withdraw a guilty plea on the ground that they were unaware of legally relevant consequences of the plea at the time of entering it, they must file an affidavit demonstrating “a reasonable possibility that [they] would have either (1) pleaded differently, or (2) pleaded guilty, but with different conditions” (para. 19).

[ 54 ] Therefore, while legitimate, the concerns raised by the respondent about s. 725(1)(b.1) possibly being circumvented can be addressed on a case‑by‑case basis by sentencing judges in the exercise of their discretion.

[ 55 ] It is rather the unduly narrow interpretation of s. 725(1)(c) put forward by the respondent and adopted by the Court of Appeal that would be detrimental to the criminal justice system as a whole. The possibility of a charge being replaced by aggravating facts in exchange for a guilty plea on a lesser charge is a powerful bargaining tool, both for the Crown and for the accused. For the Crown, such a strategy makes conviction certain while conserving precious resources, in addition to letting the Crown bring to the judge’s attention all factors relevant to the determination of a fit and appropriate sentence. For the accused, recourse to this provision makes it possible to avoid a trial on a more serious charge that could lead to a more severe sentence, and thus allows the accused to close the matter once and for all. Such a tactical benefit for the accused was recognized by, inter alia , the Ontario Court of Appeal in R. v. Shin , 2015 ONCA 189 , 322 C.C.C. (3d) 554:

The trial judge found that the appellant admitted his prior marijuana trafficking to avoid being convicted of offences relating to the cocaine and heroin found in the stash house. As the appellant gained a tactical benefit from admitting his prior trafficking, it is not unfair to take that trafficking into account in sentencing. Furthermore, since the appellant’s prior marijuana trafficking has been considered under s. 725(1)(c), the Crown cannot now charge him in respect of that trafficking: see s. 725(2) , discussed in Larche , at para. 26 . Accordingly, taking the uncharged conduct into consideration did not result in unfairness to the appellant. [para. 96]

[ 56 ] 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.

[ 57 ] The application of s. 725(1)(c) where a guilty plea has been entered is not without limits, however. As mentioned above, in order for this provision to apply, a separate charge based on the facts forming part of the circumstances of the offence must still be possible at the time of sentencing. If the guilty plea results in a permanent stay of proceedings on a separate charge, the facts that could have constituted the basis for that charge cannot be considered by the court as aggravating factors. It is only where the charge remains possible at the time of sentencing that those facts can be considered. In such a case, the offender will be protected against double jeopardy by virtue of s. 725(2) , and it will no longer be possible for them to face that charge in the future.

[ 58 ] 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.

B. The Prosecution Must Act Fairly When It Intends to Rely on Section 725(1)(c)

[ 59 ] The appellant asks the Court to clarify the duties of fairness that lie on the prosecution when it intends to rely on s. 725(1)(c) to establish another offence as an aggravating factor when a sentence is being determined following a guilty plea.

[ 60 ] The case law already lays down duties that rest on the prosecution in the criminal justice process, and the procedural safeguards set out in s. 11 of the Canadian Charter of Rights and Freedoms apply post‑conviction ( R. v. MacDougall , [1998] 3 S.C.R. 45, at para. 11 ). These general principles therefore apply in the context of the procedure established in s. 725(1)(c).

[ 61 ] The Crown must generally avoid any conduct that would result in unfairness to the offender ( Larche , at para. 46 ). This means, among other things, that in the application of s. 725(1)(c), the Crown must, in a timely manner, inform the offender and the sentencing judge of the facts it intends to prove as aggravating factors during the submissions on sentencing. Although the offender’s consent is not required for s. 725(1)(c) to apply, this provision cannot be used by the Crown to ambush the offender. The Crown must act in such a way as to avoid surprising the offender so that the offender can know the jeopardy they face and respond effectively ( R. v. Zinck , 2003 SCC 6 , [2003] 1 S.C.R. 41, at paras. 34‑36 ).

[ 62 ] In R. v. Gardiner , [1982] 2 S.C.R. 368, this Court recognized that an offender has certain fundamental procedural rights at the sentencing stage, including the right to test the prosecution’s evidence and the right to present their own evidence:

To my mind, the facts which justify the sanction are no less important than the facts which justify the conviction; both should be subject to the same burden of proof. Crime and punishment are inextricably linked. “It would appear well established that the sentencing process is merely a phase of the trial process” ([J. A. Olah, “ Sentencing : The Last Frontier of the Criminal Law” (1980), 16 C.R. (3d) 97 ], at p. 107). Upon conviction the accused is not abruptly deprived of all procedural rights existing at trial: he has a right to counsel, a right to call evidence and cross‑examine prosecution witnesses, a right to give evidence himself and to address the court. [p. 415]

[ 63 ] The Crown must refrain from acting in a manner that prevents the offender from exercising their rights in the sentencing process, for example by failing to disclose the identity of the witnesses it intends to call.

[ 64 ] In the context of a plea agreement, the offender must be informed of the Crown’s intention to rely on s. 725(1)(c) before the agreement is entered into. The Crown’s failure to inform the offender that the jeopardy they face is greater than they had anticipated when pleading guilty will generally justify declining to apply s. 725(1)(c) ( R. v. Truong , 2013 ABCA 373 , 304 C.C.C. (3d) 303; Ruby, at §3.97). However, certain exceptional situations might arise. For example, new facts might be brought to Crown counsel’s attention between the time the guilty plea is entered and the sentencing hearing.

[ 65 ] These general duties of conduct on the part of the Crown are neither rigid nor exhaustive. In every case, the Crown is expected to conduct itself fairly. It will be up to the sentencing judge to exercise their discretion to apply or not to apply s. 725(1)(c) in light of the circumstances of each case in order to avoid any unfairness to the offender ( Larche , at para. 46 ).

C. The Court of Appeal Erred in Interpreting Section 725(1)(c)

[ 66 ] An appellate court may not intervene to vary a sentence unless the sentence is demonstrably unfit or the sentencing judge made an error in principle that had an impact on the sentence ( R. v. Sheppard , 2025 SCC 29 , at para. 39 ; Lacasse , at para. 44 ; R. v. Friesen , 2020 SCC 9 , [2020] 1 S.C.R. 424, at para. 26 ). As was stated in Friesen , if “an error in principle had no impact on the sentence, that is the end of the error in principle analysis and appellate intervention is justified only if the sentence is demonstrably unfit” (para. 26). In this case, there was no error justifying the Court of Appeal’s intervention.

[ 67 ] Relying on Larche , the Court of Appeal erroneously concluded that the sentencing judge had made an error in principle by considering the facts related to the construction contracts with the EMCM as aggravating factors even though a charge under s. 121(1) (a)(i) and (iii) had already been laid. As we have seen, however, an interpretation of s. 725(1)(c) based on the modern approach to statutory interpretation leads to the conclusion that this provision applies even in such circumstances. The Court of Appeal erred in law in interpreting this provision.

[ 68 ] In its reasons, the Court of Appeal added that s. 725(1)(c) could not apply in any event given that, for the offence under s. 121(1) (a)(i) and (iii), [ translation ] “the facts forming part of the circumstances thereof can no longer constitute the basis for a new charge, as can be seen from the prosecution’s comments during the appeal hearing and from the agreement entered into by the parties” (para. 24). It is true that where a plea agreement leads to a stay of proceedings on a charge, the facts on which that charge is based cannot be considered as aggravating factors under s. 725(1)(c). However, two aspects of the Court of Appeal’s reasoning are flawed. First, the sentencing judge obviously did not have the benefit of the submissions made on appeal. A review of the transcript of the hearings before the Superior Court reveals that the parties briefly discussed the technical aspect of replacing the first indictment with the second, but not what would become of the charge under s. 121(1) (a)(i) and (iii). The sentencing judge therefore could not be faulted for not considering information that he did not have. Second, the parties’ agreement said nothing about that charge. The initial indictment was “abandoned” by the appellant in favour of a new indictment containing only the count under s. 121(1)(b). The indictment of March 15, 2022, did not mention the abandoned charges, as the Court of Appeal in fact acknowledged at para. 20 of its reasons. Contrary to what the Court of Appeal wrote, it is not apparent from the parties’ agreement that a separate charge under s. 121(1) (a)(i) and (iii) could not have been laid at the time of sentencing. There is nothing in the evidence to suggest that the Crown agreed to a stay of proceedings on that charge or that the court was informed of such an undertaking.

[ 69 ] The Court of Appeal also criticized the sentencing judge for not explaining his approach. It noted that [ translation ] “the judge’s reasons are silent about the legal basis for his decision to look to factors extraneous to the constituent elements of the offence for which the guilty plea was entered” (para. 19). It is true that the sentencing judge’s reasons do not explicitly refer to s. 725(1)(c). However, it is clear from the transcript of the sentencing hearings that the facts related to the construction contracts with the EMCM were pleaded as aggravating factors for the purposes of sentencing. Certain witnesses were called for the sole purpose of proving the construction contracts with the EMCM. In addition to these contextual elements, the judge clearly applied the standard of proof beyond a reasonable doubt (Sup. Ct. reasons, at para. 35), which shows that he knew those facts had to be treated as aggravating factors. In these circumstances, it cannot be said that the mere failure to refer to a section of the Criminal Code is an error that had an impact on the sentence.

[ 70 ] It would certainly have been desirable for the sentencing judge’s reasons to be more detailed regarding the legal principles on which he relied, but it is important to remember that judges are not held to a standard of perfection. As this Court has repeatedly observed, “[t]he reasons need not be elaborate. The basis of the decision must be at least ascertainable from the record; precision and clarity remain advisable in the drafting of such judgments” ( Zinck , at para. 37 ). The sentencing judge’s reasons meet these criteria. They are drafted with sufficient precision and clarity to enable us to identify the facts that were considered as aggravating factors and the impact that those facts had on the sentence.

[ 71 ] Furthermore, the sentencing judge did not make an error that had an impact on the sentence, but rather made a technical error by failing to have the facts he considered for the purposes of s. 725(1)(c) noted on the indictment. As discussed, recording those facts is important because it protects the offender from the possibility of double jeopardy. Once the facts are noted on the indictment, they can no longer form the basis for further proceedings. This is why recording them is mandatory. The compulsory nature of this notation is even clearer in the English version of s. 725(2) (b), which uses the auxiliary “shall” (“[t]he court shall , on the information or indictment, note . . . any facts considered in determining the sentence under paragraph (1)(c)”) rather than the present indicative as the French version does (“ [s]ont notés sur la dénonciation ou l’acte d’accusation : . . . les faits pris en considération au titre de l’alinéa (1)c) ”). This error can, however, easily be corrected by a court of appeal. When this Court rendered its decision, it ordered the office of the Quebec Superior Court, District of Montréal, to note on the indictment the facts that had constituted the basis for the charge for the offence under s. 121(1) (a)(i) and (iii).

[ 72 ] Finally, the Court of Appeal found that [ translation ] “[f]or reasons of integrity, justice and fairness, the plea agreement, in the circumstances of the case, therefore makes it impermissible to have recourse to s. 725(1)( c ) Cr. C. ” (para. 28). This conclusion flowed from its interpretation error. In addition, the fresh evidence clearly shows that the respondent was aware, well before the first sentencing hearing, that the appellant intended to demonstrate the existence of the construction contracts with the EMCM as aggravating factors. Counsel for the respondent consented to this. The respondent had an opportunity to cross‑examine the appellant’s witnesses, and he made his submissions on sentencing. That process was perfectly just and fair. The judgment rendered and the entire process followed by the trial judge met the criteria of integrity, justice and fairness, and to conclude otherwise is completely unjustified.

[ 73 ] In his dissenting reasons, Rowe J. writes that the sentencing judge “erred in law by allowing the finding that the respondent received contracts as consideration for unauthorized gifts to influence the sentence” (para. 122). In his view, the email exchanges between counsel for the appellant and counsel for the respondent after the guilty plea was entered show that it was ambiguous how the evidence of the construction contracts with the EMCM was going to be used, such that the sentencing judge should not have considered that evidence. Rowe J. also condemns what he characterizes as “sharp practice” on the part of the Crown (para. 127).

[ 74 ] I see nothing ambiguous in the parties’ understanding of how the evidence of the contracts was going to be used. As I noted above, it was counsel for the respondent himself who suggested that the contracts be presented as an aggravating factor in exchange for their removal from the agreed statement of facts. Counsel for the appellant acted in conformity with that agreement at all times. The words [ translation ] “[e]verything must be kept consistent with the [guilty plea] and the objective of imposing the sentence”, to which Rowe J. refers in his reasons, appear right after the words “[y]our argument does not cover the presence of Mr. Corbeil the internal bylaws [ sic ]” in Mr. Bergevin’s email (A.R., vol. II, at p. 125). The words mentioned by Rowe J. can just as easily be interpreted as referring to the witness Frédéric Corbeil, who was Mr. Prud’homme’s supervisor, or to the internal bylaws, and not to the existence of consideration.

[ 75 ] It is true that, at the first sentencing hearing, Mr. Bergevin objected to the introduction of the evidence of the construction contracts with the EMCM. Far from revealing any sharp practice by counsel for the appellant, that objection instead highlights a lamentable breach by the respondent of the agreement entered into by the parties, even though the appellant had acted in reliance on that agreement by consenting to remove the reference to the construction contracts with the EMCM from the agreed statement of facts.

[ 76 ] Absent an error that had an impact on the sentence, the Court of Appeal’s intervention was not justified ( Lacasse , at para. 44 ). The sentence imposed by the trial judge must be restored.

V. Disposition

[ 77 ] In accordance with the judgment delivered at the hearing on February 13, 2025, the appeal is allowed, the judgment of the Quebec Court of Appeal is set aside and the sentence imposed by the Quebec Superior Court on May 31, 2022, is restored. The office of the Superior Court, District of Montréal, is ordered to note the following facts on the indictment:

Between October 1, 2012, and May 31, 2013, at Montréal, Enrico Di Paola did confer advantages and benefits on official Alain Prud’homme as consideration for the awarding of lucrative contracts by the latter, and he knew of or was wilfully blind to the improper nature of those contracts.

The following are the reasons delivered by

Rowe J. —

I. Introduction

[ 78 ] I agree with the Chief Justice that s. 725(1) (c) of the Criminal Code , R.S.C. 1985, c. C‐46, should not be read to contain a bright-line prohibition against the presentation of factual evidence of more serious offences for which charges were withdrawn as part of a plea bargain. I also agree that a straightforward application of R. v. Larche , 2006 SCC 56 , [2006] 2 S.C.R. 762, doesn’t resolve the question before us.

[ 79 ] However, I differ as to the purpose and interpretation of s. 725(1)(c) and thus, how it operates. The Quebec Court of Appeal did not err in reducing the respondent’s sentence; accordingly, I would have dismissed the appeal.

[ 80 ] According to Larche , at para. 47 ,

[s]ection 725(1)( c ) has three components, which may be broken down this way: “In determining the sentence, a court . . . [1] may consider any facts [2] forming part of the circumstances of the offence [3] that could constitute the basis for a separate charge.” The use of the word “may” signifies that the provision is discretionary . . . . The requirements of “forming part of the circumstances of the offence” and the necessity that these facts be capable of constituting “the basis for a separate charge” are two necessary preconditions for the exercise of that discretion.

[ 81 ] The parties agree that the two preconditions identified in Larche are met. Where they differ relates to the exercise of discretion under s. 725(1) (c). To ascertain the nature and scope of the discretion, the provision’s purpose must be identified. This is essential as the discretion must be exercised in accordance with the purpose for which it was granted ( R. v. Rafilovich , 2019 SCC 51 , [2019] 3 S.C.R. 838, at para. 9 ; R. Sullivan, Statutory Interpretation (3rd ed. 2016), at p. 201). For example, in Rafilovich , this Court examined the discretion afforded to sentencing judges to order a fine instead of forfeiture in respect of property that was used, with prior judicial authorization, to pay for the reasonable costs of an accused’s legal defence. Justice Martin concluded that the discretion of the sentencing judge had to be exercised to give effect to the twin purposes of the provision at issue. The purposes were determined to be both to ensure that crime does not pay and to ensure fairness to the accused in criminal prosecutions (para. 9).

[ 82 ] On a proper interpretation of s. 725(1)(c), the fact that the respondent received contracts from the École des métiers de la construction de Montréal (“EMCM”) as consideration for the gifts he gave to the official should not have been considered in determining his sentence.

[ 83 ] I begin with the purpose of s. 725(1)(c), and then deal with the factors that ought to constrain the discretion exercised under this provision. I then apply this in the circumstances of this case.

II. Purpose of Section 725(1)(c)

[ 84 ] A legislative provision can have multiple purposes. Through purposive analysis, the primary objects, secondary considerations and specific functions of a legislative provision are identified (Sullivan, at pp. 186-87). In interpreting the purpose of s. 725(1) (c), I will identify the specific function that s. 725(1) (c) serves in Part XXIII of the Criminal Code , “Sentencing”.

A. History of Section 725

[ 85 ] My colleague affirms that it is in the spirit of proportionality that Parliament adopted s. 725 , in order to enable sentencing judges to take into consideration all the circumstances of the offence and tailor a fit sentence (paras. 40 and 42). I disagree with this interpretation of the purpose and history of this provision.

[ 86 ] The practice of considering, at sentencing, facts that could constitute the basis for a separate charge for which there has been no verdict or plea has a long history. Justice R. E. Salhany, writing extrajudicially, deals with this as regards s. 725 :

Historically, courts were generally reluctant to take into account other untried offences allegedly committed by the accused in determining the proper sentence to be imposed. The concern was that the sentencing process would become the occasion for indirectly punishing the accused for offences which had not been proven by the usual procedure, with the presumption of innocence and the other protections normally accorde[d] to accused at trial.

England has long adopted the practice of permitting an offender, before sentence, to admit having committed other offences not before the court and thus avoid rearrest and trial in the future. Each offence is put to the offender, who is asked if he admits it and desires it to be taken into consideration. If admitted, and asked to be taken into consideration, the offence is then endorsed on the information. [Emphasis added.]

( Canadian Criminal Procedure (6th ed. (loose-leaf)), at § 8:25)

[ 87 ] This manner of proceeding was in the interest of the offender, who could seek to be sentenced for other facts related to the primary crime, and thereby avoid further prosecution for offences relating to those facts.

[ 88 ] While courts allowed what was seen as a convenient practice, they also sought to ensure that proper safeguards were in place. An English decision from 1939 illustrates the courts’ historical view of this practice. Describing a case where there was only a statement of a police officer that an offender desired that other offences should be taken into consideration at his sentencing, the Lord Chief Justice wrote that

[t]he Court becomes a little weary of saying that that is not the way in which such matters should be dealt with. When it is proposed that other cases should be taken into consideration, the matter should be expressly and clearly put to the accused person. It should be ascertained with regard to each case whether he desires to admit the truth of the charge and desires that the offence should be taken into consideration. If he does, the indictment should be indorsed accordingly. A slack and casual treatment of such matters is not fair to anyone concerned.

( R. v. Foster (1940), 27 Cr. App. R. 89, at pp. 89-90)

[ 89 ] In 1995, a new s. 725 was enacted to put in place a procedure similar to the English practice ( Salhany, at § 8:25). It was part of Bill C-41, An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof , S.C. 1995, c. 22, the major sentencing reform bill that introduced new sentencing provisions in Part XXIII of the Criminal Code in the form that we know them today. That bill was informed by many reports, including the Ouimet Report in 1969 (Canadian Committee on Corrections, Report of the Canadian Committee on Corrections — Toward Unity: Criminal Justice and Corrections ), multiple reports by the Law Reform Commission of Canada between 1973 and 1977, and the Canadian Sentencing Commission (G. Ferguson, A Review of the Principles and Purposes of Sentencing in Sections 718-718.21 of the Criminal Code (2016)).

[ 90 ] Section 725(1)(c) runs against the presumption of innocence because it constitutes what has been termed “real-offence” sentencing (K. R. Reitz, “Proof of aggravating and mitigating facts at sentencing”, in J. V. Roberts, ed., Mitigation and Aggravation at Sentencing (2011), 228, at pp. 240-41; S. Verdun-Jones and A. Hatch, Plea Bargaining and Sentencing Guidelines (1988), at p. 34). Under this framework, courts take into consideration facts related to offences other than the one that the offender pled guilty to or was found guilty of. This is distinguishable from the “conviction-offence” paradigm which dominates Canadian law, according to which “punishment [should be] based only on offences for which there has been a conviction” (Reitz, at p. 235).

[ 91 ] In their research report written for the Canadian Sentencing Commission, the authors S. Verdun-Jones and A. Hatch noted that real-offence sentencing “downgrades the significance of the trial stage, where various constitutional safeguards protect the defendant, and instead postpones crucial determinations to the informal and less reliable [sentencing] stage” (p. 34, citing J. C. Coffee and M. Tonry, “Hard Choices: Critical Trade-Offs in the Implementation of Sentencing Reform through Guidelines”, in M. Tonry and F. E. Zimring, eds., Reform and Punishment: Essays on Criminal Sentencing (1983), 155, at p. 173). They further highlighted that real-offence sentencing can lead to “illusory plea bargaining, under which the prosecutor implicitly promises the defendant a concession whose value is then subtracted at a later stage by the court or parole agency” (p. 34, citing Coffee and Tonry, at p. 173). While real-offence sentencing can help decrease charge bargaining, it can increase “fact bargaining”, where Crown and defence negotiate on what facts will be presented to the judge (p. 34). Ultimately, the authors recommended that “if sentencing guidelines are to be implemented in Canada, they should prohibit the practice of ‘real offence sentencing’ and should be predicated on the basis of ‘convicted offence sentencing’” (p. 34). Of course, sentencing guidelines were never adopted in Canada.

[ 92 ] After the new s. 725(1) (c) was enacted, Canadian courts reiterated concerns earlier expressed by English courts regarding sentencing for offences for which there was no verdict or plea. In Larche , this Court stated that the s. 725(1) (c) rule was exceptional. As Fish J. wrote:

Offenders are punished in Canada only in respect of crimes for which they have been specifically charged and of which they have been validly convicted.

To this general rule, there is only one true exception: In sentencing an offender, the judge may consider any uncharged offences that form part of the circumstances of the offence. [Emphasis deleted; paras. 1-2.]

[ 93 ] The exceptional nature of this practice was also expressed by Charron J. in R. v. Angelillo , 2006 SCC 55 , [2006] 2 S.C.R. 728, who quoted LeBel J., when he was a judge of the Quebec Court of Appeal:

Since the offender must be punished only for the offence in issue, the court will generally not admit evidence of other offences that have not been proved. In the present case, the Court of Appeal rightly referred to the following comment by LeBel J.A. in R. v. Pelletier (1989) , 52 C.C.C. (3d) 340, at p. 346:

[ translation ] While the accused’s character may be shown, and his previous criminal record established, the sentencing process must not become the occasion for indirectly punishing the accused for offences which have not been established by the normal means of proof and procedure, or that one did not wish to bring . [Emphasis added; para. 23.]

[ 94 ] In R. v. Suter , 2018 SCC 34 , [2018] 2 S.C.R. 496, Moldaver J. wrote that “[a]s a general rule, courts cannot sentence an offender in respect of a crime for which he or she has not been convicted . . . . To do so would run counter to the presumption of innocence” (para. 35).

[ 95 ] The judicial concern with real-offence sentencing is warranted because it allows for the potential increase in criminal jeopardy faced by an offender, without the benefit of a trial and in a sentencing proceeding where the rules of evidence are more permissive. Understanding the purpose of s. 725(1) (c) hinges on a historically informed appreciation of its exceptional nature.

B. Legislative Context

[ 96 ] To ascertain the purpose of s. 725(1) (c), the legislative context in which the provision is found is also instructive.

[ 97 ] My colleague adopts the Crown’s submission that the purpose of s. 725(1) (c) is to assist judges in crafting sentences proportionate to the gravity of the offence and the degree of responsibility of the offender, as per s. 718.1 of the Criminal Code (paras. 40 and 42).

[ 98 ] Various provisions in Part XXIII of the Criminal Code provide the means for judges to take into account the circumstances of the offence and the offender in order to determine a fit sentence. For example, s. 718.2 provides for judges to consider mitigating and aggravating factors. In addition, pre-sentence reports (s. 721), victim impact statements (s. 722), community impact statements (s. 722.2), and the rules related to evidence susceptible of helping judges determine sentences (s. 723(3) and (4)), all enable judges to consider the circumstances of the offence and the offender.

[ 99 ] These provisions perform specific functions, all the while contributing to the overall task of determining a fit sentence. For example, the victim impact statements provided for in s. 722 specifically aim to “ assess the general effect of the crime on [the victim’s] wellbeing and state of mind” ( R. v. Andersen , 2011 NLTD 51 , 2011 NLTD(G) 51, 307 Nfld. & P.E.I.R. 29, at para. 28 ). This provides information as to the harm to the victim, which relates to the gravity of the crime.

[ 100 ] Section 725 appears under the heading “Other offences”. It deals with other offences of which the offender has been found guilty (para. (1)(a)); charges to which the offender wishes to plead guilty (para. (1)(b)); outstanding charges (para. (1)(b.1)); and facts forming part of the circumstances of the offence that could constitute the basis for a separate charge (para. (1)(c)).

[ 101 ] Paragraphs (1)(a) and (1)(b) fit squarely within the “conviction-offence” paradigm in that they apply, respectively, to offences of which an offender has been found guilty and to which the offender has pled guilty. These paragraphs allow for an increase in sentence based on findings of guilt after a trial or on guilty pleas.

[ 102 ] Paragraphs (1)(b.1) and (1)(c) derogate from this paradigm. They allow for increased punishment for, respectively, outstanding charges subject to certain conditions, and facts forming part of the circumstances of the offence that could constitute the basis for a separate charge for which there has been no verdict or plea. Paragraph (1)(b.1) permits the court to consider outstanding charges when (i) the Attorney General and the offender consent; (ii) the court has jurisdiction to try each charge; (iii) each charge has been described in open court; (iv) the offender has agreed with the facts asserted in the description of each charge; and (v) the offender has acknowledged having committed the offence described in each charge. Fairness to the offender is ensured by these requirements.

[ 103 ] Paragraph (1)(c) permits judges to consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge. By contrast to para. (1)(b.1), para. (1)(c) does not set out any conditions. Instead, the safeguard is the proper exercise of discretion of the judge.

[ 104 ] In addition, s. 725(2) (b) provides that the court shall amend the indictment to include the facts forming part of the circumstances of the offence that could constitute the basis for a separate charge considered at sentencing. The goal of this provision is to protect the offender against double jeopardy. Larche , at para. 26 , again is instructive :

This protection is essential, since the usual safeguards would not apply: The accused, if later charged with offences considered by the trial judge under s. 725(1) ( c ), could neither plead autrefois convict nor, unless charged with what is found to be “the same delict”, invoke the rule against multiple convictions set out in Kienapple v. The Queen , [1975] 1 S.C.R. 729 .

[ 105 ] A s per Rosenberg J.A. in R. v. Edwards (2001) , 54 O.R. (3d) 737 (C.A.) , s. 725(1) (c) favours the efficient administration of justice, as well as fairness to the offender:

Section 725(1)( c ) gives the court discretion to take into account conduct that is part of the circumstances of the offence, even though that conduct could form the basis of a separate charge. This provision recognizes the common-sense proposition that conduct does not always fit neatly into the offences as described in the Criminal Code . It encourages the prosecution to lay only those charges that most nearly describe the conduct. The offender is protected from double jeopardy because no further proceedings may be taken with respect to any offence disclosed by those facts unless the conviction for the predicate offence is set aside. [para. 35]

[ 106 ] I agree with the Director of Public Prosecutions, intervening, that s. 725(1) (c) can facilitate an efficient use of judicial resources , as it [ translation ] “allows the judge to resolve a number of cases jointly and to take notice of relevant facts that may affect the sentence” (I.F., at para. 28). It can also favour the interests of an offender by eliminating the risk of being prosecuted again for a further offence.

[ 107 ] In sum, while s. 725(1) (c) aids in the overall task of arriving at a fit sentence, the specific purpose of this provision was to codify a long-standing practice in sentencing courts in a way that ensures fairness to the offender. I am therefore in agreement with my colleague’s statement that part of the purpose of s. 725 is to limit the risks for offenders (para. 43). The practice of sentencing on account of facts forming part of the circumstances of the offence that could constitute the basis for a separate charge for which there has been no verdict or plea is accepted; this is desirable provided that fairness for the offender at sentencing is preserved.

III. Constraints on Discretion in Light of the Identified Purpose

[ 108 ] In light of the foregoing, when a charge for a more serious offence has been withdrawn as part of a plea bargain, it will be equitable for sentencing judges to consider evidence that goes to the more serious offence only when by doing so fairness to the offender is preserved.

[ 109 ] I agree with my colleague that a court should decline to apply s. 725(1)(c) when there would be an injustice to the offender (para. 65). I also agree that courts should not condone the use of s. 725(1)(c) in a way that amounts to abuse of process, or that amounts to using the provision as ambush, to get the accused to plead guilty to a less severe charge and then seek more severe punishment at the sentencing stage (para. 61).

[ 110 ] While I agree with my colleague that s. 725(1) (c) provides “tactical benefits” (para. 56) and constitutes “a powerful bargaining tool” for the Crown and the accused (para. 55), it is important to bear in mind the fundamental interests at stake for each. On the one hand, the Crown, as guardian of the public interest, seeks the efficient administration of justice; on the other, it is the accused’s liberty that hangs in the balance.

[ 111 ] In the case of charges that were withdrawn as part of a plea bargain, measures should be taken to ensure that the discretion conferred by s. 725(1)(c) is exercised properly. When a sentencing judge considers facts forming part of the circumstances of the offence that could constitute the basis for a separate charge, the guidance of Larche applies. The indictment should be amended, as per s. 725(2) (b).

[ 112 ] Additionally, I set out three steps that a sentencing judge can take to ensure that the Crown behaves fairly and with integrity, as is required by its role as a public officer ( R. v. Kahsai , 2023 SCC 20 , at para. 55 ). None of the following steps should be taken to be determinative of whether discretion was properly exercised. The overarching goal of the analysis is to ensure that the sentencing judge’s discretion is used in accordance with the purpose of s. 725(1) (c), in a manner that avoids unfairness to an offender.

[ 113 ] First, a sentencing judge could ensure that the Crown’s intention to rely on facts that could constitute the basis for a separate charge was disclosed to the offender. I agree with my colleague that while s. 725(1) (c) doesn’t require the consent of the offender to find application, it is important that this provision is not used in a way that surprises the offender or compromises the informed consent he gave when he pled guilty (para. 61).

[ 114 ] A sentencing judge may more readily assess whether the offender was aware of the jeopardy he faced when there is an agreed statement of facts. For example, in R. v. Aalbers , 2022 SKCA 105 , [2023] 5 W.W.R. 577, the fact that the sentencing judge stuck to what was in the agreed statement of facts was a factor that led the Saskatchewan Court of Appeal to conclude that the process was equitable towards the offender (para. 47).

[ 115 ] That said, it may be necessary to consider why some facts appear in an agreed statement of facts. For example, in multi-party plea agreements, there may be a number of reasons explaining why certain facts are included in a submission to a sentencing judge. As such, if facts related to a more serious offence than what an offender pled guilty to appear in an agreed statement of facts, it may be unreasonable to interpret that as having the effect of “undercutting the plea bargain [the offender] had struck to limit his legal liability” ( R. v. MacLeod , 2018 SKCA 1 , [2018] 5 W.W.R. 743, at para. 33 ). To hold otherwise would result in an “undermining of the general reliability of such arrangements” (para. 33). The sentencing judge should conduct a contextual analysis to assess whether there was unfairness towards the offender.

[ 116 ] Second, a sentencing judge may consider whether the facts that could constitute the basis for a separate charge increase the sentencing range faced by an offender. If the facts put forward by the Crown increase substantially the sentencing range that the offender faces, the Crown’s duty to act fairly will be more stringent. In R. v. Truong , 2013 ABCA 373 , 304 C.C.C. (3d) 303 , the Alberta Court of Appeal refused to consider facts that could form the basis of a charge of sexual assault, when the offender had pled guilty to voyeurism. The fact that consideration of the more serious offence at sentencing would significantly increase the jeopardy faced by the offender contributed to the Alberta Court of Appeal’s conclusion that considering the facts corresponding to the sexual assault elements would be inequitable (para. 7).

[ 117 ] Third and finally, because of the exceptional nature of s. 725(1) (c), an indicium of a proper exercise of discretion by the sentencing judge would be a recognition in the sentencing reasons that the offender is being sentenced for facts forming the basis of an offence more serious than the one to which he pled guilty. Always, reasons are to be read in a functional and contextual way, such that an appellate court can understand both the “what” and the “why” of the decision in light of the record ( R. v. G.F. , 2021 SCC 20 , [2021] 1 S.C.R. 801, at paras. 69 and 71 ).

[ 118 ] When the sentencing judge relies on s. 725(1) (c), there is a heightened burden to set out a transparent and intelligible reasoning process. This is because what amounts to sentencing offenders for crimes they have not been found guilty of or pled guilty to derogates from the fundamental principle of the presumption of innocence. This is the same concern that was addressed in earlier English cases.

[ 119 ] Sentencing judges undoubtedly face significant challenges, including limited resources and heavy caseloads. As my colleague affirms, they should not be held to a standard of perfection (para. 70). Yet when acknowledging the pressure on the criminal justice system, we must not lose sight that every decision directly affects an individual’s liberty and their fundamental rights.

[ 120 ] A final note on standard of review, before turning to the application of this framework to the case at hand. Because the decision to consider certain facts under s. 725(1) (c) is an exercise of discretion, appellate courts should not interfere as long as there is a proper basis for that discretion ( R. v. Brooks , 2000 SCC 11 , [2000] 1 S.C.R. 237, at para. 4 ). However, an exercise of discretion that fails to give effect to the purpose of a provision amounts to an error of law ( R. v. Higginbottom (2001) , 156 C.C.C. (3d) 178 (Ont. C.A.), at para. 26 ).

IV. Application

[ 121 ] I agree with the Chief Justice that the Court of Appeal erred in its interpretation of s. 725(1)(c) by holding that this provision bars sentencing judges from considering facts related to charges that were then withdrawn as part of a plea bargain. In some cases, this may be appropriate. The focus should be on whether the exercise of the discretion was consonant with the purpose of the provision.

[ 122 ] I disagree with my colleague’s conclusion that the sentencing judge in this case properly exercised his discretion under s. 725(1)(c). In my view, the judge erred in law by allowing the finding that the respondent received contracts as consideration for unauthorized gifts to influence the sentence. The issue is not with admitting the evidence (as noted by my colleague, at para. 73), but with its use to justify a harsher penalty.

[ 123 ] As highlighted by my colleague, the fresh evidence reveals that then‑counsel for the respondent conceded as part of the plea bargain negotiations that evidence of the EMCM contracts could be presented at the sentencing hearing (para. 72).

[ 124 ] Yet after the guilty plea was entered, Crown and defence counsel exchanged further emails. The Crown sent an email listing the evidence it intended to produce at sentencing, which included contracts received by the respondent (A.R., vol. II, at p. 115). The next day, counsel for the respondent replied: [ translation ] “The count does not include consideration. There is no consideration here” (p. 123).

[ 125 ] When confronted with his earlier acceptance that the EMCM contracts could be placed before the sentencing judge, defence counsel clarified that while the evidence of contracts was not contested, the fact that they were received as consideration for the gifts his client offered was contested. He wrote that [ translation ] “[e]verything must be kept consistent with the [guilty plea] and the objective of imposing the sentence” (A.R., vol. II, at p. 125).

[ 126 ] While the concession highlighted by my colleague is indisputable, it is also clear that it was ambiguous how the evidence of the EMCM contracts was going to be used. When an accused is giving up his right in order to forego a trial, it is important to be on guard to ensure that sentencing proceedings do not become a “trial within a trial” ( Larche , at para. 49 ). This is to be prevented because it would give the Crown the opportunity to seek punishment for offences that it did not prove at trial or that was not the subject of a guilty plea.

[ 127 ] Moreover, when the agreed statement of facts was read out to the sentencing judge, the statement mentioned only evidence of the unauthorized gifts to the government official. It did not refer to the EMCM contracts the respondent received, and the Crown did not set out its intention to adduce evidence of another related offence in accordance with s. 725(1) (c). As noted by the Quebec Court of Appeal, counsel for the respondent vigorously opposed how the consideration evidence was being used during the sentencing hearing ( 2023 QCCA 651 , at para. 21 ). I emphasize again the point that courts should not countenance sharp practice by Crown counsel, a fortiori , in the context of plea bargains.

[ 128 ] The sentencing judge was aware that the facts put forward by the Crown demonstrated a more serious offence than what was in the plea bargain (C.A. reasons, at para. 21). Yet, s. 725(1)(c) was not mentioned in the judge’s reasons. As the Court of Appeal wrote:

[ translation ] Other than noting the relevance of the aggravating facts found against the appellant, the judge’s reasons are silent about the legal basis for his decision to look to factors extraneous to the constituent elements of the offence for which the guilty plea was entered . However, the sentencing process requires a transparent exercise that makes the judge’s approach fully comprehensible and explains the result reached by the judge under the law. [Emphasis added; para. 19.]

[ 129 ] I disagree with my colleague that this remark amounts to holding the sentencing judge to a “standard of perfection” (para. 70). Rather, it is a comment that because of the exceptional nature of s. 725(1)(c), an explicit acknowledgment of reliance on s. 725(1)(c) in the sentencing reasons may demonstrate that the discretion was used with an adequate degree of caution.

[ 130 ] Finally, the indictment was not amended as per s. 725(2) (b). Again, I agree with my colleague that “[t]his error can, however, easily be corrected by a court of appeal” (para. 71). However, it is a factor that can indicate that the sentencing judge’s discretion was not used in a way that recognized the exceptional nature of s. 725(1)(c) and its purpose that seeks to preserve fairness for the offender.

[ 131 ] The sentencing judge erred in the exercise of his discretion, in light of the purpose of s. 725(1)(c). He failed to exercise an adequate degree of caution in the use of the evidence, which resulted in an injustice to the respondent and contravened the purpose of the provision. That was an error of law that had an impact on the sentence and thereby, warranted appellate intervention. I am in accord with the result that the Court of Appeal arrived at and accordingly, I would have dismissed the appeal.

Appeal allowed, Rowe J. dissenting.

Solicitor for the appellant: Director of Criminal and Penal Prosecutions, Montréal.

Solicitors for the respondent: Boro Frigon Gordon Jones, Montréal; Mastromonaco Law Firm, Dorval.

Solicitor for the intervener Director of Public Prosecutions: Public Prosecution Service of Canada, Montréal.

Solicitor for the intervener Attorney General of Alberta: Alberta Crown Prosecution Service — Appeals and Specialized Prosecutions Office, Calgary.