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General Principles

It is an error of law to rely on an aggravating fact on sentencing that has not been proven beyond a reasonable doubt by the Crown, contrary to s.718: R v McIntyre, 2016 ONCA 843 at para 18. Similarly, it is an error of law to rely on outstanding charges as an aggravating factor on sentencing, unless proven beyond a reasonable doubt: R v Klammer, 2017 ONCA 416 at para 3



The use of a firearm by itself cannot be an aggravating consideration in sentencing under s. 236(a) [use of a firearm during manslaughter], because this provision already takes into account that a firearm was used in the commission of a manslaughter: R v Araya, 2015 ONCA 854 at paras 24-25. However, the circumstances surrounding the use of the firearm can constitute an aggravating factor: Araya at para 26



Lack of Remorse/Insight


While not in itself an aggravating factor, it may become one when it is considered because of its impact on the accused's potential danger to the community: R v Hawley, 2016 ONCA 143 at para 5. To use lack of insight as an aggravating factor is, absent unusual circumstances, an error of law: R v. Siddiqi, 2015 ONCA 548 at para 21



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