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In the decision of R v Di Paola, 2025 SCC 31 [Di Paola] the Supreme Court of Canada (“SCC”) examined how s. 725(1)(c) of the Criminal Code, RSC 1985, c C-46 [Code] should be interpreted during sentencing. The issue was whether a sentencing judge may consider, as aggravating factors, facts that could constitute a separate offence when that charge has already been laid but is no longer pending and has no rendered verdict. The Court’s decision clarifies both the scope of this provision and the Crown’s duty of fairness in presenting aggravating facts during sentencing.
Facts
The respondent, a construction contractor, was originally charged under s. 121(1)(a)(i) and (iii) of the Code with giving a government official a reward or benefit in exchange for lucrative construction contracts. Under a plea agreement, that charge was withdrawn in exchange for a guilty plea to a lesser offence under s. 121(1)(b), conferring an unauthorized benefit on an official. At sentencing, the judge treated the facts surrounding the awarded contracts, which had formed the basis of the withdrawn charge, as aggravating factors and imposed a 15-month conditional sentence (Di Paola, paras 3, 10).
Judicial History
At trial, the accused pleaded guilty to conferring an unauthorized benefit on a government official under s. 121(1)(b) of the Criminal Code as part of a plea deal in which a more serious charge under s. 121(1)(a) was withdrawn (para 3). At sentencing, the judge treated the facts surrounding the awarded contracts, which were linked to the withdrawn charge, as aggravating factors. The judge held that considering these facts was permissible to give a complete picture of the conduct and imposed a 15-month conditional sentence focused on denunciation and deterrence (para 3).
The Quebec Court of Appeal (“QCA”) reversed the decision of the trial judgment in part, finding that the trial judge made an error in principle by using facts related to an offence that had been abandoned as part of the plea deal (Di Paola, paras 4, 22). This approach violated ss. 725(1)(b.1) and 725(1)(c) of the Code and the principles of fairness and integrity in plea bargaining (Di Paola, para 22). The court held that the aggravating factors improperly increased the perceived seriousness of the offence, resulting in an excessive sentence (Di Paola, paras 23, 25). While some aggravating facts could be considered, they had to be limited to those directly tied to the offence to which Di Paola pleaded guilty (Di Paola, para 24). Given the reduced seriousness of the conduct, the QCA replaced the original sentence with a six-month conditional sentence, finding this sufficient to meet the goals of denunciation and deterrence (Di Paola, para 25).
Issue
The issue raised by this appeal is whether s. 725(1)(c) of the Code 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.
Decision
Majority Decision
A majority of the SCC allowed the appeal and restored the original sentence (Di Paola, para 77). The Court held that s. 725(1)(c) does not exclude facts merely because they formed the basis of a previously laid and withdrawn charge (Di Paola, para 46). The provision applies as long as those facts could still form the basis of a possible charge at sentencing (Di Paola, para 37). The majority emphasized that this interpretation aligns with the text, context, and purpose of the section, allowing judges to have a complete picture of the offence and offender for a fair sentence (Di Paola, paras 36, 42, 46). The Court added that procedural safeguards protect fairness: aggravating facts must be proven beyond a reasonable doubt and recorded on the indictment under s. 725(2)(b) (Di Paola, paras 43-46). The majority found no unfairness here, as Di Paola knew the Crown intended to utilize the construction contracts as aggravating facts (Di Paola, para 58). The omission to record them on the indictment was a correctable error (Di Paola, para 71).
Dissent
Rowe J., dissenting, would have dismissed the appeal (Di Paola, para 131). He described s. 725(1)(c) as an exceptional provision designed to ensure fairness to the offender (Di Paola, paras 92-96, 102). He found that the Crown had not clearly disclosed how the contract evidence would be used and that the sentencing judge failed to recognize the provision’s exceptional nature (Di Paola, para 122-126). Rowe J. cautioned that using s. 725(1)(c) to impose harsher sentences after plea bargains risks unfairness and abuse of process. Therefore, he agreed with the QCA’s decision to reduce the sentence (Di Paola, para 131).
Analysis
The SCC’s majority decision in R. v. Di Paola reflects a careful and principled effort to promote truth-seeking and factual accuracy in sentencing. However, while the Court’s interpretation of section 725(1)(c) of the Code advances legitimate goals of transparency and proportionality, it also raises concerns about the potential impact on the fairness and predictability of plea bargaining. The decision highlights an ongoing tension in Canadian sentencing law between the judicial pursuit of truth and the need to maintain confidence in negotiated resolutions that form the backbone of the criminal justice system.
Wagner C.J., writing for the majority, reasoned that section 725(1)(c) should not be narrowly confined to exclude facts merely because they once formed the basis of a charge that has been withdrawn or abandoned. In the Court’s view, as long as those facts could form the basis of another charge and are proven beyond a reasonable doubt, they may properly be considered at sentencing. This interpretation aims to ensure that sentencing judges have a complete understanding of the offender’s conduct so that punishment accurately reflects the gravity of the offence. From this perspective, the majority’s reasoning is both textually and purposively grounded. It recognizes that a sentence should correspond to the true seriousness of the behaviour and should not be distorted by procedural happenstance.
At the same time, this broad reading of section 725(1)(c) may inadvertently create uncertainty in the context of plea bargaining. Plea agreements rely heavily on clarity and mutual understanding between the Crown and the accused. When an accused agrees to plead guilty to a lesser charge in exchange for the withdrawal of more serious ones, there is a reasonable expectation that the facts underlying the abandoned charges will not later be treated as aggravating. Allowing those same facts to influence sentencing risks giving the appearance that the accused is being penalized for conduct that is no longer before the court. This could, in turn, undermine the sense of fairness and reliability that is essential to maintaining confidence in negotiated pleas.
Rowe J’s dissenting opinion thoughtfully identifies these risks. He views section 725(1)(c) as an exceptional provision that must be interpreted narrowly to safeguard the fairness of the process. His approach underscores the importance of respecting the boundaries established through plea negotiations and ensuring that an accused’s decision to plead guilty is made with full knowledge of how the underlying facts may be used. This perspective highlights a legitimate concern about transparency and the asymmetry of power in plea discussions. Even with procedural safeguards such as the requirement that aggravating facts be proven beyond a reasonable doubt, the perception of fairness may be weakened if an accused cannot confidently rely on the finality of a plea agreement.
The policy implications of the Court’s ruling are therefore mixed. On one hand, it advances the goal of sentencing accuracy by ensuring that judges are not artificially constrained from considering relevant facts. On the other hand, it introduces a degree of unpredictability that could discourage guilty pleas and increase the number of contested trials. This outcome would place additional strain on the justice system and potentially delay resolutions for victims, accused persons, and the courts alike. The majority’s reliance on procedural safeguards, while important, may not fully address the practical challenges that defence counsel face when advising clients in light of this decision.
A more balanced approach might preserve the strengths of the majority’s reasoning while addressing its fairness implications. Courts could require that any facts connected to withdrawn or abandoned charges be expressly identified and acknowledged by the accused as part of the plea agreement. This would ensure that both parties share a common understanding of what will be considered at sentencing, promoting transparency without compromising the pursuit of truth. Such an approach would be consistent with the majority’s emphasis on factual completeness while also reinforcing the integrity of the plea process emphasized by Justice Rowe.
Ultimately, the decision in R. v. Di Paola. illustrates the delicate balance between ensuring that sentencing reflects the full truth of an offender’s conduct and maintaining fairness in negotiated justice. The majority’s interpretation of section 725(1)(c) is thoughtful and rooted in legitimate policy concerns, yet its broader implications for plea fairness warrant careful consideration in future cases. As the law continues to evolve, it will be important for courts and prosecutors to apply this decision with heightened attention to transparency and procedural fairness so that the pursuit of truth in sentencing does not inadvertently erode confidence in the fairness of the criminal process itself.