Conduct of defence not an aggravating factor for sentence

In wrongful dismissal matters, the conduct of the defence can be a basis to increase the damage award.  More broadly, in civil matters, taking unfounded positions in litigation can lead to cost or even substantive damage awards. 

 

This principle does not apply in criminal matters and the conduct of a defence is never an aggravating factor for sentencing.  Today the Court of Appeal noted this saying, in R. v. Kavanagh, 2009 ONCA 759 :

 

[6]              Regarding the sentence appeal, the Crown concedes, and we agree, that the trial judge made an error by referring to the conduct of the defence as an aggravating factor for sentence and that this court should therefore consider and decide the appropriate sentence in this case.