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R. v. Hawkins, 2011 NSCA 7 (CanLII)

[32]         In my opinion, the trial judge, with all due respect, erred in principle in a number of ways:  he considered the appellant’s lack of remorse as an aggravating factor;


[33]         The trial judge commented on the complete lack of remorse or regret by the appellant four times (paras. 7, 24, 26 and 33) and found his protestations of innocence hard to fathom.  Where an offender has plead not guilty, a lack of remorse cannot be considered an aggravating factor except in very unusual and exceptional circumstances (see R. v. Valentini 1999 CanLII 1885 (ON C.A.), (1999), 43 O.R. (3d) 178 (Ont. C.A.)).

[34]         In R. v. Nash, 2009 NBCA 7 (CanLII), 2009 NBCA 7, leave to appeal refused, [2009] S.C.C.A. No. 131, the offender was convicted of murdering his brother.  They had fought and the appellant was bested.  Nash went home but then decided to pursue his brother.  He chambered a bullet into his rifle.  He found his brother and from a distance of 20 meters fired two shots.  The first hit the deceased in the jaw, the second in his head.  Under the rubric of considering the character of the offender, the trial judge noted that he had expressed no remorse for the crime.  The trial judge set the period of parole ineligibility at 20 years.  Robertson J.A., writing for the court, stressed that remorse is a one-way street:  the failure to express remorse is not an aggravating factor, but the expression of remorse (obviously, only if genuine) is a mitigating one (para. 30).  He wrote:

[31]      It is important to distinguish between cases in which the offender has pled guilty and those in which the offender is convicted of an offence. The law is clear when it comes to cases falling within the latter category. The failure to express remorse following a conviction is not an aggravating factor. The expression of sincere remorse is a mitigating one. The decision of this Court in R. v. Cormier confirms that understanding of the law. The law in other provinces is no different (see R. v. Valentini 1999 CanLII 1885 (ON C.A.), (1999), 43 O.R. (3d) 178 (C.A.), [1999] O.J. No. 251 (QL), R. v. Caulfield, 1999 BCCA 190 (CanLII), [1999] B.C.J. No. 935 (QL), 1999 BCCA 190, R. v. Muhammad 2004 BCCA 396 (CanLII), (2004), 187 C.C.C. (3d) 14, [2004] B.C.J. No. 1561 (QL), 2004 BCCA 396 at para. 9, R. v. Ambrose 2000 ABCA 125 (CanLII), (2000), 261 A.R. 345, [2000] A.J. No. 472 (QL), 2000 ABCA 125, R. v. Clarke 2001 NFCA 35 (CanLII), (2001), 202 Nfld. & P.E.I.R. 309, [2001] N.J. No. 190 (QL), 2001 NFCA 35, R. v. Upson 2001 NSCA 89 (CanLII), (2001), 194 N.S.R. (2d) 87, [2001] N.S.J. No. 189 (QL), 2001 NSCA 89).

Jim O'Neil, LL.B.

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