Being found guilty by a jury is a significant turning point in a criminal case—but it doesn’t end there. The next step is sentencing, and it raises an important question: how does the judge decide which facts to rely on when imposing a sentence?
This stage involves a legal concept known as “determined facts after a jury trial”, which plays a central role in sentencing decisions. The Criminal Code outlines specific rules judges must follow, and Canadian case law further clarifies these obligations.
What the Criminal Code Requires
When sentencing follows a jury trial, Section 724 of the Criminal Code sets out how judges must approach the facts:
- Under s. 724(2)(a), a judge is required to accept as proven all facts—whether stated or implied—that were essential to the jury’s guilty verdict.
- Under s. 724(2)(b), the judge can also find other relevant facts proven, if they were revealed by evidence during the trial or presented at the sentencing stage.
- Where a fact is contested and matters to sentencing, s. 724(3) authorizes the court to hear additional evidence unless the issue was already addressed in court.
These provisions ensure the sentencing process respects both the jury’s findings and the evidentiary record.
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How Judges Are Expected to Handle the Facts
Canadian courts have developed firm rules about how sentencing judges must approach fact-finding following a jury trial. Several leading decisions explain these expectations in detail.
1. Judges Must Accept Core Facts That Support the Verdict
When a jury convicts someone, there are certain facts that had to be true for that verdict to be possible. The judge must accept those facts, even if they weren’t spelled out in the verdict.
R. v. Brown (1991): The Supreme Court of Canada confirmed that sentencing judges are bound by the facts that were necessarily accepted by the jury. These include both obvious and implied facts (p. 523).
2. Additional Relevant Facts May Be Considered—Within Limits
Judges may also consider other facts that came up at trial, as long as they’re consistent with the jury’s findings and have a clear connection to sentencing.
R. v. Ferguson (2008): The Court held that while judges can supplement the jury’s findings if needed for sentencing, they must not go beyond what’s required to address the issues before them (para. 17).
3. Proof Standards Vary Depending on the Type of Fact
If a fact could increase your sentence—for example, if the Crown alleges aggravating circumstances—it must be proven beyond a reasonable doubt. Other facts relevant to sentencing may be found on a balance of probabilities.
R. v. K.D.M. (2017): The Court reinforced that aggravating factors need to meet the highest standard of proof, to ensure fairness in sentencing (para. 42).
4. Judges Cannot Speculate About Jury Deliberations
Juries don’t explain their reasoning, and judges are not allowed to guess how the verdict was reached, especially when there were multiple paths to a conviction.
R. v. Brisson (2009): The Court emphasized that it’s inappropriate for judges to attempt to reconstruct the jury’s reasoning. If the verdict leaves uncertainty about how the jury arrived at its decision, the judge must make their own factual findings, as long as they’re consistent with the verdict (paras. 17–18).
R. v. Ferguson (2008): The judge in that case wrongly speculated about the jury’s thought process and based factual findings on that speculation, which the Supreme Court found improper (para. 17).
5. Judges Cannot Rely on Facts That Contradict the Verdict
If you were acquitted on part of the case, the judge cannot rely on facts that would only make sense if you had been convicted on that charge.
R. v. Nelson (2014): The Ontario Court of Appeal ruled that sentencing judges must avoid making findings that contradict the jury’s verdict. In that case, the judge properly avoided making a finding of attempted choking because the jury had acquitted the accused of that charge (paras. 56–59).
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Why This Matters for Sentencing
Once a jury returns a guilty verdict, sentencing becomes the judge’s responsibility. But that doesn’t give the judge free reign to decide what “really” happened.
The judge is legally required to:
✔ Accept all facts essential to the jury’s decision
✔ Disregard any facts that conflict with acquittals
✔ Avoid speculation about how the jury reached its conclusion
✔ Apply proper standards of proof to each factual issue
These safeguards exist to ensure that you are sentenced based on fair, lawful, and evidence-based findings—not guesswork or assumptions.
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