Welcome back to our YouTube channel. I want to continue our discussions of sentencing different aspects of sentencing. And one important aspect is what is a gardiner sentencing hearing? This often happens in criminal law. I’ve done many many of these over the course of years. And what it is let’s I’ll like to use an example let’s so let’s say your client was charged with sexual assault. And they admit there was a sexual assault. However, the disclosure you received from the crown the victim statement and the police reports.
They indicate fact A, but your client says well, it’s not quite accurate. Okay? It’s fact B. So for example, let’s say the complainant alleges that there were two very serious sexual assaults involving sexual intercourse. And what the clients admitting is that there were two incidents both involving sexual touching, touching the breasts, buttocks, vagina area is an example okay, very serious admissions, obviously, but not nearly as serious as sexual intercourse.
So obviously, the range of sentence is going to be much different in sexual intercourse. You’re talking multiple years in jail. Versus much lesser for months and months. So we need to sort this out. How does the courts do this? So we would appear in front of a judge, effectively setting a date for a sentencing hearing, which is probably going to take, could take two days, could take three days to sort that out. You’re going to have to evidence, so your client would attend court and ultimately plead guilty to the two counts of sexual assault. The crown would read in the facts of what happened, but you would dispute the facts as defence counsel, we say we admit fact ABC but not DEF.
The crown, well, now we’re into Gardiner hearing, which is effectively a trial of facts. It’s not called that it’s called a hearing. So the crown has to call their case they’d have to call the complainant, any police witnesses, anything in support of the complainants version of events. I as defense counsel would then cross examine them, just like I would at a trial to show that, you know, they’re not accurate, reliable or credible about the more serious allegations, I would admit the other allegations, I probably would then call my client who would testify about the two sexual assaults being slightly lesser obviously quite a bit lesser than a full sexual intercourse, the judge just like he or she would have to do at a trial that has to determine if the more serious facts what facts, what facts have been proven beyond a reasonable doubt.
We’ve administered facts, and have the more aggravated facts have been proven?
Now the judge might find a halfway house it wasn’t quite sexual intercourse, but it’s more serious tan my clients admission and the judge can make that determination to I’ve seen that happen a Gardiner’s hearing before. So it’s just a mechanism to sort out facts where the defense counsel and crown cannot agree on what the facts are. And then obviously, if the judge finds some more mitigating that is lesser facts, your sentences going to be less and the more serious facts I mean, two times sexual intercourse first offender oh, what’s the range of sentencing in Canada, its increasing all the time. You can be looking at a three year sentence I mean, I will say the range is two to three years on that but a two year sentence were getting are far and few in between these days.
Even on a sexual intercourse when there’s not physical injury, you’re looking often at two and a half, three years. In that range, two years is still possible for a more youthful offender. Verse months in jail for the lesser allegations that I spoke about so that’s the importance of a Gardiner Hearing. It’s often we just can’t agree on the facts the clients adamant that A happened the victims adamant that B happened. There’s no meeting of the minds. The only person who can sort that out is at a judge of the either the Ontario court justice or Superior Court of Justice.
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