In Your Toughest Times
We Will Help You Find Your Way
We Will Help You Find Your Way
To a Positive Future


Latest News

A Gardiner Hearing is when evidence is called during sentencing after an accused person has entered a guilty plea to outstanding charges, or in very rare instances has been found guilty after a trial. During a Gardiner Hearing evidence is presented to the Judge on aggravating or mitigating facts that are in dispute by either the Crown or accused.

A Gardiner Hearing should be held if either the Crown or the accused is disputing certain aggravating or mitigating factors or issues during a sentencing hearing. The Canadian Criminal Code at section 724(3) states that if either the Crown or the accused wish to rely on a relevant fact at sentencing they have the burden of providing it. The Crown is responsible to prove all aggravating facts that they want to rely on during sentencing beyond a reasonable doubt, and the accused must prove all mitigating facts that they wish the Judge to consider based on a balance of probabilities. In most cases on a Gardiner Hearing is brought by the Crown for the purposes of wanting the Judge to take into consideration certain aggravating factors at sentencing.

Evidence at a Gardiner Hearing

Usually, evidence at a Gardiner Hearing is presented orally in court and given that it’s at sentencing evidentiary rules are more relaxed than at a trial. Witnesses are called to provide evidence on the facts and issues that are not accepted or disputed by the accused person. Given that a Gardiner Hearing is occurring during sentencing the jeopardy faced by the accused is much different than at trial – the presumption of innocence is no longer a concern. Also, during sentencing the evidence that is being presented in court must be accurate, credible and reliable in order to be admitted. This often means that a wide range of information and evidence can be admitted during a Gardiner Hearing in Canada.

Procedure During Gardiner Hearing

A Gardiner Hearing will begin much like an ordinary sentencing hearing.

  • The Judge will conduct a Plea Inquiry, in accordance with section 606 of the Criminal Code, to make sure that the accused person clearly understands the charges they are entering pleas to and consequences which may flow from this.
  • The accused person will be arraigned and the charges will be read to the accused.
  • The accused person will enter their plea in court.
  • The Crown will then read the allegations that form the charges. If there will be a Gardiner Hearing the Crown should only read-in enough facts to establish the essential elements of the criminal offences that the accused has admitted to. The Crown may also present any facts that the accused has agreed to, sometimes in the form of an Agreed Statement of Facts.
  • The Crown or Defence will then call evidence on the disputed facts and issues.
  • After the witnesses have been called and the evidence has been presented the Judge will then make a finding of facts. Those facts will be ones that the Judge relies upon to determine the appropriate sentences. Those facts that the Judge does not meet the required evidentiary standard are not considered at sentencing.

Does a Gardiner Hearing Impact on Sentencing?

When pleading guilty an accused person is given consideration, a mitigating factor, for admitting their guilt and saving the court the time and expense of a trial. They have just saved valuable court resources, saved the police from further working on the case and testifying during a trial, and saved the witnesses the need to attend court and testify. The consideration given is usually a reduced sentence.

It is difficult to determine in all cases whether a Gardiner Hearing will impact on the consideration and reduction in sentencing. When a Gardiner Hearing is focused on aggravating facts or mitigating factors and issues that could impact the length of a sentence where defence counsel is successful in challenging those facts or issues they will not be relied upon by the Judge. However, a judge might believe that the Gardiner Hearing was frivolous and a waste of court resources and purposefully decide not to give an accused person consideration for pleading guilty.

Frequent Asked Questions

  1. Can a Gardiner Hearing increase my sentence?

It shouldn’t if the Gardiner Hearing has some merit. If the hearing is used properly it should give the Judge some clarity or insight on a guilty plea into the reason the aggravating facts were in dispute and should not cause an increase in any sentence. However, if a Judge determines that the Gardiner Hearing was a waste of court time, that it caused unnecessary misuse of police resources or a witness’ time it may increase the sentence length.

  1. Should a Gardiner Hearing be used to dispute a non-relevant issue?

That would not be considered best practice, but sometimes necessary even on a guilty plea. If the issue is not relevant, and it cannot be negotiated with the Crown in advance, then perhaps sentencing submissions might be a better way to present a non-relevant issue. However, at sentencing only accept non-contentious facts can be accepted by the Judge. A Gardiner Hearing requires the calling of evidence that a Judge might not consider the best use of court time. The accused will want all mitigating factors presented in court and these must be proved to a Judge on a balance of probabilities.

  1. If the Judge decides to admit the aggravating evidence from a Gardiner Hearing can I withdraw my guilty plea and have a trial?

Yes, but it would be difficult to withdrawn or strike a valid guilty plea. An accused person would have already entered a guilty plea, there would have been a Plea Inquiry, and the aggravating factors would have already been heard. A guilty plea should only be allowed to be withdrawn in exceptional circumstances and only when the plea would result in the miscarriage of justice.

William Jaksa is a Toronto criminal defence lawyer with over a decade of experience, and expertise in criminal law. Contact William Jaksa today for a consultation.

Related Articles