R. v. Reeve, 2020 ONCA 381
[9] The appellant raises numerous grounds of appeal. It is only necessary to deal with one. It relates to the use of the lack of remorse as an aggravating factor on sentence.
[10] The appellant apologized at the sentencing hearing for the fact that the victims had “suffered at [his] hands”. The sentencing judge rejected that apology as “hollow”. He found that the appellant had a complete lack of remorse. It was open to the trial judge to make that finding. The difficulty is with how that finding was put to use.
[11] A genuine expression of remorse can constitute an important mitigating consideration at the time of sentencing. When an offender demonstrates, through actions and/or words, that he or she is genuinely remorseful for his or her conduct, it can show that the offender has some insight into his or her past actions and takes responsibility for them. Taking responsibility for past conduct is an important step toward rehabilitation and gives cause for hope that the offender may be set on a path of change. The greater the genuine insight into past offending behaviour, the greater the cause for hope.
[12] While a genuine expression of remorse can serve to mitigate a sentence, the opposite is not true. An offender cannot be punished for a lack of remorse. The reason is clear. Punishing an accused for failing to express remorse comes “perilously close” to punishing him or her for exercising the right to make full answer and defence: R. v. Valentini (1999), 1999 CanLII 1885 (ON CA), 43 O.R. (3d) 178 (C.A.), at para. 83. Even after a guilty verdict, an accused is entitled to maintain his or her innocence and cannot be punished for maintaining that stance.
[13] Crown counsel emphasizes that, while remorse cannot typically be used as an aggravating factor on sentence, there are limited exceptions to the rule. This case is said to fall within those exceptions. Specifically, Crown counsel points to the fact that a lack of remorse may shine a light on the “likelihood of future dangerousness”, as well as inform the applicability of sentencing principles involving specific deterrence and rehabilitation: Valentini, at para. 82; R. v. P.(B.) (2004), 2004 CanLII 33468 (ON CA), 190 O.A.C. 354, at para. 2. See also: R. v. F.(J.), 2011 ONCA 220, 105 O.R. (3d) 161, aff’d on other grounds in 2013 SCC 12, [2013] 1 S.C.R. 565, at para. 85; R. v. Shah, 2017 ONCA 872, at para. 8. Crown counsel maintains that the trial judge’s references to the absence of remorse should be understood as references to the appellant’s “attitude toward the crime”, an attitude that underscored his “likelihood of future dangerousness”.
[14] As supported by the authorities just cited, the absence of remorse will sometimes be relevant in the sentencing process. That does not mean, though, that someone can be punished for failing to show remorse. While a lack of remorse may, in rare circumstances, inform potential future dangerousness, which can in turn inform the application of some sentencing principles, such as the suitability of emphasizing rehabilitation, it must never be used as an aggravating factor that is deserving of punishment.
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