Le témoignage mensonger de l'accusé ne peut pas être retenu à titre de facteur aggravant lors de la détermination de la peine

R. v. Bradley, 2008 ONCA 179 

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[15]         The appellant submits that the trial judge erred in treating the appellant’s “fabricated” evidence as an aggravating factor.  We agree.  In his reasons for sentence, the trial judge stated (at p. 23):

Also a further aggravating factor in my view is that the offender lied and fabricated his evidence as I found it.

[16]         The Crown argues that this error is mitigated by the trial judge’s later statement that denial of guilt is not an aggravating factor.  We do not accept this submission.  The two statements relate to different matters.  The latter is the express recognition that an accused person is entitled to maintain his innocence.  The former relates to the manner in which the defence is presented.  Neither can be treated as aggravating factors for the purposes of sentencing for the reasons given by this court in R. v. Kozy (1990), 1990 CanLII 2625 (ON CA), 58 C.C.C. (3d) 500 at 506:

Just as an accused should never apprehend that a penalty will flow from a plea of not guilty, there should also be no perceived impingement upon the manner of presenting the defence.  This is so whether it be counsel’s viciousness in attacking a complainant or lies told by the accused.  The latter may lead to its own penalty on a trial and conviction for perjury, but within the trial for the offence of sexual assault both rank as tactics for the defence, however ill-conceived, and they are embraced within the right to full answer and defence … .

[17]         It is apparent from the reasons that the trial judge increased the sentence because of the appellant’s untruthful evidence at trial.  As that was a clear error, it falls to this court to establish a fit sentence.