Failure to hear from the offender before sentencing: When does it matter?
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Failure to hear from the offender before sentencing: When does it matter?
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Ontario courts have long recognized the importance of s. 726, but they have also clarified that a lapse in offering allocution does not automatically void the sentencing outcome.
In R. v. Bynoe, 2025 ONCA 274, for example, the Ontario Court of Appeal dealt with a sentencing judge’s failure to invite the offender to speak. The transcript showed the offender was not offered any opportunity to address the court before sentence. The Crown on appeal conceded this was an error under s. 726, but characterized it as an inadvertent oversight – noting that Bynoe was represented by counsel who did not indicate that Bynoe wished to speak at the time.
The Court of Appeal agreed the trial judge erred, yet ultimately dismissed the sentence appeal, finding no basis to disturb the sentence in that case. This outcome is in line with prior Ontario decisions (e.g. R. v. Holub & Kufrin (2002 ONCA) and R. v. Legault (2005 ONCA)) holding that a mere failure to ask “Do you have anything to say?” will not automatically vitiate the sentence.
In other words, appellate courts will acknowledge the error but assess whether it actually caused any injustice or impacted the sentence.
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