Remorselessness
Jason Ruggeberg, Juris Doctor, University of Toronto Faculty of Law (2025)
1) INTRODUCTION
Genuine remorse is a mitigating factor in sentencing because it is believed to indicate that offenders have rehabilitative potential and take responsibility for their actions.[1] However, in order to protect accused persons’ rights to full answer and defence, a lack of remorse (“remorselessness”) cannot generally be treated as an aggravating factor.[2] Although many courts have acknowledged an exception to this general rule in unusual circumstances, they have not yet provided clear, doctrinal parameters for that exception.[3]
This post posits that the exception should require that remorselessness be clearly demonstrated by acts or statements of the accused, in order to protect their fair trial rights under section 11(d) of the Canadian Charter of Rights and Freedoms.[4] Section 1 of this post outlines the rights-based rationale for the general rule against treating remorselessness as aggravating. Section 2 argues that appellate courts already follow this approach, and illustrates that predicating remorselessness on clear acts or statements of the accused does not threaten the right to full answer and defence. Section 3 posits that this parameter also ensures that remorselessness can be proven beyond a reasonable doubt by prohibiting two types of evidence that inherently raise alternative explanations. First, the mere failure to express remorse may instead be attributed to an accused’s reliance on their Charter rights. Second, subtle indicators commonly used to assess remorse, such as courtroom demeanour and paralinguistic cues, are ambiguous and may be interpreted differently based on the personal characteristics of the accused.[5] Disallowing these scenarios has benefits for judicial economy, equality, and access to justice.
1.1) Jurisprudential Definitions of Remorse
Outside of section 718(f), remorse is not explored in the “Sentencing” regime comprising Part XXIII of the Criminal Code.[6] Canadian jurisprudence has also seldom explored remorse in detail, tending instead to simply observe its presence or absence.[7] Where the courts address remorse in detail, it is often linked to similar factors, such as insight into the offence, acknowledgement of and taking responsibility for wrongdoing, and willingness to make repairs.[8] Remorse is sometimes treated as synonymous with these concepts, yet at other times treated as distinct.[9]
Despite the lack of conceptual clarity from the court, these definitions roughly follow academic scholarship, which has engaged in a much richer exploration of the subject. Susan Bandes has distilled a workable definition from this body of literature: “recognition of the wrong and the harm it has caused, deep regret for the act, and a desire to atone for the act.”[10]
1.2) Remorse Can Be Treated as a Mitigating Factor
Remorse is seen as a reflection of deeper character which promises “either that the wrongful act was out of character or that the wrongdoer is determined to change his character so it won’t happen again.”[11] As Fairburn J.A. explained in R v Reeve:
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]
Thus, remorse is traditionally a mitigating factor in sentencing as it relates to the statutory objectives of specific deterrence, separation of offenders from society, rehabilitation, and promoting a sense of responsibility in offenders.[13]
1.3) Fair Trial Rights Require That Remorselessness Cannot Generally Be Treated as an Aggravating Factor
Despite the relevance of remorse to sentencing objectives, remorselessness cannot generally be treated as an aggravating factor in order to protect the right to full answer and defence.[14] Section 11(d) of the Charter guarantees an accused the right to be presumed innocent and only be convicted if the Crown has proven the offence beyond a reasonable doubt.[15] Treating remorselessness as an aggravating factor when it is founded on the continued assertion of innocence “comes close to increasing the sentence because the accused exercised his right to make full answer and defence.”[16] Thus, precluding the use of remorselessness as an aggravating factor in all but exceptional circumstances ensures that the accused’s decision of whether and how to exercise their right to full answer and defence is not encumbered by a fear of consequences which would otherwise “seriously undermine that fundamental right.”[17]
The threat of the prosecution raising remorselessness as an aggravating factor places a tactical burden on the accused to pre-emptively demonstrate remorse. This, in many cases, leaves them with a no-win choice between three options. First, the accused who does not express remorse may risk a higher sentence by maintaining their innocence and allowing remorselessness to be a potential aggravating factor. Second, the accused may potentially undermine their own defence by choosing to express remorse at trial, as one cannot feel remorse for an act they did not commit.[18] Third, the accused may choose to express remorse only after a finding of guilt, which could appear less substantial or genuine and thereby limit any potential mitigation of their sentence.[19]
Further, after an accused is found guilty, they may still wish to maintain their innocence in hopes of appealing the decision.[20] Even if they did not ultimately do so, treating remorselessness as an aggravating factor in such circumstances would jeopardize their fair trial rights because their decision to appeal would be made after their sentence was issued and their opportunity to express remorse had evaporated.[21]
1.4) A Principled Exception: Where an Accused Pleads Guilty
When an accused pleads guilty, the right to full answer and defence no longer applies, and therefore, it is not jeopardized if remorselessness is treated as an aggravating factor.[22] As such, in Nash v R, the New Brunswick Court of Appeal (“NBCA”) suggested in obiter dicta that “[t]he failure of an offender to express remorse following a guilty plea will be treated as an aggravating factor unless there is a rational explanation for the failure.”[23] For example, where an accused pleads guilty to committing heinous, seemingly senseless acts, yet offers no explanation for their actions, there may be no reasonable conclusion other than the fact that they are remorseless.[24] By contrast, consider an accused who, after years of domestic abuse at the hands of their spouse, snaps and murders their abuser.[25] They may genuinely feel remorse, but be unable or unwilling to express it at the time of sentencing due to their conflicting emotions toward the victim.[26] This alternative explanation could be sufficient to raise a reasonable doubt as to the accused’s remorselessness.
1.5) Remorselessness Must be Proven Beyond a Reasonable Doubt
The stipulation in Nash against treating remorselessness as aggravating where there are other explanations for the failure to express remorse, mirrors the requirement that aggravating factors be proven beyond a reasonable doubt.[27] Although this rule was originally developed without reference to the Charter in R v Gardiner,[28] the Supreme Court of Canada has since indicated it is protected under the Charter as part of the presumption of innocence.[29] As such, section 11(d) precludes treating remorselessness as an aggravating factor in situations in which it cannot be proven beyond a reasonable doubt.
2) Jurisprudential Exceptions Protect the Right to Full Answer and Defence
Appellate courts have only deemed the remorselessness exception applicable in situations in which it would not jeopardize the right to full answer and defence. Furthermore, these scenarios all involve clear acts or statements of remorselessness that are beyond merely the absence of expressing remorse. Accordingly, the statements also are beyond the scope of the right to full answer and defence.
2.1) Remorselessness Demonstrating a Risk of Future Dangerousness
The Courts have repeatedly indicated that remorselessness may be treated as an aggravating factor where it predicts a “substantial likelihood of future dangerousness.”[30] For example, during a doctrinal discussion of the exception in R v Ambrose, Fraser C.J.A. focused on “expressions of lack of remorse…which are unrelated to the manner in which the defence is conducted.”[31] She referred to instances that “[speak] to the degree of entrenchment of the criminal behaviour,” citing the example of an accused’s statement from R v Young: “‘I’m a fucking gangster and I love every minute of it.’”[32] Similarly, in Nash, Robertson J.A. held that the exception would apply to a hypothetical “unrepentant and committed pedophile” who admits to the actus reus of the offence but maintains they committed no legal wrong.[33]
Treating remorselessness based on either statement as an aggravating factor would not jeopardize the accused’s rights. In each instance, the accused would not be faced with the no-win choice between potential mitigation of their sentence and compromising the presumption of innocence because they made positive expressions of remorselessness which went beyond any plausible defence.
2.2) Remorselessness Demonstrating the Accused’s State of Mind at the Time of the Offence
Remorselessness may also be treated as an aggravating factor where it evinces a more blameworthy state of mind at the time of the offence. Fraser C.J.A. explained that “lack of remorse as reflected in actions or words may simply be further evidence of the offender’s continued indifference to the plight of his or her victims at the time of committing the criminal offence.”[34] Proportionality would warrant a higher sentence because a “hardened attitude towards one’s victims is more blameworthy than a temporary lapse in judgment.”[35]
For example, in R v Hill, the accused was convicted of murdering a casual sex partner to prevent her from publicizing the fact that he was the father of the child she was carrying.[36] He desecrated and buried her body in a shallow grave, then told sophisticated lies to cover up her death. The sentencing judge found that the accused was an “intensely self centered person” who engaged in “cold calculated acts of evil” to protect his reputation.[37] Hambly J. distinguished the accused’s statements that “he regretted that any of this had ever happened” from genuine remorse, concluding that the accused did “not yet appreciate the enormous suffering” he caused.[38] Although it was the “overall evil of his actions which…ma[de] the principle of denunciation predominate” in the accused’s sentencing, Hambly J. expressly stated that the case fit the “‘very unusual circumstances’” contemplated by the exception.[39] While the distinction was not elaborated upon, it would seem that he took the accused’s motive and the nature of the acts themselves as evidence of remorselessness at the time of the offence, which persisted at the time of sentencing. In Hill and similar cases, the circumstances of the crime may themselves be seen as confirmatory evidence of remorselessness that goes beyond the content of the defence.
2.3) Victim-Blaming as Confirmatory Evidence of Remorselessness
Similarly, remorselessness predicated on victim-blaming may also be treated as an aggravating factor. This is because victim-blaming can predict recidivism and/or inflict further harm on the victim beyond the crime itself. For example, in R v Hajar, the Alberta Court of Appeal (“ABCA”) held that it was appropriate to treat an accused’s victim-blaming and failure to take responsibility for his actions as an aggravating factor.[40] The accused was charged with child luring and sexual interference after convincing a 14-year-old girl he met online to send him topless pictures and meet multiple times for a sexual purpose.[41] Pre-Sentence and Forensic Assessment and Community Services Reports indicated that the accused blamed the victim’s parents for failing to supervise her computer use.[42] He further suggested the victim “‘was out with other…guys too’” and could therefore be denigrated because she was “‘easy.’”[43] The accused’s statements to the psychologist compiling his reports went beyond the scope of his defence. As the ABCA noted, de facto consent is no defence for sexual interference or child luring, and the victim’s parents permitting her to use the computer did not mitigate his own culpability.[44]
Similarly, in R v Keats, the NBCA said in obiter dicta that an accused paramedic’s remorselessness for sexually assaulting two women in his care—as shown, in part, by blaming the complainants—could fall within the exception.[45] Although the sentencing reasons remain unreported, an excerpt from the NBCA shows the sentencing judge concluded that “Mr. Keats has shown no remorse for any of these offences. Instead, he has chosen to blame the complainants.”[46] While it is unclear exactly what evidence the sentencing judge based that finding upon, victim-blaming implies positive statements or acts of the accused implying the victim is at fault for the accused’s own behaviours. If the accused’s statements or acts enter this territory, going beyond what can reasonably be expected to support a defence of honest but mistaken belief in consent, treating remorselessness based on the accused’s victim-blaming as an aggravating factor would not penalize the accused for relying on their fair trial rights.
3) Proving Remorselessness Beyond a Reasonable Doubt Requires Confirmatory Evidence
Absent acts or statements clearly evincing remorselessness, it cannot be proven beyond a reasonable doubt as required by the presumption of innocence and the Criminal Code.[47] When the accused has pleaded not guilty, their potential reliance on their right to full answer and defence may itself raise a reasonable doubt. Although that alternative explanation is unavailable after a guilty plea,[48] a reasonable doubt still arises absent clear acts or statements of remorselessness due to the unreliable nature of the behavioural or paralinguistic cues commonly used to assess remorse.
3.1) Presumption of Innocence Raises a Reasonable Doubt When Accused Plead Not Guilty
To illustrate how the presumption of innocence raises a reasonable doubt, it is useful to distinguish between confirmatory and disconfirmatory evidence. Whereas confirmatory evidence directly supports the existence of a fact with minimal inference or presumption, disconfirmatory evidence suggests an alleged fact does not exist.[49] For example, an accused’s statement that they feel no remorse would be confirmatory evidence of remorselessness, whereas an accused’s apology to their victim might constitute disconfirmatory evidence of remorselessness.[50]
Crucially, the mere absence of disconfirmatory evidence is only circumstantial support for a claim and cannot be equated with direct, confirmatory evidence.[51] While it is consistent with that claim, it will often also be consistent with other explanations. As such, without additional confirmatory evidence, the mere absence of disconfirmatory evidence can only prove a fact beyond a reasonable doubt where all other reasonable possibilities are ruled out.[52]
Jurisprudential discussions of the general rule against treating remorselessness as an aggravating factor focus on situations in which the accused, by virtue of their continued assertion of innocence, have not expressed remorse.[53] In these instances, although the accused have not provided disconfirmatory evidence of remorselessness, there is also no confirmatory evidence. Their failure to express remorse is consistent with the claim that they feel no remorse, but it is also consistent with alternative explanations. Reliance on their fair trial rights is one such explanation: There is no inherent contradiction between feeling remorseful and seeking to avoid a conviction.[54] In these circumstances, it would be impossible for the prosecution to prove remorselessness beyond a reasonable doubt without additional confirmatory evidence.
Of course, the prosecution would only be required to establish remorselessness beyond a reasonable doubt if disputed by the accused.[55] If accused persons pleading not guilty could always establish a reasonable doubt simply by referring to the presumption of innocence, raising remorselessness in those circumstances would only serve to consume valuable court time in an already overburdened court system with little benefit for the prosecution. Beyond protecting Charter rights, it follows that judicial economy also militates against treating remorselessness as an aggravating factor absent clear, confirmatory evidence.
3.2) Uncertainty Surrounding Behavioural and Paralinguistic Cues Still Establishes Reasonable Doubt
Separate from the presumption of innocence, the fact that genuine remorselessness is difficult to assess creates a reasonable doubt as to its application. It is quite difficult for judges to assess remorse.[56] First, the assessment of remorse is based on subtle and often subjective behavioural and paralinguistic cues which different judges disagree about.[57] Second, the assessment of these cues is often biased by characteristics such as culture, race, class, mental health, and age.[58] Cumulatively, these issues raise a reasonable doubt as to the expression of remorselessness in the absence of confirmatory evidence.
IV) CONCLUSION
As the foregoing analysis shows, remorselessness should only be treated as an aggravating factor when it is clearly confirmed by statements or acts of the accused. This rule should apply regardless of how the accused pleads. After a conviction at trial, the reason is both the right to full answer and defence and the corollary need to prove the aggravating factor beyond a reasonable doubt. Although the presumption of innocence is no longer in play after a guilty plea,[59] anything less than unequivocal statements or actions of the accused will still be insufficient to establish remorse beyond a reasonable doubt due to the ambiguity of behavioural and paralinguistic cues commonly used to assess remorse. Beyond questions of the burden of proof, concerns for judicial economy, equality, and access to justice provide a freestanding rationale for the same standard.
Sentencing is often referred to as more of an art than a science, and this comparison is well-illustrated by courts’ consideration of remorse.[60] Remorse, and judicial assessment of it, are highly intuitive concepts which weave together several interrelated factors. However, regardless of how intuitive the connection between remorselessness and harsher punishment may seem, judges must be mindful of the complexities of assessing remorse when determining whether an accused is remorseless, and the weight that finding should have in their sentence.
[1] R v Friesen, 2020 SCC 9 at para 165 [Friesen], citing R v Lacasse, 2015 SCC 64 at paras 77–78 [Lacasse]; R v Reeve, 2020 ONCA 381 at para 11 [Reeve].
[2] See e.g. Gavin v R, 2009 QCCA 1 at paras 25–35 [Gavin], cited with approval in Lacasse, supra note 1 at paras 44–45; R v Valentini, 1999 CanLII 1885 at paras 80–84, [1999] OJ No 251 (ONCA) [Valentini].
[3] R v Ambrose, 2000 ABCA 264 at paras 77–85, Fraser CJA dissenting on another issue [Ambrose]; Clarke v R, 2001 NFCA 35 at para 119[Clarke]; R v Dreger, 2014 BCCA 54 at paras 49–51 [Dreger]; R v Hawkins, 2011 NSCA 7 at para 33 [Hawkins]; R v Leroux, 2015 SKCA 48 at para 62 [Leroux]; Nash v R, 2009 NBCA 7 at paras 30–42 [Nash]; Valentini, supra note 2 at para 82.
[4] Canadian Charter of Rights and Freedoms, s 11(d), Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
[5] For further discussion, see Jason Ruggeberg, “The Remorse Dilemma: Limitations of Assessing Remorse in Criminal Sentencing” (13 March 2025), online (blog): <utflr.ca/blog/the-remorse-dilemma-limitations-of-assessing-remorse-in-criminal-sentencing?rq=jason> [perma.cc/6PV9-5KK7].
[6] Criminal Code, RSC 1985, c C-46; R v Al-Saedi, 2017 ONCJ 204 at para 20.
[7] Ibid.
[8] See e.g. R v Anderson, 1992 CanLII 6002 at para 46 (BCCA); Friesen, supra note 1 at para 165; Lacasse, supra note 2 at paras 45–46; R v Proulx, 2000 SCC 5 at paras 113, 122.
[9] Remorse and insight into the offence may be treated as both synonymous and separate; see e.g. R v Taylor, 2014 BCCA 304 at para 21 (treated as synonymous) and R v LB, 2024 BCPC 28 at para 69 (treated as separate factors).
[10] Susan A Bandes, “Remorse and Judging” in Steven Tudor et al, eds, Remorse and Criminal Justice: Multi-Disciplinary Perspectives (New York: Routledge, 2022) 19 at 22.
[11] Ibid.
[12] Reeve, supra note 1 at para 11; see also Friesen, supra note 1 at para 165.
[13] Criminal Code, supra note 6, s 718; R v McGee, 2020 BCCA 362 at para 23; Reeve, supra note 1 at paras 11–14.
[14] See Ambrose, supra note 3 at paras 77–85; Clarke, supra note 3 at para 119; Dreger, supra note 3 at paras 49–51; Gavin, supra note 2 at para 35; Hawkins, supra note 3 at para 33; Leroux, supra note 3 at para 62; Nash, supra note 3 at paras 30–42; Reeve, supra note 1 at paras 12, 14, 20–22; Valentini, supra note 2 at paras 80–84.
[15] Charter, supra note 4, s 11(d); R v Oakes, 1986 CanLII 46 at para 32 (SCC).
[16] Valentini, supra note 2 at para 83.
[17] Reeve, supra note 1 at para 20.
[18] Clarke, supra note 3 at para 113; R v Laroche, 2011 QCCA 1892 at para 65.
[19] R v Sawchyn, 1981 ABCA 173 at paras 34–36; Reeve, supra note 1 at para 10.
[20] Nash, supra note 3 at para 33; see also R v Shropshire, 1995 CanLII 47 at para 41 (SCC) [Shropshire].
[21] Nash, supra note 3 at para 33.
[22] Ibid at para 38, citing Shropshire, supra note 20 at para 39.
[23] Nash, supra note 3 at para 40. Note that other jurisdictions have not drawn this distinction, and there are no reported cases where this caveat has been applied regarding accused who plead guilty.
[24] Nash, supra note 3 at paras 37, 40; see also Shropshire, supra note 20 at paras 38–40.
[25] Nash, supra note 3 at para 39.
[26] Ibid.
[27] Ibid at para 40; Criminal Code, supra note 6, s 724(3)(e); R v Gardiner, 1982 CanLII 30 at 414–16 (SCC) [Gardiner]; R v Larche, 2006 SCC 56 at para 44 [Larche].
[28] Gardiner, supra note 27.
[29] Larche, supra note 27 at para 44 (“The requirement in s. 724 of proof [of aggravating factors] beyond a reasonable doubt is imperative in light of the presumption of innocence”).
[30] See e.g. Valentini, supra note 2 at para 82.
[31] Ambrose, supra note 3 at para 84, Fraser CJA dissenting on another issue.
[32] Ibid at para 78, citing R v Young, 1983 CanLII 2055 at para 6 (SKCA).
[33] Nash, supra note 3 at para 35. Implicit in the example is that the accused would not raise the defence of mistake of age in the Criminal Code,supra note 6, ss 150.1(4–6), 172.1(3–4). Note that Robertson JA used the phrasing “failure to express remorse” throughout his reasons, rather than “lack of remorse.” Although this phrasing is not equivocal, it is likely a relic of Robertson JA’s focus on the failure to express remorse after a guilty plea. Moreover, this example goes beyond the mere failure to express remorse.
[34] Ambrose, supra note 3 at para 80.
[35] Ibid.
[36] R v Hill, 2011 ONSC 4382 [Hill], rev’d on other grounds 2015 ONCA 616.
[37] Ibid at para 40.
[38] Ibid at para 20.
[39] Ibid at para 40.
[40] R v Hajar, 2014 ABQB 550 [Hajar SC], aff’d 2016 ABCA 222 at para 282 [Hajar CA].
[41] Hajar CA, supra note 40 at paras 15–17.
[42] Ibid at paras 21–23.
[43] Ibid.
[44] Ibid at paras 10, 98–100.
[45] R v Keats, 2018 NSCA 16 at paras 45–47.
[46] Ibid at para 45.
[47] Criminal Code, supra note 6, s 724(3)(e); Larche, supra note 27 at para 44.
[48] Nash, supra note 3 at para 38, citing Shropshire, supra note 20 at para 39.
[49] These types of evidence are sometimes referred to as “positive” and “negative” (respectively). The terms “confirmatory” and “disconfirmatory” are used here to avoid confusion with the legal terms “positive evidence” and “direct evidence,” which typically refer specifically to testimonial evidence in a legal context (see Bryan A Garner, ed, Black’s Law Dictionary, 11th ed (St Paul, MN: Thomson Reuters, 2019) at sub verbo “evidence”).
[50] See e.g. R v Hart, 2021 BCPC 311 at paras 24–27.
[51] For example, the rejection of an accused’s account of events (i.e., an absence of disconfirmatory evidence) does not create evidence on which the Crown can establish the essential elements of an offence (confirmatory evidence) (see R v Nedelcu, 2012 SCC 59 at para 23).
[52] R v Villaroman, 2016 SCC 33 at para 17, citing R v Hodge, 1838 CanLII 1 (FOREP) (“[I]n order to convict, [the jury] must be satisfied ‘not only that those circumstances were consistent with [the accused] having committed the act, but they must also be satisfied that the facts were such as to be inconsistent with any other rational conclusion than that the [accused] was the guilty person’”).
[53] See e.g. Valentini, supra note 2 at paras 80–84.
[54] Regina v Kozy, 1990 CanLII 2625 at 505–06, [1990] OJ No 1586 (ONCA).
[55] Criminal Code, supra note 6, s 724(3)(e); Gardiner, supra note 27 at 414–16.
[56] See Ruggeberg, supra note 5.
[57] See Desiree Adams Griffin, “Exploring remorse behaviors: Verbal and nonverbal indicators of authentic, exaggerated, and feigned remorse” (PhD Dissertation, University of Alabama, 2011) online: <ir.ua.edu/handle/123456789/1159> [perma.cc/7LSB-J3GR]; Rocksheng Zhong et al, “So You’re Sorry? The Role of Remorse in Criminal Law” (2014) 42:1 J Am Academy Psychiatry & L 39.
[58] Susan A Bandes, “Remorse and Criminal Justice” (2015) 8:1 Emotional Rev 1 at 3–4.
[59] Nash, supra note 3 at para 38, citing Shropshire, supra note 20 at para 39.
[60] See R v Arganda (JR), 2011 MBCA 54 at para 38; R v Pilon, 2014 ONCA 79 at para 18.