Duhaime's Law Dictionary

Mitigating Circumstances Definition:

Facts that, while not negating a wrongful action, tend to show that the defendant may have had some grounds for acting the way he/she did.

Related Terms: Defamation

These are facts that, while not negating an offence or wrongful action, tend to show that the defendant may have had some grounds for acting the way he/she did and that would tend towards reducing a defendant's guilt or culpability.

The term is used in criminal law and tort/personal injury law.

Criminal Law

In Canada, the import of mitigating circumstances is stated at 718.2 of the Criminal Code (2012):

"A court that imposes a sentence shall also take into consideration the following principles: ... a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender...."

Mitigating factors are subjected to a finding on a balance of probabilities, and not beyond a reasonable doubt.1

Pleading guilty and cooperation with the investigation are a frequent examples of a mitigating circumstances that would tend to reduce sentence as is the existence of remorse or regret - mitigating circumstances often relate more to the offender than to the offence.

An assault, though provoked, is still assault but provocation may constitute mitigating circumstances and allow for a lesser sentence.

In the context of the death penalty:

"A mitigating circumstance can be defined broadly as any aspect of a defendant's character or record and any of the circumstances of the offense that reasonably may serve as a basis for imposing a sentence less than death. Valid nonstatutory mitigating circumstances include but are not limited to the following: abused or deprived childhood; contribution to community or society as evidenced by an exemplary work, military, family, or other record; remorse and potential for rehabilitation; good prison record; disparate treatment of an equally culpable codefendant (and) charitable or humanitarian deeds."2

In State v DeCastro, Justice Parker of the Supreme Court of North Carolina adopted these words:

"A mitigating circumstance is a fact or a group of facts which do not constitute a justification or an excuse for a killing, nor reduce it to a lesser degree of crime than first degree murder, but which may be considered as extenuating or reducing the moral culpability of the killing or making it less deserving of extreme punishment than other first degree murders, or making this defendant less deserving of the extreme punishment than other first degree murderers."

Mitigating circumstances have been specifically introduced into the sentencing guidelines of several jurisdictions, especially in the United States of America. This has driven the case law on this legal term, as well as some principles as follows:

  • Personality or character disorders are not mitigating circumstances3; and
  • Medical problems, generally, have been rejected as mitigating circumstances.4

Tort/Personal Injury

In defamation:

"Mitigating circumstances ... allows the defendant to prove in a situation such as this are those which tend to show that the defendant in speaking the slanderous words acted in good faith, with honesty of purpose, and not maliciously."5


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