What factors, if any, have been taken into Rule 413(c)(1) of the Ontario Probation Guidelines?

California, United States of America

The following excerpt is from People v. Superior Court (Dorsey), 50 Cal.App.4th 1216, 58 Cal.Rptr.2d 165 (Cal. App. 1996):

Thus, none of the factors specifically included in rule 413 exists here. However, we recognize that rule 413 is not on its face exclusive in its list of circumstances which may take a defendant out of presumptive ineligibility for probation. (See also rule 408(a), which expressly provides that "The enumeration in these rules of some criteria for the making of discretionary sentencing decisions does not prohibit the application of additional criteria reasonably related to the decision being made.") However, we hold that the language of the rule is not to be read expansively. In People v. Superior Court (Du), supra, the court commented that a trial court is "required" to apply the criteria of rule 413 (then 416) in determining whether a case is unusual. The rule itself, although purporting merely to give examples, does so in a limited context. That is, both rule 413(c)(1) and rule 413(c)(2) give examples of particular types of facts: facts showing that the circumstance giving rise to the probation restriction is of borderline applicability, or that the defendant's culpability, in a moral or ethical sense, was less than would be typically true. The rule does not purport to give the trial court authority to decide that any other particular type of factor may be used to meet the "unusual" standard. We need not decide what other specific facts or circumstances might properly be taken into

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