Remedies on Sentence Appeal

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General Principles

Section 687 governs available remedies on a sentence appeal to the province's Court of Appeal (either under s. 675(1)(b) or 676(1)(d)). The section states:

Powers of court on appeal against sentence
687 (1) Where an appeal is taken against sentence, the court of appeal shall, unless the sentence is one fixed by law, consider the fitness of the sentence appealed against, and may on such evidence, if any, as it thinks fit to require or to receive,

(a) vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; or
(b) dismiss the appeal.

Effect of judgment
(2) A judgment of a court of appeal that varies the sentence of an accused who was convicted has the same force and effect as if it were a sentence passed by the trial court.
R.S., c. C-34, s. 614.


CCC

An appeal from a sentence in a summary conviction proceeding is identical to an appeal in an indictable matter. [1]

Generally, remedies on a sentence appeal does not include remitting a matter to the trial court for re-sentencing.[2]

Remedy Where No Settled Facts
A finding that the sentencing judge erred in accepting facts for the purpose of sentencing does not permit the appellate court to send the matter back to a sentencing judge for re-sentencing. [3] An available option includes appointing a special commissioner under s. 683(1) to conduct a Gardiner hearing a report back to the appellate court on the facts decided.[4]

  1. By operation of section 822(1) of the Criminal Code summary conviction appeal adopts the same procedure by reference to the provisions of 687(1)
  2. R v Pahl, 2016 BCCA 234 (CanLII) at para 85
    R v Kakekagamick, 2006 CanLII 28549 (ONCA) at para 60
    R v Cromwell, 2005 NSCA 137 (CanLII) at para 25
  3. Pahl, supra at paras 83 to 89
  4. Pahl, supra at paras 90 - however, dissenting judge suggests sentencing based only on non-contentious facts