Grounds of Appeal from Sentence

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General Principles

An accused has authority to appeal sentence under s. 675(1)(b) (indictable offences) and 813 (summary offences).

Jurisdiction
Appeals of sentence for indictable offences are to the Court of Appeal. Appeals of summary offences are to the Superior Court.

Precedential Value of Sentencing Cases
It has been recommended that counsel should be cautious when using appellate decisions on sentence where sentencing guidelines or principles have not been outlined. The appellate decision can be valuable where the court finds that the sentence was out of the range. However, if the court simply affirms that the sentence is reasonable as it should not be interpreted as meaning that, for example, a much more severe sentence would have been unfit.

Standard of Review

The power to review sentence on an indictable offence is found in s. 687:

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

The Court's authority to consider "fitness of sentence" within s. 687 is limited to:

• errors in principle;
• failure to consider a relevant factor;
• over-emphasis of appropriate factor; or
• sentences that are "demonstrably unfit" or "clearly unreasonable".

To have grounds of appeal the appellant must be able to answer at least one or more of the following questions in the affirmative:

1. Is the sentence the result of an error of law?
2. Did the sentencing judge err in principle in the exercise of his or her discretion?
3. Is the sentence clearly unreasonable having regard to the fundamental purpose and objective of sentencing (s. 718) as well as the principles enunciated in section 718.1 and 718.2 of the Criminal Code?
4. Is the sentence a substantial and marked departure from the sentence customarily imposed for similarly situated offenders committing similar crimes?

Deference to Discretion
The decision on sentence is an act of discretion. Consequently, the standard of review is one of deference. This deference does not change whether the sentence was after conviction or guilty plea.

The deferential standard of review on sentence does not apply if no reasons for sentence are given.

The standard is a "deferential one, and the decision of a sentencing judge is not to be interfered with lightly".

Generally, a Court will only interfere where it is "demonstrably unfit". This standard is also described as "clearly unreasonable".

Error Must Have Impact on Sentence
An appellate court may only intervene on sentence where the error of principle had "an impact on the sentence".

Error in Law or Principle

Where there is an error in principle the court of appeal has a "clean slate" to re-consider sentence without deference to the sentencing judge. This "clean slate" principle will not apply where the error of principle was not determinative to or did not have an "impact" upon the sentence.

Failure to Apply Factors

Where the Court of Appeal "would have weighed the relevant factors differently" is not enough to be a ground of appeal of sentence.

Where the judge "unreasonably emphasized a sentencing factor over another, the error likely, although not necessarily, will have led the judge to impose an unfit sentence."

Range

Ranges are to be heeded but "they are guidelines rather than hard and fast rules." A judge can order a sentence outside the range as long as it accords with the principles and objectives.

Ranges are not to be used as "straitjackets". They are merely "historical portraits" of the exercise of prior discretion.

Merely being able to point out the existence of a different sentence for a similar offence is not enough to be outside of the range, manifestly unfit, or excessive.

Remedies for Appeals from Sentence

Once a appellate court finds that the sentence was inappropriate the Court may sentence the accused anew taking into account any part of a sentence already served.

Re-Incarcerating the Offender or Staying Sentence

Where a sentence has been found to be inadequate, the court may consider several options on correcting the sentence. The Court may impose a new sentence as seen fit. Alternatively, the Court may decline to re-incarcerate. Instead the court may simply dismiss the appeal after "identifying the sentence that should have been imposed and explaining why the respondent should not be re-incarcerated" or the Court may "impose the appropriate sentence but stay the execution of the remaining custodial part of that sentence". The latter is seen as more appropriate.

If a stay is considered, it must not injure the public confidence in the administration of justice. It should also be considered as an "exceptional" remedy to a sentence appeal.

Consideration will include the duration of control that the courts have had over the accused and the duration of his jeopardy. His personal background, including the accomplishments in rehabilitation, will also be considered.As well as his exposure to prison prior to the appeal.

Appeal of Ancillary Orders

SOIRA Order: only if there is an error in principle, a failure to consider a relevant factor, an overemphasis on appropriate factors, or a clearly unreasonable decision can a SOIRA order be appealed.

The Crown has no authority to appeal the ordering of a particular length of SOIRA as it does not fit the meaning of "sentence" in s. 673.

Forfeiture Orders
A forfeiture order made under s. 491(1)(b) is part of a sentence and so is appeallabe as a sentence under s.675(1)(b).

See Also

• Appellate Evidence#Post-Sentence Evidence -- concerning new evidence, including post-sentence report, at appellate level