Criminal Law Notebook

Grounds of Appeal from Sentence

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General Principles

See also: Right of Appeal of Verdicts or Sentences for Indictable Offences and Right of Appeal of Verdicts or Sentences for Summary Offences

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

Standard of Review

See also: Standard of Appellate 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:[1]

  • 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: [2]

  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.[3] Consequently, the standard of review is one of deference. [4] This deference does not change whether the sentence was after conviction or guilty plea.[5]

The deferential standard of review on sentence does not apply if no reasons for sentence are given.[6]

The standard is a "deferential one, and the decision of a sentencing judge is not to be interfered with lightly".[7]

Generally, a Court will only interfere where it is "demonstrably unfit".[8] This standard is also described as "clearly unreasonable".[9]

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".[10]

  1. ↑ R v CAM, 1996 CanLII 230 (SCC), [1996] 1 SCR 500, (1996) 105 CCC 327 at para 90 Sentence can only where there is an "error in principle, failure to consider a relevant factor, or an overemphasis of relevant factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.")
    R v Shropshire, supra at para 46
    R v LM, [2008] 2 SCR 163, 2008 SCC 31 (CanLII), at para 14
    R v Scott, 2013 NSCA 28 (CanLII) at para 7 to 10
    R v Proulx, [2000] 1 SCR 61, 2000 SCC 5 (CanLII) at para 123
    R v Nasogaluak, [2010] 1 SCR 206, 2010 SCC 6 (CanLII), per LeBel J, at para 46
    R v Murphy, 2015 NSCA 14 (CanLII) at para 15
    R v Knockwood, 2009 NSCA 98 (CanLII) at para 22
  2. ↑ R v Long, [2001] NBJ No. 347 (NBCA)(*no CanLII links)
    R v RP, 2001 NBCA 115 (CanLII) at para 11
    R v Steeves, 2010 NBCA 57 (CanLII) at para 25
  3. ↑ R v McCurdy, [2003] 210 NSR (2d) 33(*no CanLII links) at 36
  4. ↑ R v Shropshire, 1995 CanLII 47 (SCC), [1995] 4 SCR 227, (1995) 102 CCC 193 at 209 (cited to CCC)
    CAM, supra at 374
    R v Knickle, 2009 NSCA 59 (CanLII) at para 11
    R v James, 2013 MBCA 14 (CanLII) at para 18
  5. ↑ R v CAM at 374
  6. ↑ R v Guha, 2012 BCCA 423 (CanLII), at para 22 ("However, the absence of any reasons for the imposition of a sentence negates a deferential approach on review as the reviewing court is unable to assess how the sentencing judge determined the fitness of the sentence")
  7. ↑ M(CA), supra at para 91
  8. ↑ R v Brown, 2004 NSCA 51 (CanLII)
    Knickle, supra at para 11
  9. ↑ R v W(G), 1999 CanLII 668 (SCC), [1999] 3 SCR 597 at para 19
  10. ↑ R v Lacasse, 2015 SCC 64 (CanLII) at para 11

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.[1] 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.[2]

  1. ↑ R v Rezaie (1996), 1996 CanLII 1241 (ON CA), 112 C.C.C. (3d) 97 (Ont.C.A.)
    R v Hawkins, 2011 NSCA 7 (CanLII)
    R v Bernard, 2011 NSCA 53 (CanLII), leave ref’d [2011] S.C.C.A. No. 38
  2. ↑ R v Lacasse, [2015] 3 SCR 1089, 2015 SCC 64 (CanLII) at paras 44, 164

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.[1]

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."[2]

  1. ↑ Nasogaluak, supra at para 46 ("Appellate courts grant sentencing judges considerable deference when reviewing the fitness of a sentence. ...however, this does not mean that appellate courts can interfere with a sentence simply because they would have weighed the relevant factors differently")
  2. ↑ R v Allen, 2012 BCCA 377 (CanLII) at para 32

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.[1]

Ranges are not to be used as "straitjackets". They are merely "historical portraits" of the exercise of prior discretion.[2]

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.[3]

  1. ↑ R v Nasogaluak, 2010 SCC 6 (CanLII) at para 44
    R v JJW, 2012 NSCA 96 (CanLII) at para 15 ("That discretion is fettered in part by case law that has, in some circumstances, set down ranges so as to give effect to the parity principle. However, ranges are only guidelines and a sentencing falling outside the regular range is not necessarily unfit.")
    R v Lacasse, 2015 SCC 64 (CanLII), para. 58 ("There will always be situations that call for a sentence outside a particular range; although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded.")
  2. ↑ Lacasse, supra at paras 57 and 69
  3. ↑ R v Eisan, 2015 NSCA 65 (CanLII) at para 28

Remedies for Appeals from Sentence

See also: Appeals#Remedies

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.[1]

If a stay is considered, it must not injure the public confidence in the administration of justice.[2] It should also be considered as an "exceptional" remedy to a sentence appeal.[3]

Consideration will include the duration of control that the courts have had over the accused and the duration of his jeopardy.[4] His personal background, including the accomplishments in rehabilitation, will also be considered.[5]As well as his exposure to prison prior to the appeal.[6]

  1. ↑ R v Smickle, 2014 ONCA 49 (CanLII) at para 10
  2. ↑ See R v Arcand, 2010 ABCA 363 (CanLII) at para 304
  3. ↑ R v MacDonald, 2014 NSCA 102 leave refused 2015 CanLII 23007 (SCC) at para 57
    R v Best, 2012 NSCA 34 (CanLII) at para 35
  4. ↑ e.g. MacDonald at para 57
    4
  5. ↑ R v Butler, 2008 NSCA 102 (CanLII) at paras 18 to 20, 39 to 40
  6. ↑ Butler, ibid. at para 40
    R v Hamilton, 2004 CanLII 5549 (ONCA)

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.[1]

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.[2]

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).[3]

  1. ↑ R v Redhead, 384 A.R. 206, 2006 ABCA 84 (CanLII) at para 13
  2. ↑ R v J.J.W., 2012 NSCA 96 (CanLII) at para 53 and 54
    R v Chisholm, 2012 NBCA 79 (CanLII)
  3. ↑ R v Montague, 2014 ONCA 439 (CanLII)

See Also

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