Remedies on Sentence Appeal
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.
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 Insufficient Record on Offender Circumstances
The appellate panel may order a further pre-sentence report and may include a request to address certain specific issues where they find that the record is insufficient to determine a fit and proper sentence.[3]
- 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. [4] 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.[5]
- Imposition of Additional Period of Custody
Where a sentence is overturned and re-imposed with additional terms of incarceration, the court of appeal has discretion to stay the remaining period.[6]
- ↑ 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)
- ↑
R v Pahl, 2016 BCCA 234 (CanLII), 336 CCC (3d) 221, per Frankel JA, at para 85
R v Kakekagamick, 2006 CanLII 28549 (ON CA), 211 CCC (3d) 289, per LaForme JA, at para 60
R v Cromwell, 2005 NSCA 137 (CanLII), 202 CCC (3d) 310, per Bateman JA, at para 25
- ↑
R v Macintyre-Syrette, 2018 ONCA 259 (CanLII), 46 CR (7th) 78, per Juriansz JA, at para 25
- ↑
Pahl, supra, at paras 83 to 89
- ↑
Pahl, supra, at para 90 - however, dissenting judge suggests sentencing based only on non-contentious facts
- ↑ R v Laing, 2022 NSCA 23 (CanLII), per Fichaud J at para 68