Grounds of Appeal from Sentence

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2020. (Rev. # 95880)

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

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

The sentencing judge is best positioned to determine the fit and proper sentence. This is especially true after trial. Accordingly, "substantial deference" is required. [2]

Not just any degree of deviation from sentencing range warrants appellate intervention.[3]

Intervention requires that there be an error in principle, a failure to consider a relevant factor, or an error considering aggravating or mitigating factors.[4]

Where there is an error in considering factors, the error must have had an impact on the sentence.[5] Similarly, the judge's particular choice of weighing one factor over another is not appealable unless it is "unreasonable."[6]

The judge's deviation from the proper range alone is not enough to warrant an appeal. The sentence must be "demonstrably unfit" or "clearly unreasonable."[7]

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.[8] 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.[9]

  1. ↑ See Right of Appeal of Verdicts or Sentences for Indictable Offences and Right of Appeal of Verdicts or Sentences for Summary Offences
  2. ↑ R v Adan, 2019 ONCA 709 (CanLII), per Watt JA, at para 103 ("sentencing judges are in the best position to determine a just and appropriate sentence that pays heed to the sentencing objectives and principles set out in the Criminal Code. It is especially so where the sentence is imposed after a contested trial. Accordingly, appellate courts accord substantial deference to sentencing decisions when exercising their powers of review under s. 687(1) of the Criminal Code")
    R. v. Parranto, 2021 SCC 46 (CanLII), at para 29 ("It is trite law that appellate courts cannot interfere with sentencing decisions lightly .... Sentencing judges are to be afforded wide latitude, and their decisions are entitled to a high level of deference on appeal")
  3. ↑ Parranto, ibid. at para 29
  4. ↑ Adan, ibid., at para 104 ("...[A]n appellate court is entitled to intervene under s. 687(1) of the Criminal Code where the sentencing judge erred in principle, failed to consider a relevant factor, or erred in considering an aggravating or mitigating factor, but only if it appears from the sentencing judge’s decision, read as a whole, the error impacted had an impact on the sentence ultimately imposed")
  5. ↑ Adan, ibid., at para 106 ("While it is an error to consider an element of the offence an aggravating factor, such an error must have had an impact on the sentence imposed to permit appellate intervention")
  6. ↑ Adan, ibid., at para 106 ("Likewise, a sentencing judge’s decision to weigh aggravating and mitigating factors in a particular way does not, in itself, permit appellate intervention unless the weighing is unreasonable")
  7. ↑ Adan, ibid., at para 105 ("the mere fact that a judge deviates from the proper sentencing range does not, on its own, justify appellate intervention. The choice of sentencing range or of a category within a range falls within the trial judge’s discretion and cannot, on its own, constitute a reviewable error. Apart from errors of law or principle that impact the sentence, appellate intervention is only warranted where the sentence imposed is demonstrably unfit, that is to say, clearly unreasonable")
  8. ↑ R v Martial, 2018 ABCA 201 (CanLII), per curiam, at paras 14 to 19
  9. ↑ Martial, ibid., at paras 18 to 19

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 (CanLII), (DOJ)

Note up: 687(1) and (2)


Defined terms: "sentence" (s. 673)

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; or
  • over-emphasis of an appropriate factor.

In addition the sentence therefore must be "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] It is discretion best exercised by the trial judge given their "familiarity with the facts and the accused."[4] Consequently, the standard of review is one of deference. [5] This deference does not change whether the sentence was after conviction or guilty plea.[6]

The deferential standard of review on sentence does not apply if no reasons for sentence are given.[7]

The standard is a "deferential one, and the decision of a sentencing judge is not to be interfered with lightly."[8]

Generally, a Court will only interfere where it is "demonstrably unfit."[9] This standard is also described as "clearly unreasonable."[10]

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."[11]

  1. ↑ R v CAM, 1996 CanLII 230 (SCC), [1996] 1 SCR 500, (1996) 105 CCC 327, per Lamer CJ, 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, 1995 CanLII 47 (SCC), [1995] 4 SCR 227, (1995) 102 CCC 193, per Iacobucci J, at para 46
    R v LM, 2008 SCC 31 (CanLII), [2008] 2 SCR 163, per LeBel J, at para 14
    R v Scott, 2013 NSCA 28 (CanLII), 327 NSR (2d) 256, per Beveridge JA (2:1), at paras 7 to 10
    R v Proulx, 2000 SCC 5 (CanLII), [2000] 1 SCR 61, per Lamer CJ, at para 123
    R v Nasogaluak, 2010 SCC 6 (CanLII), [2010] 1 SCR 206, per LeBel J, at para 46
    R v Murphy, 2015 NSCA 14 (CanLII), per Scanlan JA, at para 15
    R v Knockwood, 2009 NSCA 98 (CanLII), 900 APR 156, per Saunders JA, at para 22
  2. ↑ R v Long, [2001] NBJ No 347 (NBCA)(*no CanLII links)
    R v RP, 2001 NBCA 115 (CanLII), 636 APR 179, per Drapeau JA, at para 11
    R v Steeves, 2010 NBCA 57 (CanLII), 77 CR (6th) 341, per Drapeau CJ, at para 25
  3. ↑ R v McCurdy, [2003] 210 NSR (2d) 33(*no CanLII links) at 36
  4. ↑ R v Imona-Russel, 2019 ONCA 252 (CanLII), 145 OR (3d) 197, per Lauwers JA, at para 17
    R v Rezaie, 1996 CanLII 1241 (ON CA), 112 CCC (3d) 97, per Laskin JA, at paras 17 to 21
    R v Shropshire, 1995 CanLII 47 (SCC), [1995] 4 SCR 227, per Iacobucci J, at paras 46 to 50
    R v CAM, 1996 CanLII 230 (SCC), [1996] 1 SCR 500, (1996) 105 CCC 327, per Lamer CJ, at paras 90 to 92
    R v Lacasse, 2015 SCC 64 (CanLII), [2015] 3 SCR 1089, per Wagner J, at paras 11, 49-51
  5. ↑ R v Shropshire, 1995 CanLII 47 (SCC), [1995] 4 SCR 227, (1995) 102 CCC 193, per Iacobucci J at 209 (cited to CCC)
    CAM, supra at 374
    R v Knickle, 2009 NSCA 59 (CanLII), 246 CCC (3d) 57, per Roscoe JA, at para 11
    R v James, 2013 MBCA 14 (CanLII), 105 WCB (2d) 491288, per MacInnes JA, at para 18
  6. ↑ CAM, supra, at p. 374
  7. ↑ R v Guha, 2012 BCCA 423 (CanLII), 98 CR (6th) 177, per D Smith JA, 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")
  8. ↑ M(CA), supra, at para 91
  9. ↑ R v Brown, 2004 NSCA 51 (CanLII), 701 APR 393, per Roscoe JA
    Knickle, supra, at para 11
  10. ↑ R v W(G), 1999 CanLII 668 (SCC), [1999] 3 SCR 597, per Lamer CJ, at para 19
  11. ↑ R v Lacasse, 2015 SCC 64 (CanLII), [2015] 3 SCR 1089, per Wagner J, 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 CanLII 1241 (ON CA), 112 CCC (3d) 97, per Laskin JA
    R v Hawkins, 2011 NSCA 7 (CanLII), 265 CCC (3d) 513, per Beveridge JA
    R v Bernard, 2011 NSCA 53 (CanLII), 275 CCC (3d) 545, per Saunders JA, leave ref’d [2011] SCCA No 38
  2. ↑ R v Lacasse, 2015 SCC 64 (CanLII), [2015] 3 SCR 1089, per Wagner J, 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. ↑ R v Nasogaluak, 2010 SCC 6 (CanLII), [2010] 1 SCR 206, per LeBel J, 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), 293 CCC (3d) 455, per Ryan JA, 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), [2010] 1 SCR 206, per LeBel J, at para 44
    R v JJW, 2012 NSCA 96 (CanLII), 292 CCC (3d) 292, per Oland JA, 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), [2015] 3 SCR 1089, per Wagner J, at 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), per Beveridge JA, 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), 306 CCC (3d) 351, per curiam, at para 10
  2. ↑ See R v Arcand, 2010 ABCA 363 (CanLII), 264 CCC (3d) 134, per curiam, at para 304
  3. ↑ R v MacDonald, 2014 NSCA 102 (CanLII), per MacDonald CJ leave refused 2015 CanLII 23007 (SCC), per curiam, at para 57
    R v Best, 2012 NSCA 34 (CanLII), 998 APR 243, per MacDonald CJ, at para 35
  4. ↑ e.g. MacDonald, supra, at para 57
  5. ↑ R v Butler, 2008 NSCA 102 (CanLII), 239 CCC (3d) 97, per Bateman JA, at paras 18 to 20, 39 to 40
  6. ↑ Butler, ibid., at para 40
    R v Hamilton, 2004 CanLII 5549 (ON CA), 186 CCC (3d) 129, per Doherty JA

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, 2006 ABCA 84 (CanLII), 384 AR 206, per curiam, at para 13
  2. ↑ R v JJW, 2012 NSCA 96 (CanLII), 292 CCC (3d) 292, per Oland JA, at paras 53 and 54
    R v Chisholm, 2012 NBCA 79 (CanLII), 292 CCC (3d) 132, per Drapeau CJ
  3. ↑ R v Montague, 2014 ONCA 439 (CanLII), 120 OR (3d) 401, per Feldman JA

See Also

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