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Criminal - Appeals - Sentencing. R. v. Westcott
In R. v. Westcott (Ont CA, 2025) the Ontario Court of Appeal dismisses a criminal sentencing appeal:[4] Duty counsel fairly concedes that, in light of R. v. Nahanee, 2022 SCC 37, 474 D.L.R. (4th) 34, because this was a contested sentencing hearing as opposed to one in which there was a joint submission, the sentence should only be set aside if two conditions are met: (i) the sentencing judge failed to provide adequate notice to the parties that she was considering imposing a sentence that exceeded the Crown’s request; and (ii) the sentencing judge committed an error in principle that impacted the sentence. . R. v. Francois
In R. v. Francois (Ont CA, 2025) the Ontario Court of Appeal considers the test for leave to appeal criminal sentence:[7] An applicant seeking to appeal against sentence only must first be granted leave to appeal before a judge may order release from custody pending the determination of the appeal: Criminal Code, R.S.C. 1985, c. C-46, s. 679(1)(b); Criminal Appeal Rules, r. 22(17). A motion for leave to appeal sentence and an application for release pending appeal may be brought at the same time before a judge, as was the case here: Criminal Appeal Rules, r. 22(18).
(i) Leave to Appeal Sentence
[8] There is little case law from this court on the appropriate test for granting leave to appeal sentence. That said, in R. v. D.W., 2023 ONCA 638, at para. 13, the motion judge granted leave to appeal sentence in a case in which the grounds of appeal were “not frivolous”. Similarly, in R. v. Hewitt (February 16, 2018), Toronto, M48770 (Ont. C.A.), the motion judge observed that “[t]he test on a motion for leave to appeal sentence is not onerous. The appellant need only establish that the appeal is not frivolous or, equivalently, that it has an arguable basis.” In any event, the Crown does not oppose leave, so leave to appeal sentence is granted. . R. v. Khill [deference/SOR]
In R. v. Khill (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal conviction appeal (but allows a sentencing reduction), here from a manslaughter conviction - this in the defendant's second trial, where the first went up to the SCC.
Here the court considers exceptions to the high level of appellate deference in criminal sentencing:[143] In a long line of decisions, the Supreme Court of Canada has mandated that appellate courts must show considerable deference to a trial judge’s sentencing decision: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424; and R. v. Bertrand Marchand, 2023 SCC 26, 431 C.C.C. (3d) 1. As Chief Justice Wagner and Rowe J. said in Friesen, at para. 25:Appellate courts must generally defer to sentencing judges’ decisions. The sentencing judge sees and hears all the evidence and the submissions in person (Lacasse, at para. 48; R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, at para. 46). The sentencing judge has regular front-line experience and usually has experience with the particular circumstances and needs of the community where the crime was committed (Lacasse, at para. 48; R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 91). Finally, to avoid delay and the misuse of judicial resources, an appellate court should only substitute its own decision for a sentencing judge’s for good reason (Lacasse, at para. 48; R. v. Ramage, 2010 ONCA 488, 257 C.C.C. (3d) 261, at para. 70). [144] An appellate court is permitted to intervene to vary a sentence only if the sentence imposed is demonstrably unfit or the sentencing judge erred in principle in a manner that had an impact on the sentence imposed: Lacasse, at paras. 11, 41, and 43. In either of these circumstances, the appellate court must sentence the offender afresh, without deference to the sentence originally imposed, even if that sentence is within the appropriate range: Friesen, at para. 27. Even so, when an appellate court sentences afresh, it is not engaged in an open-ended exercise. As Chief Justice Wagner and Rowe J. said in Friesen, at para. 28:However, in sentencing afresh, the appellate court will defer to the sentencing judge’s findings of fact or identification of aggravating and mitigating factors, to the extent that they are not affected by an error in principle. This deference limits the number, length, and cost of appeals; promotes the autonomy and integrity of sentencing proceedings; and recognizes the sentencing judge’s expertise and advantageous position (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 15-18). [Emphasis added.] [145] Here, the trial judge profoundly erred by imposing the wrong sentence. That said, we do not accept the appellant’s submission that the 14-month delay in bringing this error to the court’s attention requires us to show no deference to the six-year sentence the trial judge intended to impose. While the unexplained delay is troubling, it has nothing to do with the substance of the decision we are asked to review.
[146] However, the trial judge’s ultimate assessment of the appropriate sentence in this case is not entitled to deference based on a combination of other reasons.
[147] As explained in the trial judge’s letter, his three identical sets of reasons (with the exception of the final number of years of incarceration) justified the imposition of three different sentences – six, seven or eight years’ imprisonment. At first blush, printing three lengthy sets of reasons, distinguished only by a single word (i.e., the number of years of imprisonment), appears unusual. However, in the deliberation process, a trial judge may change their mind on the ultimate sentence to be imposed. This may happen multiple times. This is not unusual. Sentencing is among the most difficult tasks for a judge: see Robert J. Sharpe, Good Judgment: Making Judicial Decisions (Toronto: University of Toronto Press, 2018), at p. 32.
[148] But this case is different. The combination of the trial judge’s mistake, the explanation of his mistake, his failure to correct it, and his reasons for not doing so, undermine the integrity of his determination of a fit sentence, whether eight years or six. This is especially so since the range of sentence mentioned in the trial judge’s letter is not reflected in his Reasons for Sentence. If we were to give effect to the respondent’s position on this issue, we would, in essence, be showing deference to the trial judge’s letter. Thus, we decline to afford deference to the trial judge’s determination of the quantum of sentence, whether eight years or six.
[149] In reaching this conclusion, we recognize that this case does not fit into either of the two categories identified by the Supreme Court in which it is appropriate to dispense with deference (see para. 144, above). Nonetheless, in the unusual and unprecedented circumstances of this case, we have found it analytically useful to follow the Court’s approach to the review of sentences when an impactful error in principle has been identified.
[150] As Lacasse contemplates when there has been an error in principle, even though it may be appropriate to show no deference to the trial judge’s ultimate assessment of the appropriate sentence, deference may still be afforded to the findings of a sentencing judge, as long as they are not tainted by error. Indeed, the appellant urges us to accept numerous facts as found by the trial judge, including the appellant’s “genuine remorse” and the trial judge’s conclusion that the appellant has “very positive rehabilitative prospects.” Accordingly, we show deference to the trial judge’s factual findings, including his identification of aggravating and mitigating factors, where appropriate. . R. v. Burke-Whittaker [reincarceration]
In R. v. Burke-Whittaker (Ont CA, 2025) the Ontario Court of Appeal dismissed a Crown sentencing appeal, here from a guilty plea to "one count of possession of a loaded or prohibited or restricted firearm contrary to s. 95(1) of the Criminal Code".
Here the court considers 'reincarceration':[62] In some cases where this court allows a sentence appeal and imposes a higher sentence, the court nevertheless stays the balance of the sentence to avoid reincarceration: see R. v. T.J., 2021 ONCA 392, 156 O.R. (3d) 161; R. v. E.C., 2019 ONCA 688; R. v. Davatgar-Jafarpour, 2019 ONCA 353, 146 O.R. (3d) 206; and Morris, at para. 184. Generally, this involves circumstances where the offender has already served all or most of the sentence imposed by the lower court, and this court determines that reincarceration is not necessary or appropriate. In other cases, such as this one, where imposing a higher sentence and staying it would have the effect of ending an ongoing conditional sentence and subsequent probation, the court denounces the sentence imposed below as unfit but nevertheless dismisses the appeal: see R. v. Pike, 2024 ONCA 608, 171 O.R. (3d) 241; R. v. C.P., 2024 ONCA 783; R. v. R.S., 2023 ONCA 608, 168 O.R. (3d) 641; and R. v. M.M., 2022 ONCA 441. The purpose of proceeding in this fashion is to maintain the benefit of court supervision. . R. v. McCool
In R. v. McCool (Ont CA, 2024) the Ontario Court of Appeal considered the deference owed by appeal courts for criminal sentencing:[27] The appellant acknowledges that appellate courts owe great deference to sentences imposed by trial judges, but says that deference should give way here for two reasons: (1) the trial judge’s reasons are infected by errors in principle; and (2) the trial judge imposed a demonstrably unfit sentence.
[28] Deference to sentencing judges will give way where a sentence is impacted by an error in principle, a failure to consider a relevant factor, or an erroneous consideration of aggravating or mitigating factors: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 43-4; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 26. A sentence will be found to be demonstrably unfit where it unreasonably departs from the principle of proportionality, a sentencing principle that trains its focus upon the seriousness of the crime and the offender’s degree of responsibility: Lacasse, at paras. 41, 53; Friesen, at para. 26; Criminal Code, s. 718.1; R. v. Parranto, 2021 SCC 46, 463 D.L.R. (4th) 389, at para. 38. In either case, where deference gives way on appeal, it falls to the appellate court to perform its own sentencing analysis to determine a fit sentence. This analysis requires an application of the sentencing principles to the facts as found by the trial judge, provided that those facts are not themselves infected by error: Friesen, at paras. 27-8; Lacasse, at para. 43. . R. v. Ruthowsky
In R. v. Ruthowsky (Ont CA, 2024) the Ontario Court of Appeal considers the SOR for sentencing decisions:[149] In considering each of these arguments, I bear in mind the standard of review. Sentencing decisions are entitled to substantial deference. An appellate court will only disturb a sentence where: (i) the sentencing judge made an error in principle, failed to consider a relevant factor, or erroneously considered an aggravating or mitigating factor, and the error had an impact on the sentence; or (ii) where the sentence is demonstrably unfit: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 39-41, 44 and 51. . R. v. S.W.
In R. v. S.W. (Ont CA, 2024) the Court of Appeal considered the appellate standard of review, and the role of 'sentencing ranges' in criminal sentencing:(1) Standard of review
[24] The Crown is entitled to appeal a sentence with leave of the court: s. 676(1) of the Criminal Code, R.S.C. 1985, c. C-46.
[25] This court owes significant deference to a sentencing judge’s decision. The court will only intervene where (1) the sentence imposed is demonstrably unfit or (2) where the sentencing judge committed an error in principle, failed to consider a relevant factor or erroneously considered an aggravating or mitigating factor, and it appears from the decision that such an error had an impact on the sentence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 44, 51; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 26-28.
[26] On appeal, the court is not to interfere with a sentencing decision because the appellate court would have imposed a different sentence or weighed relevant factors differently: R. v. W.V., 2023 ONCA 655, at para. 26.
[27] In determining whether a sentence is demonstrably unfit, the inquiry is focused on the principle of proportionality set out in s. 718.1 of the Criminal Code. As stated in Lacasse, at para. 53:This inquiry must be focused on the fundamental principle of proportionality stated in s. 718.1 of the Criminal Code, which provides that a sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”. A sentence will therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle. Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must be reconciled for a sentence to be proportionate: s. 718.2(a) and (b) of the Criminal Code. [28] Finally, in Lacasse, at para. 51, the Supreme Court emphasized that sentencing judges have discretion to identify an appropriate sentencing range and that the identification of an inappropriate sentencing range on its own is not an error in principle. The court also observed that “sentencing ranges are primarily guidelines, and not hard and fast rules”, and therefore “a deviation from a sentencing range is not synonymous with an error of law or an error in principle”: Lacasse, at para. 60. However, if the sentence imposed “departs significantly and for no reason from the contemplated sentences” (emphasis added), this may be an indication that a sentence is demonstrably unfit: Lacasse, at para. 67.
[29] In R. v. Parranto, 2021 SCC 46, 436 D.L.R. (4th) 389, at para. 40, the Supreme Court further explained the role a sentencing range may play in determining the fitness of a sentence. In this context, the court explained that “exceptional” circumstances are not required to justify a sentence that falls outside a sentencing range. However, where a sentence falls significantly outside a range without any explanation or rationale, this may be a signal that a sentence is demonstrably unfit:Since starting points and ranges reflect the gravity of the offence, however, the sentencing judge’s reasons and the record must allow the reviewing court to understand why the sentence is proportionate despite a significant departure from the range or starting point. This applies regardless of whether the reasons refer to the starting point or not. At the very least, the appellate court must be able to discern from the reasons and the record why the sentence is fit in the circumstances of the offence and the offender. We emphasize, however, that it is inappropriate for appellate courts to “artificially constrain sentencing judges’ ability to impose a proportionate sentence” by requiring “exceptional circumstances” when departing from a range... Departing from a range or starting point is appropriate where required to achieve proportionality. [Citations omitted; emphasis added.] . R. v. Johnston
In R. v. Johnston (Ont CA, 2023) the Court of Appeal considers 're-incarceration', here after a Crown appeal of a conditional sentence was successful:[10] Having concluded that the three-year sentence that the sentencing judge selected is fit, the issue then arises whether the appellant should now be incarcerated to serve what would remain of that sentence. There are approximately 16 months left to be served on that sentence after deducting the credits that the sentencing judge allowed and after according the respondent credit for the time that he has spent on the conditional sentence.
[11] We have concluded that the respondent should not now be incarcerated. There is little societal benefit to incarcerating the respondent at this stage, and much that could be detrimental. As already noted, there is only a relatively short period of time left to be served on that sentence. In our view, the situation here mirrors the one in R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1 (C.A.) where Doherty J.A. said, at para. 166: “To impose now, what would have been a fit sentence at trial, would work an undue hardship on the respondents. The administration of justice is best served by allowing the respondents to complete their conditional sentences.” . R. v. G.S.
In R. v. G.S. (Ont CA, 2023) the Court of Appeal states the SOR for sentencing appeals:[64] An appellate court will only intervene to vary a sentence where the trial judge has made an error in principle that has impacted the sentence or where the sentence is demonstrably unfit: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 25-26; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 41, 44. . R. v. M.V.
In R. v. M.V. (Ont CA, 2023) the Court of Appeal considered (and allowed) a sentencing appeal regarding sexual interference, and separate child luring and related, guilty pleas.
In this quote the court considers where a lack of deference is accorded in sentencing appeals:[38] The error in principle I have identified had an undeniable effect on the sentence imposed. That error is therefore reversible: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44. As a result, this court is to consider the matter afresh, without deferring to the sentence imposed by the trial judge: Anthony-Cook, at para. 6. Since it is unnecessary to do so, I will refrain from commenting on the alternative ground relied on by the appellant, the fitness of the sentences imposed. . R. v. C.L.
In R. v. C.L. (Ont CA, 2023) the Court of Appeal considered the SOR for appeals of criminal sentencing:[9] Sentencing decisions are entitled to substantial deference: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 39-41, 44, 49. The court will only disturb the sentence if the sentencing judge made an error in principle that had an impact on the sentence, or if the sentence is demonstrably unfit: R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 26. . R. v. W.V.
In R. v. W.V. (Ont CA, 2023) the Court of Appeal considered a Crown sentencing appeal from a conviction for sexual assault, here in a joint trial of several defendants where "a central common issue was the complainant’s capacity to consent to the sexual activity in question".
In these quotes the court, after imposing a increased sentence on appeal, and with the defendant being on day parole, considered whether the case merited 'reincarceration':H. SHOULD THE RESPONDENT BE REINCARCERATED?
[47] The court was advised that the respondent was released on day parole on July 27, 2023, having served 11 months of his custodial sentence. He seeks a stay of the execution of any sentence of incarceration imposed by this court.
[48] The key question is whether it is in the interests of justice for the respondent to be reincarcerated: R. v. Cheng (1991), 50 O.A.C. 374 (C.A.). I note that this court has generally been reluctant to reincarcerate an offender who has served the sentence originally imposed and has been released in the community: R. v. T.J., 2021 ONCA 392, 156 O.R. (3d) 161, at paras. 48 to 49; R. v. Davatgar-Jafarpour, 2019 ONCA 353, 146 O.R. (3d) 206, at para. 50. This is particularly the case where any period of incarceration would be relatively short, and a substantial period of time has passed since the offender was released.
[49] Nonetheless, where the original sentence was far below that which was required, re-incarceration has been often found to be necessary: R. v. D.G.F., 2010 ONCA 27 (CanLII), 98 O.R. (3d) 241, (reincarceration ordered where sentence increased from 3 to 7 years); R. v. Leo-Mensah, 2010 ONCA 139, 101 O.R. (3d) 366, (reincarceration ordered where sentence increased from one day to two years).
[50] In this case, taking into account the fact that the respondent’s sentence has been doubled from 3 to 6 years, and that he was released on parole less than 2 months ago, I find that his reincarceration is in the interests of justice. I would therefore decline the respondent’s request for a stay of the balance of his sentence that is yet to be served. . R. v. Smith
In R. v. Smith (Ont CA, 2023) the Court of Appeal considered the remedy available to an appeal court when they find an error in sentencing:[4] The appellant submits that the sentences imposed were demonstrably unfit and that the sentencing judge made errors in principle. We do not need to address the first contention as we agree with the second. Since the sentencing judge made errors in principle in imposing the sentence that she did, this court is entitled to intervene and must undertake its own sentencing analysis: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 27. . R. v. Abdelrazzaq
In R. v. Abdelrazzaq (Ont CA, 2023) the Court of Appeal confirms that - on a sentencing appeal - the Court of Appeal has no jurisdiction to remit sentencing back down to the trial court [CCC 687]:This Court’s Jurisdiction
[3] We accept counsel’s submission that this court does not have jurisdiction on a sentence appeal under s. 687 of the Criminal Code to remand the matter for sentence to the trial court. The section gives the court two choices. The court may allow the appeal and vary the sentence, or the court may dismiss the appeal.
[4] Counsel brought to the court’s attention R. v. A.S., 2010 ONCA 441, 258 C.C.C. (3d) 13, a brief endorsement by a panel of this court indicating, without explanation, that a matter could be remitted to the trial court for sentencing. That decision contains no analysis of the relevant statutory provisions and makes no reference to the earlier decision of this court holding to the contrary: see R. v. Kakekagamick (2006), 2006 CanLII 28549 (ON CA), 81 O.R. (3d) 664 (C.A.), at para. 60.
[5] A.S. must be read as overtaken by several subsequent decisions of this court, holding after an analysis of the relevant provisions, that this court has no jurisdiction on a sentence appeal to remit the matter of sentence to the trial court: see R. v. Monckton, 2017 ONCA 450, 349 C.C.C. (3d) 90, at paras. 103-105; R. v. Montesano, 2019 ONCA 194, 145 O.R. (3d) 474, at paras. 17-20, leave to appeal refused, [2019] S.C.C.A. No. 148; and R. v. Macintyre-Syrette, 2018 ONCA 259, 46 C.R. (7th) 78, at para. 25. Other appellate courts have come to the same conclusion: see Levasseur v. The Queen, 2022 QCCA 286, at para. 12; R. v. Pahl, 2016 BCCA 234, 336 C.C.C. (3d) 221, at para. 85; R. v. Perrier, 2009 NLCA 1, 282 Nfld. & P.E.I.R. 171, at para. 12; R. v. Cromwell, 2005 NSCA 137, 238 N.S.R. (2d) 17, at para. 25; and R. v. G.W.C., 2000 ABCA 333, 89 Alta. L.R. (3d) 217, at para. 28.[1]
[6] The parties have also referred to s. 46.1 of the Supreme Court Act, R.S.C. 1985, c. S-23. That section expands the power of the Supreme Court of Canada to include remanding a matter back to the trial court for further proceedings. This power includes further proceedings on sentence: see House of Commons Debates, 35-1, Vol. 5 (4 October 1994) at 6520 (Hon. Sue Barnes). This section has no application to provincial appellate courts. . R. v. Kanthavel
In R. v. Kanthavel (Ont CA, 2023) the Court of Appeal cites the standard of review for criminal sentencing:[22] The threshold for appellate intervention in sentencing is high. An appellate court can only intervene to vary a sentence if the sentence is demonstrably unfit, or it is apparent that an error in principle, the failure to consider a relevant factor, or the erroneous consideration of an aggravating or mitigating factor, had an impact on the sentence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11, 49, and 78.
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