Simon's Megalomaniacal Legal Resources

Criminal - Appeals - Sentencing

. 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.