by Eva Taché-Green

Anyone charged with a criminal offence knows there is a risk they will be convicted. In 2016, for example, 64% of criminal cases in Canada ended in a finding of guilt.1 On the other hand, anyone who has been convicted of a criminal offence knows with absolute certainty that they will be sentenced in some way. Although less than half of the sentences imposed in Canada include a period of incarceration,2 other sanctions, such as fines, driving prohibitions, and probation, can have serious consequences for an offender. Long after the drama of the trial fades away, the sting of the sentence lingers, particularly where the sentence imposed feels unfair. It is understandable that an offender in this situation may want to launch a sentence appeal.

Courts treat sentence appeals differently from conviction appeals. Sentencing judges have wide latitude in crafting appropriate sentences and appellate courts are reluctant to interfere with the sentence that was imposed at first instance. However, there are limited and clearly delineated circumstances in which intervention is necessary. To succeed on a sentence appeal, an appellant must point to one of two errors:

• an error in principle or law that had an impact on the sentence imposed; or
• the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor that had an impact on the sentence imposed.

Additionally, the appellant must show that because of the error, the sentence imposed was demonstrably unfit.3 It is rare that a sentence will be demonstrably unfit notwithstanding that no error was committed.

Although sentencing judges have a great deal of discretion when it comes to crafting and imposing sentence, they are bound by a set of principles enumerated in the Criminal Code, including:

• Proportionality: the principle that sentences must be proportionate of the gravity of the offence and the degree of moral responsibility of the offender;
• Parity: the principle that similar sentences should be imposed on similar offenders for similar offences;
• Totality: the principle that the total sentence imposed for multiple offences must not be unduly harsh; and
• Restraint: the principle that offenders should not be deprived of liberty if a less restrictive sanction is available.4

Where the sentencing judge ignored or made an error with respect to one of these principles, and the error resulted in a sentence that was demonstrably unfit, the appellate court should allow the appeal.

Sentencing judges are also required to identify, consider, and weigh all the relevant aggravating and mitigating factors. Aggravating factors, such as a lengthy criminal record, might suggest that a harsher sentence is appropriate. On the other hand, mitigating factors, such as expressions of remorse or good prospects for rehabilitation, might suggest that a more lenient sentence is appropriate. In many cases, assessing these factors is a delicate balancing act. If the sentencing judge imposed sentence without regard for a relevant mitigating factor or with an over-emphasis on an aggravating factor, this will be a viable ground of appeal against the sentence imposed.

To succeed on appeal, the appellant must show that the sentence was demonstrably unfit. This is a high threshold. An appellate court cannot intervene simply because it would have imposed a different sentence. The appellant must therefore argue that the sentence imposed constituted an unreasonable departure from the principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This is a case-specific analysis. Proportionality is determined both in relation to the accused him or herself and to the offence committed, and by comparison with sentences imposed for similar offences committed in similar circumstances.

Success on a sentence appeal does not ordinarily return the matter to the lower court. Rather, where the Court of Appeal is satisfied that the sentence was imposed pursuant to an error, or is otherwise demonstrably unfit, it has the power to sentence the appellate anew.

Lockyer Campbell Posner has several lawyers within the firm who specialize in bringing sentence appeals in criminal and quasi-criminal matters. Do not hesitate to contact us if you would like advice on how we can assist you, a family member, or friend appeal sentence.

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