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Criminal - Appeals - Practice. R. v. C.P.
In R. v. C.P. (Ont CA, 2023) the Court of Appeal considered the criminal appeals practice point of when to hear conviction and sentencing appeals together, and when not:[2] Although conviction and sentence appeals are generally heard together for efficiency and to avoid possible contradictory outcomes, the Crown submits that there are compelling reasons to bifurcate the conviction and sentence appeals so that the sentence appeal, which was perfected on November 30, 2023, can be heard without the delay that will arise awaiting the perfection of the conviction appeal and the assignment of a date for a joined appeal. The Crown’s application is predicated on the delay that is expected in the perfection of C.P.’s conviction appeal. His counsel on appeal have acknowledged that they cannot meet the perfection deadline of January 13, 2024. The Crown is concerned that even if it succeeds with its sentence appeal, C.P. is apt to be given the benefit of the time he spends serving the conditional sentence during this delay, which may reduce the Crown’s efforts to secure a lengthy deterrent and denunciatory in-custody sentence.
[3] Notwithstanding these considerations, it is not in the interests of justice to hear the appeals separately. The delay that is expected will not be undue. C. P.’s counsel on appeal have undertaken to perfect his conviction appeal by February 29, 2024, and have provided strong assurances that this can be achieved. That being so, the non-inherent delay in hearing this appeal is expected to be relatively brief, just over 6 weeks. Moreover, an appeal court’s task in determining the influence that a partially served sentence will have on the outcome of a sentence appeal is to consider the “overarching issue [which] is whether re- incarceration is in the interests of justice”: R. v. Davatgar-Jafarpour, 2019 ONCA 353, 146 O.R. (3d) 206, at para. 50. As a result, C.P. will only benefit from the non-inherent delay caused by his late perfection if it is in the interests of justice to give him that benefit.
[4] I am not persuaded that, in these circumstances, there is compelling reason to forego the benefits that hearing the conviction and sentence appeals together will offer. The Crown application is dismissed. I am available to conduct a case conference to hear proposals for expending the appeal, should the Crown request it.
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