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Criminal - Appeal - Reincarceration. R. v. Kulatheeswaran
In R. v. Kulatheeswaran (Ont CA, 2026) the Ontario Court of Appeal considered the criminal sentencing issue of 'reincarceration' after a successful Crown appeal:[29] This court retains discretion to decline to order reincarceration where doing so would not meaningfully advance the purposes and principles of sentencing. In R. v. Smickle, 2014 ONCA 49, 306 C.C.C. (3d) 351, at para. 10, this court recognized that, while the appellate court should identify the appropriate sentence to mark the error if the original sentence was too low, in some circumstances reincarceration at the time of appeal is not required. More recently, in R. v. R.S., 2023 ONCA 608, 168 O.R. (3d) 641, at paras. 41-42, this court acknowledged that written reasons may sufficiently denounce and deter wrongful conduct where the offender has already served a significant portion of the sentence imposed. . R. v. Elias
In R. v. Elias (Ont CA, 2026) the Ontario Court of Appeal dismissed a Crown criminal sentencing appeal, this brought against a guilty plea for sentencing for "possessing child pornography".
Here the court considered the situation where a defendant is re-incarcerated after a successful Crown appeal:[63] Where an appellate court concludes that a sentence is unfit but allowing a Crown sentence appeal would end an ongoing conditional sentence and subsequent probation, the court may denounce the sentence imposed below as unfit but nevertheless dismiss the appeal: see, for example, in R. v. M.M., 2022 ONCA 441; R. v. R.S., 2023 ONCA 608, 168 O.R. (3d) 641; R. v. C.P., 2024 ONCA 783; and Pike, at paras. 194-195. In each of these cases, the court found it significant that the offender had served most or all of his non-custodial sentence when this court rendered its decision. The timing of an offender’s eligibility for parole has also been considered a relevant factor: see Pike, at para. 194; C.P., at para. 44; and M.M., at para. 20. Finally, in C.P., at para. 43 and R.S., at para. 42, the court considered that a penitentiary sentence would reduce the oversight and supervision of the offender in the community because a probationary period cannot attach to a custodial sentence over two years. . R. v. Sheppard
In R. v. Sheppard (SCC, 2025) the Supreme Court of Canada allowed a Crown appeal, this from an Alberta CA variation of a sentence for jury convictions for "sexual interference and invitation to sexual touching".
Here the court considers ordering 'reincarceration', the situation where an appeal results in an sentence increase that may require return to custody after the prior sentence was served:D. Reincarceration
[106] Having concluded that the court below erred and that the original sentence should be restored, I turn now to the issue of reincarceration. The respondent argues that it would not be in the interests of justice to order his reincarceration (R.F. (amended), at paras. 80 et seq.).
[107] In support of his arguments against reincarceration, the respondent brought a motion before this Court to adduce new evidence consisting of two Parole Board of Canada decisions, one granting the respondent day parole and the other granting him full parole. The Crown opposed the motion.
[108] Following the hearing, this Court unanimously allowed the new evidence motion, allowed the Crown’s appeal and restored the respondent’s original sentence of 6 years’ incarceration, less 11 days’ credit for 7 days of pretrial custody. We also issued an order for the respondent to surrender himself to the proper authorities to be reincarcerated. What follows are our reasons for allowing the motion for new evidence and ordering reincarceration.
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(2) Conclusion on Reincarceration
[117] In the circumstances of this case, I am satisfied that denunciation and deterrence cannot be achieved without reincarceration given the gravity of the respondent’s offences, and in particular his pattern of abusing children while in a position of power. These objectives are especially pressing when considering reincarceration for sexual offences against children, as Parliament has legislated the primacy of denunciation and deterrence in relation to these offences (Criminal Code, s. 718.01). I also note that the respondent still has the majority of his sentence left to serve, and, unlike in other cases, the Crown has not conceded that reincarceration should not be ordered (see, e.g., Bertrand Marchand, at para. 102; Proulx, at para. 132). On the whole, the interests of justice compel reincarceration in the circumstances of this case. The respondent is therefore to be reincarcerated to serve the remainder of his custodial sentence.
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