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Criminal - Appeals - Sentencing

. 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':

[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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Last modified: 15-03-24
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