Simon's Megalomaniacal Legal Resources

Criminal - Appeals - Sentencing (2)

. R. v. Cairns-Cushman [fresh evidence]

In R. v. Cairns-Cushman (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, this brought against convictions "for possession of 213 grams of carfentanil and 2.8 grams of fentanyl (together “the drugs”), for the purpose of trafficking".

The court considers 'fresh evidence', here in a sentencing appeal context:

Whether the Fresh Evidence Should be Admitted

[36] The fresh evidence demonstrates the appellant’s rehabilitative efforts since she was sentenced and includes approximately 80 certificates for completing programming while in custody. This programming covers topics such as recovering from addictive behaviour, conflict resolution, and employment skills. It shows that the appellant has consistently received excellent feedback.

[37] The Crown opposes the admission of this fresh evidence on the basis that it does not meet the fourth criterion set out in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, as it would not have affected the sentencing outcome. The four-part test for admitting fresh evidence on a sentence appeal, is as follows:

i. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases;

ii. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

iii. The evidence must be credible in the sense that it is reasonably capable of belief; and

iv. It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result: See also, R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487, at paras. 14, 35; R. v. LaPierre, 2018 ONCA 801, at para. 22; R. v. I.M.C., 2014 ONCA 312, 120 O.R. (3d) 1, at para. 59.

[38] Fresh evidence that attempts to show a change in the offender’s circumstances since sentencing has not been admitted where it could not be expected to have affected the result: see for example, R. v. Jeannotte, 2026 ONCA 79, at para. 54; R. v. D.V.B., 2010 ONCA 291, 100 O.R. (3d) 736, at para. 97, leave to appeal refused, [2011] S.C.C.A. No. 207; and R. v. E.M.M., 2021 ONCA 436, at para. 39.

[39] Even where fresh evidence regarding an offender’s changed circumstances has been admitted, the courts may nonetheless uphold the sentence imposed: See R. v. Mercier, 2023 ONCA 98, 166 O.R. (3d) 171; R. v. Seed, 2025 ONCA 698; R. v. Sureskumar, 2023 ONCA 705, 431 C.C.C. (3d) 210; R. v. Luu, 2021 ONCA 311; and R. v. Dodman, 2021 ONCA 543, 494 C.R.R. (2d) 22.

....

[44] Section 687(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, empowers this court, on appeal, to consider the present fitness of a sentence in light of fresh evidence and to vary it where appropriate. In some circumstances, post-sentencing changes may justify intervention, even where the sentence was fit when imposed: R. v. Ghadban, 2015 ONCA 760, 342 O.A.C. 177, at para. 14.

[45] In Ghadban, the appellant had made great strides during an extended period on bail pending appeal from his conviction and then from his sentence. In addressing whether the appellant should be reincarcerated given his positive rehabilitation, the court also set out some general principles to assess the fitness of a sentence in light of fresh evidence showing a change in circumstances. The court stated, at para. 14, that “if there is fresh evidence to show a change of circumstances after a fit sentence was imposed, an appellate court may ‘exercise its discretion and act on it pursuant to the obligation to assess the fitness of the sentence at the time when the appeal is heard’”.

[46] However, courts must guard against undermining finality by placing undue weight on subsequent developments: Ghadban, at para. 15; R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 30. Even fresh evidence of institutional hardship will not ordinarily warrant a change in sentence although “particularly harsh or exceptional custodial effects may warrant mitigation”: R. v. Oryia, 2026 ONCA 166, at paras. 28-30; and R. v. Holden, 2024 ONCA 393, at para. 9. Fresh evidence of positive steps taken and progress while in custody is better directed to the parole board: Jeannotte, at para. 55.

[47] As noted in Sipos, at para. 30, “[r]outinely deciding sentence appeals on the basis of after-the-fact developments could both jeopardize the integrity of the criminal process by undermining its finality and surpass the appropriate bounds of appellate review”.

[48] In Ghadban, where this court reduced the custodial portion of the appellant’s sentence to time served, it held at paras. 16-25, that the circumstances were “very unusual” because the appellant had been released from custody for some time:

[t]he fresh evidence demonstrates that the appellant … has undertaken, assumed and fulfilled the responsibilities of a husband and a father. He has become a trusted and productive employee. He has been active as a community volunteer. He now accepts responsibility for his crime. He has complied with his conditions of release and there has been no recurrence of criminal behaviour in the five years since this offence was committed.

...

The appellant’s life would be devastated if he were to be sent back to jail at this point. His family would be seriously disrupted and he would be diverted from the strong direction he has taken towards rehabilitation. To return him to jail would, as in R. v. Porter (1980), 26 Nfld. & P.E.I.R. 26 (Nfld. C.A.), at para. 11, “have the effect of sacrificing the principle of rehabilitation for the principles for punishment and deterrence”.

[49] In Ghadban, returning the appellant to a correctional facility was held to constitute a serious disruption, sacrificing the principle of rehabilitation entirely: Ghadban, at para. 24. See also R. v. Gray, 2021 ONCA 86, at para. 57. The disruption occasioned by returning the appellant to prison would have offset any gain in furtherance of the principles of denunciation and deterrence: Ghadban, at para. 23.

. R. v. Sheppard

In R. v. Sheppard (SCC, 2025) the Supreme Court of Canada allowed a Crown appeal, this from an Alberta CA criminal sentence variation for jury convictions for "sexual interference and invitation to sexual touching".

Here the court considers the appellate SOR for criminal sentencing:

A. Standard of Review

[38] Sentencing decisions are discretionary and are owed considerable deference from appellate courts (Lacasse, at para. 41, citing R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 123 and 125; see also Lacasse, at para. 55; R. v. Nahanee, 2022 SCC 37, at para. 40). The presumptive posture of deference reflects the fact that sentencing judges, having heard the evidence and submissions first-hand, enjoy an advantageous position relative to appellate courts (Lacasse, at para. 48). Typically, sentencing judges are also immersed in the jurisdiction where the offence took place and understand the needs of the community as they relate to denunciation and deterrence (ibid., citing R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 91). Finally, a deferential approach prevents the misuse of judicial resources and unnecessary delay, as Doherty J.A. noted in R. v. Ramage, 2010 ONCA 488, 257 C.C.C. (3d) 261:

Appellate repetition of the exercise of judicial discretion by the trial judge, without any reason to think that the second effort will improve upon the results of the first, is a misuse of judicial resources. The exercise also delays the final resolution of the criminal process, without any countervailing benefit to the process. [para. 70]

[39] Taking deference as the starting point, an appellate court is entitled to intervene only where the sentencing judge has committed an error in principle that impacted the sentence or where the sentence is demonstrably unfit (Lacasse, at paras. 44 and 46; R. v. J.W., 2025 SCC 16, at para. 51). Errors in principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor (Friesen, at para. 26). The appellate court must not only identify such an error, but must also be satisfied that it had an impact on the sentence (ibid.; Lacasse, at para. 44). If the court is satisfied that the error impacted the sentence, “[i]t is not a further precondition to appellate intervention that the existing sentence is demonstrably unfit or falls outside the range of sentences imposed in the past” (Friesen, at para. 27).

[40] Where an appeal is based exclusively on alleged errors in principle, the reviewing court should withhold passing judgment on the ultimate sentence imposed while investigating those alleged errors and their impact (Lacasse, at para. 44). This should go without saying. Appellate courts must take great care not to allow their own assessment of the record, and what weight they would have given to various factors, to colour the lens through which they view the sentencing judge’s reasoning (R. v. V. (W.), 2023 ONCA 655, 169 O.R. (3d) 68, at para. 26). The integrity of appellate intervention would be compromised if a supposed error in principle could serve as a pretext for the appellate court substituting its own view of the appropriate sentence.

[41] Once an appellate court identifies a basis on which to intervene — either that the sentencing judge committed an error in principle that impacted the sentence or that the sentence imposed was demonstrably unfit — that court is tasked with sentencing the offender afresh (Friesen, at para. 27). At this stage, the appellate court applies the principles of sentencing and comes to its own determination of a fit sentence in the circumstances, without deference to the original sentence, while still adhering to the sentencing judge’s untainted findings of fact (para. 28).

[42] Often, the appellate court will arrive at a sentence that differs from the one originally imposed and will vary that sentence. This will obviously be the case where the basis for intervention is that the original sentence was demonstrably unfit. However, where the basis for intervention is an error in principle, the appellate court may, upon its own independent review, arrive at the same sentence as the one originally imposed. In such cases, the court may affirm the sentence despite the error (Friesen, at para. 29).