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Criminal - Appeals - Sentencing (2). 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).
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