Standard of Review

 

  • The appellate court must defer to the sentence imposed by the trial judge, unless the trial judge:

  1. Committed an error in principle

  2. imposed a manifestly unfit sentence

  3. overemphasized or failed to consider a relevant factor

 

R v Wolynec, 2015 ONCA 656, para 114; R v RO, 2015 ONCA 814 at para 56; R v Rafiq, 2015 ONCA 768 at paras 22-23

 

 

  • Error in Principle

    • If the sentencing judge commits an error in principle, the sentence imposed is no longer entitled to deference and an appellate court may impose the sentence it thinks fit: R v Carreira, 2015 ONCA 639 at para 25

 

 

  • Manifestly Unfit Sentence

    • The court of appeal can overturn a sentence where it is manifestly unfit – e.g., if the accused has significant mitigating factors and the sentence violates the parity principle: R v Baks, 2015 ONCA 560 at paras 2-6

 

 

  • Deference: Trial or Sentencing Judge? 

    • Where the sentencing judge is different than the trial judge, the trial judge’s opinion as to the appropriate sentence may be entitled to deference. If the sentencing judge wishes to depart from the trial judge's opinion, s/he must, in fairness, provide notice to the parties and allow them to make further submissions: R v Owen, 2015 ONCA 462 at paras 47-58

       

       

 

See: Reincarceration on Appeal 

 

 

Post-Sentencing Considerations on Appeal 

 

  • A sentence which is nonetheless fit may be reduced on appeal on the basis of changed circumstances post-sentencing: R v Fratia, 2015 ONCA 460 at paras 8-10 [on consent]

  • The criteria for  admitting fresh evidence on appeal of sentence are the same as those that apply on appeal of conviction: R v Wolynec, 2015 ONCA 656 at para 115​

  • Fresh evidence of mental illness may be admissible to show that the appellants’ mental health has deteriorated or would deteriorate significantly in jail and that an appropriate sentence would be a conditional sentence: R v AE, 2016 ONCA 243 at para 50

 

 

 

Variation of Probation Order

 

  • The failure to apply to the sentencing judge for a variation of the probation order under s.732.2(3) of the Criminal Code does not disentitle an appellant, as a matter of law, to the same relief on an appeal from sentence; however,, the failure to apply under s. 732.2(3) is a factor the appellate court will consider on the appeal from sentence: R v Hromek, 2016 ONCA 109 at para 7