Sentence Was Fit Then, But Is It Fit Now?


On occasion, appellate courts have reduced a sentence which was fit when imposed because of the significant progress the offender made while awaiting the hearing of the appeal. 

The offender is required to establish that he/she has taken something akin to “very unusual significant strides” or “extraordinary rehabilitative efforts” since the original sentence was imposed, and -- typically -- that the sentencing objectives have been met by the offender’s extraordinary efforts.


The exercise of this appellate discretion is exceptional. 

As the Court of Appeal for Ontario noted in R. v. L.S., 2017 ONCA 685, at para. 117, in most cases, positive steps taken by the appellant between sentencing and the hearing of an appeal are best dealt with by the correctional authorities.  The appeal court cannot act as a de facto parole board, but must trust the parole authorities to exercise their powers to facilitate the appellant’s reintegration into the community at the earliest appropriate time.

It should be noted, however, that in R. v. L. S., the principal goal underlying the appellant’s sentence (denunciation) remained as vital as it was when the sentence was imposed.

Contra, see the leading case of R. v. Ghadban, 2015 ONCA 760 (CanLII).

Where denunciation comprises a primary sentencing objective

When an offence calls for a denunciatory sentence, the length of the sentence imposed is most often the means used by the court to send the denunciatory message.  An appellant’s positive lifestyle while on bail pending appeal does not justify departure from that norm.

R. v. L.S., at para. 111.

However, see R. v. Ramta, 2017 ONCA 580, where the same Court found that the public interest would be better served by allowing the appellant to continue his efforts to become a productive member of the community than by emphasizing denunciation and general deterrence. Sentence varied to time served.



Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca






Comments

Post a Comment

Popular posts from this blog

Warrantless Drug Searches (Section 11(7) of the CDSA)

Were there exigent circumstances? Did the exigent circumstances render it impracticable to obtain a warrant? Section 11(7)   of the Controlled Drugs and Substances Act states: (7) A peace officer may exercise any of the powers described in subsection (1), (5) or (6) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one. Subsection (1)   of s. 11 empowers a peace officer to conduct a warranted search of a place for, inter alia , a controlled substance and to seize it. Section 11(7), therefore, empowers a peace officer to conduct a warrantless search for a controlled substance, so long as conditions for obtaining a warrant existed and exigent circumstances made it impracticable for the officer to obtain a warrant. For a warrantless entry into a residence to satisfy section 11(7) , the Crown must show that the entry was compelled by urgency, calling for immediate police action to prese
Read more

Arrested at Home: Feeney Warrants

At common law, where the police had reasonable grounds to arrest a suspect and reasonable grounds to believe a suspect was in a private dwelling-house, they were entitled to enter and arrest the suspect, with or without an arrest warrant, if proper announcement was made. See R. v. Landry , 1986 CanLII 48 (SCC), [1986] 1 S.C.R. 145 , and Eccles v. Bourque et al. , 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739 ). However, in the 1997 decision of R. v. Feeney , the Supreme Court of Canada ruled that the common law violated s. 8 of the Canadian Charter of Rights and Freedoms and that generally, warrantless arrests within private dwellings were prohibited.  Absent exigent circumstances or cases of hot pursuit, an entry warrant would be required to enter a dwelling house to make an arrest.    R. v. Feeney , 1997 CanLII 342 (SCC), at paras. 44-51.  Parliament responded by enacting sections 529-529.5 of the Criminal Code , which, among other things, creates two distinct authorizatio
Read more

Night time Execution of a Search Warrant

Warrants Authorized under the Criminal Code The Criminal Code requires that if a warrant is to be executed at night (after 9:00 p.m., see Criminal Code , s. 2), the night time execution must be justified under the terms of s. 488 of the Criminal Code .    Section 488 of the Criminal Code is not made applicable to warrants and telewarrants issued under the authority of section 11 of the CDSA, which may be executed “at any time”.  R. v. Shivrattan, 2017 ONCA 23; R. v. Saunders , 2003 NLCA 63, 181 C.C.C. (3d) 268, at paras. 27, 31-32, affirmed on other grounds, 2004 SCC 70, [2004] 3 S.C.R. 505; R. v. Dueck , 2005 BCCA 448, 200 C.C.C. (3d) 378, at paras. 17-21; and R. v. Newell , [2007] O.J. No. 2348, at para. 47 (Ont. S.C.). Warrants Authorized under the Controlled Drugs and Substances Act Unlike warrants issued under the Criminal Code , there is no statutory presumption that warrants issued under s. 11 of the CDSA are to be executed before 9:00 p.m. unless night t
Read more