Reducing a Sentence because of the Progress the Offender has Made Awaiting Appeal



It is well-established 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.

R. v. Johnson, [2006] O.J. No. 2182 (C.A.) at para. 11.

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 exercise of this discretion is unusual, as routinely deciding sentence appeals on the basis of after-the-fact developments could jeopardize the integrity of the criminal process by undermining its finality.

            See R. v. Sipos, 2014 SCC 47 (CanLII), [2014] 2 S.C.R. 423, at para. 30.

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 that

  • the sentencing objectives have either been met by the offender’s extraordinary efforts (for instance specific deterrence and rehabilitation: R. v. Ghadban, 2015 ONCA 760 (CanLII)), or 
  • the public interest is better served by allowing the offender to continue his efforts to become a productive member of the community rather than by emphasizing other sentencing objectives (R. v. Ramta, 2017 ONCA 580: in that case, the objectives of denunciation and general deterrence).


On a practical level, a significant period of time must elapse between the sentence and the appeal, as short-term rehabilitative efforts are unlikely to convince an appellate court to interfere with a sentence which was fit at the time it was imposed. However, the appellate court will not exercise its discretion where the offender has artificially manipulated or “gamed” the situation, creating the delay in order to provide the opportunity to demonstrate extraordinary rehabilitation.

See for instance, R. v. Ghadban, 2015 ONCA 760 (CanLII), at para. 17.

R. v. Ramta, 2017 ONCA 580:   Offender sentenced to 20 months, having spent four years and eight months on house arrest awaiting trial and sentence.  Trial judge did not credit pre-sentence house arrest. Sentence varied on appeal to time served in light of extraordinary rehabilitative efforts since the sentence was imposed, including completing (and obtaining high standing in) a two-year college program, tutoring other students, obtaining employment in his chosen field, and fulfilling prerequisites to becoming a licensed trade.

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



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