Wednesday, December 1, 2010

Sentencing peculiarly within trial judge's expertise

R. v. Kimpe, 2010 ONCA 812 is a nasty manslaughter case. On the facts the trial judge's sentence might be seen as too high but the Court of Appeal declined to vary the sentence (except on a calculation of deadtime) noting the sentencing process was one peculiarly within the expertise of the trial judge:

[18] Our task at the appellate level was succinctly described by Iacobucci J. in the often cited case of R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 46:

An appellate court should not be given free reign to modify a sentencing order simply because it feels that a different order ought to have been made. The formulation of a sentencing order is a profoundly subjective process; the trial judge has the advantage of having seen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation in the sentence should only be made if the court of appeal is convinced it is not fit. That is to say, that it has found the sentence to be clearly unreasonable.

[19] In respect of the 10 year sentence, and in spite of Mr. Sheppard's able argument, I am not able to conclude that the sentence is clearly unreasonable.

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