Thursday, May 29, 2014

Sentence appeals

R. v. McLean, 2014 PECA 10:

[10]           Section 687(1) of the Criminal Code directs that on an appeal against sentence, an appellant court is to consider the fitness of the sentence.  The Supreme Court of Canada has directed that in conducting this review, the applicable standard is based on deference.  That approach is taken due to practical reasons, including the contextual nature of the sentencing process, the individualized nature of sentencing, and the advantageous position of the trial judge (R. v. Bolger2013 PECA 9 (CanLII), 2013 PECA 9, at para.14).   An appellate court can intervene where the sentencing judge makes an error in principle, which includes failing to take into account a relevant factor.  As well, an appellate court can intervene whether or not an error in principle has been committed where the sentence imposed is clearly excessive or inadequate, demonstrably unfit, or a substantial and marked departure from other sentences imposed for like offences by like offenders (R. v. Skerry,2006 PESCAD 5 (CanLII), 2006 PESCAD 05, at para.16, applying R. v. Shropshire, [1995] 4 S.C.R. 277, and R. v. M.(C.A.)1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500).  The appellate review for failure to consider a relevant factor is based on the standard of reasonableness, which does not permit an appellate court to interfere with a sentence simply because a court of appeal would have weighed the factors differently (R. v. Nasogaluk2010 SCC 6 (CanLII), 2010 SCC 6, at para.46). 

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