Sunday, June 14, 2015

Incarceration following successful Crown sentencing appeal

Historically Courts have hesitated to incarcerate offenders following a successful Crown sentence appeal. For example the recent decision in R. v. Schertzer, 2015 ONCA 259, where the Court declined to re-incarcerate police officers whose sentences were substantially increased on appeal (some might ask if the fact police were involved had an impact).

This hesitation may be changing. See R. v. Dufour, 2015 ONCA 426:

[29]       To summarize, this jurisprudence indicates that on a successful Crown appeal against sentence, where the seriousness of the offence does not require that an offender serve the sentence that should have been imposed, the appellate court can consider the length of the sentence to be served and the offender's post-sentence rehabilitative efforts in determining whether to stay the sentence. However, over-emphasis of post-sentencing rehabilitation has the potential to distort the sentencing process. Staying appropriate sentences may also introduce unwarranted disparities between similarly situated offenders where one is released from custody pending appeal and another is not.

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