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Guidebook for Sentence Appeals

 

1.1 Before you start

This online guide explains how to appeal a sentence (imposed for a conviction for an indictable offence) on your own.

Before you go ahead with your appeal, it is a good idea to find out whether you can get legal aid through Legal Aid Saskatchewan. You should call the Legal Aid office nearest you. You can find a list of legal aid offices here:

http://www.legalaid.sk.ca/contact/office_list.php

If you have been refused legal aid and do not have enough money to hire a lawyer, you might be able to get a court-appointed lawyer or pro-bono lawyer.

1.2 Reasons for appealing your sentence

If you think your sentence is too harsh, you must convince the Court of Appeal that the sentence is “unfit” (unreasonable). Your appeal will not succeed unless you can show one or more of the following:

  • the sentence is excessive, given your background and the circumstances of the offence;
  • the sentence is illegal; or
  • an error in a principle of sentencing resulted in an unreasonable sentence.

These are called grounds for an appeal.

Excessive sentence

If you are arguing that your sentence is excessive, try to provide the court with decisions (judgments) of the Court of Appeal for Saskatchewan to show that your sentence is too high compared to the length of sentences generally given for your offence. The cases most useful to your appeal are those in which the circumstances of the offence are similar to yours, the background of the offender is similar and the sentence was lower.

Illegal sentence

The Criminal Code sets out the penalties that can be imposed for every criminal offence. Any sentence that is not authorized by the Code is illegal.

To argue an appeal on the ground that the sentence is illegal, you must be able to compare the exact sentence you received with the legislation that applies to your situation (usually the specific Criminal Code section), and show how your sentence does not comply with the law, as in the following examples:

  • A sentence or a combination of sentences of more than two years’ imprisonment to be followed by a probation period, is illegal. It is contrary to section 731(1)(b) of the Criminal Code, which says that a probation order may only accompany a prison sentence of two years or less.
  • If a probation order is for longer than three years, it is an illegal sentence because it is contrary to section 732.2(2)(b) of the Criminal Code.

Error in principle

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing sanctions (sentences) that have one or more of the following objectives:

  • denunciation of the unlawful conduct,
  • deterrence to the offender and to others,
  • separation of the offender from society, where necessary,
  • rehabilitation of the offender,
  • reparation (making amends) for harm done to victims or to the community, and
  • promoting a sense of responsibility and acknowledgement of the harm done to victims and to the community in the offender.

The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other sentencing principles can be found in section 718.2 of the Criminal Code.

If a judge ignores or puts too much emphasis on one of these principles, the Court of Appeal might consider changing the sentence. However, the fact that the trial judge made an error in applying one of the principles of sentencing does not guarantee that the Court of Appeal will change the sentence. You must also convince the court that the sentence is unfit.

 

 

Next - Step 2
File a Notice of Appeal