Respondent Guidebook for Crown Appeals
1.1 Before you respond
This online guide explains how to respond to a Crown appeal of your acquittal or sentence on your own.
Before you respond to a Crown 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:
If you have been refused legal aid and do not have enough money to hire a lawyer, you may be able to get a court-appointed lawyer or pro-bono lawyer.
1.2 Reasons for a Crown appeal of an acquittal
The purpose of an acquittal appeal is not to retry the case. The Crown cannot ask the court to hear the evidence again to determine whether you should have been found guilty. An appeal court can only set aside an acquittal if the judge made an error of law that can reasonably be thought to have had a material bearing on the acquittal.
Error of law
The Crown may appeal an acquittal because an error of law that had a bearing on the acquittal was made at the trial. If the Crown establishes that an error of law of this kind was indeed made, your acquittal may be set aside. Wrongful admission of evidence, a wrong interpretation of a Charter right, or a misdirection (giving the wrong instructions) to the jury on a crucial question of law are all examples of errors of law.
1.3 Reasons for a Crown appeal of sentence
If the Crown thinks that your sentence is too light, it must convince the court that the sentence is “demonstrably unfit” in the circumstances. The Crown’s appeal will not succeed unless it can show one or more of the following:
the sentence is demonstrably unfit (too light), given the gravity of the offence and your moral culpability in its commission, your background, the circumstances of the offence and the sentences given to other offenders in similar circumstances, among other things.
the sentence is illegal; or
an error in a principle of sentencing resulted in an unreasonable sentence.
Demonstrably unfit sentence
If the Crown is arguing that your sentence is demonstrably unfit (too light), it will provide the court with decisions (judgments) to show that your sentence is lower or lighter than the sentences generally given for the type of offence you committed. You will want to respond to this, if possible, by providing the court with decisions (judgments) to show that your sentence is the same or higher than the length of sentences generally given for the offence. The cases most useful to you are ones from Saskatchewan in which the circumstances of the offence are similar to yours, the background of the offender is similar and the sentence was the same or lower.
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 it was an illegal sentence, the Crown must be able to compare the exact sentence you received with the legislation that applies to your situation (usually a specific Criminal Code section), and show that your sentence does not comply with the law, as in the following example:
- A conditional sentence order (CSO) for an offence that would carry a sentence of more than two years is illegal. It is contrary to section 742.1 of the Criminal Code which says that a CSO is only available where the trial court could otherwise impose a sentence of imprisonment of less than two years.
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. The Crown must also convince the court that the sentence is unfit.