1.2 Reasons for appealing your sentence

If you think your sentence is too harsh, you must convince the appeal court that the sentence is “unfit” (unreasonable). The argument and documents you give to the court (your submissions) should 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.

Your appeal won’t succeed unless you can show that one of these conditions applies to your sentence. This is called the grounds (basis) of your appeal.

Excessive sentence

If you’re arguing that your sentence is excessive, provide the court with decisions (“judgments”) of the Court of Appeal for BC to show that your sentence is too high compared to the length of sentences generally given for your offence. As well, you can look up Canadian legislation and legal cases at the website of the Canadian Legal Information Institute.

The cases most useful to your appeal are those in which the circumstances of the offence are similar to yours, the background of the accused is similar, and the appeal court reduced the sentence.

You can also find judgments in law reports and case digests, which are available through the libraries of the law schools at the University of British Columbia and the University of Victoria, and through the various branches of the BC Courthouse Library Society.

Useful resources available at the libraries include the law reports Canadian Criminal Cases and Criminal Reports, as well as the summaries published in BC Decisions. Ask a librarian how best to find the information you need on the courthouse library’s computer.

Illegal sentence

The Criminal Code of Canada sets out the penalties that can be imposed for every criminal offence. Any sentence that isn’t authorized by the code is illegal.

To argue an appeal on the grounds that it was an illegal sentence, 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 doesn’t comply with the law, as in the following examples:

  • If a judge orders a sentence or a combination of sentences of more than two years’ imprisonment to be followed by a probation period, the sentence is illegal. It’s contrary to section 731(1)(b) of the Criminal Code. 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’s an illegal sentence because it’s contrary to section 732.2(2)(b) of the Criminal Code.

Error in principle

The principles of sentencing that every judge must consider when imposing a sentence are:

  • denunciation (public criticism) of the unlawful conduct,
  • deterrence to the offender and to others of a similar mind,
  • protection of the public,
  • rehabilitation of the offender, and
  • reparation (make amends) for harm done to victims or to the community while promoting a sense of responsibility in offenders.

If a judge ignores or puts too much emphasis on one of these principles, the appeal court may consider changing the sentence. However, the fact that a trial judge has made an error in applying one of the principles of sentencing doesn’t guarantee that the appeal court will change the sentence. You must also convince the court that the sentence is unfit.

Examples of a judge not properly applying the principles of sentencing would include the following:

  • If an offender’s addiction to drugs has no connection to the act of committing the offence, but the judge increases the sentence to make sure the offender has enough time to complete a drug treatment program in jail.
  • If the judge says he or she isn’t concerned about the rehabilitation of a 21-year-old offender and imposes a sentence of two years for automobile theft when a community-based sentence may be more appropriate.

You can find other examples of errors in how judges have applied the principles of sentencing in Martin’s Annual Criminal Code under section 687, which describes the appeal court’s powers on a sentence appeal, and under sections 718, 718.1 and 718.2, which describes the principles of sentencing. You can also find examples in the law reports Canadian Criminal Cases and Criminal Reports, and in BC Decisions.

A useful textbook is Sentencing by Clayton C. Ruby et al., available in some public libraries. It contains information about sentence lengths in Canada. You can also find legal information at the website of the Canadian Legal Information Institute. The decisions of the Supreme Court of Canada can help you understand the principles of sentencing.