3.3 Prepare your arguments and documents
In a sentence appeal, your arguments and documents (submissions) must stick to the facts that were presented to the sentencing judge. The appeal court may not allow you to bring in new information about committing the offence.
The appeal court will sometimes consider new letters of reference and any other reports about your character or background that might help the court know more about you. It may help to get letters from prison staff or others who think you’re doing the best you can to rehabilitate yourself.
If you intend to rely on any new material of this kind, you must file it with the appropriate court registry well before the date of the appeal hearing. Ask the court registry how to make sure Crown counsel gets a copy.
It’s a good idea to put your arguments to the court in point form. This will help you to explain them clearly in court.
When you are preparing your argument, remember that when you were sentenced, the most important question the sentencing judge considered was: “What sentence should this offender receive for this offence, given the circumstances under which it was committed?”
Be prepared to provide the following information so that the appeal court can assess whether the sentencing judge imposed an unfit sentence:
- The reason for the sentence appeal:
- The sentence is excessive
- The sentence is illegal
- There was an error in principle
For how to argue these reasons, see Reasons to appeal.
- The particulars of the sentence:
- The offence and sentence dates
- Length of sentence
- Offence for which it was imposed
- Whether it was concurrent (to be served at the same time as another sentence) or consecutive (to be served after another sentence)
- Whether a co-accused was involved and, if so, what sentence he or she received
- The circumstances of the offence:
- Whether it was premeditated or happened on the spur of the moment
- Whether violence was involved or a weapon was used
- What your participation was in the offence
- Your attitude towards this offence:
- Why you pleaded guilty, if you did
- Whether you are remorseful
- Your personal history:
- Family situation
- Aboriginal background (if applicable)
- Employment history
- Criminal record
- The recommendation of the pre-sentence report:
- Whether the probation officer said anything in the pre-sentence report that might persuade the court to reduce your sentence
- Your plans upon release:
- Drug treatment program
Much of this information should be contained in the court transcripts of the sentence proceedings. Be prepared to point to various parts of the transcripts to support the facts as you relate them to the court.
The Court of Appeal has a Practice Directive setting out instructions for what to submit for your sentence appeal. Self-represented appellants are encouraged, but not required, to follow this directive. There is also a template that you can follow to help you figure you what to include and how to format it.
Your statement should generally not be longer than 8 pages. You must file 6 copies and deliver one copy to the Crown. The statement should include the facts, your grounds of appeal, the range and type of sentence you argue is appropriate, and the position of the Crown and defence counsel before the sentencing judge in the lower court. You should file your statement 3 weeks before the hearing.
Also 3 weeks before the hearing, you should file 5 copies of any authorities (i.e., case law) and 6 copies of any other written material you intend to rely on at the hearing. You must deliver one copy of this material to the Crown.
At least 2 weeks before the hearing, the Crown will file and serve you with its reply materials.
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