Appeal of sentence and return to custody

The Court of Appeal has the power to intervene to modify a sentence imposed in first instance when it is demonstrated that the sentence is demonstrably inappropriate or that the judge made an error in principle affecting the sentence. At this point, the Court must analyze all the relevant elements in order to substitute the initial sentence with the appropriate sentence. In addition, when a sentence is increased, but the accused has already served it and has been released, the Court must assess the impact of ordering the accused’s return to custody and determine whether it would cause injustice.

“These errors all had an impact on the determination of the sentence. Accordingly, I am of the view that the Court must intervene and determine a fit sentence. ^[1]”

R. c. Davidson, 2021 QCCA 545

The facts

At the time of the commission of the offense, the victim and the accused had been dating for some time. One evening, the accused, wanted to recover the money he had previously loaned to the victim, so he went to the her residence. Not wanting him to enter her apartment, she awaited his arrival outside her residence. Upon arriving, the accused seized the keys from the victim’s hands and entered the apartment without his consent. He then hits her in the face, pushes her against the wall, holds her on the sofa by twisting her arm, and threatens to kill her if she calls the police. The accused was convicted of breaking and entering as well as assaulting an intimate partner. As part of his bail conditions, the accused underwent closed therapy for six months, which was taken into account in determining his sentence. As a result, he was given a sentence of twelve months, less the six months of closed therapy, and a two-year probation period. Following the imposition of this sentence, the prosecution appealed against it to the Quebec Court of Appeal.

The judgment

The Court of Appeal partially allowed the appeal and modified the original sentence.

When faced with an appeal of the sentence, the Court of Appeal must determine whether the sentence imposed is demonstrably unreasonable or whether there is an error in principle which had an impact on it. In the present case, the Court concluded that the trial judge erred in principle by improperly balancing the objectives of denunciation and deterrence as well as by giving undue weight to rehabilitation, which are all sentencing objectives. She adds that the trial judge erred in her analysis of aggravating factors. Since these errors have an impact on sentencing, the Court must intervene in order to determine the appropriate sentence.

In the light of all of the material relevant to the case as well as the case law, the Court concluded that imprisonment for thirty months, initially submitted by the prosecution, was an appropriate sentence. In its analysis, the court argues that the completion of closed therapy may be considered in sentencing. In doing so, the six months of therapy is deducted from the prison sentence, as awarded by the trial judge, resulting in a sentence of twenty-four months less a day. Consequently, the respondent should serve an additional twelve months.

Finally, the Court must consider a final question concerning the return to custody. The accused, having already served a third of his original sentence and released on parole, would need be returned to prison to serve the remainder of his sentence. The Court of Appeal recognizes that it is not inherently cruel that a guilty person should retunr to prison to serve the adequate sentence, however, it does recognize that in certain situations it can lead to injustice. In doing so, the Court reiterates the four factors suggested in R v. Veysey to assess whether re-incarceration would result in injustice. Considering the seriousness of the offense, the time elapsed between the release and the decision of the court of appeal, and if, this delay is dependent on one or the other of the parties, as well as the impact of re-incarceration on pardon, the Court concluded that re-incarceration in the accused’s case would constitute an injustice. Therefore, the court substitutes the original jail term of 12 months to 24 months, but grants a stay of execution for the remainder of the jail term. However, since this is a relatively serious offense, in order to meet the objectives of denunciation and deterrence, the Court extended the period of probation by twelve months.