section 686(3)

INTRODUCTION AND BRIEF DESCRIPTION

The court of appeal can substitute a verdict and either uphold the original sentence or impose a new one that is legally justified.

SECTION WORDING

686(3) Where a court of appeal dismisses an appeal under subparagraph (1)(b)(i), it may substitute the verdict that in its opinion should have been found and (a) affirm the sentence passed by the trial court; or (b) impose a sentence that is warranted in law or remit the matter to the trial court and direct the trial court to impose a sentence that is warranted in law.

EXPLANATION

Section 686(3) of the Criminal Code of Canada outlines the power of the court of appeal when it dismisses an appeal under subparagraph (1)(b)(i). The subparagraph (1)(b)(i) refers to an appeal made against a conviction or against a sentence imposed by the trial court. If the court of appeal determines that the appeal is without merit, it can dismiss it. However, the court of appeal retains the power to substitute the verdict that, in its opinion, should have been found by the trial court. The court of appeal can take one of two actions with respect to the sentence passed by the trial court. The court of appeal may choose to affirm the sentence, meaning that it agrees that the sentence imposed by the trial court was appropriate. Alternatively, it may choose to impose a new sentence that is warranted in law. This means the court of appeal can determine the appropriate sentence for the convicted person, taking into account all the evidence presented at trial. In cases where the court of appeal remits the matter back to the trial court to impose a sentence that is warranted in law, the trial court must determine the appropriate sentence in accordance with the guidelines provided by the court of appeal. Overall, section 686(3) of the Criminal Code of Canada gives the court of appeal significant discretion when it comes to determining the appropriate sentence for a convicted person. The court of appeal has the power to substitute the verdict, affirm the sentence, impose a new sentence, or remit the matter back to the trial court. This section is an important tool that helps ensure that justice is served, and that the punishment fits the crime.

COMMENTARY

Section 686(3) of the Criminal Code of Canada is a provision that allows an appellate court to substitute a verdict that it believes should have been entered in place of the verdict that was entered in the trial court. Essentially, if an appeal is dismissed because the verdict entered by the trial court was found to be correct, the appellate court can still consider whether or not a different verdict should have been entered. This provision serves an important purpose in the criminal justice system. It acknowledges that the trial court may have entered the correct verdict, but also recognizes that mistakes can be made, and the appellate court is in a position to correct those mistakes. This provision also serves as a check on the power of the trial court, ensuring that the verdict that is ultimately entered is one that is grounded in fairness and justice. There are two possible outcomes under this provision. The first possibility is that the appellate court can affirm the sentence passed by the trial court. This means that the sentence that was imposed by the trial court is valid and will be upheld. The second possibility is that the appellate court can either impose a sentence that is warranted in law or remit the matter to the trial court and direct the trial court to impose a sentence that is warranted in law. Imposing a sentence that is warranted in law means that the appellate court has the power to directly impose a sentence that is appropriate for the crime committed. This could include a lower sentence than that imposed by the trial court if the appellate court finds that the sentence was too severe. It could also include a higher sentence if the appellate court finds that the sentence imposed was too lenient. Remitting the matter to the trial court and directing the trial court to impose a sentence that is warranted in law means that the trial court is given the opportunity to re-consider the sentence imposed, and may impose a sentence that is different from the original sentence. This could include a lower sentence if the trial court finds that the original sentence was too severe. It could also include a higher sentence if the trial court finds that the original sentence was too lenient. Overall, section 686(3) of the Criminal Code of Canada is an important provision that serves to ensure that the criminal justice system is fair and just. It acknowledges that mistakes can be made, and that the appellate court is in a position to correct those mistakes. It also ensures that the sentence imposed is one that is warranted in law, and is appropriate for the crime committed. This provision is essential to ensuring that the criminal justice system functions properly, and that justice is served for all Canadians.

STRATEGY

Section 686(3) of the Criminal Code of Canada grants the court of appeal the authority to dismiss an appeal and substitute the verdict that the court believes to be appropriate, while also giving the court the discretion to maintain or modify the sentence or remit the case back to the trial court to impose an appropriate sentence. When dealing with this section, some strategic considerations and strategies to employ include the following: Preparing and Presenting Grounds of Appeal The foundation of any successful appeal is the grounds of appeal. The appellant must identify the errors of the trial court that violate the principles of fundamental justice, the rights protected by the Charter, or the common law. If the court of appeal determines that the trial court erred, the appellant must present compelling arguments addressing the issue. When preparing the grounds of appeal, the appellant should consider the evidential burden of proof and the available legal remedies. This means that the appellant should present a convincing argument backed by the relevant legal principles and precedents. Furthermore, the appellant should ensure that the grounds of appeal respond to the specific errors made by the trial court. Build a Persuasive Case An appellant must present a compelling case based on the grounds of appeal. The appellant should focus on presenting the appellant's version of the facts using admissible evidence. Additionally, the appellant's case should be built around the relevant legal principles and the precedents that support the appellant's position. The appellant's legal argument should be structured in a clear and persuasive manner to address the errors made by the trial court. Responding to Legal Authorities The court of appeal may point out legal authorities or precedents that contradict the appellant's position. In such instances, the appellant should be prepared to address these precedents and provide reasons why they are not applicable to the present case or why there is an exception to the rule. The appellant should also present precedents or legal principles that support the alternative position. Responding effectively to legal authorities will go a long way in persuading the court of appeal to make a favorable decision. Consider the Impact of the Original Sentence When considering whether to substitute the verdict and modify the original sentence passed by the trial court, the court of appeal must take into account the seriousness of the offence and the offender's circumstances. For the appellant, it is important to assess the potential impact of the sentence imposed under section 686(3)(a) or (b). The court of appeal may decide to affirm the original sentence, impose a new sentence through (b), or remit the matter to the trial court to impose an appropriate sentence. The appellant should consider the potential outcomes and the impact of each of these options. Conclusion In summary, Section 686(3) of the Criminal Code of Canada provides an avenue for appellants to appeal against erroneous verdicts and sentences passed by trial courts. To increase the likelihood of success, the appellant must present compelling grounds of appeal, build a persuasive case, respond to legal authorities, and consider the impact of the original sentence. Through strategic considerations and employing effective strategies, appellants can appeal against poor verdicts and sentences and achieve just outcomes.