INTRODUCTION AND BRIEF DESCRIPTION

Section 822(6) of the Criminal Code states that an appeal court may consider the fitness of a sentence appealed against, and may either dismiss the appeal or vary the sentence within the limits prescribed by law for the offence of which the defendant was convicted, taking into account any time spent in custody.

SECTION WORDING

822(6) Where an appeal is taken under subsection (4) against sentence, the appeal court shall, unless the sentence is one fixed by law, consider the fitness of the sentence appealed against and may, on such evidence, if any, as it thinks fit to require or receive, by order, (a) dismiss the appeal, or (b) vary the sentence within the limits prescribed by law for the offence of which the defendant was convicted, and in making any order under paragraph (b), the appeal court may take into account any time spent in custody by the defendant as a result of the offence.

EXPLANATION

Section 822(6) of the Criminal Code of Canada deals with appeals against sentences. If a person is found guilty of a criminal offence but disagrees with the penalty imposed, they have the right to appeal the sentence. The appeal can only be made if the sentence is not one fixed by law, such as a mandatory minimum sentence. When an appeal is made against a sentence, the appeal court is required to consider the fitness of the sentence. This means that the court will examine the sentence to determine if it is appropriate for the offence committed. The appeal court can consider any evidence that it thinks is necessary or relevant to make a decision about the appeal. If the appeal court determines that the sentence is appropriate, it can dismiss the appeal. However, if the court finds that the sentence is not appropriate, it can vary the sentence within the limits prescribed by law for the offence convicted. This means that the court can reduce or increase the sentence as long as it falls within the legal limits for the offence. Additionally, the court may take into account any time spent in custody by the defendant as a result of the offence when making their decision. In summary, section 822(6) of the Criminal Code of Canada provides a mechanism for individuals to appeal sentences that they believe are unjust or inappropriate. The appeal court has the power to assess the fitness of the sentence, consider any relevant evidence, and adjust the sentence if necessary within the limits set out in the law.

COMMENTARY

The Canadian Criminal Code is the principal statute that codifies criminal law in Canada. It sets out the various types of criminal offences and penalties that can be imposed on offenders who are found guilty of them. Within this code, Section 822(6) outlines the procedures that must be followed when an appeal is taken against a sentence, providing guidance regarding the process through which sentences can be reviewed and possibly altered. The purpose of Section 822(6) is to ensure that the appeal court has the necessary powers to assess whether the sentence imposed was appropriate and just. This section is particularly relevant when the punishment that has been handed down is not prescribed by law for the offence committed. In such cases, the appeal court must consider the "fitness" of the sentence and may, if it determines that it is necessary, vary the sentence within the limits prescribed by law for the offence of which the defendant was convicted. In practice, this means that the court can review the sentence, taking into account a wide range of factors such as the nature of the offence, the offender's criminal history, and the circumstances surrounding their case. The appeal court can then decide whether the sentence is appropriate and modify it accordingly if necessary. One of the key features of Section 822(6) is the flexibility it provides to the appeal court. Rather than being bound by strict rules or guidelines, the court is free to consider a range of factors to determine the appropriate sentence. This approach recognizes that each case is unique and requires individualized consideration to arrive at an appropriate outcome. The inclusion of the provision allowing for consideration of time spent in custody is particularly important. This recognizes that individuals who have been incarcerated awaiting trial or sentencing have already been deprived of their liberty. Taking into account the time spent in custody can help to ensure that the sentence reflects the time already served. Overall, Section 822(6) plays an important role in ensuring that sentences imposed in criminal cases are fair, just, and appropriate. It provides the appeal court with the necessary powers to review and modify sentences when necessary, taking into account the unique circumstances of each case. By doing so, it helps to promote public confidence in the criminal justice system and ensure that justice is served.

STRATEGY

Section 822(6) of the Criminal Code of Canada gives the appeal court the power to vary a defendant's sentence, within the limits prescribed by law, if an appeal is taken against their sentence. This provision is significant because the appeal court has the ability to re-evaluate the fitness of a sentence and ensure that it is appropriate given the circumstances of the case. Therefore, it is imperative that defence counsel understands the strategic considerations when dealing with this section of the Code, in order to effectively make submissions to the court on behalf of their client. One of the key strategic considerations when dealing with Section 822(6) is the extent of variation that can be made to the sentence. The appeal court can only vary the sentence within the limits prescribed by law for the offence of which the defendant was convicted. This means that the original sentence must have been within the range of permissible sentences for the offence. Defence counsel should therefore ensure that they know what the range of permissible sentences is for the offences their client has been convicted of, in order to make appropriate arguments to the appeal court. Another strategic consideration is the relevance of the defendant's time spent in custody. The appeal court may take into account any time spent in custody by the defendant as a result of the offence when making an order under paragraph (b) of subsection (6). Therefore, defence counsel may consider making submissions about the defendant's custody time to the appeal court to mitigate the sentence. For example, if the defendant served a significant period of time in custody awaiting trial or sentencing, then defence counsel may argue that a lesser sentence is appropriate because the defendant has already been punished for their offence. When making submissions to the appeal court under Section 822(6), defence counsel must be strategic in their approach. They must effectively argue why the sentence is unfit and why a different sentence would be more appropriate. This means that counsel should be aware of the factors that the court considers when assessing the fitness of a sentence, such as the nature and gravity of the offence, the degree of premeditation, the offender's degree of responsibility, and the harm caused to the victim. Defence counsel must prepare compelling arguments that address these factors and highlight the mitigating circumstances that warrant a reduction in sentence. Furthermore, defence counsel may also consider the use of comparative cases to support their argument when making submissions to the appeal court. They may argue that sentences handed down in similar cases were less severe and that the sentence in question should be reduced to align with those cases. However, counsel must be careful when relying on comparative cases to avoid misleading the court or presenting a biased perspective. In conclusion, Section 822(6) of the Criminal Code of Canada gives the appeal court the power to vary a defendant's sentence if an appeal is taken against their sentence. Defence counsel must be strategic in their approach when making submissions to the court under this section, considering the range of permissible sentences, the relevance of custody time, and making compelling arguments as to why a different sentence would be more appropriate. Finally, a comprehensive understanding of case law and sentencing principles is critical for presenting a persuasive and evidence-based argument.