Criminal Proceedings Rules for the Superior Court of Justice (Ontario) (SI/2012-7)

Regulations are current to 2014-12-08 and last amended on 2014-01-01. Previous Versions

Form 19APPELLANT’S FACTUM — APPEAL FROM SENTENCE ONLY

Court File No.

COURT OF ONTARIO

(Superior Court of Justice)

((specify) Region)

BETWEEN:

HER MAJESTY THE QUEEN

— and —

(specify name of accused)

APPELLANT’S FACTUM—APPEAL FROM SENTENCE ONLY

(Criminal Proceedings Rules, Rule 40, Form 19)

PART IPARTICULARS OF THE CASE

  • 1. Place of conviction:

  • 2. Name of Judge:

  • 3. Offence(s) of which accused convicted:

  • 4. Section(s) of Criminal CodeFootnote 1 under which accused convicted:

    • Return to footnote 1Reference should be to the Criminal Code provision in force at the time of the commission of the offence.

  • 5. Plea at trial:

  • 6. Length of trial:

  • 7. Sentence imposed:

  • 8. Date of conviction:

  • 9. Date of sentence:

  • 10. Present place of incarceration (if applicable):

  • 11. If Appellant released on bail pending appeal, date of release:Footnote 2

    • Return to footnote 2Note that subrule 40.10(3) requires that the release order be reproduced in the Appeal Book.

  • 12. Period spent in pre-trial/pre-sentence incarceration?Footnote 3

    • Return to footnote 3Where the incarceration was due to circumstances other than detention on the charge(s) under appeal this should be made clear. Thus if for a period of the time the Appellant was serving sentence on another offence either this period should not be included or there should be a note to this effect.

  • 13. Parole eligibility date:Footnote 4

    • Return to footnote 4This date is available from the sentence administrator of the institution where the Appellant is incarcerated. Where the Appellant is serving a sentence for offences other than the offence(s) under appeal this should be made clear in a note.

  • 14. Name(s) of co-accused and sentence(s) imposed for offence(s) upon which he/they was/were convicted:Footnote 5

    • Return to footnote 5Where the Appellant relies on disparity as a ground for varying the sentence, additional details may be necessary and should be included in Part II of the Factum. These details would include the co-accused’s criminal record, reference to the trial judge’s reasons for the sentence imposed on the co-accused, the involvement of the co-accused, whether the co-accused was convicted of other offences so that the totality principle affected the sentence, and any other information providing context to the allegation of disparity.

  • 15. Does Appellant have a prior criminal record?Footnote 6

    • Return to footnote 6If the Appellant has a prior criminal record, it should be set out in detail in Part II of the Factum.

  • 16. Present employment:

  • 17. Present marital status:

  • 18. Appellant’s present age and age at time of offence:

  • 19. Was there a pre-sentence report prepared?Footnote 7

    • Return to footnote 7If there was a pre-sentence report prepared, its contents should be briefly summarized in Part II of the Factum. In addition, the entire pre-sentence report must be included in the Appeal Book.

  • 20. Were there any medical, psychological, psychiatric or similar reports referred to or filed at the sentence proceedings?Footnote 8

    • Return to footnote 8Where relevant, the contents of such reports should be briefly summarized in Part II of the Factum. In addition, the complete report must be included in the Appeal Book, whether or not it was formally marked as an exhibit in the proceedings.

  • 21. Was there a joint submission and if so what was it?Footnote 9

    • Return to footnote 9A joint submission would include where the solicitors have agreed on a range of sentence to be submitted to the trial judge.

  • 22. If no joint submission briefly set out the position of the Crown and defence counsel on the sentence proceedings:Footnote 10

    • Return to footnote 10The “position” of the solicitors may simply be that the sentence should take a particular form, i.e. incarceration, or may be more specific, i.e. a specified term of months or years. If the solicitors did not make any suggestions as to the type or length of sentence this should be indicated as well.

  • 23. Was there a victim impact statement?Footnote 11

    • Return to footnote 11If there was a victim impact statement, its contents should be briefly summarized in Part II of the Factum. If there was no victim impact statement but evidence was led as to the effect on the victim, this too should be briefly summarized in Part II of the Factum.

  • 24. Will there be an application to admit fresh evidence and if so does the Respondent consent to its admission?Footnote 12

    • Return to footnote 12Where the Respondent consents to the admission of fresh evidence on the appeal, this evidence may be included in the Appeal Book or filed separately and reference may be made to the evidence in Part II of the Factum. No notice of application is required, provided that the material is clearly identified as fresh evidence and the Respondent has consented to its admission. Where the Respondent opposes the admission of fresh evidence, then the solicitor for the Respondent must prepare a notice of application returnable on the date of the appeal. The evidence itself should be filed with the notice of motion, but in a sealed envelope.

PART IISUMMARY OF THE FACTS

Facts of the Offence:Footnote 13

  • Return to footnote 13Where the facts are complicated and somewhat lengthy, solicitors may wish to include a paragraph containing an overview of the facts. In most sentence appeals, that paragraph should not be necessary.

Background of the Appellant:

Fresh Evidence: (Here briefly summarize the fresh evidence which on consent has been filed with the Court)

PART IIIGROUNDS OF APPEAL

PART IVORDER REQUESTED

It is respectfully submitted that the appeal be allowed and the sentence reduced (or varied, etc.)

All of which is respectfully submitted:

(signature of solicitor for the defence) (Solicitor for the Appellant)