Vol. 146, No. 5 — February 29, 2012
Form 19 / APPELLANT’S FACTUM — APPEAL FROM SENTENCE ONLY
Court File No.
COURT OF ONTARIO
(Superior Court of Justice)
HER MAJESTY THE QUEEN
(specify name of accused)
APPELLANT’S FACTUM—APPEAL FROM SENTENCE ONLY
(Criminal Proceedings Rules, Rule 40, Form 19)
PARTICULARS OF THE CASE
1. Place of conviction: _________________________________________________
2. Name of Judge: ___________________________________________________
3. Offence(s) of which accused convicted: _________________________________
4. Section(s) of Criminal Code (see footnote 1) under which accused convicted:
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: (see footnote 2)
12. Period spent in pre-trial/pre-sentence incarceration? (see footnote 3)
13. Parole eligibility date: (see footnote 4)
14. Name(s) of co-accused and sentence(s) imposed for offence(s) upon which he/they was/were convicted: (see footnote 5)
15. Does Appellant have a prior criminal record? (see footnote 6)
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? (see footnote 7)
20. Were there any medical, psychological, psychiatric or similar reports referred to or filed at the sentence proceedings? (see footnote 8)
21. Was there a joint submission and if so what was it? (see footnote 9)
22. If no joint submission briefly set out the position of the Crown and defence counsel on the sentence proceedings: (see footnote 10)
23. Was there a victim impact statement? (see footnote 11)
24. Will there be an application to admit fresh evidence and if so does the Respondent consent to its admission? (see footnote 12)
SUMMARY OF THE FACTS
Facts of the Offence: (see footnote 13) _________________________________________________________________
Background of the Appellant: ___________________________________________
Fresh Evidence: ________ (Here briefly summarize the fresh evidence which on consent has been filed with the Court)
GROUNDS OF APPEAL
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)
Reference should be to the Criminal Code provision in force at the time of the commission of the offence.
Note that subrule 40.10(3) requires that the release order be reproduced in the Appeal Book.
Where 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.
This 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.
Where 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.
If the Appellant has a prior criminal record, it should be set out in detail in Part Ⅱ of the Factum.
If 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.
Where 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.
A joint submission would include where the solicitors have agreed on a range of sentence to be submitted to the trial judge.
The “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.
If 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.
Where 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.
Where 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.