Criminal Appeal Rules (SI/93-169)

Regulations are current to 2017-11-20

FORM D

APPELLANT’S FACTUM - APPEAL FROM SENTENCE ONLY
COURT OF APPEAL FOR ONTARIO
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
NAME OF APPELLANT
Applicant/Appellant
APPELLANT’S FACTUM
PART I
PARTICULARS OF THE CASE
1. Place of conviction
2. Name of judge
3. Was the trial by judge and jury or judge alone
4. Offence(s) of which accused convicted
5. Section(s) of Code1 under which accused convicted
6. Plea at trial
7. Length of trial
8. Sentence imposed
9. Date of conviction
10. Date of sentence
11. Present place of incarceration (if applicable)
12. If appellant released on bail pending appeal, date of release2
13. Period spent in pre-trial or pre-sentence incarceration3
14. Parole eligibility date4
15. Date of mandatory release5
16. Names of co-accused and sentences imposed for offences upon which they were convicted6
17. Does appellant have prior criminal record7
18. Present employment8
19. Present marital status9
20. Appellant’s present age and age at time of offence
21. Was a pre-sentence report prepared10
22. Were any medical, psychological, psychiatric or similar reports referred to or filed at the sentence proceedings11
23. Was there a joint submission and if so what was it12
24. If no joint submission, briefly set out the position of prosecution and defence counsel on the sentence proceedings13
25. Was there a victim impact statement14
26. Will there be an application to admit fresh evidence and if so does the respondent consent to its admission15
PART II
SUMMARY OF THE FACTS
The facts of the offence16
The background of the appellant
Fresh evidence

(Here briefly summarize the fresh evidence which on consent has been filed with the court)

PART III
GROUNDS OF APPEAL
PART IV
ORDER REQUESTED

It is respectfully submitted that (here set out the relief requested, e.g. that leave to appeal sentence be granted, the appeal allowed and the sentence reduced).

All of which is respectfully submitted
Defence Lawyer
Counsel for the Appellant
Dated at this day of , 19
Notes
1. Reference should be to the Criminal Code section in force at the time of the commission of the offence.
2. Note that the Criminal Appeal Rules require that the release order be placed in the appeal book.
3. Where the incarceration was due to circumstances other than detention on the charge under appeal this should be made clear. Thus if for a portion 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.
4. This date is available from the sentence administrator of the institution where the appellant is incarcerated. Where the appellant is serving sentence for offences other than the offence under appeal, this should be made clear in a note.
5. This date is available from the sentence administrator of the institution where the appellant is incarcerated.
6. 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 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 that would put the allegation of disparity in its proper context.
7. If the appellant has a prior criminal record it should be set out in detail in Part II of the factum.
8. In addition to present employment a fuller history of employment should be set out in Part II of the factum. If the appellant is in custody then refer to employment at the time of conviction or sentence.
9. Where relevant, the history of the appellant’s marital status should be referred to in Part II of the factum.
10. If there was a pre-sentence report prepared its contents should be briefly summarized in Part II of the factum. In addition, the entire report must be included in the appeal book.
11. 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 on the proceedings.
12. A joint submission would include where counsel have agreed on range of sentence to be submitted to the trial judge.
13. The “position” of counsel 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 counsel did not make any suggestion as to the type or length of sentence this should be indicated as well.
14. 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.
15. 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 motion 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 the fresh evidence then counsel must prepare a notice of motion returnable on the date of the appeal. The evidence itself should be filed with the notice of motion, but in a sealed envelope. There must be sufficient copies for the members of the court.
16. Where the facts are complicated and somewhat lengthy counsel may wish to include a paragraph containing an overview of the facts. In most sentence appeals that paragraph should not be required since the Criminal Appeal Rules require that this Part of the factum contain a brief summary of the facts.
 
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