Form 19 (CSR-19-40) – Appellant’s Factum – Appeal from Sentence Only

Jurisdiction: Country: Canada | Province or State: Ontario

What is a Form 19 (CSR-19-40) – Appellant’s Factum – Appeal from Sentence Only?

Form 19 (CSR-19-40) is the prescribed written argument you file when you appeal a sentence only in a criminal matter heard in the Superior Court of Justice. It is your structured, concise statement of the facts, issues, law, and relief you seek. You use it to explain why the sentence should be reduced, varied, or set aside. It is not a transcript or an evidence bundle. It is your advocacy document that guides the court through your position on the sentence.

Who typically uses this form?

An accused person appealing their sentence (the appellant). The Crown may also appeal a sentence and file the same form when it is the appellant. You may be represented by counsel or be self‑represented. If you are the respondent, you file the corresponding respondent’s factum, not this form.

You would need this form whenever you are appealing a sentence only. That means you accept the conviction but challenge the sentence imposed. You may argue that the sentencing judge made an error in principle, imposed a sentence outside a fit range, failed to consider important factors, or misapplied credit or ancillary orders. You might also argue that new information shows the original sentence is now unfit and should be varied, subject to the rules for fresh evidence.

Typical usage scenarios include appeals from a jail term you say is too long for your circumstances. You might challenge a probation condition you say is unreasonable or not connected to rehabilitation. You may contest a driving prohibition, a weapons prohibition, a DNA order, or a restitution order that you believe is not authorized or is excessive. You may ask the court to vary a fine, extend time to pay, convert a straight sentence to an intermittent one, or adjust credit for pre‑sentence custody. You might ask the court to impose a community‑based sentence where the record supports it, and the law allows it. The form lets you set out those arguments in an organized way that the judge can follow easily.

The factum is part of the official appeal record. It works with your notice of appeal, the transcript, exhibits, and any motion materials. The court relies on your factum to understand your grounds of appeal and the legal basis for the remedy you seek. A clear, complete, and rule‑compliant factum improves your chance to be heard fully on the merits.

When Would You Use a Form 19 (CSR-19-40) – Appellant’s Factum – Appeal from Sentence Only?

You use this form when you have already started a sentence appeal and need to put your arguments in writing. You will have served and filed your notice of appeal, ordered transcripts if required, and received or set a timetable. The court will expect an appellant’s factum by the deadline in the rules or the timetable. If you miss the deadline, you may need an extension before your appeal can proceed.

You file this form in many practical situations. If you pled guilty and the judge imposed a sentence you now believe is unfit, you can appeal the sentence only and file this factum. If you went to trial and were convicted but accept the conviction, you can focus the appeal on the sentence and use this form. If you received a conditional sentence order that contains house arrest terms you cannot comply with, you can challenge those terms through a sentence appeal. If you received an aggregate sentence that does not reflect totality, you can argue for a reduction. If a mandatory ancillary order was imposed in error, you can ask the appeal court to vacate or vary it. If the judge refused to grant intermittent time when the statutory criteria were met, you can ask the appeal court to order it. If you were denied pre‑sentence custody credit that you should have received, you can propose a corrected calculation.

Typical users include accused persons, defence counsel, Crown counsel, and duty counsel assisting self‑represented appellants. Small business owners or professionals convicted of regulatory offences sometimes appeal fines or probation conditions that affect licensing or operations. Students and newcomers might appeal to sentences that create disproportionate immigration or employment consequences. People with health challenges may appeal sentences that do not account for treatment plans or community supports. All of these are sentence‑only issues well suited to this form.

You also use this form if the appeal raises a narrow point of law on sentencing, such as the interpretation of a statutory prohibition, the availability of a conditional discharge, or the timing of a restitution order. Even if the issue feels straightforward, the court still requires a factum. The form helps you focus on the exact legal error and the remedy that follows.

Legal Characteristics of the Form 19 (CSR-19-40) – Appellant’s Factum – Appeal from Sentence Only

The factum itself is not a court order. It is not legally binding in the sense of creating enforceable rights on its own. It is a mandatory procedural document that the rules require. It becomes part of the appeal record and frames the hearing. Its legal force comes from compliance with the Criminal Proceedings Rules of the Superior Court of Justice and the court’s procedural directions. If you do not file a compliant factum, the court may refuse to hear your appeal, adjourn it with costs consequences, or dismiss it for want of prosecution after notice.

What ensures enforceability is not the factum but the resulting appeal disposition. The court’s order varying, setting aside, or confirming the sentence is the binding instrument. Your factum must be accurate, complete, and organized so the court can decide the case fairly. Your factum should cite the record properly, present the issues clearly, and identify the relief you seek. It should avoid new evidence unless a separate motion to admit fresh evidence is brought. The factum must reflect the record and the law. It should not make factual assertions that are not supported by the transcript or exhibits.

General legal considerations include the standard of appellate review of the sentence. You need to explain why intervention is warranted. The appeal court may intervene for error in principle, failure to consider or overemphasis of relevant factors, or an unfit sentence that falls outside a reasonable range. You should address parity and proportionality. You should deal with totality when there are consecutive sentences. You should consider collateral consequences only as permitted by law and supported by evidence. If you seek a different sentence, you must show it is available in law and fit on the record. If you rely on fresh evidence, you must meet the admissibility test and follow the motion procedure.

Your factum must also align with statutory limits. Some offences carry mandatory minimums. Some ancillary orders are mandatory if criteria are met. Some orders are discretionary and must be justified on the record. Your requested remedy must not contradict a legal requirement. If you ask for intermittent time, you must show eligibility. If you ask for a conditional sentence, you must show it is legally available for the offence and circumstances. If you ask to vary restitution, you must point to a legal basis in the record and statute.

Finally, your factum must meet the technical requirements. That includes formatting, page organization, paragraph numbering, headings, and schedules. It must include contact information for the service. It must be signed by you or your counsel. You must serve it on the other party and file proof of service. The court may reject a non‑compliant filing. Accuracy, clarity, and compliance protect the integrity of your appeal and reduce delay.

How to Fill Out a Form 19 (CSR-19-40) – Appellant’s Factum – Appeal from Sentence Only

Follow these steps. Work from the top of the form to the end. Keep your sentences short. Use headings. Number your paragraphs. Support every factual statement with a record reference.

1) Identify the court and file details

• At the top, insert “Superior Court of Justice” and the judicial region where the appeal is heard. Use the appeal court file number. Add the lower court file number as “originating court file no.”
• State the style of cause exactly as on the notice of appeal. Use “Her Majesty the King” or “R.” for Crown, consistent with your existing file. Do not change party order. You are the Appellant; the other side is the Respondent.
• Provide your full name, date of birth if required by the form, and your counsel’s name if you have one. Provide addresses for service, phone, and email for you or your counsel. If you are in custody, include your institution.

2) Title the document and declare the nature of the appeal

• Use the exact title: “Appellant’s Factum – Appeal from Sentence Only.”
• In a brief opening line, confirm this is a sentence‑only appeal. Example: “The Appellant appeals the sentence imposed on [date] by [judge] of the [court]. The conviction is not under appeal.”

3) Overview and relief sought (roadmap)

• Write a short overview (3–6 paragraphs). Explain the penalty imposed and the core reasons the appeal should succeed. State the remedy you want.
• Be precise. Examples:
• “Reduce the custodial sentence from 12 months to 6 months, with the balance on probation.”
• “Order an intermittent sentence of 90 days with probation, subject to statutory eligibility.”
• “Strike the weapons prohibition as unauthorized.”
• “Reduce the driving prohibition to 12 months.”
• “Adjust pre‑sentence custody credit to reflect 1.5:1 credit applied to 40 days.”
• “Extend the time to pay the fine to 24 months.”
• If you seek multiple changes, set them out in the order you want the court to address them.

4) Statement of the sentence and the proceeding below

• Summarize the charges, pleas, and the sentence imposed. Include each component: jail, probation, fines, surcharges, prohibitions, restitution, DNA orders, and victim surcharges if applicable at the time. Identify consecutive or concurrent structure.
• State the date of the sentence and the judge’s name. Provide neutral record references to transcript pages and exhibit numbers.
• Note any pre‑sentence custody and credit granted. Identify any submissions about collateral consequences made at sentencing.

5) Issues and grounds of appeal

• List each issue as a question. Keep them narrow and outcome‑focused. Examples:
• “Did the sentencing judge err by overemphasizing denunciation and failing to consider rehabilitation?”
• “Is the 24‑month custodial sentence demonstrably unfit?”
• “Was the weapons prohibition authorized on these facts?”
• “Did the judge err in refusing intermittent time despite statutory eligibility?”
• “Is the restitution order supported by the evidence and statutory criteria?”
• Under each issue, state the corresponding ground of appeal already set out in your notice of appeal. Your factum should not introduce new grounds. If you must add a ground, bring a motion to amend and explain that separately.

6) Facts relevant to the sentence

• Provide a balanced summary of facts that matter in the sentence. Include your background, the offence circumstances, criminal record, Gladue or other cultural context where applicable, mitigation (remorse, guilty plea, rehabilitation efforts), and aggravating factors recognized in law.
• Do not argue in this section. Stick to the record. Use transcript and exhibit references after each factual point. If the record contains a pre‑sentence report, reference it properly.
• Identify any post‑sentence developments only if you intend to seek admission of fresh evidence through a motion. Do not include new material here without a pending motion.

7) Law and analysis

• Organize by issue. For each issue:
• State the governing legal principles on sentence appeals. Identify the standard for appellate intervention on sentence. Explain whether you allege an error in principle or that the sentence is unfit.
• Apply the law to the facts. Show how the judge misapplied principles or how the result falls outside a fit range. Use parity and proportionality. Address the totality if consecutive sentences were imposed.
• Where relevant, address statutory criteria, such as eligibility for intermittent sentences, conditions for probation, authorization for ancillary orders, or the legal basis for restitution.
• If you challenge credit for pre‑sentence custody, set out the calculation with record support.
• If you ask the court to exercise discretion (for example, to vary a probation condition), explain why the specific variation is reasonable, connected to rehabilitation, and least restrictive.
• Avoid long quotations. Use short, targeted references to legal principles and apply them directly to your facts.

8) Proposed sentence and precise order requested

• Present a complete, lawful, and workable sentence that the court can impose. Be specific on each component:
• Custody: length, intermittent or straight time, commencement date, and credit.
• Community‑based sentence: length and conditions, purpose of each condition, and any treatment plans or supports.
• Probation: term and tailored conditions. Tie each condition to risk and rehabilitation.
• Prohibitions: length and scope, or request to strike if unauthorized.
• Fines and restitution: amounts, time to pay, and any variation sought.
• If the law restricts a remedy, acknowledge it and craft an alternative that is lawful. Provide fallback relief, such as remitting the matter for re‑sentencing, only if necessary.

9) Costs and ancillary requests

• Criminal sentence appeals rarely involve costs, but if any prior order exists, address it. If you need a stay of a fine or prohibition pending appeal, and it is still outstanding, reference the status and any stay order already made. Do not re‑argue a stay in the factum. Use proper motion procedure if you seek a new stay.

10) Schedules and appendices

• Schedule of Authorities: List cases and secondary legal sources you rely on. Use a consistent citation style. Alphabetize the list. Include only what you reference in the argument.
• Schedule of Statutes, Regulations, and Rules: Reproduce the full text of the specific provisions you ask the court to apply. Include only relevant excerpts.
• Optional Appendix: If helpful, include a short comparative chart of similar sentences from the authorities you rely on. Keep it concise and tied to the record.
• Do not attach evidence here. Evidence belongs in the record, transcript, or a separate motion for fresh evidence.

11) Signature and certification

• Sign and date the factum. If you have counsel, counsel signs. Include the printed name, firm (if any), address for service, phone, and email. If you are self‑represented, provide your mailing address, phone, and email. Confirm that the facts stated are from the record and that the authorities listed are those you intend to rely on.

12) Formatting, numbering, and length discipline

• Use clear headings and numbered paragraphs. Include page numbers. Keep sentences short. Avoid footnotes unless required for clarity. Follow the court’s formatting rules for spacing and margins. If the court has page limits, respect them. If you need to exceed them, seek permission before filing.

13) Service and filing

• Serve the factum on the respondent. If you are the accused, serve the Crown Attorney responsible for the appeal. If the Crown is the appellant, serve defence counsel or the self‑represented respondent. Use a permitted method of service under the rules.
• Prepare proof of service. File the factum and proof of service with the Superior Court of Justice at the appeal office for your region. File by the deadline in the timetable or the rules.
• If you cannot meet a deadline, bring a motion to extend time. Explain why the delay occurred, show diligence, and identify any prejudice.

14) Common pitfalls to avoid

• Do not expand your grounds of appeal in the factum without leave. Align the factum with the notice of appeal.
• Do not argue facts that lack record support. Cite transcript pages or exhibit numbers for every factual assertion.
• Do not request a remedy that the law does not allow. Confirm eligibility for intermittent sentences, conditional sentences, or specific ancillary orders before you ask.
• Do not overstuff the authorities. Use focused, persuasive case law that matches your facts and sentencing range.
• Do not omit the precise order you want. The court needs exact wording to vary the sentence cleanly.

15) Practical examples of tailored content

• Example 1: Fit range and parity. “The sentencing judge imposed 18 months’ custody for a first‑offence low‑level break and enter with no loss. Comparable cases show a range from suspended sentence with probation to 9 months’ custody in more aggravated cases. The judge acknowledged rehabilitation efforts but gave them little weight. A 6‑ to 9‑month sentence would be fit. The Appellant proposes 6 months minus credit, followed by 12 months’ probation focused on counselling and community service.”
• Example 2: Ancillary order error. “The court imposed a lifetime weapons prohibition without making findings that engage the statutory criteria. The offence is not a designated offence requiring a mandatory order on these facts. The order is unauthorized and should be struck.”
• Example 3: Intermittent eligibility. “The sentence of 90 days is within the intermittent threshold. The Appellant has steady employment and a supervision plan. The judge did not consider intermittent service. The court should order 90 days intermittent with probation, enabling continued employment and structured weekend custody.”
• Example 4: Restitution scope. “The restitution order includes items not proven on the record. The evidence supports $2,400, not $6,000. The order should be reduced to $2,400 with 18 months to pay.”

16) If you need fresh evidence on the sentence

• If you rely on post‑sentence rehabilitation, updated treatment records, or employment proof, bring a motion to admit fresh evidence. File the motion record and supporting affidavits separately. In your factum, flag the motion and explain how the proposed evidence meets the test for admissibility and why it informs a fit sentence. Do not append the new materials to the factum schedules.

17) Final review checklist before filing

• Does the factum identify the appeal as sentence‑only?
• Do the issues match the notice of appeal?
• Are all facts tied to the record with pinpoint references?
• Is the legal test for appellate intervention on sentence stated and applied?
• Does the proposed sentence comply with statutory limits and eligibility?
• Are the schedules complete and relevant?
• Is the contact information and signature block complete?
• Has the factum been served and proof of service prepared?

Your goal is clarity, legality, and practicality. Explain the error. Propose a lawful fix. Show the court exactly how to implement it.

Legal Terms You Might Encounter

• Appellant means you, the person appealing the sentence. In this form, you explain why the sentence should change and what new sentence you want.
• Respondent means the other party on the appeal. In a criminal sentence appeal, this is usually the Crown. You must serve the respondent with your factum and refer to their position if you know it.
• Sentence appeal focuses only on the punishment imposed, not the finding of guilt. In this form, you argue that the sentence is unfit or that the judge made an error in sentencing.
• Grounds of appeal are the specific reasons the sentence should change. Your factum must set out clear grounds, such as an error in principle or an unfit result.
• Leave to appeal means permission to appeal. Some sentence appeals require leave. If required, you should address leave in your factum or a related document and explain why your appeal has merit.
• Standard of review explains how much deference the appeal judge gives to the sentence. Sentences usually get deference. Your factum should show either an error in principle or that the sentence is clearly unfit.
• Mitigating and aggravating factors are facts that reduce or increase the sentence. Your factum should identify these factors, show how the judge used them, and explain any mistakes.
• Parity and totality are core sentencing principles. Parity means similar sentences for similar cases. Totality ensures the overall sentence is not excessive, especially with multiple counts. Your factum should address these when relevant.
• Ancillary orders are parts of the sentence beyond jail or probation. Examples include fines, surcharges, DNA orders, prohibitions, or restitution. Use the form to target any specific order you say is wrong or excessive.
• Fresh evidence is new information not before the sentencing judge. You cannot just attach it to the factum. You must seek permission through a motion. In the form, explain whether you seek to file fresh evidence and why it matters.
• The record or transcript is the official record of what happened at sentencing. Your factum must accurately cite the record. Quote the transcript to show errors or support your position.

FAQs

Do you need leave to appeal a sentence?

Sometimes. Whether you need to leave depends on the type of conviction and the route of appeal. If leave is required, address it early. Explain why your grounds are arguable and why the appeal matters. File any required leave materials on time.

Do you attach transcripts to the factum?

Not usually. The factum cites the transcript and record. You arrange the transcript through the court process and ensure it is filed as required. Quote the transcript in your factum where it proves an error or supports mitigation.

Do you argue conviction issues in this form?

No. This form is only for a sentence appeal. If you want to challenge the finding of guilt, that is a different appeal. Keep your grounds and argument focused on sentencing principles and the fitness of the sentence.

Do you include new evidence with the factum?

You cannot simply attach new evidence. If you need fresh evidence, bring a motion. In your factum, identify the issue and why the new material is relevant and credible. Follow the rules for filing motions and supporting affidavits.

Do you have to propose a specific new sentence?

Yes. The form asks what relief you want. Be specific. For example, propose a reduced jail term, a conditional sentence where permitted, a shorter probation term, or changes to fines or orders. Explain why your proposal fits the principles.

Do you need to cite cases?

Yes, when helpful. Cite cases that match your facts and show the sentence range, parity, or principles. Explain how the cases support your proposed sentence. Do not drop long quotes; connect each case to your facts and grounds.

Do you have to serve the Crown?

Yes. Serve the respondent, usually the Crown, by the permitted method. Complete proof of service. File your factum with the court after service. Keep a service log and confirm the correct Crown office for your case.

Do you need to include every issue in the factum?

No. Focus on your strongest grounds. Weak or minor points can dilute your case. Each ground should be clear, supported by the record, and connected to the sentencing principles. Aim for clarity and impact.

Checklist: Before, During, and After the Form 19 (CSR-19-40) – Appellant’s Factum – Appeal from Sentence Only

Before signing

• Gather the sentencing order. Include all ancillary orders and written endorsements.
• Obtain the sentencing transcript or confirm it is ordered. Note page and line numbers for citations.
• Collect the information or indictment, plea, or trial outcome, and reasons for sentence if available.
• Assemble key exhibits used in the sentence. Include pre-sentence reports, Gladue reports, and risk assessments.
• List mitigating factors you will rely on. Include personal history and rehabilitation efforts supported by the record.
• Identify aggravating factors the judge relied on. Note any errors or overemphasis.
• Research comparable cases. Confirm the sentence range and parity benchmarks for similar facts.
• Decide the precise relief you seek. State the new sentence and any changes to orders.
• Confirm whether you need leave to appeal. Prepare any leave materials if required.
• Draft a timeline of events. Include charge date, pleas, sentencing date, and custody status.
• Prepare contact details for all parties. Confirm the correct office for service on the Crown.
• Review formatting and content rules. Confirm page limits, font, spacing, and required headings.
• Plan for a motion if you will seek fresh evidence or an extension of time.

During signing

• Verify your full name, court file number, and sentencing judge’s name.
• Confirm the conviction details. Include the offence(s), plea or finding, and date of sentence.
• Check the grounds of appeal. Each ground must be specific and tied to the record.
• Review the statement of facts. Keep it neutral and accurate, citing transcript pages.
• Confirm the standard of review language. Show deference and explain why it is met.
• Test your argument structure. Issue, rule, application, conclusion. Trim repetition.
• Ensure each case supports a stated proposition. Connect it to your facts.
• Add precise relief. Include credit for pre-sentence custody and time served if relevant.
• Complete the signature block. Date, sign, and include your mailing and email address.
• Number paragraphs and pages. Add headings and subheadings for navigation.
• Proofread for accuracy and tone. Remove new allegations not in the record.
• Prepare a service list. Confirm names, addresses, and method of service.

After signing

• Serve the filed factum on the respondent. Use an accepted service method.
• Complete proof of service. File it with the court office.
• File your factum with the correct court registry. Include any required copies.
• Confirm the status of the transcript and record. Follow up until filed.
• Calendar all deadlines. Include any reply or supplementary factum dates.
• Book the hearing date as directed. Confirm appearance method and time limits.
• Prepare your oral outline. Match it to your factum headings and relief sought.
• Assemble a brief of authorities if required. Highlight the key passages you will rely on.
• Keep a complete set of filed materials. Store digital and paper copies securely.
• Update your contact information if it changes. Notify the court and the respondent.
• Track custody status and credit. Consider separate applications if needed, such as bail pending appeal.
• Plan logistics. Arrange interpretation or accessibility needs in advance.

Common Mistakes to Avoid

• Arguing conviction issues in a sentence appeal. The court will not consider conviction arguments in this form. Don’t drift into trial fairness or evidentiary rulings. Consequence: the court may disregard large parts of your factum.
• Listing grievances without clear grounds. Vague complaints do not help. Tie each ground to a principle and the record. Consequence: weak grounds can undermine credibility and risk dismissal.
• Ignoring the standard of review. Sentences get deference. You must show an error in principle or an unfit result. Consequence: the court may find no basis to interfere.
• Requesting relief without reasons. Asking for a lower sentence is not enough. Explain why your proposed sentence fits the range and the principles. Consequence: the court may leave the sentence unchanged.
• Adding new facts without a motion. You cannot introduce new evidence in the factum. Use the proper motion. Consequence: the court may reject the materials and discount your argument.
• Don’t forget to cite the transcript. Assertions must match the record. Include page and line references. Consequence: the court may treat unsupported claims as unreliable.

What to Do After Filling Out the Form 19 (CSR-19-40) – Appellant’s Factum – Appeal from Sentence Only

1. Serve, then file. Serve the respondent with your signed factum. File it with the court after service, together with proof of service.
2. Confirm the record. Ensure the transcript and any exhibits needed for the appeal are ordered and filed. Keep a tracking log with order dates and confirmations.
3. Address leave, if needed. If leave to appeal is required, file the necessary materials. Keep leave issues distinct from the merits.
4. Seek directions if timelines slip. If a deadline is at risk, bring a motion to extend time. Explain the delay and show ongoing steps to advance the appeal.
5. Prepare for oral argument. Build a timed outline that mirrors your factum. Lead with your strongest ground. End with a clear, specific requested sentence.
6. File a brief of authorities if required. Include only the cases you rely on. Highlight the key passages. Match each case to a paragraph in your factum.
7. Consider a compendium. If allowed, prepare a short compendium with crucial excerpts from the transcript and exhibits you will reference.
8. Manage custody issues. If you are in custody and eligible, consider separate steps related to release pending appeal. Keep those materials separate from the factum.
9. Plan logistics early. Confirm the hearing date, location, and appearance method. Arrange interpretation, remote attendance, or accessibility needs in advance.
10. Review the relief one last time. Check credit for time served, probation lengths, surcharges, and ancillary orders. Ensure the court can implement your proposal.
11. Keep communications professional. Confirm every filing and service by email or letter. Save confirmations and receipts in your file.
12. Update if something changes. If a new authority or a transcript correction arises, consider a short supplementary filing if permitted. Seek consent or directions first.
13. Bring clean copies to the hearing. Have spare copies of your factum, authorities, and compendium for the court and the respondent.
14. After the decision, act promptly. If the court varies the sentence, confirm the amended warrant or order. If the appeal is dismissed, note any next steps and credit calculations.
15. Archive the file. Store the final factum, endorsements, orders, and correspondence. Keep an index for quick reference if issues arise later.