Sometimes, the result of allowing a sentence appeal would be the re-incarceration of the respondent. Should an appellate court consider the harsh effects that such a result would inflict upon the respondent in deciding how to dispose of an appeal? And if it elects not to order re-incarceration even though the sentence in the court below was imposed in error, should it dismiss the appeal or stay the execution of the sentence? The Ontario Court of Appeal’s January 22, 2014 decision in R. v. Smickle answered these questions. The decision provides comprehensive guidance for appellate courts when confronting these difficult issues in the future. It also chose between two lines of case law with respect to disposition.
The respondent had been convicted of possession of a loaded prohibited firearm and was sentenced to a five month conditional sentence after the trial judge declared the three year mandatory minimum unconstitutional. A five-judge panel of the Court of Appeal unanimously upheld the trial judge’s decision on the constitutional question. However, they also unanimously held that the sentence imposed was nevertheless manifestly inadequate. The respondent agreed with the Crown that a sentence of two years less a day would have been the appropriate sentence at trial. They also agreed that, in light of time served pre-trial and the conditional sentence, 12 of the 24 months yet to be served. They disagreed, however, as to the sentence that the Court of Appeal should impose in light of the respondent’s finishing his sentence and his subsequent re-integration into the community. The Crown wanted the respondent to be re-incarcerated to serve the sentence. The respondent submitted that the execution of a further custodial sentence should be stayed because re-incarceration would be very damaging to him and his family and would serve no useful societal purpose.
The Court noted that appellate courts occasionally decline to re-incarcerate a respondent in these circumstances. It stated the law in this respect as follows:
 This court has, on occasion, declined to re-incarcerate a respondent even though the sentence imposed at trial was manifestly inadequate. …
 When, as in this case, the sentencing of an accused has been delayed by a lengthy appellate process, and the accused has served the sentence imposed at trial, the imposition of a “just sanction” demands that those factors be taken into account. The respondent completed the sentence imposed on him long ago. He has spent the last two years in legal limbo uncertain as to whether he would be required to return to jail and, if so, for how long. Those hardships must be taken into account. As observed in Hamilton, at para. 165:
This court has recognized both the need to give offenders credit for conditional sentences being served pending appeal and the added hardship occasioned by imposing sentences of imprisonment on appeal. The hardship is readily apparent in these cases. Had the respondents received the appropriate sentences at trial, they would have been released from custody on parole many months ago, and this sad episode in their lives would have been a bad memory by now.
 We adopt the observation of Green C.J.N.L. in R. v. Taylor, 2013 NLCA 42, at para. 133, who, in the course of explaining the function of the appellate court when deciding whether to re-incarcerate an accused who had received [an] inappropriately low sentence at trial, said:
…there is nothing inconsistent with saying that the sentencing judge, with the record in front of him, should have sentenced the offender to greater incarceration than he did and at the same time saying that, with what the court now knows, the application of the sentencing principles does not now require the offender actually to serve the remainder of the sentence. Unlike the sentencing judge, the court of appeal will be deciding whether the offender should actually serve the rest of his sentence with the benefit of hindsight, a perspective that the sentencing judge did not have. The corrective appellate function of giving guidance as to what the sentencing judge ought to have done can therefore be achieved while at the same time the court can make an appropriate practical disposition, based on current circumstances. [Emphasis added by the ONCA.]
Turning to the facts of this case, the Court agreed with the Crown that if the “principles [of denunciation and deterrence] cannot be adequately served without further incarceration, then incarceration is necessary, despite the significant hardship to the respondent and the risk it may pose to his rehabilitation and full reintegration into the community.” Nonetheless, it was satisfied that this was not such a case. Noting that the respondent had made significant steps towards rehabilitation, it concluded that re-incarceration would have inflicted serious and unnecessary hardship on him that was not needed to achieve the goals of sentencing.
The Court also considered the appropriate disposition in these circumstances, choosing between two lines of case law to follow:
 … Sometimes after identifying the sentence that should have been imposed and explaining why the respondent should not be re-incarcerated, this court has simply dismissed the appeal: e.g. see R. v. Hamilton,  72 O.R. (3d) 1, at para. 165 (C.A.); and R. v. Banci,  O.J. No. 58 (C.A.). The court also has the power to impose the appropriate sentence but stay the execution of the remaining custodial part of that sentence: see R. v. Proulx, 2000 SCC 5,  1 S.C.R. 61, at para. 132. As explained in R. v. F. (G.C.) (2004), 71 O.R. (3d) 771, at para. 35, the imposition of the appropriate sentence followed by a stay of the execution of the remainder of the custodial sentence is probably a more appropriate disposition than is an outright dismissal in that it identifies the sentence that should have been imposed. [Emphasis added]
The Court thus allowed the appeal, sentenced the respondent to a further term of 12 months imprisonment but stayed the execution of that sentence.