Alberta Court of Appeal errs in law

The Alberta Court of Appeal gets the law of sentence appeals wrong in R v Kebede, 2025 ABCA 79. "An error, whether in fact or principle, is not itself determinative; rather, while it reduces the deference owed, an appellant must still show the sentence imposed is demonstrably unfit in order to justify appellate interference": para 25.

Kebede conflates the two distinct pathways to setting aside a sentence on appeal. Sentencing is highly individualized and discretionary and entitled to significant deference on appeal. But where the reasons for sentence (1) disclose an error in principle that had an impact on the sentence or (2) resulted in a sentence that was demonstrably unfit, the appellate court may intervene and vary the sentence imposed: see very recently R v JW, 2025 SCC 16 at paras 51-52, aff'd established principles from R v Friesen, 2020 SCC 9 at paras 26-27. See also R v Parranto, 2021 SCC 46 at para 30.

The test is disjunctive, not conjunctive. The appellant need not establish both error in principle that had an impact on the sentence and also that the sentence was demonstrably unfit, as Kebede holds. Either is sufficient to set aside the ordinary deference owed and to permit the appellate court to sentence the appellant themselves.

Think about it this way. Imagine an appellant who receives a high sentence that is nonetheless within the range. The trial judge explicitly relies on an unlawful aggravating factor--say, blaming the defendant for failing to manage the symptoms of their mental illness. Imagine further that the trial judge assigns a specific unit of time to this unlawful aggravating factor, say 90 days on top of what they otherwise deserve. Under Kebede, this appellant's sentence appeal fails unless they also establish that the sentence was demonstrably unfit.

Simply put, the Kebede court got it wrong. It is not open to appellate courts to depart from binding Supreme Court precedent. This decision should not be followed.