R. v. Hannora, 2020 ONCA 335

WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court of Appeal for Ontario

Date: 2020-06-01 Docket: C67730

Fairburn, Nordheimer and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Mahmoud Hannora Appellant

Counsel: Jacob Stilman, for the appellant Natalya Odorico, for the respondent

Heard: in writing

On appeal from the sentence imposed on September 14, 2018 by Justice Guy P. DiTomaso of the Superior Court of Justice.

Reasons for Decision

[1]

Overview

Mr. Hannora appeals the sentence imposed on him arising from his conviction on three counts after a trial with a jury. Mr. Hannora was sentenced to three years on a count of unauthorized possession of a restricted firearm, one year consecutive on a count of possession of a firearm while prohibited, and three years consecutive on a count of receive material benefit from sexual services, for a total sentence of seven years. Mr. Hannora abandoned his conviction appeal.

[2]

Background

The background facts can be stated briefly. The complainant was a sex trade worker who entered into a relationship with the appellant. The complainant continued to work in the sex trade while she was in this relationship with the appellant. The appellant received monies from the complainant which he used for his own personal expenses. The complainant also moved into a condominium that the appellant owned and paid rent to the appellant.

3On occasions during the relationship, the appellant was abusive towards the complainant. There were acts of physical violence. On one occasion, during an argument, the appellant produced a loaded handgun and threatened the complainant with it. It appears that the appellant had the handgun with him on other occasions, including when he went out in public. The complainant handled the handgun and, at one point, asked if she could shoot it.

4The relationship ended after a few months.

5The appellant was 27 years old at the time of sentencing. He has a criminal record that includes convictions for theft under, mischief, break and enter, possession of a weapon and a number of breaches of court orders. It is of some importance that the longest sentence that the appellant had received, prior to these convictions, was for a total of 330 days, or slightly less than a year.

6There was a pre-sentence report before the sentencing judge that spoke positively about the appellant. As the sentencing judge observed, the appellant had accepted responsibility for his actions, and enjoyed strong family support. The sentencing judge also said, “Mr. Hannora has been described as a mature young man who had been making efforts to better himself, and who now needs to continue to learn from his mistakes.”

[7]

Analysis

In our view, the sentencing judge erred in his approach to the sentences he imposed by failing to properly apply the totality principle. The only mention of the totality principle made by the sentencing judge was with respect to the three year sentence he imposed on the firearms conviction, when he reduced what he considered to be an otherwise fit sentence on that count from 4 to 3 years.

8The totality principle is properly applied to the total sentence imposed on an offender. Its purpose, where consecutive sentences are imposed, is to ensure that the total sentence is proportionate to the culpability of the offender. As Lamer C.J. said in R. v. M. (C.A.), [1996] 1 S.C.R. 500, at p. 531:

The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender.

9Having determined the fit disposition for each count, and running the sentences consecutive to one another, the trial judge was required to look at the total sentence of 7 years and ask whether it exceeded the overall culpability of the appellant. The failure to do so reflects an error in principle, one that impacted the sentence imposed: Lacasse, at para. 44. Accordingly, it falls to this court to do so.

10In the circumstances of this case, having regard to the circumstances of the offending conduct, a total 7 year sentence for a 27 year old offender who the trial judge accepted had positive prospects for rehabilitation, was genuinely remorseful, and whose previous longest sentence was less than a year, outstripped his overall culpability. On the rehabilitation aspect, we repeat the observation of Watt J.A. in R. v. Angelis, 2016 ONCA 675, 133 O.R. (3d) 575 (C.A.), where he said, at para. 51:

Totality is a principle of sentence the purpose of which is to ensure that the total sentence imposed does not extinguish the rehabilitative potential of the offender.

11While we do not diminish the seriousness of the appellant’s conduct, the total sentence was excessive given the mitigating factors that we have mentioned. The principle of totality should be applied to reduce the overall length of time the appellant must serve in custody.

12It is recognized that one way to reconcile the overall sentence with the totality principle is to impose concurrent sentences, where otherwise the sentences would be consecutive: Clayton C. Ruby, et al., Sentencing, 9th ed. (Toronto: LexisNexis, 2017), at §2.75. This approach has been favoured by this court in a variety of decisions, including R. v. Jewell (1995), 100 C.C.C. (3d) (Ont. C.A.), where Finlayson J.A. said, at p. 279:

In performing this function, the trial judge will have to consider not only the appropriate sentence for each offence, but whether in light of totality concerns, a particular sentence should be consecutive or concurrent to the other sentences imposed.

13Taking into account the mitigating factors that we have mentioned above, the appropriate total sentence in this case would have been one of four years. That result can be accomplished by making the sentence on the receive material benefit count concurrent to the other two counts.

[14]

Disposition

We would grant leave to appeal sentence, allow the appeal, and make the sentence on count #3 concurrent to the sentences on counts #1 and #2. We would also set aside the victim fine surcharge.