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. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.
(2.1) The offences for the purposes of subsection (2) are
(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;
(b) a terrorism offence;
(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or
(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).
(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
(4) An applicant for an order shall
(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and
(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.
(7) In determining whether to make an order, the judge or justice shall consider
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed;
(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;
(d) society's interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;
(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;
(f) the salutary and deleterious effects of the proposed order;
(g) the impact of the proposed order on the freedom of expression of those affected by it; and
(h) any other factor that the judge or justice considers relevant.
(8) An order may be subject to any conditions that the judge or justice thinks fit.
(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way
(a) the contents of an application;
(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or
(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15; 2015, c. 13, s. 19
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 Information
Court of Appeal for Ontario
Date: 2018-06-29
Docket: C63902
Panel: Feldman and Benotto JJ.A. and Sachs J. (ad hoc)
Parties
Between
Her Majesty the Queen
Respondent
and
Liban Omar
Appellant
Counsel
Dirk Derstine, for the appellant
Craig Harper, for the respondent
Hearing
Heard: March 26, 2018
On appeal from: The sentence imposed by Justice Anne M. Molloy of the Superior Court of Justice on March 29, 2017, with reasons reported at 2017 ONSC 1833.
Decision
Benotto J.A. (Majority Opinion)
[1] Overview
The appellant was charged with first degree murder. He testified in his own defence at a trial by jury. He claimed he knew detailed information about the murder because the person who committed it had shared the information with him. However, he refused to reveal the identity of that person. After the jury acquitted the appellant, the trial judge convicted him of contempt and sentenced him to three years imprisonment.
[2] Grounds of Appeal
The appellant appeals his sentence on the basis that the trial judge erred by: (i) going behind the murder acquittal and sentencing him as if it were possible he was the murderer; and (ii) failing to give him credit for the three and a half years he spent in pre-trial custody on the murder charge.
Background
[3] The Murder
A homeowner's surveillance camera captured a brutal murder on a residential street. The footage showed the victim being shot in his car, tumbling from the car onto the street and dragging himself along the street. All the while, the assailant shot the victim several more times, beat him and then administered a fatal shot. The murderer fled in the victim's car. Although the footage recorded the murderer's actions, no identification could be made. The appellant was arrested and charged with first degree murder. He was denied pre-trial bail and was held in custody for 3.5 years prior to trial.
[4] Crown's Case
The Crown's case against the appellant was based in part on numerous statements he made to the police during an undercover "Mr. Big" operation. These included the appellant admitting to having committed the murder and providing detailed information about the circumstances in which it was carried out.
[5] Appellant's Defence
At trial, the appellant elected to testify in his own defence. He testified that he was lying when he told the police he was involved in the murder. He stated he knew details of the murder not because he was the murderer, but because the real murderer had shared the information with him. Despite claiming to know the murderer's identity, the appellant steadfastly refused to name that third party. He testified that he was afraid he and his family would be in danger if he became known as an informant in the community.
[6] Contempt Citation
The trial judge ordered the appellant to answer the Crown's questions regarding the identity of the purported third party murderer. She warned the appellant repeatedly of the consequences of refusing to answer (in two ways: 1) that it would reflect badly on him before the jury; and 2) he could be held in contempt) and gave him the opportunity to consult with counsel. After speaking with counsel, the appellant still refused to provide the name. As a result, the trial judge cited him for contempt and directed that the issue would proceed before her at the conclusion of the trial.
[7] Acquittal and Contempt Proceedings
After lengthy jury deliberations, the jury found the appellant not guilty of first degree murder. Following the acquittal, the contempt matter came back before the trial judge. The appellant conceded that his refusal to answer constituted contempt of court. The only issue was an appropriate sentence.
Reasons for Sentence
[8] Trial Judge's Sentencing Decision
The trial judge imposed a sentence of three years imprisonment. She observed that the appellant was either lying about the existence of the third party, thereby helping to secure his own acquittal, or telling the truth about the third party, enabling that person to escape justice by not providing his name. She explained:
If [the appellant] was telling the truth about the "mystery man" who he said described to him in great detail the brutal killing of [the deceased], then his failure to name that man has enabled the killer to escape justice. Alternatively, if [the appellant] was lying about the existence of the "mystery man," his refusal to answer proper questions on cross-examination prevented the authorities from being able to expose that lie and helped to secure his acquittal. Either way, at least in part, [the appellant's] contempt in the face of the court enables a vicious murderer to walk freely in our community.
[9] Trial Judge's Acknowledgment of Acquittal
The trial judge acknowledged she was bound by the jury's verdict of acquittal and could not make any findings against the appellant that would be necessarily inconsistent with that acquittal. She reasoned, however, that it was impossible to know if the jury reached its verdict because it believed that somebody else committed the murder. She stated:
Clearly, I am bound by the jury's verdict of acquittal. I also cannot make any findings against [the appellant] that would be necessarily inconsistent with that acquittal. However, I cannot know what was in the minds of the jurors when they reached that verdict, nor the basis for it… In particular, I cannot know whether the jury believed [the appellant's] testimony about the "mystery man" who gave him all the details of the murder or his explanation for not revealing the name of that man.
[10] Possible Alternatives to Jury's Verdict
The trial judge determined there were possible alternatives to the jury accepting the appellant's evidence regarding the "mystery man". Specifically, the jury could have found "that the circumstances of the Mr. Big operation were such that any statements flowing from it could be given little weight", particularly given the various conflicting versions of the event the appellant provided officers over time. Or, the jury could have had a reasonable doubt about the appellant's guilt based on his evidence at trial combined with his statements to the police. She concluded:
It is entirely possible that the jury found [the appellant] not guilty, without being satisfied that somebody else committed, or even probably committed the murder. I simply do not know.
[11] Sentencing Principles Applied
Accordingly, the trial judge held that for the purposes of sentencing, she was not bound to accept the appellant's testimony at trial as true. She stated:
I must not make any findings that are inconsistent with his acquittal on the murder charge, but that does not require me to make a positive finding that [the appellant] did not provide the name of the "mystery man" because he was afraid for his own life or that of his family. What I cannot do, however, is make a positive finding that [the appellant] was actually the real murderer and invented the story about the "mystery man" to cover up his own crime. Such a finding would be inconsistent with his acquittal by the jury.
[12] Pre-trial Custody
The trial judge declined to award credit for the three and a half years the appellant spent in pre-trial custody for the murder charge. She determined that this time in custody was not "as a result of" the contempt charge for which she was sentencing him and, therefore, s. 719(3) of the Criminal Code did not apply.
Position of the Parties
[13] Appellant's Position
The appellant argues that the trial judge erred by sentencing him on the basis that he may have been the murderer. Although the trial judge acknowledged the fundamental principle that an acquittal is the equivalent of a finding of innocence, he argues she nonetheless sentenced him as if it were possible that he was the murderer. Further, the appellant submits that the trial judge erred by failing to provide him with credit for the pre-trial custody on the murder charge. He submits that there is a factual nexus between the contempt and the time served.
[14] Crown's Position
The Crown asserts that while the trial judge had to accept the necessary implications of the jury's verdict, she correctly determined that she was not bound to find that the jury accepted that a third party was the murderer. The Crown submits that the jury's verdict did not require any factual finding related to the alleged third party; the jury simply could have had a doubt about the appellant's guilt and believed he lied to the police without necessarily believing his story about a third party.
Analysis
[15] Overview of Analysis
I agree with the appellant that it would have been an error for the trial judge to sentence him on the basis that he may have been the murderer. However, as I explain, despite certain language in her reasons, I do not accept that this is what the trial judge did or that the impugned language had any impact on the sentence imposed. I see no basis to interfere. Nor do I see any basis to interfere with the trial judge's determination as to pre-trial custody.
(1) The Sentence Imposed
[16] Acquittal as Finding of Innocence
The appellant's acquittal is the equivalent of a finding of innocence: R. v. Verney (1993), 67 O.A.C. 279 (C.A.), at paras. 14 & 20. In R. v. Grant, [1991] 3 S.C.R. 139, a case concerning issue estoppel in criminal proceedings, the Supreme Court explained, at p. 153:
It is a well-established principle in our criminal law that an acquittal is equivalent to a finding of innocence, and that "any issue, the resolution of which had to be in favour of the accused as a prerequisite to the acquittal, is irrevocably deemed to have been found conclusively in favour of the accused".
[17] Trial Judge Bound by Acquittal
Consequently, the trial judge was bound to accept the jury's acquittal and any findings of fact that necessarily arose therefrom: see also Grdic v. The Queen, [1985] 1 S.C.R. 810, at pp. 825-26; R. v. Brown, [1991] 2 S.C.R. 518, at pp. 522-23; and Verney, at para. 20.
[18] Trial Judge's Acknowledgment of Binding Effect
The trial judge's reasons indicate that she was alive to the fact that she was bound by the jury's verdict. She confirmed this on several occasions in her reasons. For example, she stated:
It follows from that verdict that the jury was not satisfied beyond a reasonable doubt that [the appellant was the shooter]. I am bound by that result and any express or implied factual implications arising from it. Further, in sentencing [the appellant], I cannot take into account any fact that is inconsistent with the jury's verdict (at para. 14);
Clearly, I am bound by the jury's verdict of acquittal" (at para. 19); and
I must not make any findings that are inconsistent with his acquittal on the murder charge… (at para. 20).
[19] Interpretation of Trial Judge's Language
The appellant submits that the trial judge's comments about whether the appellant may have been lying when he testified about the friend who told him he was the murderer, meant that the appellant was potentially the murderer. I do not agree. The trial judge's reasons read as a whole demonstrate that her comments were made in the context of highlighting the seriousness of the contempt. The appellant's contempt of court allowed a murderer to go free. The discussion in the impugned sections of her reasons was referable to the evidence in the trial she had just presided over. The appellant said he was lying when he gave the police information that only the murderer would know because he got the information from the murderer. The appellant took advantage of this statement to exonerate himself, yet refused to name the murderer thereby allowing the perpetrator to go free. The trial judge's analysis was a reiteration of these facts.
[20] Explicit Limitation on Findings
Further, the trial judge explicitly stated, at para. 20, that she could not make a positive finding that the appellant was the real murderer.
[21] No Impact on Sentence
In any event, for the purposes of this appeal, even if the judge's language was equivocal, it did not have an impact on the sentence. Appellate intervention is therefore not required, or indeed justified.
[22] Standard of Review and Seriousness of Contempt
Sentencing decisions are entitled to a high degree of deference. An appellate court may only interfere with a sentence if it is demonstrably unfit or the sentencing judge commits an error of law or principle that has an impact on the sentence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11, 43-44 & 52. While the three-year sentence imposed was high, contempt of court is a very serious crime, which strikes at the heart of the administration of justice: R. v. Aragon, 2018 ONCA 124, at para. 1. It is a sanction imposed by courts "to maintain the dignity and authority of the judge and to ensure a fair trial": B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214, at p. 238, citing Balogh v. Crown Court at St. Alban's, [1974] 3 All E.R. 283 (C.A.).
[23] Nature of Contempt
Broadly speaking, contempt of court consists of any conduct that obstructs or interferes with the administration of justice or that shows disrespect for the court and its process: R. v. Glasner (1994), 19 O.R. (3d) 739 (C.A.), at p. 748. It includes a witness's refusal to answer a question properly put to him or her at trial, including the identity of a person involved in criminal activity: see e.g. R. v. Johnston, [1976] O.J. No. 1144 (C.A.). As Arbour J. observed in R. v. Arradi, 2003 SCC 23, [2003] 1 S.C.R. 280, at paras. 34-35:
The refusal by a witness — even if he or she is the accused — to answer the questions put to him or her is an affront to the authority of the court, and it must be remedied in the court in such a way that the jury itself understands that compliance with the relevant law is not optional and understands the consequences for anyone who violates his or her oath.
When the appellant decided to testify, he swore to tell the whole truth. Despite the judge's numerous warnings, he refused to answer the questions put to him. The judge had to preserve the authority of the court, and citing the appellant for contempt was an appropriate method of achieving that end.
[24] Appellant's Choice to Testify
As in Arradi, the appellant did not have to testify at trial. He chose to. At that point, he swore to tell the whole truth. Despite this promise, and despite numerous warnings from the trial judge, the appellant refused to answer the Crown's questions regarding the identity of the person he claims committed the murder.
[25] Timing of Sentencing
Unlike the trial judge in Arradi, the trial judge did not sentence the appellant during the trial but waited until its conclusion. In the result, she avoided giving the jury the impression that she had made a determination as to his credibility.
[26] Seriousness of Contempt
The appellant's refusal to answer proper questions was a significant affront to the administration of justice. The trial judge outlined and applied the relevant sentencing principles. She was in the best position to consider the seriousness of the contempt in the context of a long trial over which she presided.
Pre-trial Custody
[27] Statutory Framework
I now turn to the pre-trial custody issue. Pre-trial custody arising "as a result of the offence" can be credited to an offender pursuant to ss. 719(3) - (3.1) of the Criminal Code:
Determination of sentence
(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.
Exception
(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).
[28] Trial Judge's Reasoning on Pre-trial Custody
The three and a half years the appellant spent in custody was in relation to the first degree murder charge, not the contempt. The trial judge rejected the appellant's submission that the nexus between the murder charge and the contempt engaged s. 719(3). She did not accept that the pre-trial custody on the murder charge meant that the sentence on the contempt was "as a result of" the murder charge, concluding there was no causal relationship between two. Specifically, she stated, at para. 65:
[The appellant] was convicted of contempt because he refused to comply with a lawful order of the court. The fact that he was on trial …does not create any kind of causal relationship between the charge before the court and the contempt.
[29] Deterrence Rationale
Further, in declining to grant credit the trial judge stated, at para 67:
The specific and general deterrence goals of sentencing in contempt cases would be undermined if individuals in custody who committed contempt of court were permitted to simply apply time they had "banked" on other charges instead of serving time on the contempt charges.
[30] No Error in Exercise of Discretion
I see no error in the trial judge's exercise of discretion.
Disposition
[31] Decision
I would grant leave to appeal the sentence but dismiss the appeal.
Dissenting Opinion
Sachs J. (ad hoc) (Dissenting)
[32] Trial Judge's Error
Reading the trial judge's reasons as a whole it is my view that the trial judge did sentence the appellant on the basis that he may have been the murderer. In doing so she made an error in principle by violating a fundamental principle of criminal law that an acquittal by a jury is equivalent to a finding of innocence (see Grdic v. The Queen, [1985] 1 S.C.R. 810; R. v. Grant, [1991] 3 S.C.R. 139 and R. v. Verney, (1993) 87 C.C.C. (3d) 363 (Ont. C.A.)).
[33] Fundamental Aspect of Reasoning
While the trial judge's reasons indicate that she was alive to the fact that she was bound by the jury's verdict, her reasons also reveal that, in the end, the fact that the appellant may have been the murderer was a fundamental aspect of her reasoning with the respect to the appropriate sentence she should impose.
[34] First Explicit Reference
There are two places in the trial judge's reasons where this is made explicit. First, in the "Introduction" section of her reasons, where she is summarizing why she has imposed the sentence she did, she states the following at para. 3:
For the reasons that follow, I find that the appropriate sentence is three years. If Mr. Omar was telling the truth about the "mystery man" who he said described to him in great detail the brutal killing of Mr. Farah, then his failure to name that man has enabled a killer to escape justice. Alternatively, if Mr. Omar was lying about the existence of the "mystery man", his refusal to answer proper questions on cross-examination prevented the authorities from being able to expose that lie and helped secure his acquittal. Either way, at least in part, Mr. Omar's contempt in the face of the court enables a vicious murderer to walk free in our community. In my view, these circumstances put Mr. Omar at the highest end of the sentencing range for offences of this nature. I am further of the view that he should receive no credit for the time spent in custody on the murder charge.
[35] Impact on Sentencing
From this paragraph it is clear that one of the alternatives she considered in sentencing Mr. Omar is that he may have gotten away with murder and that this had an effect on her view that he should receive the highest sentencing range for his offence and that he should be given no credit for the time he spent in custody on the murder charge.
[36] Second Explicit Reference
The second place where the trial judge makes explicit the fact that she felt that Mr. Omar may have been guilty of murder is in the section of her reasons entitled "Proportionality and the Gravity of the Offence." This section occurs after the discussion where the trial judge reminded herself that she was bound by the jury's verdict of acquittal. In spite of this, the trial judge states the following at para. 35 of her reasons:
Mr. Omar had detailed knowledge of the circumstances of the shooting that were not known to the public. He was directly involved in disposing of the murder weapon, another handgun owned by Mr. Farah, and other property stolen from Mr. Farah. He knew where Mr. Farah's car had travelled after the shooting, and what had been done with it after the fact. Either he was the lone gunman who shot Mr. Farah, or he knows the identity of that man. Either way, he has frustrated the course of justice by his refusal to answer proper questions. If he was lying about the existence of this "mystery man", he effectively insulated himself from cross-examination by preventing the police from investigating the possibility or impossibility that the person he named did the killing. If he was not lying about the existence of the real killer, his refusal to give that name to the police has resulted in a murderer going free. Neither alternative is consistent with achieving justice.
[37] Error in Principle
As already stated, in sentencing Mr. Omar on the basis that he may, in fact, have been the murderer, the trial judge committed an error in principle. As a result, her decision is entitled to less deference and this court is entitled to sentence Mr. Omar without any consideration of the fact that he may have gotten away with murder.
[38] Sentencing Precedents
In determining what sentence to impose on Mr. Omar the trial judge did a thorough, but concise review of the case law. What that revealed is that while the maximum sentence for contempt is five years, that penalty has never been imposed. The maximum sentence ever imposed on someone found guilty of contempt for the first time is three years and for someone found guilty of contempt for the second time is four years. That sentence was imposed on a witness who refused to testify at the separate trials of two other men who were charged with first degree murder in relation to an execution-style killing by drug traffickers. The witness had "engaged in a life of crime for twenty years". He was sentenced to three years for the first contempt and to four years for the second. In both cases, the witness's polite and respectful conduct was taken into account by the court as a mitigating factor.
[39] Mitigating Factors
Mr. Omar received the same sentence as the witness described above. This is in spite of the fact that he was a youthful (19 when he was arrested) first offender who pleaded guilty, was polite and respectful to the court and who had taken steps to improve his situation in life since being released from prison.
[40] Appellant's Limited Choice
The trial judge found that Mr. Omar's contempt was worse than that of a witness who had been subpoenaed to testify as he had a choice as to whether to testify. However, the nature of the case against Mr. Omar was such that he had no realistic choice but to testify. He had confessed to the murder, and his only chance of proving his innocence was to explain why he had confessed to the undercover officers and explain the presence of the corroborating evidence.
[41] Pre-trial Custody Issue
What is also troubling is the trial judge's refusal to give Mr. Omar any credit for the three and a half years that he served in custody awaiting trial on the murder charge of which he was eventually acquitted. In my view, this is a circumstance that should have been taken into account when sentencing Mr. Omar for contempt.
[42] Trial Judge's Reasoning on Pre-trial Custody
The trial judge refused to give Mr. Omar credit for the time that he spent in custody on the murder charge because the time that he spent in custody was not "as a result of" the offence that she was now sentencing him for, namely, contempt of court. For that reason, she found that s. 719(3) did not apply.
[43] Section 726.1 Consideration
The trial judge also considered whether she should consider Mr. Omar's pre-trial incarceration as a circumstance to be taken into account under s. 726.1 of the Code. She accepted that she had the right to do so, but she decided not to because she found there was no factual "nexus" between the murder charge and the contempt charge. In her view, Mr. Omar was seeking to apply time that he had "banked" on a totally unrelated charge to reduce the sentence he should serve for the contempt charge. To allow such a result would undermine the goals of specific and general deterrence in sentencing for contempt.
[44] Barnett Framework
In R. v. Barnett, 2017 ONCA 897, this Court dealt with when and how a trial judge is entitled to take pre-sentence incarceration into account when sentencing an offender. In doing so it discussed the relationship between ss. 719(3) and s. 726.1. It also highlighted how the fairness of the sentencing process is enhanced when an accused does receive credit for the time spent in custody prior to sentencing. In doing so the majority referred to the following quote from Iacobucci J.'s reasons in R. v. Hall, 2002 SCC 64, [2002] S.C.J. No. 65, at para. 47:
Liberty lost is never regained and can never be fully compensated for; therefore, where the potential exists for the loss of freedom for even a day, we, as a free and democratic society, must place the highest emphasis on ensuring that our system of justice minimizes the chances of an unwarranted denial of liberty.
[45] Application of Barnett
On the basis of the reasoning in Barnett, I accept that this is not a case where credit for pre-trial incarceration should be given under s. 719(3), as Mr. Omar was released from custody as soon as he was acquitted of murder even though he was still facing the contempt charge. However, as Barnett makes clear and the trial judge accepted, Mr. Omar's pre-trial incarceration can still be considered as "relevant information" under s. 726.1. As put by this Court at paras. 40 and 42 of Barnett:
[40] We turn now to s. 726.1. The section is a statutory statement of the self-evident- the court should consider "any relevant information" in determining the fit sentence. An accused's pre-sentence incarceration may be "relevant information."
[42] Section 726.1 operates differently than ss. 719(3) and (3.1). Section 726.1 may make pre-sentence incarceration a factor to be considered, along with other relevant factors, in determining the relevant sentence. Sections 719(3) and (3.1) do not speak to the factors relevant to determining a fit sentence, but rather instruct as to the manner in which pre-sentence custody should be counted to mitigate what has been determined to be the appropriate sentence. As the two provisions operate very differently, trial judges should be careful to distinguish between the two when considering the impact of pre-sentence custody on the determination of the sentence to be imposed.
[46] Factual Nexus
With respect to the concern about "banking" time on a totally unrelated charge, the reality is that if Mr. Omar had not been on trial for murder he would not have testified and would not have been convicted of contempt. In other words, it is only because Mr. Omar was on trial for murder that he committed the contempt. It is true that he could have chosen to answer the questions that were put to him (and thus avoided being convicted of contempt), but that does not mean that there is no factual "nexus" between the murder charge and the contempt charge. There is clearly a nexus.
[47] Respect for the Law
As the trial judge points out, the purpose of the sentence of imprisonment for contempt is to protect the integrity of the administration of justice. Further, the fundamental purpose of sentencing is to contribute to a respect for the law (see s. 718 of the Code). In this case, two things happened in Mr. Omar's murder trial that affected the reputation of the administration of justice. The first is that Mr. Omar refused to answer a question that was put to him in spite of being ordered to do so by the court. The second is that Mr. Omar served three and half years in custody for a crime of which he was found innocent. To give effect to the first while giving none to the second undermines, rather than promotes respect for the law.
[48] Disposition
For these reasons, I find that the sentence imposed on Mr. Omar was harsh and excessive. Therefore, I would grant leave to appeal the sentence, allow the appeal, and vary the sentence imposed from three years to two years. This sentence is significant enough to satisfy the goals of specific and general deterrence.
Released: 2018-06-29
