- DATE: 20021015
DOCKET: C35607
COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) – and – TARIQ MALIK (Appellant)
BEFORE: ROSENBERG, CRONK and GILLESE JJ.A.
COUNSEL: Alan D. Gold for the appellant
Thomas Galligan for the respondent
HEARD: September 27, 2002
RELEASED ORALLY: September 27, 2002
On appeal from the sentence of Justice Stephen Foster imposed December 13, 2000.
E N D O R S E M E N T
[1] We find that the sentencing judge erred in not imposing a conditional discharge for the following reasons:
The appellant’s wife received a conditional discharge for a charge arising from the same situation. There was no clear distinction between the two offences. Disparity in sentence is a principle that ought to have been taken into account.
When determining the appropriateness of a discharge, the sentencing judge had to have regard to the best interests of the accused as well as the public interest. The sentencing judge appears to have had insufficient regard to the interests of the accused.
[2] The accused essentially lost his ability to earn his livelihood as a consequence of the conviction. In his position as a chartered accountant, he was required to travel to the United States and Europe. The conviction has impeded his ability to travel. He had no prior criminal record. He was unemployed at the time of conviction and sentencing and has been unable to obtain employment since that time. It appears that the conviction has hindered his ability to find suitable employment.
[3] Although the employment situation was argued before the sentencing judge, the reasons give no indication as to how he dealt with that consideration.
[4] The appellant’s criminal record and resulting unemployment has caused difficulty for other reasons. He is the sole supporter for children from a previous marriage and his existing marriage. Loss of employment results in direct financial hardship for those children as well as the appellant.
[5] A conditional discharge, in the circumstances, was not contrary to the public interest and would have been appropriate at the time. Given the passage of time, an absolute discharge is now the appropriate disposition.
[6] Accordingly, leave to appeal sentence is granted, the appeal is allowed, and an absolute discharge substituted.
“M. Rosenberg J.A.”
“E.A. Cronk J.A.
“E.E. Gillese J.A.”