Her Majesty the Queen v. Ijam

[Indexed as: R. v. Ijam]

87 O.R. (3d) 81

Court of Appeal for Ontario,

MacPherson, Sharpe, Simmons, Cronk and Gillese JJ.A.

September 11, 2007

Criminal law -- Sentencing -- Principles of sentence -- Mitigating factors -- Bail -- Accused spending five weeks of pre-trial bail under house arrest and 30 months subject to curfew -- Bail conditions not imposing undue hardship on accused -- Sentencing judge not erring in failing to give accused credit for pre-trial bail.

Criminal law -- Sentencing -- Conditional sentence -- Commercial offences -- Youthful first offender pleading guilty to offences arising out of sophisticated counterfeit operation -- Trial judge erring in rejecting conditional sentence based on nature of offences -- Circumstances surrounding appeal combined with fresh evidence showing continuing rehabilitation warranting appellate intervention -- Accused's appeal heard but court determining should be re-argued in conjunction with other cases raising similar issue -- Additional delay and stress due to re-hearing and subsequent reserve of decision -- Incarcerating accused would significantly disrupt university education -- Sentence of 21 months' incarceration being varied on appeal to 21 months conditional.

The accused and a co-accused set up a sophisticated counterfeit operation which had the potential to produce high quality counterfeit bills and marks. He pleaded guilty to possession of the proceeds of crime, possession of the instruments of forgery and possession of counterfeit money. The accused was 22 years old at the time of sentencing. He was employed and enrolled at university. His pre-sentence report was positive. He was released on bail pending his trial. The first five weeks were spent under house arrest, and for the remaining 30 months he was subject to a curfew. The trial judge rejected a penitentiary sentence because of the accused's youth, the excellent steps he had taken to get his life back on track, his guilty plea and family support, and his lack of a criminal record. The trial judge also rejected a conditional sentence, noting the aggravating factors (the nature of the offences, the sophistication, planning and scale of the operation, and the high quality of the counterfeit bills) and stating that a message had to be sent that setting up a sophisticated counterfeiting operation will result in jail time. The accused was sentenced to 21 months' incarceration followed by two years' probation. The accused appealed, arguing that the trial judge erred by not imposing a conditional sentence and also erred by failing to consider the accused's strict bail conditions when determining the type and quantum of sentence.

Held, the appeal should be allowed.

Per MacPherson J.A.: The trial judge did not err in rejecting a conditional sentence. He considered all of the mitigating and aggravating factors, and his description of the aggravating factors, all of which related to the nature and scope of the crimes, amply supported his decision to impose a custodial sentence. Generally, sentences for commercial crimes should be custodial, not conditional.

In the circumstances of this case, the trial judge did not err by failing to consider the accused's pre-trial bail conditions as a mitigating factor. The accused was on house arrest for only five weeks, and the evidence did not demonstrate that the bail conditions had imposed undue hardship on him. It is desirable that [page82 ]appellate courts not hamstring judges in their weighing of relevant factors in the sentencing process. The trial judge determined that, in the particular circumstances of this case, this factor was outweighed by many competing -- and more powerful -- considerations. Pre-trial bail should not be seen as a compulsory or inflexible mitigation factor. Failure by a sentencing judge to refer in his or her reasons to bail conditions does not automatically constitute an error in principle.

While the trial judge did not err in imposing a conditional sentence, it was appropriate in the circumstances to provide relief from the custodial component of the sentence. The appeal was originally argued before a three-judge panel, which reserved its decision. It then emerged that two other appeals under reserve also involved the issue of whether credit should be given for strict bail in imposing a sentence. The Chief Justice decided that there should be a rehearing of the appeals with a five-judge panel. The decision on the appeals was reserved until after the start of the academic year. As a result, the accused suffered additional stress and expense, and his university studies would be seriously disrupted if he had to start to serve his custodial sentence now. The sentence was varied to 21 months conditional.

Per Sharpe J.A. (Simmons J.A. concurring) (concurring in the result): The trial judge erred in principle in imposing a custodial term of imprisonment in the circumstances of this case. When sentencing a youthful first offender, the paramount considerations are rehabilitation and specific deterrence. A sentencing judge should not place undue weight on general deterrence. Even when there are aggravating factors which might point to the need for a sentence geared to general deterrence, a conditional sentence may provide sufficient denunciation and deterrence, and it is an error to rule out the possibility of a conditional sentence ab initio simply because aggravating features are present.

Appellate courts do not "hamstring" trial judges by requiring them to give reasons for rejecting relevant factors in the sentencing process. The trial judge should have dealt with the accused's strict bail conditions argument in his reasons for sentence. The failure of a trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle. However, in the circumstances of this case, the accused failed to establish that he was entitled to credit for pre-trial bail conditions.

Per Cronk and Gillese JJ.A. (concurring): The reasons of MacPherson J.A. are agreed with on the pre-trial bail issue, and those of Sharpe J.A. are agreed with on the conditional sentence issue.

APPEAL by the accused from a sentence imposed by McMahon J. of the Superior Court of Justice, dated October 2, 2006.

Cases referred to R. v. Downes (2006), 79 O.R. (3d) 321, [2006] O.J. No. 555, 208 O.A.C. 324, 205 C.C.C. (3d) 488, 37 C.R. (6th) 46 (C.A.), distd Other cases referred to R. v. Bogart (2002), 61 O.R. (3d) 75, [2002] O.J. No. 3039, 167 C.C.C. (3d) 390 (C.A.); R. v. Borde (2003), 63 O.R. (3d) 417, [2003] O.J. No. 354, 172 C.C.C. (3d) 225, 8 C.R. (6th) 203 (C.A.) (sub nom. R. v. B. (Q.)); R. v. Dobis (2002), 58 O.R. (3d) 536, [2002] O.J. No. 646, 163 C.C.C. (3d) 259, 27 B.L.R. (3d) 200 (C.A.); R. v. Hayman, [1999] O.J. No. 1308, 135 C.C.C. (3d) 338 (C.A.); R. v. Holub, [2002] O.J. No. 579, 163 C.C.C. (3d) 166 (C.A.); R. v. Hunjan, [2007] O.J. No. 520, 2007 ONCA 102; R. v. Kutsukake, [2006] O.J. No. 3771, 216 O.A.C. 317, 213 C.C.C. (3d) 80, 36 M.V.R. (5th) 174 (C.A.); R. v. Lau, [2004] A.J. No. 1348, 357 A.R. 312, 334 W.A.C. 312, 193 C.C.C. (3d) 51, 2004 ABCA 408, 36 Alta. L.R. (4th) 228 (C.A.); R. v. Lawes, [2007] O.J. No. 50, 2007 ONCA 10; R. v. M. (C.A.), [1996] 1 S.C.R. 500, [1996] S.C.J. No. 28, 194 N.R. 321, 105 C.C.C. (3d) 327, 46 C.R. (4th) 269; [page83 ]R. v. Panday, [2007] O.J. No. 3377, 2007 ONCA 598; R. v. Priest (1996), 30 O.R. (3d) 538, [1996] O.J. No. 3369, 110 C.C.C. (3d) 289, 1 C.R. (5th) 275 (C.A.); R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, [2000] S.C.J. No. 6, 142 Man. R. (2d) 161, 182 D.L.R. (4th) 1, 249 N.R. 201, 212 W.A.C. 161, [2000] 4 W.W.R. 21, 140 C.C.C. (3d) 449, 49 M.V.R. (3d) 163, 30 C.R. (5th) 1 (sub nom. R. v. P. (J.K.D.)); R. v. Shropshire, [1995] 4 S.C.R. 227, [1995] S.C.J. No. 52, 129 D.L.R. (4th) 657, 188 N.R. 284, 102 C.C.C. (3d) 193, 43 C.R. (4th) 269; R. v. Spencer (2004), 72 O.R. (3d) 47, [2004] O.J. No. 3262, 188 O.A.C. 363, 241 D.L.R. (4th) 542, 186 C.C.C. (3d) 181, 22 C.R. (6th) 63 (C.A.); R. v. Stein, [1974] O.J. No. 93, 15 C.C.C. (2d) 376 (C.A.); R. v. Vandale, [1974] O.J. No. 1047, 21 C.C.C. (2d) 250 (C.A.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 719(3) [as am.], 742.3(1) [as am.]

Kim Schofield, for appellant. Leslie Paine, for respondent.

MACPHERSON J.A.: --

A. Introduction

[1] Ghassan Ijam pleaded guilty to three criminal offences -- possession of the proceeds of crime, possession of the instruments of forgery, and production of counterfeit money. He was sentenced by McMahon J. to a term of imprisonment of 21 months to be followed by two years probation.

[2] The appellant appeals his sentence on two grounds -- the sentencing judge erred by not imposing a conditional sentence, and the sentencing judge erred by failing to consider the appellant's strict bail conditions when determining the type and quantum of his sentence.

B. Facts

[3] In January 2004, the appellant and his co-accused set up a counterfeit operation in a Toronto apartment. The operation was sophisticated and had the potential to produce high quality counterfeit bills and marks. When the appellant and his co- accused were arrested on February 19, 2004, the operation had already produced approximately $8,000 in counterfeit money, but they had not distributed any of the fake funds. The police seized the counterfeit money and $2,980 of real money. The appellant admitted that $1,000 of the real money was a deposit on future counterfeiting, which formed the basis of his guilty plea for possession of the proceeds of crime. [page84 ]

[4] The appellant was released on bail pending his trial. He spent almost five weeks under house arrest with exceptions for school or while in the company of his surety. The next 11 months were spent with a 10:00 p.m. curfew, except while in the company of his surety. For the final 19 months, the curfew remained, but included an exception for work purposes.

[5] The sentencing judge wrote careful and extensive reasons for sentence.

[6] The sentencing judge identified eight mitigating factors that favoured the appellant -- his guilty plea and remorse, the absence of a prior criminal record, the appellant's youth (age 22 at the time of sentencing), his employment, his enrolment at Ryerson University, a positive pre-sentence report, strong character letters from his employers, co-workers and family members, and the support of his family, especially his father and mother. The sentencing judge concluded his list of mitigating factors with this statement: "His father was an impressive witness and I accept that the accused has turned his life around since this incident."

[7] The sentencing judge also considered several aggravating factors -- the nature of the offences, the sophistication and planning of the operation, the large scale of the operation, and the high quality of the counterfeit bills.

[8] The sentencing judge then turned to a balancing of the mitigating and aggravating factors. He said: "This is not an easy case, balancing the interests of the accused, individual and general deterrence." He rejected a penitentiary sentence because of "the young age of the accused, the excellent steps he has taken to get his life on track, his plea of guilty and family support, and he has no criminal record".

[9] The sentencing judge also concluded that a conditional sentence was not appropriate in this case. He reasoned:

I have carefully considered whether a conditional sentence would appropriately, in this case, address the issue of general deterrence and individual deterrence. It certainly would be in the interest of the accused particularly for the steps he has taken to be granted a conditional sentence. I must conclude, however, that general deterrence cannot be met in this case by a conditional sentence. A message must be sent by the court loud and clear that if you are going to set up a sophisticated counterfeiting operation to counterfeit our national currency you will go to jail.

[10] The sentencing judge concluded that "a fair and just sentence is a sentence of 21 months incarceration to be followed by two years probation".

[11] On appeal, the appellant seeks leave to introduce fresh evidence. The fresh evidence is in the form of an affidavit from the appellant, with attached exhibits. Generally, the affidavit provides [page85 ]information about the appellant's activities since he received bail pending appeal, namely, that he has continued his employment and his studies. Further, he has sponsored a child through World Vision. The affidavit also states that the appellant has complied with his bail conditions and that he would be willing to speak at schools and community organizations about his experiences with the criminal justice system.

C. Issues

[12] There are two issues on this appeal:

(1) Did the trial judge err by not imposing a conditional sentence?

(2) Did the trial judge err by failing to consider the appellant's strict bail conditions when determining the type and quantum of sentence?

D. Analysis

[13] This is a sentence appeal. My review of the sentence imposed by the sentencing judge must be anchored in the knowledge that the Supreme Court of Canada has strongly cautioned appellate courts to show substantial deference to the sentences imposed by trial judges: see R. v. Shropshire, [1995] 4 S.C.R. 227, [1995] S.C.J. No. 52, 102 C.C.C. (3d) 193. This deference applies to a judge's decision whether or not to impose a conditional sentence: see R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, [2000] S.C.J. No. 6, 140 C.C.C. (3d) 449. Appellate interference with a sentence is warranted only if the sentencing judge has committed an error in principle, failed to consider or overemphasized a relevant factor, or if the sentence is demonstrably unfit: see R. v. M. (C.A.), [1996] 1 S.C.R. 500, [1996] S.C.J. No. 28, 105 C.C.C. (3d) 327.

(1) Incarceration versus conditional sentence

[14] The appellant submits that the sentencing judge failed to consider his youth and lack of a criminal record when considering the option of a conditional sentence.

[15] I disagree. The sentencing judge's reasons are not sparse or lean. They are fully developed, with careful attention to a dozen mitigating and aggravating factors. Two of these factors, explicitly, were the appellant's youth and the absence of a prior criminal record.

[16] It is true that the sentencing judge specifically mentioned these two factors as reasons for rejecting the Crown's position that the appropriate sentence was a penitentiary term. However, specific consideration in this context does not mean that [page86 ]the sentencing judge ignored these same two factors when considering whether a conditional sentence was appropriate. On the contrary, a fair reading of the sentencing judge's reasons demonstrates that he considered all the mitigating and aggravating factors in the context of the three options he was considering, namely, conditional sentence, incarceration in a reformatory and incarceration in a penitentiary.

[17] The appellant also contends that the sentencing judge overemphasized the aggravating factors without explaining why they led him to reject a conditional sentence.

[18] I disagree. The sentencing judge's description of the aggravating factors, all of which related to the nature and scope of the crimes, amply supported his decision to impose a custodial sentence.

[19] In recent years, this court has treated commercial crimes very seriously. Generally, sentences for these crimes should be custodial, not conditional: see, for example, R. v. Holub, [2002] O.J. No. 579, 163 C.C.C. (3d) 166 (C.A.); R. v. Dobis (2002), 58 O.R. (3d) 536, [2002] O.J. No. 646, 163 C.C.C. (3d) 259 (C.A.); and R. v. Bogart (2002), 61 O.R. (3d) 75, [2002] O.J. No. 3039, 167 C.C.C. (3d) 390 (C.A.).

[20] In this case, the sentencing judge described the nature of the principal offence and its consequences in compelling fashion:

Counterfeiting is a crime that strikes at the heart of commercial confidence in our Canadian currency. One need not go farther that the local coffee shop to see the little signs indicating the store does not accept certain denominations of Canadian currency due to fear of counterfeit bills. Counterfeiting not only victimizes the public confidence in our Canadian currency, it also victimizes the cab driver, the shopkeeper or the large commercial bank. As soon as the counterfeit bill goes into circulation, it is only a matter of time until someone else will be stuck with the loss when the counterfeit is finally discovered. Often innocent members of the community have to try to explain to the police how they ended up in possession of counterfeit money and tried honestly to use it at the local grocery store. Counterfeiting is simply a crime driven by dishonesty and greed that impacts on all Canadians.

[21] The sentencing judge also noted that the number of counterfeit Canadian currency notes had increased by 1,800 per cent between 1992 and 2005, which "clearly demonstrates counterfeiting of Canadian currency is something that is on the rise and is something that has had a negative impact on the community".

[22] In this case, the appellant's considerable efforts to achieve rehabilitation are to be commended. There is no doubt that his many redeeming qualities made a conditional sentence an attractive option. But this fact was not lost on the sentencing judge, who, as I have said, carefully considered all the relevant factors. I cannot say that the sentencing judge's rejection of a conditional [page87 ]sentence for this offender constituted any of the categories of error summarized in M. (C.A.), supra. Accordingly, there is no basis for appellate intervention with the sentencing judge's decision on this ground.

(2) Strict pre-trial bail

[23] The appellant contends that the sentencing judge erred in principle by failing to consider the appellant's stringent pre-trial bail conditions as a mitigating factor.

[24] As set out above, the appellant spent about 31 months on bail before his trial. The appellant experienced three bail regimes -- an initial five-week period under house arrest with exceptions for school or while in the company of his surety, an 11-month period under a 10:00 p.m. curfew except while in the company of his surety, and a final 19-month period under the same curfew but with an additional exception for work purposes.

[25] Defence counsel raised the issue of pre-trial bail in her sentencing submissions:

So, your honour can take into consideration restrictive bail conditions. So, we have a situation where I don't think that it could be said -- -- I think that there's a history of compliance here. History of compliance with bail and with an extremely restrictive bail. So, essentially, your honour can treat that as a form of pretrial custody in whatever formula your honour wishes to do, and the Court of Appeal has endorsed that approach especially when you have house arrest. Now, the house arrest has allowed him to work, but that's what we want.

[26] The sentencing judge identified and discussed comprehensively eight mitigating and four aggravating factors before imposing sentence. He did not mention pre-trial bail as a mitigating factor. The appellant submits that this constitutes an error in principle because this court said in R. v. Downes (2006), 79 O.R. (3d) 321, [2006] O.J. No. 555, 205 C.C.C. (3d) 488 (C.A.), at para. 33, that "time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance. . . . [I]t is incumbent on the sentencing judge to explain why he or she has decided not to take pre-sentence house arrest into account."

[27] For several reasons, I do not accept this submission.

[28] First, the fact situations in Downes and this case are substantially different. In Downes, a house arrest bail regime remained in place for 18 months; here, it lasted five weeks and was then replaced by a less stringent regime.

[29] Moreover, in this case the record before the sentencing judge did not demonstrate that the bail conditions had prejudiced, or imposed undue hardship on, the appellant: see Downes, at [page88 ]para. 37. For example, the pre-sentence report describes the appellant's situation in this fashion:

The subject is presently living in the familial home in the town of Richmond Hill. He is single with no children and maintains full time employment at "End to End Networks." When he's not working he enjoys spending his leisure time with his friends on the weekends meeting at various coffee shops in the city. He also mentioned that he enjoys going to Wasaga beach during the summer with his friends and to the parks to play soccer. He describes his friends as being well-educated individuals; some are still in university studying while others are successfully working in their fields. None are reported to have a criminal record prior to this criminal offence.

[30] In my view, this is not a description of hardship or deprivation. In any event, it is a picture of a life far different from pre-trial custody in the Don jail or the West Detention Centre which might have been the appellant's situation if bail had been denied.

[31] Second, it is desirable that appellate courts not hamstring judges in their weighing of relevant factors in the sentencing process. The sentencing judge in this case addressed 12 mitigating and aggravating factors in his reasons. They were all important factors and the sentencing judge's treatment of them was comprehensive and careful. The thirteenth factor -- pre-trial bail -- was specifically drawn to his attention by counsel for the appellant and was the subject of submissions at the sentencing hearing. In these circumstances, particularly as the period of strict pre-trial bail was very brief and it is apparent that this factor was of lesser significance than the others, it makes no sense to conclude that the sentencing judge failed to consider it, or to take it into account in his sentencing calculus. The sentencing judge simply determined that, in the particular circumstances of this case, this factor was outweighed by many competing -- and more powerful -- considerations. It was open to the sentencing judge to so conclude. That said, it would have been preferable had the sentencing judge explicitly explained that conclusion.

[32] Moreover, Downes itself recognizes that the imposition of absolutes by appellate courts on sentencing judges is to be avoided. In the paragraph immediately before the one relied on by the appellant in this appeal, Rosenberg J.A. cited passages from two appellate authorities, R. v. Lau, 2004 ABCA 408, [2004] A.J. No. 1348, 193 C.C.C. (3d) 51 (C.A.) at para. 15 and R. v. Spencer (2004), 72 O.R. (3d) 47, [2004] S.C.J. No. 3262, 186 C.C.C. (3d) 181 (C.A.) at para. 43, where the courts stated that stringent bail conditions "may" and "can" be taken into account and have a mitigating effect on sentence.

[33] This conclusion is reinforced by the sentencing principles outlined in the Criminal Code, R.S.C. 1985, c. C-46. Section 719(3) of the Code, which provides that time spent in custody as a result [page89 ]of an offence may be taken into account by a sentencing judge in determining the sentence to be imposed on a person convicted of an offence, makes no reference to pre-trial bail. Nor has the Code been amended to include reference to pre-trial bail, in a manner analogous to the treatment of "time spent in custody" under s. 719(3). The absence of such provisions concerning pre-trial bail reinforces the conclusion that pre-trial bail should not be seen as a compulsory or inflexible mitigation factor.

[34] Third, there is recent authority from this court that failure by a sentencing judge to refer in his or her reasons to bail conditions does not automatically constitute an error in principle. In R. v. Lawes, [2007] O.J. No. 50, 2007 ONCA 10, at para. 10 the court said:

In our view, even if the experienced trial judge failed to consider the appellant's bail conditions as a mitigating factor in fixing sentence pursuant to R. v. Downes (2006), 205 C.C.C. (3d) 488, at para. 42, his failure to do so is not fatal to the ultimate sentence imposed. He was entitled to emphasize community safety and the need to continue to send the message of deterrence to those who threaten that safety with firearms.

See also: R. v. Hunjan, [2007] O.J. No. 520, 2007 ONCA 102 (C.A.).

[35] The sentencing judge engaged in similar reasoning in this case. He emphasized the important points -- both mitigating and aggravating -- and did not expressly mention pre-trial bail. As I have said, however, on this record, it is inconceivable that the sentencing judge failed to consider the implications of the appellant's pre-trial bail.

[36] Fourth, I do not accept the proposition that bail, even with stringent conditions, and pre-trial custody are to be regarded as equivalents in every case. Put bluntly, bail is not jail. Bail is what an accused person desires to stay out of jail. That is because, at a practical, common sense level known to all accused persons, the pith and substance of bail is liberty, whereas the essence of jail is a profound loss of liberty.

[37] The import of the above reasoning is this: pre-trial bail and pre-trial custody are very different concepts. Their foundations are different because their realities for accused persons are different. That said, there will be cases -- Downes, with long-term house arrest bail conditions, is one -- where a sentencing judge should give mitigation effect to pre-trial bail. However, there will be many other cases -- Lawes and Hunjan are examples -- where this factor should attract little, if any, weight.

[38] In my view, this appeal falls into the second category.

(3) Fresh evidence

[39] The appellant submitted fresh evidence on the appeal, which I described earlier in these reasons. In my view, the [page90 ]fresh evidence confirms the many redeeming qualities -- good and supportive family, steady employment, university studies, community involvement -- of the appellant. The sentencing judge was aware of these qualities and clearly took them into account. I do not think that the fresh evidence tendered on appeal, by itself, justifies interference with the sentence he imposed.

[40] However, there is a new factor that, combined with the fresh evidence, inclines me to the view that at this juncture this court should provide relief from the custodial component of the appellant's sentence.

[41] The new factor is the chronology and the events of this appeal. The appeal was originally argued before a three-judge panel (MacPherson, Cronk and Gillese JJ.A.) on April 13, 2007. The panel reserved its decision. It then emerged that two other appeals under reserve, R. v. Panday; R. v. Jalota, [2007] O.J. No. 3377, 2007 ONCA 598, also involved the issue of whether credit could be given for strict bail in imposing a sentence.

[42] The relationship between the issues on this appeal and the other appeals was brought to the attention of McMurtry C.J.O. who decided that there should be a rehearing of both appeals with a five-judge panel composed of the judges from both of the original hearings (Cronk J.A. had sat on both appeals). The rehearing took place on June 25, 2007 and the decisions in all three appeals have been under reserve until today.

[43] The consequences of this chronology for the appellant have been particularly unfortunate. He and his supportive family have had several more months of waiting and stress, presumably there has been some additional expense associated with the rehearing and, of particular importance, the appellant's studies at Ryerson University will be seriously disrupted if he must start to serve his custodial sentence now.

[44] Accordingly, the events surrounding the rehearing of this appeal, coupled with the fresh evidence tendered by the appellant and the evidence of the appellant's laudable rehabilitation efforts, to which I have already referred, lead me to conclude, at this juncture, that a conditional sentence is the fit sentence to impose on the appellant.

E. Disposition

[45] I would grant leave to appeal, allow the appeal, and vary the sentence to a conditional sentence of 21 months subject to the conditions set out in s. 742.3(1) of the Criminal Code. [page91 ]

[46] SHARPE J.A. (SIMMONS J.A. concurring): -- While I agree with the result reached by MacPherson J.A., I arrive at that result differently and thus find it necessary to write these brief reasons to explain my decision.

A. Conditional Sentence

[47] The central issue on this appeal is whether the trial judge erred by imposing a custodial rather than a conditional sentence or, alternatively, whether we should arrive at the result on account of fresh evidence.

[48] The appellant is a youthful first offender who committed a serious offence, the details of which are fully set out by MacPherson J.A.

[49] After the appellant was charged with this offence, there was a complete turnaround in his behaviour. As the trial judge put it: "I accept that the accused has turned his life around since this incident." The appellant enjoys the full support of his family and friends. He has earned a diploma from Seneca College in computer networking and technical support and found employment in that field. He has shown himself to be a conscientious and dedicated worker. He has the trust and confidence of his employer. The pre-sentence report was very favourable. The appellant pleaded guilty and showed remorse for his offence. The fresh evidence filed before this court, in the form of an affidavit from the appellant, confirms that he has continued on this very positive trajectory since he was sentenced. He works 40 hours a week as lead network analyst for his employer. He is pursuing further studies at Ryerson University, spending six hours per week attending courses towards a certificate in Project Management. He continues to respect his bail conditions which include a daily curfew of 7:00 p.m. to 6:00 a.m. and has sponsored a child in India through World Vision. He expresses a willingness to go to schools or other community organizations to speak to young people about the lessons learned from being charged with an offence and going through the justice system.

[50] It is clear that a custodial term of imprisonment is not required for the purpose of specific deterrence or rehabilitation. The appellant does not pose a risk of re- offending and it is not necessary to imprison him in order to protect society. Given the appellant's continuing progress, rehabilitation would be hindered rather than fostered by a custodial sentence. As the trial judge himself recognized, the only purpose a custodial term of imprisonment could possibly serve is general deterrence. The issue for me is whether the trial judge's decision that general deterrence made it necessary to impose a custodial term can [page92 ]withstand scrutiny in light of the principles governing the sentencing of youthful first offenders.

[51] It is, of course, well established that the sentence imposed by the sentencing judge is to be accorded deference on appeal and that this court will not interfere unless the sentence is demonstrably unfit or the sentencing judge's reasons reveal an error of law or an error in principle. I agree that the trial judge seems to have been aware of all the mitigating circumstances and that he mentioned them in his reasons. In my view, however, that does not exclude appellate review.

[52] There are established legal principles to guide sentencing judges in the weight and emphasis to be accorded the relevant factors. As held by this court in R. v. Priest (1996), 30 O.R. (3d) 538, [1996] O.J. No. 3369, 110 C.C.C. (3d) 289 (C.A.), at p. 548 O.R., p. 299 C.C.C., the trial judge's discretion is "not unfettered", nor do appellate courts owe "unlimited" deference, as "[t]he various principles and objectives of sentencing set out by this court and in the Criminal Code are designed to guide the exercise of the discretion". Where, in the opinion of the appellate court, the trial judge fails to respect applicable legal principles and objectives of sentencing and, in so doing, imposes an unwarranted sentence, it is appropriate and in the interests of justice for this court to intervene, particularly in the case of a youthful first offender. For the following reasons, I conclude that it was an error in principle to impose a custodial term of imprisonment in the circumstances of this case.

[53] The only reason the trial judge offered for refusing to give the appellant a conditional sentence was that he felt a conditional sentence failed to address the need for general deterrence. Moreover, the trial judge appears to me to have effectively excluded a conditional sentence for the offence of counterfeiting on the ground that for that offence, deterrence is paramount:

Individual deterrence and rehabilitation can clearly be addressed by a conditional sentence. The difficult issue is whether general deterrence can be fairly addressed by a conditional sentence.

I have carefully considered whether a conditional sentence would appropriately, in this case, address the issue of general deterrence and individual deterrence. It certainly would be in the interest of the accused particularly for the steps he has taken to be granted a conditional sentence. I must conclude, however, that general deterrence cannot be met in this case by a conditional sentence. A message must be sent by the court loud and clear that if you are going to set up a sophisticated counterfeiting operation to counterfeit our national currency you will go to jail.

(Emphasis added) [page93 ]

[54] In my respectful view, when considered in light of the facts of this case and the circumstances of this offender, these passages reflect an error in principle sufficient to justify the intervention of this court.

[55] It is well established by the case law that when sentencing a youthful first offender the paramount considerations are rehabilitation and specific deterrence; a sentencing judge should not place undue weight on general deterrence. This principle was established long ago in R. v. Stein, [1974] O.J. No. 93, 15 C.C.C. (2d) 376 (C.A.), a case that also dealt with a first offender who had committed serious commercial crimes (13 counts of obtaining property by false pretences). Writing for the court, Martin J.A. stated at p. 377 C.C.C.:

In our view, before imposing a custodial sentence upon a first offender the sentencing Court should explore the other dispositions which are open to him and only impose a custodial sentence where the circumstances are such, or the offence is of such gravity that no other sentence is appropriate. In our view, this offence does not fall within the category of offences where a custodial sentence is the only appropriate sentence to be imposed upon a first offender, nor are there other circumstances which require the imposition of a custodial sentence.

[56] In R. v. Priest, supra, the trial judge sentenced a youthful first offender to a custodial term on the ground that a custodial term was required for the purpose of general deterrence in light of the prevalence of the offence of break and enter in the community. Rosenberg J.A. held, at pp. 543-44 O.R., pp. 294-95 C.C.C., that the trial judge had erred by over-emphasizing general deterrence:

The primary objectives in sentencing a first offender are individual deterrence and rehabilitation. Except for very serious offences and offences involving violence, this court has held that these objectives are not only paramount but best achieved by either a suspended sentence and probation or a very short term of imprisonment followed by a term of probation.

Citing R. v. Stein, supra, Rosenberg J.A. added [at p. 544 O.R.]:

[I]t has been an important principle of sentencing in this province that the sentence should constitute the minimum necessary intervention that is adequate in the particular circumstances. This principle implies that trial judges consider community-based dispositions first and impose more serious forms of punishment only when necessary. These principles have now been codified in the recently proclaimed sections 718 and 718.2 of the Criminal Code. Section 718(c) instructs that separation of offenders from society is an appropriate objective of sentencing "where necessary". Section 718.2(d) directs that an offender should not be deprived of liberty "if less restrictive sanctions may be appropriate in the circumstances".

The rule laid down by this court is that ordinarily for youthful offenders, as for first offenders, the objectives of individual deterrence and rehabilitation are paramount. [page94 ]

[57] This principle has been frequently applied by this court: see R. v. Vandale, [1974] O.J. No. 1047, 21 C.C.C. (2d) 250 (C.A.); R. v. Hayman, [1999] O.J. No. 1308, 135 C.C.C. (3d) 338 (C.A.); R. v. Borde (2003), 63 O.R. (3d) 417, [2003] O.J. No. 354, 172 C.C.C. (3d) 225 (C.A.); R. v. Kutsukake, [2006] O.J. No. 3771, 213 C.C.C. (3d) 80.

[58] A related principle pertinent to this case is that even when there are aggravating factors which might point to the need for a sentence geared to general deterrence"a conditional sentence may provide sufficient denunciation and deterrence", and it is an error "to rule out the possibility of a conditional sentence ab initio simply because aggravating features are present": R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, [2000] S.C.J. No. 7, 140 C.C.C. (3d) 449, at paras. 114-15; cited and applied by this court in R. v. Kutsukake, supra, at paras. 15-17.

[59] Taking the trial judge at his word, he refused to give a conditional sentence because, for him, the predominant consideration was that "[a] message must be sent by the court loud and clear that if you are going to set up a sophisticated counterfeiting operation to counterfeit our national currency you will go to jail."

[60] In my respectful view, the governing case law holds that a conditional sentence can serve the purposes of general deterrence and that the trial judge's intended deterrence message ordinarily should not be sent when the cost is imprisoning a youthful first offender where all other factors strongly point to a conditional sentence.

[61] For these reasons, I agree that the appropriate disposition is to grant leave to appeal, allow the appeal, and substitute a conditional sentence.

B. Credit for Strict Pre-Trial Bail Conditions

[62] The appellant also submits that the trial judge erred by failing to give him credit for time spent under strict pre- trial bail conditions. I would reject this submission, but for different reasons than my colleague.

[63] In my view, the appellant failed to establish that he was entitled to credit for pre-sentence bail conditions. In Downes, supra, this court provided the following summary of how a trial judge should approach the question of credit for pre- sentence bail conditions (para. 37):

-- Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor.

-- As such, the trial judge must consider the time spent on bail under house arrest in determining the length of sentence. [page95 ]

-- The failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle.

-- The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply.

-- The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender's liberty; the ability of the offender to carry on normal relationships, employment and activity.

-- Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code.

[64] The appellant was arguably under strict bail conditions for five weeks, but thereafter the terms changed and he was under a considerably less strict regime. He offered no "information as to the impact of the conditions". I agree with paras. 28 to 30 of the reasons of MacPherson J.A. that, given the brevity of the period under which the conditions were arguably strict and the absence of evidence of any significant hardship or deprivation, this case is readily distinguishable from Downes.

[65] In my view, that is sufficient to dispose of this ground of appeal and my agreement with the reasons of MacPherson J.A. is limited accordingly.

[66] I do not agree with the implication at paras. 31-32 of MacPherson J.A.'s reasons that appellate courts "hamstring" trial judges by requiring them to give reasons for rejecting relevant factors in the sentencing process. Appellate courts owe sentencing judges deference, but sentencing judges owe those being sentenced a reasoned explanation for the sentence that is imposed. That is the condition upon which deference is owed and where the reasons fall short, appellate courts have a duty to intervene. In my view, the trial judge should have dealt with the appellant's strict bail conditions argument in his reasons for sentence, if only to explain that the appellant failed to bring himself within the Downes principle. However, where as in this case, the Downes criteria are not satisfied, or as in R. v. Lawes, [2007] O.J. No. 50, 2007 ONCA 10 and R. v. Hunjan, [2007] O.J. No. 520, 2007 ONCA 102, where consideration of strict bail does not affect the fitness of the sentence imposed, there is no basis for this court to alter the sentence imposed.

[67] Although a five-judge panel was constituted to re-hear this appeal, the Crown did not take the position that we should [page96 ]reconsider anything that was said in Downes. As we were not asked by the Crown to limit or qualify Downes, we heard no submissions on the point from the appellant. In these circumstances, and in view of my reasons in R. v. Panday; R. v. Jalota, released together with these reasons, it is my view that Downes continues to reflect the law of this province with respect to credit for pre-trial bail conditions, including the proposition that "[t]he failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle" (para. 37).

[68] CRONK and GILLESE JJ.A. (concurring): -- We have had an opportunity to review the thorough reasons of our colleagues MacPherson and Sharpe JJ.A. in this case. We agree with the reasons of MacPherson J.A. on the pre-trial bail issue. However, on the issue of the imposition of a conditional sentence, while we agree with the disposition proposed by MacPherson J.A., we do not agree with his reasoning. In that regard, we prefer and concur with the reasoning of Sharpe J.A.

Appeal allowed.