Court of Appeal for Ontario

Citation: R. v. El-Sayed, 2013 ONCA 754 Date: 2013-12-12 Docket: C57153

Before: Cronk, Watt and van Rensburg JJ.A.

Between: Her Majesty the Queen (Respondent) and Abdul Mohammed El-Sayed (Applicant/Appellant)

Counsel: Christopher D. Hicks, for the applicant/appellant Sarah Egan, for the respondent

Heard: December 6, 2013

On appeal from the sentence imposed on May 15, 2013 by Justice Gregory A. Pockele of the Ontario Court of Justice.

Endorsement

[1] The appellant pleaded guilty to possession of marijuana for the purpose of trafficking. Based on a joint submission, he was sentenced to 90 days’ imprisonment, plus 18 months’ probation with 80 hours of community service. He appeals from sentence on the narrow ground that the sentencing judge erred by declining to permit him to serve his 90-day sentence on an intermittent basis.

[2] We conclude that the appeal must be allowed.

[3] A sentencing judge’s disposition attracts great deference from a reviewing court. Appellate interference with a sentence imposed at trial is permitted only where the sentencing judge has erred in principle in the exercise of his or her discretion or where the sentence imposed is excessive. Errors in principle include errors of law regarding the principles of sentencing, failing to take account of a relevant factor, taking account of an irrelevant factor, or overemphasizing or underemphasizing a relevant factor: see for example, R. v. Rezaie, 1996 CanLII 1241 (ON CA), [1996] O.J. No. 4468 (Ont. C.A.), at paras. 20-21.

[4] In this case, in our view, the sentencing judge erred in principle in two respects. First, he was critical of the appellant for obtaining employment and starting his own business while he had outstanding charges before the court. Among other remarks, the sentencing judge commented, “I want to be clear, intermittent sentences are not a movement by the courts for job creation.” The sentencing judge’s reasons confirm that his concerns regarding the appellant’s employment-related activities grounded his decision to deny the appellant’s request for an intermittent sentence. We note that the Crown took no position on sentencing regarding that request.

[5] With respect, the sentencing judge’s concerns on this issue were misplaced. There was nothing legally objectionable about the appellant’s efforts to secure and maintain employment prior to sentencing. Certainly these efforts did not preclude an intermittent sentencing option, if this were otherwise appropriate in accordance with the factors set out in s. 732 of the Criminal Code. Indeed, as the appellant’s counsel points out, offenders are often encouraged by the courts to seek employment while awaiting the disposition of charges, as an aid to eventual rehabilitation.

[6] The sentencing judge also concluded that the appellant’s employment-related activities were “a ruse … created to generate commercial activity on [the appellant’s] part, a business and a job, so that [the appellant] could get the sentence [he wanted]”. The sentencing judge also stated, “I am concerned that you are trying to put me in a position where I sentence you differently than people who are unemployed.”

[7] With respect, these observations also reflect an error in principle. As Crown counsel acknowledges, there is no evidence on this record to support the conclusion that the appellant was attempting to manipulate the sentencing process or the sentencing judge, or to otherwise mislead the court in order to obtain an unearned advantage on sentencing.

[8] In light of these errors by the sentencing judge, the deference otherwise to be accorded to his sentencing decision is displaced. It therefore falls to this court to fashion an appropriate sentence.

[9] The Crown concedes that there is no evidence in this case that the employment situations outlined by the appellant on sentencing were bogus or illegitimate. Further, as we have said, a non-intermittent sentence formed no part of the joint submission on sentencing – the Crown took no position on this issue. We also note that the appellant has served 28 days of his sentence prior to being released on bail.

[10] In the circumstances, we agree with the appellant that he should be permitted to serve the remainder of his 90-day sentence on an intermittent basis, commencing December 6, 2013. He shall surrender into custody on Fridays no later than 8:00 p.m. and be released on Mondays at 6:00 a.m., until his sentence has been served in full. All other aspects of the sentence imposed by the sentencing judge remain in full force and effect.

[11] Given the intermittent nature of the sentence, the correctional authorities might consider transferring the appellant to a correctional facility located closer to London, Ontario.

[12] Accordingly, leave to appeal sentence is granted and the sentence appeal is allowed in accordance with these reasons.

“E.A. Cronk J.A.”

“David Watt J.A.”

“K. van Rensburg J.A.”