COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sona, 2014 ONCA 859

DATE: 20141201

DOCKET: M44468

(C59644)

LaForme J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Sona

Applicant/Appellant

Howard K. Krongold, for the applicant/appellant

Nick Devlin, for the respondent

Heard: November 28, 2014

ENDORSEMENT

INTRODUCTION

[1] Mr. Sona was found guilty of the offence of preventing or endeavouring to prevent an elector from voting at the federal election held on May 2, 2011, contrary to the provisions of the Canada Elections Act, S.C. 2000, c. 9. He was sentenced to nine months’ imprisonment. Mr. Sona is appealing his conviction, although he is presently not in a position to demonstrate a viable ground of appeal for his conviction. He will also seek leave to appeal from sentence.

[2] On this application the Crown is not opposing Mr. Sona’s request for leave to appeal his sentence and says that this court can proceed with this application assuming leave will be granted. It is in this context that Mr. Sona requests that he be granted bail. Consequently, the basis of this bail application is focused solely on his sentence appeal.

[3] For the reasons that follow, I would grant the application. Mr. Sona’s appeal is not frivolous, he will surrender into custody in accordance with the terms of the release order, and his detention is not necessary in the public interest.

BACKGROUND

[4] As counsel for Mr. Sona puts it, this is a notorious and extraordinary case. During the 2011 federal election, approximately 7,000 electors in Guelph, who were believed to be unsupportive of the Conservative Party candidate, received an automated “robo-call” purporting to be from Elections Canada. The message said that the location of a polling station had been changed, and directed electors to attend a different polling location. Between 150 and 200 electors attended the wrong polling location as a result of these calls. The “robo-call” message was false.

[5] At the time of the offence Mr. Sona was 22 years old and the communications director for the Conservative candidate in the riding of Guelph during the election campaign. The trial judge found that more than one person was likely involved in the scheme; however, Mr. Sona is the only person to have been charged in relation to the “robo-calls” scandal.

[6] In his sentencing decision, the trial judge described the scheme as a “plan to ... effectively ... attempt to manipulate the outcome of the election in the Guelph riding by endeavouring to prevent voters from voting. This was a federal election undertaken to elect representatives who form the governing body in our nation”: R. v. Sona, 2014 ONCJ 606, at para. 46. Indeed, it was a plan to deny Canadians a right guaranteed under s. 3 of our Charter of Rights and Freedoms, namely:

Every citizen of Canada has the right to vote in an election of the members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

[7] There can be no question that Mr. Sona has been found guilty of a very serious offence. And, as the trial judge expressed it, given the seriousness of the offence and the mitigating factors favouring Mr. Sona: “This is a difficult and troublesome sentencing”: Sona, at para. 48.

THE TEST

[8] Under s. 679(3) of the Criminal Code, R.S.C. 1985, c. C-46, Mr. Sona must satisfy this court that: (i) his appeal is not frivolous; (ii) he will surrender into custody in accordance with the terms of the release order; and (iii) his detention is not necessary in the public interest.

[9] At the time of the hearing and for the purposes of this application Mr. Sona is not in a position to demonstrate the viability of an appeal of his conviction. Consequently, for the purposes of this application, it is the viability of the appeal of his sentence that must be considered. Further, at this stage he is no longer presumed innocent, but rather, he is guilty of the charge he faced at trial for the reasons given by the trial judge.

[10] The question that will be scrutinized on the sentence appeal is whether the trial judge committed an error in principle, failed to consider a relevant factor, or overemphasized appropriate factors. If the trial judge did not so err, a high level of deference is afforded to the trial judge’s decision unless the sentence is demonstrably unfit: R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at p. 565.

[11] The Crown opposes this application on the basis of the first and third branches of the test. The Crown submits that the grounds of appeal advanced by Mr. Sona are not arguable and fail to satisfy the very low threshold of not being frivolous. In light of Mr. Sona’s history and background, the Crown does not take issue with the surrender into custody component of the test.

[12] As for the third branch of the test, the Crown asserts that it is not in the public interest to release Mr. Sona. Mr. Sona submits that the real crux of this application is whether the sentence appeal has sufficient merit to outweigh the public interest in immediate enforcement of a sentence imposed.

ANALYSIS

(1) The appeal is not frivolous

[13] An appeal is not frivolous if the proposed grounds raise arguable issues. Mr. Sona is not required to go so far as to show that a ground of appeal has a likelihood of success on appeal. Rather, he only has to satisfy the court that it is a viable ground of appeal that would warrant appellate intervention if established: R. v. Manasseri, 2013 ONCA 647, 313 O.A.C. 55, at para. 38. Here Mr. Sona argues that he meets this standard.

[14] Mr. Sona submits that for the offence he was found guilty of, it is arguable that a nine-month sentence of imprisonment is outside the “range” of sentences available. At the very least, Mr. Sona argues that the sentence he received is at the wrong end of the range that ought to be imposed in his circumstances. He also advances two other grounds that he says are arguable, namely, that the trial judge erred in: (i) finding that there was no evidence of rehabilitation; and (ii) failing to consider general deterrence on similarly situated individuals.

[15] I accept that the grounds of appeal are arguable and are not frivolous. I agree with Mr. Sona that he is the first person to have been convicted of this offence, and as the trial judge observed, “there are no precedents to help establish an appropriate range of sentence”: Sona, at para. 42. The novelty of this case makes it more difficult for the Crown to show that the appeal is frivolous. Importantly, the Crown, while not accepting that there are arguable grounds of appeal, quite fairly acknowledged that the administration of justice, in these circumstances of first impression, will be served by this court’s guidance that will result from this appeal. I concur with this fair and helpful observation.

(2) Mr. Sona will surrender into custody

[16] Mr. Sona’s history and background demonstrate that he would surrender into custody in accordance with the terms of any release order. The position taken by the Crown on this second branch is fair, helpful and one that I accept.

(3) Detention is not necessary in the public interest

[17] In the less than perfect system of criminal justice, courts endeavour to administer justice with fairness and compassion while ensuring just enforcement of our laws that serve to protect and guide our society. And, throughout this process, courts seek to dispense justice in a manner that enhances the system’s reputation and promotes public confidence in it.

[18] On this application the court is required to consider the public perception of the administration of justice when deciding whether Mr. Sona’s application for release pending appeal is appropriate. Importantly, the public perception that is considered at this stage derives from a public that is reasonably informed about the criminal process and the particular circumstances of the case.

[19] The public interest component requires that I balance the need to review the sentence of nine months’ imprisonment imposed by the trial judge with the need to respect the general rule of immediate enforceability of the decision: Manasseri, at paras. 40-43. That is to say, “reviewability versus enforcement”, to borrow the language commonly used in the jurisprudence.

[20] Reviewability arises where judgments or decisions ought to be reviewed and any errors corrected, especially where an appellant’s liberty is at stake. Public confidence in the administration of justice mandates that, in these circumstances, justice usually requires release from custody pending the review.

[21] On the other hand, public confidence in the administration of justice usually requires that judgments or decisions of the courts be enforced. A person convicted of a very serious offence, who advances grounds of appeal that are arguable but weak, should not be released from custody pending appeal: R. v. Farinacci(1993), 1993 CanLII 3385 (ON CA), 86 C.C.C. (3d) 32 (Ont. C.A.), at pp. 47-48.

(a) Application of the public interest component to this case

[22] I conclude that Mr. Sona’s detention pending his appeal is not necessary in the public interest.

[23] The ultimate objective in sentencing is to arrive at one that is fit and proper given the specific offender and the specific offence. In a very thorough and thoughtfully reasoned decision, the trial judge decided that nine months’ imprisonment is a fit and proper sentence for Mr. Sona.

[24] As I noted earlier, Mr. Sona wishes to challenge the trial judge’s decision on the basis that it is neither fit nor proper in all the circumstances. And, he asks that while this decision is being reviewed, he be released from prison. I have concluded that he should be granted his request.

[25] The offence that Mr. Sona has been convicted of is, again, very serious. At the same time, when sentenced, Mr. Sona was 26 years old and, having lost his employability in politics, was working successfully as a machinist. He was sentenced as a youthful, first-time offender. His pre-sentence report outlines the emotional toll this has taken on Mr. Sona and his parents. Imprisonment aside, Mr. Sona has suffered, and continues to suffer, consequences for his criminal conduct.

[26] I concur with counsel for Mr. Sona that Mr. Sona has been subjected to more than the usual ignominy of a public trial and conviction. Most youthful first-time offenders enjoy some measure of obscurity; Mr. Sona’s trial has been fervently covered by the national media. Given the serious offence he committed, I am not being critical when I make this observation.

[27] Significantly, it is virtually certain that Mr. Sona’s sentence appeal will be moot – or very nearly so – by the time this appeal is decided. That is, he will have served most, if not all, of his sentence when this court has the opportunity to consider whether it was the correct sentence.

[28] The principle of “reviewability” is strengthened where a youthful offender is compelled to serve his or her brief sentence before having the opportunity to have his or her challenge heard on appeal. The entitlement to bail is strongest when to deny it would render the appeal of any value whatsoever for all practical purposes: R. v. Farinacci (1993), 1993 CanLII 3385 (ON CA), 86 C.C.C. (3d) 32 (Ont. C.A.), at pp. 47-48. That is so in this case.

[29] Finally, in the interest of maintaining the public’s confidence in the administration of justice, I note that if released from custody, there is very little likelihood that Mr. Sona will commit any further criminal acts, nor does he pose a danger to the public.

CONCLUSION

[30] In this case – a case of a sentencing without precedent and where there are arguable grounds of appeal – Mr. Sona ought to have an opportunity to have this court consider the fitness of his sentence before he is required to serve it. I am convinced that the public’s confidence in the administration of justice will not be diminished if Mr. Sona is released from custody pending the review of his sentence. A public reasonably informed of the criminal process and the particular circumstances of this case would understand this result.

[31] For these reasons, the application for release pending appeal is granted. An order will go pursuant to the agreed upon draft order counsel filed on this application.

[32] I will end by giving my thanks to both counsel for their professional and just approach in this case. Their submissions were extremely helpful and very much appreciated. The administration of justice has been well served.

“H.S. LaForme J.A.”