Court of Appeal for Ontario

CITATION: R. v. Tahir, 2016 ONCA 136

DATE: 20160219

DOCKET: C56682

Doherty, Cronk and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Tahir

Applicant (Appellant)

Counsel:

Martin Kerbel, Q.C., for the applicant (appellant)

Jamie Klukach, for the respondent

Heard: February 17, 2016

On appeal from the sentence imposed by Justice E. Then of the Superior Court of Justice on August 12, 2012.

APPEAL BOOK ENDORSEMENT

[1] We do not read the trial judge’s reference to the appellant having received the “benefit” of his self-induced intoxication by virtue of his conviction on the included offence of manslaughter as an indication that the trial judge did not consider the appellant’s intoxication in determining the appropriate sentence. The trial judge considered the appellant’s intoxication, both in respect of his character and prospects for rehabilitation, and in respect of his state of mind at the time he inflicted the deadly injuries. On the trial judge’s finding, the appellant’s impairment was not mitigating to any significant extent.

[2] We also do not agree that a sentence of 12 and one-half years can be described as “clearly unreasonable”. The trial judge was alive to the relevant case law suggesting a range of 8 to 12 years for “aggravated” manslaughter. Ranges describe the parameters within which most sentences for similar offences committed by similar offenders will fall. They are not de facto maximums or minimums. The sentence of 12 and one-half years in this case, imposed having regard to the circumstances of this case, is not inconsistent with the established range. More importantly, the sentence cannot be said to be “clearly unreasonable” because it is said to have exceeded the range by six months.

[3] The parties agree that in light of R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, decided after the trial judge imposed his sentence, there must be additional credit on a 1:5:1 basis for pre-sentence custody. The pre-sentence credit should have been two years and one month.

[4] We would allow the appeal to the extent of allowing the additional credit for the pre-sentence custody. In the result, we agree that a sentence of 12 and one-half years was appropriate. That sentence should be reduced by two years and one month, resulting in a sentence of 10 years and five months imprisonment.