Her Majesty the Queen v. Sona

[Indexed as: R. v. Sona]

Ontario Reports

Court of Appeal for Ontario,

K.N. Feldman, MacPherson and Lauwers JJ.A.

June 9, 2016

132 O.R. (3d) 372 | 2016 ONCA 452

Case Summary

Criminal law — Election offences — Sentence — Accused political worker major participant in scheme to prevent thousands of non-supporters of Conservative Party of Canada from voting in federal [page373] election using misleading "robo-calls" — Accused pleading guilty to offences under Canada Elections Act and sentenced to nine months' incarceration followed by 12 months' probation — Crown and accused appealing from sentence — Trial judge not erring in considering general deterrence and denunciation as important considerations given premeditated actions to deprive thousands of voters of right to vote — Sentence affirmed on appeal — Court of Appeal declining to set range of two to five years for electoral fraud and not accepting sentence being inadequate given offence amounting to affront to democratic values or reflecting overemphasis on mitigating factors including accused's youth — Canada Elections Act, S.C. 2000, c. 9.

During the 2011 federal election, while serving as communications director for a Conservative Party of Canada candidate, the accused became a major and active participant in a scheme to prevent some non-supporters of the CPC from voting. The scheme involved sending 7,676 false automated telephone calls ("robo-calls") on election day, telling voters that the location of their polling station had been changed. Following the election, the accused boasted to fellow workers and friends about his role in the scheme. The accused was convicted of preventing or endeavouring to prevent an elector from voting in a federal election contrary to s. 281(g) of the Canada Elections Act, thus committing an offence contrary to s. 491(3)(d) of the Act. He was sentenced to nine months' incarceration followed by 12 months' probation. The accused and the Crown both appealed the sentence.

Held, the appeals should be dismissed.

The accused argued that in light of many mitigating factors a short sentence of imprisonment of 90 days would have been appropriate. The trial judge was entitled to find that, in a case where a political worker engaged in premeditated and serious activities designed to deprive several thousand electors of their right to vote, deterrence and denunciation were important sentencing considerations. He was aware of, and applied, all of the relevant sentencing principles, including rehabilitation. He did not fail to take into account the mitigating factors, including the accused's youth, the absence of a criminal record, the strong support of the accused's family and community, a positive pre-sentence report, and the fact that the charge had been outstanding for a significant period of time.

It would not be appropriate to accede to the Crown's request to set a sentencing range of two to five years for electoral fraud cases. This appeared to be the first case dealing with an offence under the Act. Setting a sentencing range would be premature. On the basis of a single case, it was impossible to know anything about the variety of offenders and offences that may give rise to convictions under the Act.

The trial judge took sufficient account of the fact that the offence was an affront to, and an attack on, democratic institutions and values. He did not overemphasize the accused's youth and lack of a criminal record.

Cases referred to

R. v. Bertram, [1990] O.J. No. 2013, 40 O.A.C. 317, 11 W.C.B. (2d) 233 (C.A.); R. v. Bogart (2002), 2002 CanLII 41073 (ON CA), 61 O.R. (3d) 75, [2002] O.J. No. 3039, 162 O.A.C. 347, 167 C.C.C. (3d) 390, 54 W.C.B. (2d) 712 (C.A.); R. v. Brindley, [1997] 2 Cr. App. R. (S.) 353; R. v. Brown (2015), 126 O.R. (3d) 797, [2015] O.J. No. 2655, 2015 ONCA 361; R. v. Dobis (2002), 2002 CanLII 32815 (ON CA), 58 O.R. (3d) 536, [2002] O.J. No. 646, 157 O.A.C. 83, 27 B.L.R. (3d) 200, 163 C.C.C. (3d) 259, 53 W.C.B. (2d) 330 (C.A.); [page374] R. v. Drakes, [2009] O.J. No. 2886, 2009 ONCA 560, 252 O.A.C. 200; R. v. Ehrmann, [2001] QCA 50; R. v. Hussain, [2006] 1 Cr. App. R. (S.) (62), [2005] EWCA 1866; R. v. Khan, [2009] EWCA 2483, 2009 WL 3829413; R. v. Maxwell, [2014] O.J. No. 1921, 2014 ONCA 316, 113 W.C.B. (2d) 159; United States v. Cole, 41 F.3d 303 (7th Circ.)

Statutes referred to

Canada Elections Act, S.C. 2000, c. 9, s. 281(g)

APPEALS by the accused and the Crown from the sentence imposed by Hearn J., [2014] O.J. No. 5492, 2014 ONCJ 606.

Howard L. Krongold, for Michael Sona.

Nick Devlin and Jennifer Conroy, for Attorney General of Canada.

The judgment of the court was delivered by

MACPHERSON J.A.: —

A. Introduction

[1] Michael Sona was convicted of preventing or endeavouring to prevent an elector from voting in a federal election contrary to s. 281(g) of the Canada Elections Act, S.C. 2000, c. 9 (the "CEA"). He was sentenced to nine months' incarceration followed by 12 months' probation.

[2] Unusually, both parties appealed. Both contended that the custodial portion of the sentence was unfit -- Mr. Sona said it was too harsh; the Crown said it was too lenient.

[3] The two appeals were heard together on May 18, 2016. At the conclusion of the hearing, the court indicated that both appeals were dismissed, with written reasons to follow. These are those reasons.

B. Facts

(1) The parties and events

[4] Michael Sona was a young man from a good family. He grew up in Guelph. He graduated with honours from both high school and the University of Guelph. Following graduation from university, Mr. Sona moved to Ottawa in 2009 and became involved in the political internship program with the Conservative Party of Canada (the "CPC"). He then became a communications assistant in 2010 and a communications parliamentary affairs manager in 2012.

[5] During the 2011 federal election, Mr. Sona returned to Guelph, where he became communications director for the local CPC candidate. In this role, he became a major and active [page375] participant in a scheme designed to prevent some non-supporters of the CPC from voting.

[6] Ultimately, the scheme became well known in the media as the "robo-calls scandal". The scheme involved sending 7,676 automated telephone calls on the day of the election, May 2, 2011, telling voters that their polling station had been changed to a different location. The intent was to send voters to a false location to prevent or discourage them from voting. The robo-calls message was false and not authorized by Elections Canada.

[7] It is not possible to know exactly how these calls affected voters. However, at the trial it was agreed that 150 to 200 voters attended the false polling station as a result of the calls. Some of these voters tore up their voter information cards and walked away. Other voters chose not to vote because of the inconvenience of the false location.

[8] Following the election, Mr. Sona boasted to fellow workers and friends about his role in the robo-calls scheme.

[9] Two years later, in April 2013, Mr. Sona was charged that he

did wilfully prevent or endeavour to prevent an elector from voting at an election contrary to paragraph 281(g) of the Canada Elections Act . . . and by so doing committed an offence contrary to paragraph 491(3)(d) of the Canada Elections Act.

[10] Following a five day trial, Mr. Sona was convicted of this offence.

(2) The sentence

[11] At the sentence hearing, the Crown sought a term of imprisonment of 18 to 20 months. Defence counsel asked for a non-custodial sentence, a "short sharp" custodial sentence of 14 to 30 days, or a conditional sentence.

[12] The sentencing judge comprehensively discussed the relevant aggravating and mitigating factors. He was well aware of the core principles of sentencing. He concluded [at paras. 48-51 and 54]:

This is a difficult and troublesome sentencing. I have considered the aggravating and mitigating circumstances, the principles to be applied and I have exercised some restraint given the fact that Mr. Sona is in fact a youthful first time adult offender.

I have concluded and find that the conduct of Mr. Sona on the days leading up to the May 2, 2011 federal election was egregious and had considerable impact not only on this particular community, but also on our democratic process. General deterrence and more importantly denunciation mandate a period of imprisonment in my view and are the driving principles to be considered. The principles of restraint and rehabilitation together with the mitigating circumstances set out simply impact the length of any sentence to be imposed. I am satisfied that a period of imprisonment is appropriate [page376] and I am also satisfied that the fundamental principles of sentencing cannot adequately be addressed by a conditional sentence.

Individuals such as Mr. Sona notwithstanding the lack of record and their apparent good character must appreciate that this type of an offence is an affront to the electoral process and is conduct that simply cannot be classified as anything less than very serious. Individuals who choose to take part in this type of conduct can expect significant consequences.

Mr. Sona and another or others by their conduct have impacted the lives of many. Presumably Mr. Sona, given his background and his involvement with government services, was an individual who championed the democratic right of everyone to cast their vote in a fair and unhampered manner. He took very active steps to see that that did not happen and the sentence must be such that the serious nature of this conduct is made apparent to those similarly inclined. Anything less than a period of imprisonment would fall short in my view of properly denouncing such conduct.

Mr. Sona will be sentenced to a period of imprisonment of 9 months to be followed by a period of probation of 12 months.

C. Issue

[13] Mr. Sona and the Crown appeal the sentence. Both appeals present the same issue: did the sentencing judge err by imposing an unfit sentence?

D. Analysis

(1) Mr. Sona's appeal

[14] Mr. Sona's position is that the sentencing judge committed two errors[^1] in his sentencing reasons that, taken together, resulted in an unfit sentence. On appeal, Mr. Sona accepts that a custodial sentence was not per se unfit; however, he submits that, absent the two errors, a proper custodial sentence would have been about 90 days.

[15] First, Mr. Sona contends that the sentencing judge overemphasized the principles of denunciation and general deterrence in his reasons. He points to two passages in the sentencing reasons to support this submission [at paras. 44 and 49]:

The cases further provide that where there is interference with the electoral process, those who interfere with it must expect that deterrence and denunciation will be primary sentencing objectives. [page377]

General deterrence and more importantly denunciation mandate a period of imprisonment in my view and are the driving principles to be considered.

[16] Mr. Sona submits that the words "primary sentencing objectives" and "the driving principles" in these passages suggest that the sentencing judge fell into error -- he was focused too much on the nature of the offence (which he described as "serious", and "egregious" and representing [at para. 46] "a complete disregard for our political system and its values") and too little on the individual circumstances of the offender and his rehabilitative potential.

[17] I do not accept this submission. In my view, when the sentencing reasons are read as a whole, it is clear that the sentencing judge was well aware of, and applied, all of the relevant sentencing principles, including rehabilitation. In context, the words "primary sentencing objectives" and "the driving principles" signal that, in a very rare case where a political worker engaged in premeditated and serious activities designed to deprive several thousand electors of their right to vote, denunciation of his choice and activities and deterrence of similar activity by others in the future are important sentencing objectives. In my view, this was a perfectly reasonable signal to send.

[18] Second, Mr. Sona asserts that the sentencing judge erred by, in effect, dismissing rehabilitation as a sentencing factor. He refers to R. v. Brown (2015), 126 O.R. (3d) 797, [2015] O.J. No. 2655, 2015 ONCA 361, where this court said [at para. 7]:

The primary objectives in sentencing the youthful first time offender remained individual deterrence and rehabilitation. In balancing the factors, the sentencing judge still had to impose the shortest term of imprisonment that was proportionate to the crime and the responsibility of the offender, given his young age.

[19] In my view, the sentencing judge did precisely what Brown and many other cases mandate. The sentencing judge took account of the many mitigating factors relating to Mr. Sona -- his youth; the absence of a criminal record; the strong support of his family and community, especially his church community; a positive pre-sentence report; the fact that his actions in this matter [at para. 47] "seem to be out of character for him"; and the fact that the charge "has been outstanding for a significant period of time and has effectively hung over the head of Mr. Sona and his family and supports".

[20] Having recorded all of these mitigating factors, the sentencing judge turned immediately to the final section of his reasons, titled "Sentence to be Imposed". After observing [at para. 48] [page378] that "[t]his is a difficult and troub[ling] sentencing", he said explicitly: "I have also exercised some restraint given the fact that Mr. Sona is in fact a youthful first time adult offender."

[21] In my view, the sentencing judge's reasons, read as a whole, fully and properly took into account Mr. Sona's prospects for rehabilitation and his individual circumstances.

(2) The Crown's appeal

[22] The Crown contends that Mr. Sona's offence amounted to a serious electoral fraud. It submits that a custodial sentence of nine months was inadequate as a condemnation of conduct that subverted "the integrity of our democracy". The Crown invites this court to enunciate a general principle that "key players in large-scale attempts to fraudulently alter the outcome of elections, including by depriving electors of the right to vote, will ordinarily be subject to penitentiary terms of imprisonment" and "sentences in the range of 2-5 years should be the norm". The Crown asserts that a fit sentence for Mr. Sona was three years' imprisonment, but that since the Crown in this case "limited its position to a sentence of 18-20 months before the trial judge, fairness dictates that the sentence should be capped at that level on this occasion".

[23] In support of its position, the Crown relies on several decisions imposing sentences for various aspects of electoral fraud in the United Kingdom, the United States and Australia: see R. v. Brindley, [1997] 2 Cr. App. R. (S.) 353; R. v. Khan, [2009] EWCA 2483, 2009 WL 3829413; R. v. Hussain, [2006] 1 Cr. App. R. (S.) (62), [2005] EWCA 1866; United States v. Cole, 41 F.3d 303 (7th Circ.); and R. v. Ehrmann, [2001] QCA 50.

[24] The Crown also relies on, and draws an analogy from, several leading decisions of this court imposing sentences for major professional or commercial frauds: see R. v. Bertram, [1990] O.J. No. 2013, 40 O.A.C. 317 (C.A.); R. v. Bogart (2002), 2002 CanLII 41073 (ON CA), 61 O.R. (3d) 75, [2002] O.J. No. 3039, 167 C.C.C. (3d) 390 (C.A.); R. v. Dobis (2002), 2002 CanLII 32815 (ON CA), 58 O.R. (3d) 536, [2002] O.J. No. 646 (C.A.); R. v. Drakes, [2009] O.J. No. 2886, 2009 ONCA 560, 252 O.A.C. 200; and R. v. Maxwell, [2014[ O.J. No. 1921, 2014 ONCA 316.

[25] I do not accept the Crown's submission. I begin with an important contextual point. Crown counsel at trial was aware of, cited, and strongly relied on some of the foreign electoral fraud and Ontario fraud cases set out above. Indeed, these cases were a centrepiece of his submissions at the sentence hearing.

[26] Trial counsel's position on sentencing can be summarized in this fashion: [page379]

(1) a conditional sentence is not appropriate;

(2) "a sentence of 18 to 20 months is a fit and appropriate sentence in the circumstances for an individual such as Mr. Sona, after trial"; and

(3) "if Mr. Sona had been a more senior individual, a campaign manager, [the Crown] might well have been seeking a penitentiary term of imprisonment in relation to this conduct".

[27] Against this backdrop, I reject the Crown's submission on appeal that this court should enunciate a range for electoral fraud cases and that the range should be two to five years. I do so for two reasons.

[28] First, fixing a range in this appeal would be premature. This appears to be the first case dealing with an offence under the CEA. Thus, I am sympathetic to what the sentencing judge said when reviewing the foreign cases dealing with interference with the electoral system [at para. 42]:

These cases are of some assistance although I am told that Mr. Sona is the first individual to be found guilty of such an offence as that before the court under the Canada Elections Act and there are no precedents to help establish an appropriate range of sentence.

[29] Generally speaking, an appellate court's decision to enunciate a range for a particular offence flows from experience -- with many offenders, many offences, and many different circumstances surrounding the offences. Put bluntly, the notion of a "range" is antithetical to the scenario of a "first offence ever by anybody".

[30] Second, in my view it would be wrong to fix a range that precludes, in all cases, the imposition of a non-penitentiary sentence. Again, on the basis of a single case, it is impossible to know anything about the variety of offenders and offences that may give rise to convictions under the CEA. In the context of a one case experience, absolutism now may be the enemy of fairness down the road.

[31] The Crown's second position on this appeal is that the nine-month sentence imposed by the sentencing judge was unfit. Central to this submission is the Crown's assertion that the sentencing judge did not take sufficient account of the reality that what Mr. Sona did was an affront to, and an attack on, democratic institutions and values.

[32] I am not persuaded by this submission. There is no doubt that the sentencing judge was alive to, and took account of, Mr. Sona's background and personal circumstances in imposing [page380] sentence. These led him to exercise "some restraint" for "a youthful first time adult offender".

[33] However, I do not think that the sentencing judge overemphasized this factor. On the contrary, on many occasions the sentencing judge spoke about the great values of Canadian democracy and the need to protect democratic institutions and processes from attack. I cite but one of many possible examples of this component of the sentencing judge's reasons [at para. 46]:

The plan to which Mr. Sona was a party was effectively an 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. This was not an amateurish Grade 8 election campaign for student council. Conduct such as that of Mr. Sona is not suitable at any time. It is not only criminal, but distasteful and disturbing and is a step above other political "tricks" that the court has heard of in evidence including such things as sign removal and bingo cards. Defence counsel argues that this was simply a "prank" gone "terribly bad". This was much more than a "prank" and nothing in the evidence points to it being such. The evidence in fact points in the other direction that this was a deliberate and considered course of criminal conduct specifically designed to subvert the inherent fairness of the electoral process.

[34] In my view, this is a forceful and eloquent comment about Canadian democracy and its institutions and processes. The sentencing judge clearly included it in the calculus of factors he considered in imposing a sentence on Mr. Sona. Importantly, this and similar passages in the sentencing judge's reasons will speak into the future if similar cases should arise.

E. Disposition

[35] Both appeals are dismissed.

Appeals dismissed.

Notes

[^1]: In his factum, Mr. Sona sets out three potential errors. In my view, there is some overlap in these issues and, based on Mr. Krongold's oral argument at the hearing, it is fair to say that his position is that the sentencing judge made two errors in his reasons.

End of Document