WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

486.4(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

486.4(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

486.6(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court of Appeal for Ontario

Date: 2017-11-15

Docket: C62965

Judges: Watt, Brown and Roberts JJ.A.

Between

Her Majesty the Queen Respondent

and

Robert Shah Appellant

Counsel

Michael Dineen, for the appellant

Lorna Bolton, for the respondent

Heard

November 3, 2017

Appeal Information

On appeal from the sentence imposed by Justice Michael G. Quigley of the Superior Court of Justice, dated April 22, 2016, with reasons reported at 2016 ONSC 2651.

Reasons for Decision

[1] Introduction

The appellant seeks leave to appeal from the sentence imposed on his convictions of six separate counts of robbery, assault and sexual assault.

[2] The Offences

The appellant committed all of these offences at random in a matter of minutes at around 6:00 a.m. on October 22, 2014, against three women who happened to be on the street at the time. As the trial judge stated, these were "despicable crimes against totally innocent unsuspecting women". The appellant savagely assaulted two of the victims, one of whom he also sexually assaulted, and terrified all three of them. All three victims have suffered lasting harm because of the appellant's senseless and vicious actions, which, as the trial judge also found, "brought to an end the prospect that any of them would ever have another ordinary day".

[3] The Sentence

The appellant pleaded guilty on the first day of trial to five counts of robbery and assault. Following a two-day trial, he was found guilty of one further count of sexual assault. About two and one-half months later, on April 22, 2016, the trial judge imposed a global custodial sentence of 5 years and 1 month, less credit of 26.5 months, resulting in a sentence to be served of 34.5 months.

[4] Grounds of Appeal

The appellant takes no issue with the appropriateness of the five to six year sentencing range accepted by the trial judge, but submits that the trial judge made the following errors, which unduly extended the sentence imposed:

(i) The trial judge treated what he found to be a lack of genuine remorse by the appellant as an aggravating factor;

(ii) The trial judge gave only negligible weight to the appellant's guilty plea; and

(iii) The trial judge's calculation of credit for pre-disposition custody failed to account for time served between the sentencing hearing and the imposition of sentence.

[5] Disposition at Hearing

Following the hearing, we granted leave to appeal the sentence, allowed the appeal and substituted a global sentence of 32 months with reasons to follow. These are those reasons, which reflect that the appeal was allowed on the third ground.

Did the trial judge err in treating a lack of remorse as an aggravating factor?

[6] The Appellant's Submission

The appellant submits that the error is contained in the last sentence of para. 71 of the Reasons for Sentence, which concluded the trial judge's analysis of the "several serious aggravating factors" that he found to be present in this case:

It is also aggravating here that Mr. Shah is not a first-time offender and that his prior offences involve domestic assaults against women. Further, he continues to have no insight whatsoever into the conduct that gave rise to those convictions, a level of conduct which now seems to have been exacerbated by the circumstances of these offences. His statement to me once again displays he has no understanding or insight into the nature of the damage that he has caused. That necessarily calls into question the extent to which he can actually feel the remorse that he claims about his conduct. [Emphasis added.]

[7] The Legal Framework

There is no dispute that it was open to the trial judge on the record to form the conclusion that the appellant lacked genuine remorse for his conduct. However, the appellant submits that the structure of the trial judge's Reasons for Sentence suggests that he treated an absence of genuine remorse by the appellant as an aggravating factor.

[8] Lack of Remorse as a Sentencing Factor

Lack of remorse is not ordinarily a relevant aggravating factor on sentencing: R. v. Valentini, [1999] O.J. No. 251 (C.A.), at para. 82. It cannot be used to punish the accused for failing to plead guilty or for having mounted a defence: Valentini, at para. 83; R. v. J.F., 2011 ONCA 220, at para. 84, 105 O.R. (3d) 161; aff'd on other grounds in 2013 SCC 12, [2013] 1 S.C.R. 565. Absence of remorse is a relevant factor in sentencing, however, with respect to the issues of rehabilitation and specific deterrence, in that an accused's absence of remorse may indicate a lack of insight into and a failure to accept responsibility for the crimes committed, and demonstrate a substantial likelihood of future dangerousness: Valentini, at para. 82; R. v. B.P. (2004), 190 O.A.C. 354 (C.A.), at para. 2.

[9] Analysis

In the present case, the placement of the phrase concerning the appellant's lack of genuine remorse is awkward. However, when the Reasons for Sentence are considered in their entirety, we do not agree that the trial judge treated the appellant's lack of genuine remorse as an aggravating factor. Certainly, there is no indication that the trial judge increased the sentence because the appellant lacked genuine remorse.

[10] Conclusion on First Ground

Rather, we read the trial judge's query about the appellant's lack of genuine remorse as connected to his conclusion about the appellant's lack of insight into his offences, and his ultimate decision, in the paragraph immediately following, to give "relatively little weight" to the appellant's guilty plea on that basis. This does not equate to treating lack of remorse as an aggravating factor. The trial judge was entitled to take the appellant's lack of genuine remorse into account for the purpose of assessing the amount of credit that should be given for his guilty plea. There is no basis to interfere.

Did the trial judge err by giving only negligible weight to the appellant's guilty plea?

[11] The Appellant's Submission

The appellant submits that the trial judge's failure to give more than two weeks' credit for his guilty plea to five of the six counts amounted to reviewable error.

[12] Rejection of Submission

We do not accept this submission.

[13] The Legal Framework

As the appellant conceded, the trial judge's determination of what weight, if any, should be given to the appellant's guilty plea, was an exercise of his discretion. The credit to be given for a guilty plea cannot be reduced to any particular formula, but will depend on the circumstances of each case: R. v. Daya, 2007 ONCA 693, at para. 15, 229 O.A.C. 291; R. v. Faulds (1994), 20 O.R. (3d) 13 (C.A.), at p. 17.

[14] Conclusion on Second Ground

The trial judge's conclusion that the appellant should not be given significant credit for his guilty plea in the circumstances of this case, which included the timing of the plea on the morning of trial, was reasonable. We see no error in the trial judge's exercise of his discretion and cannot intervene.

Did the trial judge err in his calculation of credit for pre-disposition custody by failing to account for time served between the sentencing hearing and the imposition of sentence?

[15] Agreement on Error

The parties agree that the trial judge erred in his calculation of the credit to be applied to the appellant's sentence on account of pre-disposition custody and that further credit should be allowed. However, they disagree as to the amount of that credit.

[16] The Trial Judge's Calculation

The trial judge determined that the appropriate global custodial sentence was 61 months. He allowed a credit of 26.5 months, which appeared to account for 25 months' credit for pre-disposition custody, an additional 30 days of credit to account for lockdown circumstances while the appellant was in pre-disposition custody, and two weeks' credit for the appellant's guilty plea. This left a sentence of 34.5 months remaining to be served by the appellant.

[17] Correction of Error

We agree that the trial judge erred in failing to include credit for the 50 additional days that the appellant spent in pre-disposition custody between March 3, 2016 (the date of the sentencing hearing) and April 22, 2016 (the date the sentencing judgment was delivered). Allowing credit on a 1.5:1 basis, this amounts to an additional 2.5 months of pre-disposition custody that should be applied to the appellant's sentence. This reduces the appellant's global sentence to 32 months in custody.

Disposition

[18] Final Order

Accordingly, we grant leave to appeal the sentence, allow the appeal on the third ground, and reduce the appellant's global sentence to 32 months in custody.

"David Watt J.A."

"David Brown J.A."

"L.B. Roberts J.A."