Court of Appeal for Ontario

Date: 2018-03-26 Docket: C62550

Judges: Juriansz, Watt and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

Sadyk Sadykov Appellant

Counsel

Jennifer K. Penman and Karen Heath, for the appellant Brett Cohen, for the respondent

Heard: January 29, 2018

On appeal from: The conviction entered on December 4, 2015 and the sentence imposed on March 4, 2016 by Justice Michael G. Quigley of the Superior Court of Justice, sitting without a jury.

Decision

Juriansz J.A:

The Conviction Appeal

[1] The appellant appeals his conviction and sentence on charges of aggravated assault, assault with a weapon and possession of a weapon for a purpose dangerous to the public peace. The appellant, his three co-accused and the victim were all inmates at the Toronto East Detention Centre. The victim was severely beaten in his cell. Surveillance video shows the appellant and the co-accused enter into the victim's cell and emerge a short time later. There was no video surveillance of what occurred inside the victim's cell.

[2] The appellant submits the trial judge erred by drawing inferences to fill in the evidentiary gaps and by accepting the Crown theory that the four accused had executed a preplanned attack on the victim, in which each of them had played a specific and delineated role. The appellant argues that without video surveillance of what happened inside the cell, it cannot be known what role the appellant played. The appellant submits, given this lack of knowledge, the trial judge misapprehended significant evidence, failed to consider reasonable alternatives to guilt, and improperly took judicial notice of matters in order to "fill in the blanks" and find the appellant guilty. For example, the appellant submits that as the victim refused medical attention there was no evidence that he "had to have been held down given the absence of defensive wounds" and that "he came within an inch or two of being fatally slashed and losing his life."

[3] I would not give effect to these arguments. The trial judge had access to video surveillance from several perspectives showing the group's behaviour before they entered the cell, how and in what order they entered the cell, when each exited and how they behaved upon doing so, the signs and looks they exchanged, their appearance and the state of their clothing, and where they went and what they did immediately after the attack. The photographic evidence of the victim's injuries and the itemization of their nature provided an ample basis for the trial judge's inferences the victim had no defensive injuries and suffered a cut to the neck, where the carotid artery is located. The trial judge did not take improper judicial notice in making these findings.

[4] The appellant would have the court consider speculative scenarios that were not put forward at trial. The alternatives put forward on appeal rest on individual pieces of evidence and do not have an air of reality when considered on the totality of the evidence. I note that the trial judge himself remarked that "particular actions might be characterized in more than one way" but then stated that the inferences he drew were those that could "realistically and reasonably be drawn from the entirety of the evidence". I am satisfied that his characterization of what can be seen on video surveillance is completely accurate, and that he applied nothing more than common sense and life experience in drawing inferences from the evidence.

[5] I agree, and the Crown concedes, that the proceedings of assault with a weapon and possession of a weapon for a purpose dangerous to the public peace should have been stayed on the basis of the Kienapple principle: R. v. Kienapple, [1975] 1 S.C.R. 729. His convictions on these two charges should be set aside, but the appellant's appeal from conviction for aggravated assault is dismissed.

The Sentence Appeal

[6] The appellant seeks leave to appeal his sentence on the ground that it is harsh and excessive in all the circumstances.

[7] For the reasons given in dismissing the conviction appeal, I am satisfied that the trial judge did not err by sentencing the appellant as one of the two principals in the assault. Nor did the trial judge err in concluding that a fit sentence for this attack in a correctional facility was five years imprisonment. However, in the next step of his analysis, the trial judge noted the appellant still had 10 years remaining on his existing sentences and concluded that the five-year sentence, if served consecutively to the existing sentences, would result in a cumulative sentence that would be "unjust, inappropriate and crushing". Therefore, the trial judge bifurcated the sentence he imposed, ordering that two and one-half years would be served consecutively to the appellant's existing sentences, and two and one-half years would be served concurrently.

[8] During the hearing, the court raised the question whether the trial judge had jurisdiction to bifurcate the sentence he imposed in this way. The parties were given the opportunity and have made written submissions on that question. The parties are agreed that the trial judge did not have jurisdiction to bifurcate the sentence as he did. I agree.

Jurisdiction to Bifurcate Sentences

[9] Section 719(1) of the Criminal Code, R.S.C., 1985, c. C-46 provides that a "sentence commences when it is imposed, except where a relevant enactment otherwise provides". Generally, a sentence commences when it is imposed and will be served concurrently with sentences the offender is already serving at the time of sentencing.

[10] Section 718.3(4) permits a court on sentencing an accused to direct that a term of imprisonment it imposes be served consecutively to other sentences the accused is already serving. In effect, a direction under this provision defers the start of the sentence imposed until the sentence already being served has expired. Section 718.3(4)(a) provides as follows:

(4) The court that sentences an accused shall consider directing

(a) that the term of imprisonment that it imposes be served consecutively to a sentence of imprisonment to which the accused is subject at the time of sentencing;

[11] As can be seen, there is nothing in the wording of s. 718.3(4)(a) that allows only part of a term of imprisonment to be served consecutively. This has been noted in the text Sentencing, 8th ed. (Markham: LexisNexis, 2008), at p. 543, in which the authors writes:

The wording of the statute, which speaks of "the term of imprisonment" as being the "res" that may be served one after another, leads to the inference that it is not permissible to make part of her term of imprisonment consecutive another term.

[12] The British Columbia Court of Appeal addressed the question in R. v. Tam, (1994), 47 B.C.A.C. 238. The trial judge in Tam sentenced the accused to three years imprisonment and ordered that one year of the three-year sentence be served consecutively to an existing six and one-half year sentence the offender was already serving. On appeal, the British Columbia Court of Appeal varied the sentence from a three-year sentence to a one-year sentence to be served consecutively noting, at para. 3, that "[c]ounsel for the accused agrees with the Crown that the Criminal Code does not permit a trial judge to make only part of a given sentence consecutive to another term."

[13] The British Columbia Court of Appeal reiterated this conclusion in R. v. W. (G.P.), (1998) 106 B.C.A.C. 239, at para. 36.

[14] The Criminal Division of the Court of Appeal of England dealt with the issue in R. v. Gregory (Colin), (1969) 53 Cr. App. R. 294 (C.A.). In that case, the trial judge had sentenced each of the offenders to 18 months imprisonment on one indictment and directed that three months of that sentence be served consecutively to the sentence imposed on another indictment. The court said, at p. 295, "to impose a sentence in this form is undesirable and wrong and that such a practice should not be followed." The court pointed to administrative difficulties that would arise with such sentences and to the fact that there was no authority for this kind of sentence.

[15] The trial judge erred in law when he ordered that part of the five-year sentence he imposed on the appellant was to be served concurrently with the sentences already being served and the remaining part of the sentence was to be served consecutively to the sentences already being served. His disposition has resulted in an illegal sentence upon which this court must intervene.

[16] I accept that the sentencing judge properly determined that five years was an appropriate sentence, and then, after taking into account the principle of totality, considered that the appropriate global sentence should be twelve and one-half years. I agree with the Crown that effect can be given to the trial judge's ultimate intention by varying the bifurcated five-year sentence imposed to a sentence of two and one-half years to be served consecutively.

Disposition

[17] In conclusion, I would dismiss the conviction appeal, except to the extent of setting aside the convictions on the counts of assault with a weapon and possession of a weapon for a purpose dangerous to the public peace and stays entered, grant leave to appeal sentence, allow the sentence appeal and vary the sentence to a term of two and one-half years imprisonment to be served consecutively to the appellant's existing sentences.

Released: March 26, 2018

"R.G. Juriansz J.A."

"I agree. David Watt J.A."

"I agree. B.W. Miller J.A."