Court of Appeal for Ontario

Date: 2018-05-02 Docket: C64416

Judges: LaForme, Watt and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent

and

Syed Sufian Ahmed Appellant

Counsel

James Foy, for the appellant

Avene Derwa, for the respondent

Heard and Released Orally

May 2, 2018

On Appeal

On appeal from the sentence imposed on September 26, 2017 by Justice John R. Sproat of the Superior Court of Justice.

Reasons for Decision

[1] At trial, the appellant admitted to taking the money from the complainant. The trial judge rejected the appellant's evidence of his reasons for doing so. He found the appellant created a scheme to deprive the complainant, a client and friend of the family, of $110,000 by fabricating an expensive 'immigration problem'. The fraud, he found, was planned and involved a breach of trust but lasted only a few days.

[2] Defence counsel acknowledged that a conditional sentence was not available. Instead, it was proposed that the trial judge "workaround" this by imposing a suspended sentence with a term of probation and possibly a fine of $10,000 to $15,000. In the alternative, an intermittent sentence was sought.

[3] The Crown's position was that an appropriate sentence was a custodial term of 18 months and a two year term of probation.

[4] The appellant was sentenced to 13 and one-half months' imprisonment followed by 2 years' probation. He appeals his sentence.

[5] The appellant submits that a non-custodial sentence could meet the primary objectives of denunciation and deterrence. Having found that these goals could be met without incarceration, the trial judge erred by sentencing the appellant to jail. He says a suspended sentence is a fit sentence, or in the alternative a 90 day intermittent sentence.

[6] We disagree that the trial judge failed to apply the principle of restraint for this first time offender and relied exclusively on the principle of parity to justify a custodial sentence. A conditional sentence was not available to the appellant for the offence of fraud over $5,000. Nevertheless, the trial judge considered whether a suspended sentence or an intermittent sentence, as requested by the defence, would be appropriate. He reasonably concluded it would not.

[7] In any case, the trial judge's sentencing decision is entitled to significant deference from this court. Intervention is only warranted if he made an error of law or an error in principle that has an impact on the sentence, or if the sentence is demonstrably unfit. Moreover, merely identifying an error in the sentencing judge's decision will not displace deference. The error must have had an impact on the sentencing: R. v. Lacasse, 2015 SCC 64, at paras. 44. And as the Supreme Court stated at para. 51 in Lacasse:

[T]he choice of sentencing range or of a category within a range falls within the trial judge's discretion and cannot in itself constitute a reviewable error. An appellate court may not therefore intervene on the ground that it would have put the sentence in a different range or category. It may intervene only if the sentence the trial judge imposed is demonstrably unfit.

[8] The sentence here is not unfit. The sentence appeal is dismissed.

H.S. LaForme J.A.

David Watt J.A.

I.V.B. Nordheimer J.A.