COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Zekarias, 2022 ONCA 500

DATE: 20220627

DOCKET: C67553

Gillese, Lauwers and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adonay Zekarias

Appellant

Alexander Ostroff and Craig Zeeh, for the appellant

Mabel Lai and Katie Doherty, for the respondent

Heard: March 28, 2022 by video conference

On appeal from the conviction entered on April 23, 2018, and the sentence imposed on August 14, 2018, by Justice Michael F. Brown of the Superior Court of Justice, sitting without a jury, with reasons reported at 2018 ONSC 2588.

REASONS FOR DECISION

[1] In reasons dated April 22, 2022, this court dismissed the appellant’s conviction appeal and adjourned the appellant’s sentence appeal pending the release of the Supreme Court of Canada’s decision in R. v. Bissonnette.The appellant had been sentenced to life without the possibility of parole for 20 years for the second-degree murder of Ms. Ghirmay. Pursuant to s. 745.51 of the Criminal Code,R.S.C. 1985, c. C-46, the trial judge ordered that the period of parole ineligibility imposed for Ms. Ghirmay’s murder be served consecutive to the parole ineligibility period previously imposed for the appellant’s first-degree murder of Ms. Semret. On appeal, the appellant argued that if the Supreme Court upheld the Quebec Court of Appeal’s conclusion that s. 745.51 was unconstitutional, the period of parole ineligibility for Ms. Ghirmay’s murder should run concurrently with the period of parole ineligibility imposed for Ms. Semret’s murder.

[2] On May 27, 2022, the Supreme Court released its decision in Bissonnette, 2022 SCC 23. It declared that s. 745.51 of the Code was of no force and effect because it violated s. 12 of the Charter and made its declaration retroactive to the date that s. 745.51 was enacted.

[3] In light of the Supreme Court’s decision in Bissonnette, the Crown concedes that the s. 745.51 order made by the trial judge in this case cannot stand. It proposed the following resolution of the appellant’s sentence appeal. The court would allow the sentence appeal to the limited extent of quashing the s. 745.51 order. The effective sentence imposed for Ms. Ghirmay’s murder would remain life without the possibility of parole for 20 years. However, that sentence would run concurrent to the sentence imposed on the appellant for his prior conviction for Ms. Semret’s murder, namely, life without the possibility of parole for 25 years.

[4] The Crown advised that the parties are agreed on this proposed resolution.

[5] We accept the joint submission and allow the sentence appeal to the limited extent set out in para. 3 above.

“E.E. Gillese J.A.”

“P. Lauwers J.A.”

“David Brown J.A.”