Court of Appeal for Ontario

Date: 2024-05-07 Docket: COA-23-CR-1028

Judges: Benotto, Coroza and Dawe JJ.A.

Parties and Counsel

BETWEEN

His Majesty the King Respondent

and

Omid Mahmoudi-Kashani Appellant

Counsel: Omid Mahmoudi-Kashani, acting in person Myles Anevich, appearing as duty counsel Michael Dunn, for the respondent

Heard: April 9, 2024

On appeal from the sentence imposed on August 1, 2023 by Justice Jill C. Cameron of the Superior Court of Justice.

Reasons for Decision

[1] The appellant was convicted of two counts of fraud over $5,000. He was sentenced to two years’ less one day imprisonment followed by two years’ probation. [1] He was also ordered to pay a significant forfeiture order and fine, with money paid in restitution to be deducted from the fine.

[2] The charges related to two separate frauds. In the first, the appellant convinced an individual to give him $200,000 to invest in a project in Iran with a promise of a 90% return. In the second, the appellant convinced another person to invest $44,000 USD into a currency conversion scheme. The money was never returned to the victims.

[3] While awaiting trial for the frauds, the appellant was charged in connection with two unrelated incidents. In 2021, a set of domestic violence charges were laid against him. The complainant was his former spouse, who was also acting as his surety on his bail in respect of the fraud charges. In August 2021, he was released on a new global bail order that incorporated both the domestic violence and the fraud charges, with a different surety and a condition of house arrest. The bail was later varied to include further strict conditions after the appellant was charged with various alleged bail breaches. [2] On April 22, 2023, the appellant was again arrested for a third set of charges, including another charge for fraud over $5,000. He did not seek bail for these charges, but his existing bail order on the previous charges was not revoked. He remained in custody on the third set of charges at the date of his sentencing on the original fraud charges.

[4] Before the sentencing judge, the appellant argued that he should be given credit for time spent in presentence custody awaiting trial for his second and third set of charges. Furthermore, the appellant sought credit for time spent under restrictive bail conditions. He contended that he was on house arrest for 21 months, with at least 17 months wearing an ankle bracelet GPS monitor.

[5] In her reasons for sentence, the sentencing judge considered the significant financial and emotional impact that the appellant’s crimes had on both victims. She also considered the mitigating factor that the appellant had no criminal record at the time of these offences. After reviewing the principles of sentencing and the jurisprudence put forward by the parties, she concluded that there was a strong need for general and specific deterrence and denunciation.

[6] Citing this court’s decision in R. v. Pammett, 2016 ONCA 979, the sentencing judge held that since the appellant’s bail for the original fraud charges had not been revoked while he was detained in presentence custody for the third set of charges, his time spent in custody should not be attributed to the original fraud charges on which he was being sentenced. She therefore declined to grant credit for the appellant’s time in custody. The sentencing judge also rejected the argument that credit should be given for the time the appellant spent on stringent house arrest, finding that the stringency of the bail conditions flowed from the domestic violence charges, and not the fraud charges.

[7] The appellant raises three grounds of appeal against sentence. The appellant argues that the sentencing judge erred in not granting him credit for either his time in presentence custody or his time under restrictive bail conditions. He also contends that his sentence was demonstrably unfit.

[8] We do not accept these submissions.

[9] First, it was open to the sentencing judge to refuse the appellant credit for the time he spent in custody for the third set of charges because he did not seek bail for these charges, and his bail for the original frauds and domestic violence was not revoked. While presentence custody arising “as a result of the offence” can be credited to an offender pursuant to ss. 719(3)- (3.1) of the Criminal Code, there must be a causal connection or sufficient link between the offence and the presentence custody: R. v. Barnett, 2017 ONCA 897, 138 O.R. (3d) 401, at para. 30. The sentencing judge found no such connection or link between the frauds for which the appellant was being sentenced, and the time he spent in presentence custody for the third set of charges.

[10] Turning to the appellant’s second argument, the sentencing judge appears to have found that since the restrictive bail conditions were imposed only because of the domestic violence charges, she could not consider granting credit on that basis for the fraud offences. In our view, there was a sufficient link to consider the restrictive bail conditions in sentencing the appellant for the original frauds, because he was released on one global bail order which included the original fraud charges. It is while the appellant was on that bail that the strict conditions of wearing an ankle monitor were added. That said, the focus of the Downes credit [3] inquiry is the impact of the conditions on the appellant: see R. v. Schlaepfer, 2022 ONCA 566; and R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145, at paras. 107-8. While the sentencing judge erred by not finding a sufficient link between the bail and the strict conditions, we are not satisfied, on this record, that the bail conditions were “punitive enough to be akin to punishment, thereby warranting mitigation”: Joseph, at para. 114. Any argument that the impact of these conditions on the appellant was punitive was not developed in any meaningful way during the submissions of counsel in the court below.

[11] Finally, we are of the view that the sentence was fit. The sentencing judge noted that the appellant committed two sophisticated frauds and the offender undertook a concentrated and persistent effort to gain the trust of the victims. We agree with the sentencing judge that there was a strong need for denunciation and both general and specific deterrence in this case.

[12] Before leaving this matter, the appellant requested that the correctional authorities transfer him to the Central East Correctional Centre so that he can continue with his rehabilitative programs. We commend the appellant for his desire to participate in programs and urge the correctional authorities to seriously consider his request.

[13] For these reasons, leave to appeal the sentence is granted but the appeal is dismissed.

"M.L. Benotto J.A."

"S. Coroza J.A."

"J. Dawe J.A."

Footnotes

[1] The appellant has also appealed his convictions. However, the appeal has been bifurcated and the conviction appeal is not before us. The sentence appeal proceeded as an inmate appeal.

[2] In December 2021, this bail was varied to require the appellant wear an ankle monitor. In January 2022, the bail was again varied to prohibit the appellant from having access to the internet or a telephone except in the presence of his surety. The appellant advised the court that the domestic violence charges resolved without convictions.

[3] See R. v. Downes (2006), 205 C.C.C. (3d) 488 (Ont. C.A.).