Court of Appeal for Ontario
Date: 2025-03-19
Docket: COA-24-CR-0241
Coram: Paul Rouleau, L. Favreau, L. Madsen
Between:
His Majesty the King (Respondent)
and
Krishan Arora (Appellant)
Appearances:
Lindsay Board and Maxime Bédard, for the appellant
Caitlin Sharawy, for the respondent
Heard: March 10, 2025
On appeal from the sentence imposed by Justice Kenneth L. Campbell of the Superior Court of Justice on February 22, 2024, with reasons reported at 2024 ONSC 713.
Reasons for Decision
Introduction
[1] The appellant pleaded guilty to four counts of forcible confinement and one count of extortion. He was sentenced to: (1) one year for each conviction of forcible confinement; and (2) four years for the extortion conviction, less 10 months for his pre-sentence custody and strict house arrest conditions. The sentences are to be served consecutively for a total of seven years and two months.
[2] The appellant argues that the sentencing judge made two errors in his sentence: (1) he double counted aggravating factors; and (2) he failed to properly consider three significant mitigating factors. At the conclusion of the hearing, we advised the parties that the appeal was dismissed for reasons to follow. These are our reasons.
Background to Offences
[3] The victims of these offences were a lawyer, Qasim Ali, and his three employees. Mr. Ali was working on a mortgage foreclosure involving a residence owned by the appellant and his wife. On September 15, 2020, the appellant arrived at Mr. Ali’s office for a scheduled meeting. Soon after his arrival, an unidentified man also came into the law office. Both men started “brandishing firearms”, which turned out to be imitation firearms. The appellant had what appeared to be a handgun while the unidentified man had what appeared to be a submachine gun. The unidentified man bound Mr. Ali’s employees with duct tape, wires and cables, and made them lie face down. He then put duct tape on their mouths.
[4] Meanwhile, the appellant directed Mr. Ali to go to his computer and to remove the default on the mortgage, which Mr. Ali did. The appellant then left his handgun with his associate, who was guarding the employees, and made Mr. Ali drive him to a bank. There, he instructed Mr. Ali to withdraw $1.75 million from his trust account. Mr. Ali complied with this request and gave the appellant two bank drafts totalling $1.75 million. At some point later, the appellant left Mr. Ali in a parking lot and took the bank drafts with him. In the meantime, the unidentified man left Mr. Ali’s law office, and the employees were able to release themselves and call 911.
[5] The appellant was found and arrested the next day. He had not deposited the bank drafts. The other man was never found.
[6] The appellant pleaded guilty after the preliminary inquiry.
[7] In his reasons, the sentencing judge explained his rationale for imposing consecutive sentences for the four convictions for forcible confinement and the conviction for extortion as follows:
In my view, the accused must be sentenced to a minimum of one year of imprisonment for each of the four victims that he forcibly confined in the law office on the afternoon of September 15, 2020. Further, these sentences must be served consecutively to each other, as the accused and his unknown associate tied up, threatened, and forcibly confined four different people that day – all of whom suffered the coincident anxiety and trauma from those shocking events. If these sentences are made concurrent, then all of these individual victims, namely, Qasim Ali, Sana Khan, Umair Manzoor and Qaisar Iqbal, are simply lumped together for purposes of sentencing, and the severity and gravity of these four “forcible confinement” offences, is needlessly and unrealistically minimized.
In addition, in my view, the accused must receive an additional four-year term of imprisonment for the crime of “extortion” that the accused committed against Qasim Ali. This was clearly the main offence that was planned and executed by the accused (and his unknown associate). The men brandished firearms to aid in its commission, and the accused obtained, at least temporarily, legal relief from the proceedings lawfully taken in relation to his real estate property and approximately $1.75 million from the bank account of Mr. Ali. The possession of these assets by the accused was only temporary and theoretical, but that was always going to be the case – this offence had no realistic chance of ultimate success. Unfortunately, that did not minimize the trauma suffered by Mr. Ali and his work colleagues. [Emphasis added.]
Issue 1: The Sentencing Judge Did Not Improperly Double Count Aggravating Circumstances
[8] The appellant submits that the sentencing judge improperly double counted two aggravating circumstances when imposing the sentences for forcible confinement and the four-year sentence for extortion. We reject this argument.
[9] First, the appellant argues that the sentencing judge improperly considered that the appellant and his unknown associate “brandished firearms” when considering the appropriate sentence for extortion. He submits that this aggravating circumstance was considered when the sentencing judge imposed the four one-year consecutive sentences for forcible confinement. We reject this submission. The sentencing judge did not expressly mention the brandishing of the firearms when imposing the sentences for forcible confinement; he mentioned the firearms only in respect of the sentence for extortion. More importantly, even if he had, this would not be double counting in the sense of considering as an aggravating factor conduct that formed the basis of a separate conviction. In this case, the use of firearms, albeit fake ones, was aggravating to both sets of convictions. The fear Mr. Ali experienced for himself and his employees, in part due to the firearms used during the confinement, persisted as the appellant made him drive to the bank and withdraw money from his trust account.
[10] The appellant also submits that the sentencing judge improperly double counted the trauma experienced by the victims in relation to both sets of convictions. The sentencing judge did mention the victims’ trauma when referring to the convictions for forcible confinement (“all of whom suffered the coincident anxiety and trauma from those shocking events”) and for extortion (“this offence had no realistic chance of ultimate success. Unfortunately, that did not minimize the trauma suffered by Mr. Ali and his work colleagues”). However, again, this was not double counting. There were two distinct phases to the crimes committed by the appellant. First, he forcibly confined all four victims. Next, he forced Mr. Ali to go to the bank with him while the three other victims remained tied up at the law office. In their victim impact statements, all victims described the trauma of the events that occurred in the law office and, in his, Mr. Ali specifically referred to the trauma he suffered in having to go to the bank and withdraw $1.75 million from his trust account while being concerned for his employees throughout that time. In the circumstances, there was nothing improper in the sentencing judge relying on the victims’ trauma as an aggravating factor in relation to both sets of convictions.
Issue 2: The Sentencing Judge Did Not Erroneously Discount Mitigating Factors
[11] The appellant submits that the sentencing judge failed to consider significant mitigating circumstances, namely his guilty plea, remorse and gambling addiction. Again, we reject this argument.
[12] Starting with the guilty plea, the sentencing judge was aware that the appellant pleaded guilty. He referred to the guilty plea in his reasons, and counsel for the appellant and the Crown both referred to the effect of the guilty plea in their submissions on sentencing. Counsel for the appellant submitted that it was an important mitigating factor because his guilty plea saved significant court time, whereas Crown counsel submitted that its importance was attenuated, in part because the complainants had to testify at the preliminary inquiry.
[13] In his reasons, the sentencing judge referred to a statement in the pre-sentence report where the appellant appeared to suggest that he only pleaded guilty because he could not afford to go to trial:
The accused apparently explained to the author of the Pre-Sentence Report that he pled guilty to these offences as he had “no choice,” given that he did not have the “large amount of money” he needed (i.e. $90,000) to “fight the case.” The accused indicated that he was “merely a victim” in a “larger scheme” that had been “orchestrated” for him to “save his house.” The accused also said that he did not think his actions were “serious” as he had been told that the “insurance will cover any losses.”
[14] The appellant argues that the sentencing judge misunderstood this passage from the report and that it actually referred to a guilty plea for an earlier unrelated offence. Contrary to this submission, the wording of the report itself makes clear that the appellant was referring to these offences:
The writer enquired about his attitude towards the offence and how he felt about it, he stated he felt he had no choice but to plead guilty to the offences before the court … (emphasis added).
[15] More importantly, while it would have been preferable for the sentencing judge to refer explicitly to the guilty plea as a mitigating factor or to explain why it was not a significant mitigating factor, it is evident from his reasons that he was aware of the guilty plea and that he took it into consideration. In the circumstances, we see no error in principle.
[16] Similarly, the sentencing judge did not err in failing to consider the appellant’s remorse as a mitigating factor. At the sentencing hearing, in conformity with s. 726 of the Criminal Code, the appellant was given an opportunity to speak, which he did. During his allocution, the appellant expressed remorse for his actions and for the harm he caused to the victims. In his reasons, the sentencing judge did not explicitly refer to the allocution or to the appellant’s sense of remorse. Again, while it would have been preferable for the sentencing judge to do so, this was not an error in principle. It is evident that the sentencing judge was aware of the allocution, but his reasons also suggest that he was not convinced that the appellant recognized the seriousness of his offences. The reasons demonstrate that the sentencing judge was more convinced by portions of the pre-sentence report where the appellant seemed to minimize the seriousness of the offences because the loss to Mr. Ali would be covered by insurance and because he had been compelled to commit the offences by a broader fraud scheme outside of his control. Accordingly, we are not persuaded by this ground of appeal.
[17] Finally, it was not an error for the sentencing judge not to rely on the appellant’s gambling addiction as a mitigating factor. While the record showed that the appellant had gambling debts, there was no evidence of an addiction or that the crimes were committed because of a gambling addiction. In his reasons, the sentencing judge referred to the appellant’s gambling debts and financial difficulties, but in the absence of evidence that he had a gambling addiction, it was not an error for the sentencing judge not to explicitly treat this as a mitigating factor.
Conclusion
[18] We see no errors in principle in the sentence. As the sentencing judge said, these were “terrible crimes” that have had a profound impact on the victims. In all the circumstances, the sentence he imposed was fit.
[19] Leave to appeal the sentence is granted, but the appeal is dismissed.
Paul Rouleau J.A.
L. Favreau J.A.
L. Madsen J.A.