ONTARIO COURT OF JUSTICE

DATE: 2014·11·19

COURT FILE No.: Guelph

Citation: R. v. Sona, 2014 ONCJ 606

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

MICHAEL SONA

Before Justice G.F. Hearn

Submissions Heard on October 17, 2014

Reasons for Sentence released on November 19, 2014

Mr. Croft Michaelson/ Ms. Ruth McGuirl ........................................... counsel for the Crown

Mr. Norman Boxall ............................................................... for the defendant Michael Sona

BACKGROUND:

[1] For reasons given on August 14, 2014 Mr. Sona was found guilty of the offence of preventing or endeavouring to prevent an elector from voting at the federal election held on May 2, 2011, contrary to the provisions of the Canada Elections Act. The Crown proceeded by way of indictment on this matter and as a result Mr. Sona having been found guilty is subject to a fine of not more than $5,000 or to imprisonment for a term of not more than five years or to both.

[2] Following judgment, the matter was adjourned to October 17, 2014 for sentencing submissions. A presentence report was ordered and has now been received. In addition the Crown submitted a number of victim impact statements and the defence filed a series of letters attesting to the good character of Mr. Sona. In addition, both counsel have provided copies of various cases to assist the court in sentencing.

[3] Full submissions as to sentence were completed on October 17, 2014. The matter was then adjourned to today's date for sentence.

CIRCUMSTANCES OF THE OFFENCE:

[4] The facts as found by the court were set out fully in the reasons delivered on August 17, 2014. There is no need to detail the facts other than to provide a brief summary for the purposes of the sentencing.

[5] The court has found Mr. Sona was an active participant in an ill-conceived scheme initiating in the offices of the local Conservative candidate in the Guelph riding during the May 2011 federal election. This scheme was initiated, designed and ultimately activated with the goal to prevent or endeavour to prevent targeted non-Conservative supporters from voting.

[6] This disturbing plan was undertaken by Mr. Sona together with one or more other persons as so found by the court. The plan involved the sending of some 7,000 automated telephone calls to targeted telephone numbers on the day of the election May 2, 2011 indicating that the polling stations for those individuals had been changed to another location. The message was false, was not authorized by Elections Canada and was designed to send those voters to a false location to prevent or try to prevent them from voting.

[7] The automated telephone calls had been sent through the services of an Alberta company, RackNine. Those services were provided to a fictitious individual named Pierre Poutine at a cost of approximately $160. The payment for those services came from prepaid credit cards and contact with RackNine initially was by way of a "pay as you go" phone. Both the phone and the credit cards were paid for by cash and the account with RackNine was set up under the fictitious name of Pierre Poutine in order to attempt to ensure that the creator or creators of this plan could not be traced.

[8] Again for reasons provided on the facts as found by the court and as set out in the agreed statement of facts filed at the commencement of trial Mr. Sona has been found to be a major and active participant in this plan.

[9] Specifically the court has found that Mr. Sona who was the communications director for the local Conservative party candidate:

1. expressed interest to a number of individuals seeking out information with respect to the sending of automated calls that could not be traced during the days leading up to May 2, 2011;

2. was a party to the plan which involved the sending of a message redirecting voters to the wrong polling location;

3. and initiated contact with RackNine, was a creator or one of the creators of the fictitious Pierre Poutine and purchased one or more of the prepaid credit cards utilized as well as the cell phone used for the initial contact and the downloading of the messages.

[10] Although the court was not satisfied to the degree required that Mr. Sona was the one who actually activated the calls through RackNine on election day from the Guelph Conservative campaign office, the court has absolutely no doubt that he was aware the calls were to be sent and was actively involved both with the creation of the calls and the process leading to those calls being activated.

[11] Although the "success" of this plan cannot be gauged precisely, it has been agreed that 150 to 200 electors presented themselves at the false station as a result of the calls. Some of those electors tore up their voter information cards and simply walked away. Others simply did not attend to vote at all because of the inconvenience that may have been caused. A number of victim impact statements have been filed by some of those individuals and they speak eloquently to the impact Mr. Sona's conduct has had on their lives.

[12] The facts found indicate as well that following the election Mr. Sona openly and with some misplaced pride boasted of his involvement and participation in this very disturbing conduct. Again, particulars of the circumstances of the offence are set out in the judgment of August 17, 2014.

VICTIM IMPACT STATEMENTS:

[13] There have been a number of victim impact statements filed, 16 in total. The agreed statement of facts indicates many more people were impacted by the conduct of Mr. Sona, but the statements that have been filed, two of which have been read by the victims in court, are compelling and speak to the impact that this particular scheme has had on them personally. Without exception the victim impact statements are eloquent and speak to the various victims' sense of dismay, upset, anger and concern with the intentional attempt to interfere with their democratic right to vote.

[14] Anne Budra, one of the victims, was the Returning Officer for the electoral district of Guelph. She read her victim impact statement. She spoke of her responsibility for conducting the election in Guelph in a "democratic manner" to make sure that every elector had access to vote. She spoke of the chaos that was created within her office and the lingering effects the false calls had both on her and her staff on election day and indeed thereafter. As she notes, "What happened was extremely serious for our democratic way of life here in Canada and for me as a returning officer responsible for conducting a democratic election it was extremely stressful, disappointing and had very serious effects on me, Elections Canada and our country."

[15] Other victims speak similarly about their belief in a fair, democratic and transparent election process and how that feeling has been compromised by the actions of Mr. Sona. The targeted nature of the calls, apparently non-supporters, is particularly concerning to a number of the victims that have filed statements. They, without exception, are embarrassed by this conduct. One victim speaks of the pride in the Canadian electoral and democratic processes that have been in place and the distinguished tradition Canada has of supporting democratic processes in countries around the world. That particular victim indicates that the events surrounding the 2011 election have diminished that pride.

[16] Sarah Parro, another recipient of the calls, also read her statement in court. She was a first time voter in the 2011 federal election and was looking forward to being part of the process. She found the false message and the scheme in which Mr. Sona was a participant to be discouraging and her passion for the political process has diminished as a result.

[17] Overall the statements are sensitive to the issue and speak clearly to the violation of an individual's right to vote in elections in Canada in a free and unhampered manner without any interference or suppression. One of the statements probably capsulizes the feelings of many of the victims when that particular victim indicates, "I value highly our democratic society and take my right to vote for the candidate of my choice very seriously. This entire episode left me with such a distaste for the election process."

CIRCUMSTANCES OF THE OFFENDER:

[18] The presentence report before the court is very thorough and of assistance in setting out the background of Mr. Sona. In addition, various letters in support have been filed all attesting to the good character and antecedents of the accused.

[19] Mr. Sona is currently 26 years of age and was 22 at the time of the offence. He has no prior record and comes before the court as a first time youthful adult offender.

[20] The background as set out in the presentence report indicates he has a brother and sister. They and Mr. Sona appear to have been the products of a loving and supportive family. Many members of his family have been present throughout this trial.

[21] According to his parents he excelled at school both in high school and thereafter. He graduated from high school and from a degree program at the University of Guelph, this notwithstanding a childhood diagnosis of ADHD for which he was prescribed medication which he discontinued on his own in Grade 12.

[22] He is reported to have a positive peer group and that is evidenced somewhat by the letters that have been filed. Following his university graduation he moved to the Ottawa area in 2009 where he became involved in the Conservative Party political internship program. He remained employed within government services until this matter came before the court when he lost that employment.

[23] He currently works as a machinist's apprentice with a company owned by a member of his church group. Although apparently not earning a large income, he reports that he is financially stable. The letter from his employer certainly is supportive and notes among other things that Mr. Sona has been employed for approximately a year and is doing very well at his employment. He is described as a "fantastic employee" and a "great friend". His employer also describes him as having excellent attendance habits and being of "high integrity and character". The employer notes that he is "one of his best employees". Mr. Sona appears to enjoy his work and is appreciative of the opportunity to be employed.

[24] Mr. Sona and his family are all active members in their church group and his network of friends appears to be associated with the same church. He has in fact drawn on the support of his church for emotional support since the investigation of this matter leading to the charge for which he has been found guilty. Without exception he has been described by his family and friends as being "very responsible, industrious, intelligent, compassionate, respectful, and a dedicated young man who values his family, friends and church". It appears the network of support through his church has been very important to Mr. Sona. The impact of this matter has not been lost on Mr. Sona who has acknowledged suffering from periods of stress and depression. He himself has taken some rather drastic steps as noted in the presentence report in an attempt to deal with that in a very inappropriate manner. It is clear this matter has been very stressful for Mr. Sona as this proceeding has been drawn out for a number of years and has attracted wide attention. It has also been difficult for his family and friends all of whom without exception state that the conduct as found by this court is very much out of character for Mr. Sona.

[25] His family and friends speak of the shock and emotional upset upon learning of the charges. The letters filed in support include a comment that he is the "finest young man he has met" (see letter from Matt Sheehey) with similar comments by others who were interviewed by the probation officer and who have prepared letters in support of Mr. Sona.

[26] Mr. Sona presented to the probation officer during the preparation of the report as respectful and cooperative. He made no comment with respect to the index offence before the court nor was he required to for the purposes of the preparation of the report. The author of the presentence report notes in his assessment among other things the following"

"It has been rather challenging to recognize the person described in the offence synopsis with not only the person who presented himself in the presentence report interview but also the person described by his parents, employer and close peer supports. This process is further complicated by the subject, on the advice of his counsel, choosing to refrain from providing any statement or explanatory context with regard to the index matter. With regard to his character and values, strong integrity, trustworthiness, faith and longstanding commitment to pro-social endeavours were repeatedly voiced as appropriate descriptors of the subject by those sources interviewed. These sources report they will continue to support the subject moving forward."

[27] The presentence report and the material filed can be reasonably described as positive.

POSITION OF THE PARTIES:

[28] Both counsel, during the course of their submissions, reasonably and appropriately acknowledge that the circumstances surrounding the charge before the court are serious and they have tailored their submissions accordingly. Mr. Boxall, on behalf of Mr. Sona, points out the youthful age of Mr. Sona, the lack of criminal record and the very positive comments made with respect to Mr. Sona found both in the presentence report and in the letters that have been filed on his behalf. Defence counsel submits the matter before the court is simply a "prank" gone "terribly wrong" and asks the court to consider a non-custodial sentence notwithstanding the serious nature of the charge. Defence counsel submits that the court should not make this matter more than "it is" and should not consider what "it isn't". Counsel submits if in fact the court finds that a non-custodial sentence is inappropriate then a short sharp sentence in the range of 14 to 30 days would be appropriate and would address all principles of sentencing. That period of imprisonment could be followed by a period of probation with a number of terms including the requirement that Mr. Sona perform community service. As a third alternative, if a longer period of custody is required, then counsel submits Mr. Sona is a prime candidate for a conditional sentence and submits that any period of custody could be served in the community to be followed again by a period of probation.

[29] Mr. Michaelson, on behalf of the Crown, points out appropriately the aggravating features of the charge before the court and stresses that issues of general deterrence and denunciation are primary principles of sentencing to be considered. The Crown points to Mr. Sona's lack of remorse and contrition and submits that in view of the serious nature of the charge and the encroachment on a citizen's fundamental right to vote in an unhampered manner, a period of custody is required. The Crown submits that the appropriate range of sentence is 18 to 20 months imprisonment. The Crown further submits that that period of custody should be served in a traditional setting and advocates for such a sentence to properly address the principles of sentencing and primarily the issues of denunciation and deterrence. If the court finds a conditional sentence is appropriate, the Crown submits that the appropriate range for such a sentence would also be a sentence of imprisonment to be served in the community for a similar length of time.

PRINCIPLES TO BE APPLIED:

[30] The sentencing of an individual is not an exact science and trial judges must retain flexibility in order to do justice in individual cases. Each case is conducted as an individual exercise. The sentencing of an individual is a difficult task a trial judge must perform and in a case of an offender such as Mr. Sona who comes before the court on a serious matter as a first time youthful adult offender, the task is even more onerous (see Regina v. Wright 2006 40975 (ON CA), [2006] O.J. No. 4870, para. 16; Regina v. D.(D.) (2002) 2002 44915 (ON CA), 163 C.C.C. (3d) 471, para. 43).

[31] Sentencing then is a human process as described in the case law and the fixing of a fit sentence is the product of the combined effects of the circumstances of the specific offence and the unique attributes of the specific offender. To assist the court in sentencing an individual the Criminal Code sets out various principles of sentencing that are to be considered.

[32] The principles of sentencing set out in the Code are set out in s. 718 to s. 718.2. Section 718 reads as follows:

"718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community."

[33] Section 718.1 states a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[34] The issue of proportionality is a principle rooted in notions of fairness and justice. The sentence must reflect the seriousness of the offence and the degree of culpability of the offender and the harm occasioned by the offence. The court must consider both aggravating and mitigating factors, look at the gravity of the offence and the blameworthiness of Mr. Sona and the sentence ultimately imposed must properly reflect in terms of gravity that which the offence generally bears to other offences.

[35] Section 718.2 of the Criminal Code sets out various considerations and further principles the court is to take into account. These include the ability of the court to increase or reduce the sentence to account for any relevant aggravating or mitigating factors relating to the offence or the offender. There is also the issue of restraint set out in s718.2(e) of the Code which reinforces subsection (d). Subsection (d) states that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances and subsection (e) indicates that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders with particular attention to the circumstances of aboriginal offenders.

[36] With respect to the issue of denunciation, that principle has as its objective that a sentence must communicate society's condemnation of the offender's conduct.

[37] As noted by Chief Justice Lamer in Regina v. M.(C.A.), (1996) 1996 230 (SCC), 105 C.C.C. (3d) 327 at page 369:

"In short a sentence with a denunciatory element represents a symbolic collective statement that the offender's conduct should be punished for encroaching on our Society's basic code of values as enshrined within our substantive criminal law. As Lord Chief Justice Laughton stated in Regina v. Sargeant (1974) 60 Cr. App. R. 74 at page 77:

'Society through the courts must show its abhorrence of particular types of crimes and the only way in which the courts can show this is by the sentences they pass.'"

[38] Further:

"The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instils the basic set of communal values shared by all Canadians as expressed by the Criminal Code."

[39] With respect to the defence submission that a conditional sentence is an appropriate disposition, I note the provisions of s. 742.1 of the Criminal Code and the case law that has evolved since Regina v. Proulx (2000) 1 S.C.R. No. 61. That case law indicates the conditional sentence regime was enacted to reduce reliance on incarceration as a sanction and to increase the use of principles of restorative justice in sentencing. A conditional sentence is something that is to be distinguished from probationary measures. Probation is primarily a rehabilitative sentencing tool and by contrast Parliament intended conditional sentences to include both punitive and rehabilitative aspects.

[40] The case law supports the principle that each case must be decided and considered individually. In Proulx the court noted as well that even with the presence of aggravating factors which might indicate the need for denunciation and deterrence a conditional sentence could still provide sufficient denunciation and deterrence even in cases in which restorative objectives are of diminished importance. A conditional sentence is a sentence that is capable of achieving the objectives of denunciation and deterrence, particularly in circumstances where the offender is forced to take responsibility for his actions and make reparation both to the victim and the community all the while living in the community under tight control. It is also, however, apparent from the case law that there are situations where the principles of general deterrence and denunciation cannot be adequately met except by a period of imprisonment in a traditional setting.

[41] As noted, Mr. Sona comes before the court as a first offender and the principle of restraint is a factor to consider. Mr. Sona has never been in custody previously and although the principles of general deterrence and denunciation are certainly primary factors to consider the court still considers that general deterrence cannot be the sole consideration here. Appropriate consideration must be given to the rehabilitation of the accused if the circumstances indicate that that is an appropriate principle for this court to take into account.

[42] Both counsel have provided books of authorities dealing with general principles of sentencing in situations where there is some effort on the part of an accused to interfere with an electoral process. These cases are of some assistance although I am told that Mr. Sona is the first individual to be found guilty of such an offence as that before the court under the Canada Elections Act and there are no precedents to help establish an appropriate range of sentence. Further, although case law is helpful in understanding principles to be applied, each case, as noted previously, is decided on an individual basis and is dependent ultimately on the facts of the particular case and the circumstances of the particular offender.

[43] The cases that have been provided are consistent in the theme with respect to interference in the democratic process and the applicability of the various principles of sentencing. The cases are clear in such circumstances the court must address and maintain public confidence in the integrity of our electoral process and interference with that process is a matter of "utmost seriousness". Left unchecked, the effect of corruption of the electoral process leads to public cynicism and mistrust of public officials." (See Regina v. Aftergood [2007] A.J. No. 820)

[44] The cases further provide that where there is interference with the electoral process, those who interfere with it must expect that deterrence and denunciation will be primary sentencing objectives. The public must continue to have faith in the democratic process that is the foundation of our system of government (see Regina v. Rizzototto (1986) 1986 4775 (NWT SC), 6 W.W.R. 679 and Regina v. Taylor [1996] O.J. No. 4695).

[45] In Regain v. Taylor, supra, the accused was convicted of uttering forged documents which were municipal election forms concerning the nomination of an individual and a conspiracy to utter these forms. There was a joint submission before the court at that time for a 12 month conditional sentence which was accepted by the court to be followed by three years probation. During the course of that sentencing the court indicated the concern with the principles of general deterrence and denunciation and noted "the court through the sentencing process must express the need for a democratic society to be ever vigilant in protecting one of the basic rights of its citizens" (see para. 14). Further, the court stated, "It is important to keep in mind that Ms. Taylor's actions when subverting the electoral process struck a blow at the very heart of our democratic way of life. One of our most precious rights is the right to vote for the candidate of our choice. Once elected, we then are free to give our consent to a representative to govern us." (see para. 7)

AGGRAVATING FACTORS:

[46] The aggravating factors in this matter are as follows:

1. The matter before the court is a serious matter. Mr. Sona interfered with the democratic process which permits citizens to exercise the right to vote by the creation and sending of some 7,000 telephone calls directing voters to false polling locations. Although it is not possible to determine how many recipients of the false message were unable to vote or decided not to vote it is acknowledged that an estimated 150 to 200 electors presented themselves at the false location as a result of the calls and upon learning the message was false some of those individuals simply destroyed their voter information cards and walked away. By his actions Mr. Sona showed a callous and blatant disregard for the rights of those individuals entitled to vote.

2. The actions of Mr. Sona, and likely another or others, were planned, deliberate and involved some degree of sophistication including:

a) the creation of the account with RackNine;

b) the creation of the fictitious Pierre Poutine, the purchase of the phone and the credit cards to accommodate payment with respect to the calls, all of which involved attempts to make the calls ultimately unable to be traced;

c) the creation of the message itself;

d) the creation of the call list and specifically targeting non-supporters of the Conservative Party;

e) the sending of false messages through the program offered by RackNine.

3. This ill-conceived and criminal scheme was unfortunately successful to a degree as evidenced by the agreed statement of facts and the victim impact statements that are before the court. Although it is unknown how many voters were actually deterred or prevented from exercising the vote even if one elector was so impacted that is one too many. The victim impact statements that have been received speak to the harm occasioned by Mr. Sona's actions.

4. The plan to which Mr. Sona was a party was effectively an attempt to manipulate the outcome of the election in the Guelph riding by endeavouring to prevent voters from voting. This was a federal election undertaken to elect representatives who form the governing body in our nation. This was not an amateurish Grade 8 election campaign for student council. Conduct such as that of Mr. Sona is not suitable at any time. It is not only criminal, but distasteful and disturbing and is a step above other political "tricks" that the court has heard of in evidence including such things as sign removal and bingo cards. Defence counsel argues that this was simply a "prank" gone "terribly bad". This was much more than a "prank" and nothing in the evidence points to it being such. The evidence in fact points in the other direction that this was a deliberate and considered course of criminal conduct specifically designed to subvert the inherent fairness of the electoral process.

5. The actions of Mr. Sona were not impulsive or momentary. Mr. Sona on the evidence that I have accepted had input from others and although while no one apparently told him that the course of action he was about to undertake, ie. sending messages that could not be traced, was criminal, witnesses such as Mr. Crawford, Mr. White and Mr. McBain indicated that at the very least such a plan was not appropriate. Mr. Sona had many opportunities to step back and reconsider his conduct particularly in light of advice and discouragement, albeit limited, from others, but he did not.

6. Mr. Sona's actions themselves speak of a lack of appreciation and respect for the rights of all voters. They represent a complete disregard for our political system and its values. This is somewhat surprising particularly when one considers that Mr. Sona had been involved in the political community for some time. He presents apparently to others and as noted in the presentence report as intelligent, bright and one who possesses high pro-social standards. He was not a novice in the political arena and he should have known better. I am not sure what Mr. Sona was thinking, if he was thinking at all, but his moral blameworthiness is high.

7. Not only did he take part in a very active way in this scheme, the seriousness of his conduct seems to have escaped him. He casually and apparently quite proudly boasted of his actions to others without any hint of remorse, concern or regret. Such boasting which appears to have even troubled some of his colleagues clearly indicates that Mr. Sona simply did not get it (hopefully he now does), that is, the very serious nature of his conduct.

8. General deterrence and denunciation are important principles to be applied in this matter. The court must send a message to others that are so inclined that such trickery in a political arena is conduct that will be dealt with by the court in a significant way.

MITIGATING FACTORS:

[47] The mitigating factors in this matter are:

1. Mr. Sona appears before the court as a youthful first time offender. He has no record nor any background in the criminal justice system.

2. The presentence report is a positive report. Mr. Sona presents as an offender who has not been in difficulty before and the comments contained in the presentence report and Mr. Sona's antecedents certainly indicate that further criminal conduct on the part of Mr. Sona is highly unlikely.

3. Mr. Sona has the support of his family and members of the community. The letters that are filed all speak very positively of his good character. His family and the friends he has within the community including his church group offer support within the community and have been and will continue to be of assistance to Mr. Sona in dealing with the issues that he must face.

4. The court accepts that based on the character of Mr. Sona, as set out in the presentence report and in the letters filed, his actions in this particular case seem to be out of character for him. The court will assume that he effectively got caught up in the moment and what appears to be the exercise of good judgment on other occasions simply escaped him.

5. The charge in this matter relates to events which occurred in 2011. The charge has been outstanding for a significant period of time and has effectively hung over the head of Mr. Sona and his family and supports. He has suffered embarrassment, humiliation and depression and has attempted some rather drastic steps to deal with his personal situation. The charge before the court has attracted extensive media coverage and Mr. Sona lost his employment within the Government service. Any career path that he may have chosen with respect to that service has effectively ended. In my view, there have been significant consequences in play already and I take that into account.

SENTENCE TO BE IMPOSED:

[48] This is a difficult and troublesome sentencing. I have considered the aggravating and mitigating circumstances, the principles to be applied and I have also exercised some restraint given the fact that Mr. Sona is in fact a youthful first time adult offender.

[49] I have concluded and find that the conduct of Mr. Sona on the days leading up to the May 2, 2011 federal election was egregious and had considerable impact not only on this particular community, but also on our democratic process. General deterrence and more importantly denunciation mandate a period of imprisonment in my view and are the driving principles to be considered. The principles of restraint and rehabilitation together with the mitigating circumstances set out simply impact the length of any sentence to be imposed. I am satisfied that a period of imprisonment is appropriate and I am also satisfied that the fundamental principles of sentencing cannot adequately be addressed by a conditional sentence.

[50] Individuals such as Mr. Sona notwithstanding the lack of record and their apparent good character must appreciate that this type of an offence is an affront to the electoral process and is conduct that simply cannot be classified as anything less than very serious. Individuals who choose to take part in this type of conduct can expect significant consequences.

[51] Mr. Sona and another or others by their conduct have impacted the lives of many. Presumably Mr. Sona, given his background and his involvement with government services, was an individual who championed the democratic right of everyone to cast their vote in a fair and unhampered manner. He took very active steps to see that that did not happen and the sentence must be such that the serious nature of this conduct is made apparent to those similarly inclined. Anything less than a period of imprisonment would fall short in my view of properly denouncing such conduct.

[52] Mr. Sona has pled not guilty to the offence and he is not to be penalized for pleading not guilty and being found guilty. The absence of a guilty plea is simply an absence of a mitigating factor. Further, I should note that the Crown has emphasized during the course of submissions that the court should consider as effectively an aggravating factor the apparent lack of remorse or contrition on the part of Mr. Sona. I do not find the lack of remorse in the circumstances here is necessarily an aggravating factor, but it is a factor to be considered as an indicator perhaps of the true character of Mr. Sona and simply leaves the court with finding nothing in the evidence nor anything before the court that could reasonably be drawn upon to appreciate that Mr. Sona does have insight into his conduct. There is therefore little before the court to show that Mr. Sona is a good prospect for rehabilitation given the absence of information available. The lack of remorse is simply an indicator to the court that the prospect for rehabilitation may be lessened. However rehabilitation is always ultimately a factor to be considered even in the presence of lack of remorse or insight given the age of Mr. Sona, the consequences that he has faced to date, his educational background and his background otherwise. One cannot assume that rehabilitation should be absolutely excluded as a consideration and I do not do that.

[53] Ultimately I find that a period of imprisonment as noted is appropriate and necessary to address all principles of sentencing and I am also satisfied that that period of imprisonment should be served in a traditional setting. A conditional sentence in my view is entirely inappropriate and as noted would not address the fundamental principles of sentencing to be applied. Specifically, it would not address adequately the principles of deterrence and denunciation. Denunciation focuses on the conduct of Mr. Sona, not his particular circumstances and a period of custody in a traditional setting is necessary in order that the public and particularly those involved in political campaigns at any level will appreciate that the courts regard this type of activity as criminal and to be treated seriously.

[54] Mr. Sona will be sentenced to a period of imprisonment for 9 months to be followed by a period of probation for 12 months. During submissions, the Crown suggested that a term of the probation order should include a term that Mr. Sona be required to provide a written apology to the public. That term in my view is problematic, given Mr. Sona's position on sentencing and at trial, and I decline to make such a condition a term of the probation order as, in my view, if Mr. Sona persists in his position and continues to show a lack of remorse or insight, he is entitled to do so and I do not wish to invite what may be an obvious breach. Moreover, it is my view that there is no value in a forced apology in the face of an unrepentant attitude. If Mr. Sona wishes at some point to provide such an apology it will be his decision to do so.

[55] The terms of probation that I impose will be as follows:

1. Keep the peace and be of good behaviour.

2. Appear before the court when you are required to do so.

3. Notify the court or the probation officer in advance of any change of name or address.

4. Report to a probation officer within two working days of your release from custody and thereafter be under the supervision of the probation officer and report at such times and places as directed.

5. Take part in any counselling or programming that may be recommended by the probation officer for any area identified by the probation officer and provide proof of your attendance at those programs if so required by the probation officer.

6. Seek and maintain full time employment.

7. Complete 100 hours of community service work. That work will be completed at a time and rate to be agreed upon with your supervisor or your probation officer, but will be completed within the first 10 months of the probation order.

[56] I have heard nothing that would indicate further conditions in the probation order are appropriate or necessary.

[57] The sentence then is one of 9 months imprisonment to be followed by 12 months probation. I thank counsel for their assistance during the course of the sentencing and their thorough submissions on both trial issues and on sentencing, as well as for their very professional conduct throughout this proceeding.

Released: November 19, 2014

Signed: "Justice G.F. Hearn"