SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: 12-380AP

DATE: 2013/04/02

RE: Her Majesty the Queen (Respondent)

· and –

Ramin Shamshiri (Appellant)

BEFORE: JUSTICE I. F. LEACH

COUNSEL:
Jacquelynne D. Iarocci, for the Crown
Leora Shemesh, for the Appellant

HEARD: March 5, 2013

On Appeal from the Judgment of The Honourable Madam Justice K. McKerlie
on June 28, 2012

ENDORSEMENT

[1] This is an appeal against sentence by the appellant Mr Shamshiri, pursuant to s.813(a)(ii) of the Criminal Code.

[2] On June 28, 2012, the appellant entered pleas of guilty to one count of using a stolen credit card and three counts of possession of a credit card obtained by crime.

[3] After receiving competing submissions on sentence from counsel for the accused and counsel for the Crown, (during which the defence requested a conditional discharge and twelve months’ probation with specified terms), the sentencing judge imposed fines totalling $1,000.00 and an 18-month term of probation. 1

[4] On appeal, the appellant contends that the appellate intervention is warranted, (with replacement of the conviction by a conditional discharge, subject to terms of probation similar to or exceeding those imposed by the sentencing judge), because the sentencing judge:

a. erred in taking judicial notice of facts that were neither in evidence nor agreed at the sentencing hearing;

b. failed to properly balance the relevant principles of proportionality and rehabilitation and focused too heavily on denunciation and deterrence; and

c. imposed a sentence that was unfit, having regard to the mitigating factors of an early guilty plea, the appellant’s extensive community service and volunteer involvement, his youth, his status as a first time offender, the support of his parents, and the public interest.

[5] The Crown contends that the sentence is free from error, (both in terms of the facts considered and in principle), is reasonably proportionate to the gravity of the underlying offences by this offender, and merits deference on appeal.

Facts – The Offences

[6] The facts reviewed and agreed upon in relation to the guilty pleas may be summarized as follows:

• On March 7, 2012, the appellant ordered a vehicle, through a company known as Executive Sedan Service, to take him from the city of London to the VIA Rail station located in the city of Stratford.

• On arrival at the Stratford VIA Rail station, the appellant approached a Via Rail employee. The appellant indicated that he wished to pick up two sets of train tickets that he had arranged and purchased.

• The two sets of tickets ostensibly had been purchased through use of a credit card. In fact, the card used was not legitimate, and was created or obtained by the commission in Canada of an offence.

• The two sets of tickets were for different dates, and for train travel by two persons from Windsor to Ottawa. Both sets had been purchased for use by “Alfonzo Gonzol” and “Carlo Gonzol”.

• The appellant falsely identified himself as being Alfonzo Gonzol, and the Via Rail employee gave the appellant the two sets of tickets. Before walking away from the employee, the appellant confirmed VIA Rail’s “return policy” with respect to the tickets. In particular, he received confirmation that there would be a full refund if the tickets were returned with a certain period of time before travel.

• The appellant then went to another part of the station where he gave the appearance of making a telephone call. He then returned to the VIA Rail employee, indicated that his intended travel companion’s plans now were uncertain, and requested cancellation and refund of the companion’s tickets.

• In the course of processing the requested refunds, the VIA Rail employee noticed a “disconnect” between the nature of the credit card ostensibly used to make the original purchase, (a Visa card), and the electronic indication as to the nature of the card to which the credit would be made, (a Mastercard). The employee also then remembered having seen a loss-prevention memorandum, circulated to VIA Rail stations, advising employees to be “on the lookout” for use of such cards to process fraudulent returns – a memorandum which included specific reference to the surname “Gonzol” as one of the “red flags” employees should watch for.

• The employee already had processed one refund, but called the police before processing the second. The police attended and arrested the appellant. They found, in his possession, the fraudulent credit card in the name of “Alfonzo Gonzol” that was used to purchase the tickets and request/secure refunds, three other fraudulent credit cards in the name of “Alfonzo Gonzol”, (all of which also had been created or obtained by the commission in Canada of an offence), as well as another document bearing the appellant’s photograph but falsely identifying him as “Alfonzo Gonzol”.

• The fraudulent credit cards all had been manufactured, (e.g., rather than stolen or secured from financial institutions using false information), but not by the appellant.

Circumstances of the Offender

[7] The sentencing judge also was presented with extended information concerning the circumstances of the appellant, which may be summarized as follows:

• At the time of the offence, he was 19 years old.

• He was a first time offender, with no prior criminal record.

• He was born in Canada, comes from a close-knit family based in Toronto and, after completing high school in Don Mills, (where he achieved some commendable high marks in grades 11 and 12), previously had enrolled at Western University in London. However, poor grades during his first year and subsequent summer school resulted in his being placed on academic probation. He then chose not to enrol again the following semester while he engaged in further planning and steps to further his desire of going to medical school; (e.g., by auditing courses, taking high school chemistry, and exploring the possibility of tutoring).

• After the appellant’s arrest in March of 2012, his very supportive parents actively engaged to address the situation. This included moving the appellant back home to Toronto, where he lived under the strict supervision of his parents, (who asked the bail court to impose house arrest type conditions). He worked with his father, (an independent contractor), enrolled in an online summer course offered by the University of Athabasca, and prior to sentencing also had completed over 300 hours of community service with/through Toronto Community Housing. While not knowing the purpose of the request, the Health Promotion Officer of that organization was happy to supply a lengthy letter confirming the extent of the appellant’s community service, and speaking in very glowing terms of the appellant and the extensive work he has done as a mentor and role model for many young men in that community.

• By the time of the sentencing hearing, the appellant also had been accepted back at Western University, and had resumed his studies there.

[8] In the course of sentencing submissions, defence counsel emphasized the appellant’s desire to complete his undergraduate studies and apply to medical school, and noted that a criminal record would hinder such plans as the appellant then would be unable to work in a hospital setting.

Reasons for Sentence

[9] The reasons of the sentencing judge are considered in more detail below, but generally:

• She reviewed the agreed evidence and facts surrounding the offences.

• She considered the circumstances of the accused, including his young age and absence of a prior record.

• She noted and accepted various other mitigating factors, including the appellant’s guilty plea, the principle of restraint favouring a non-custodial sentence, the principle of rehabilitation, the active intervention of supportive family and parents, the appellant’s extensive community service, his scholastic abilities and plans, and concern for the negative impact a criminal conviction might have on his future.

• She considered the possibility of a conditional discharge, and accepted that would be in the best interests of the accused. However, she found that such a disposition would be contrary to the public interest, having regard to numerous aggravating factors and corresponding concerns regarding the need for denunciation, deterrence, proportionality and the need to promote a sense of responsibility. In that regard, she placed particular emphasis on the nature and gravity of the offences, (which in her opinion involved marked sophistication, planning and deceit), and the appellant’s high degree of responsibility in that regard.

• In the result, she declined to grant a conditional discharge, but settled on a sentence which, in her view, still was at the more lenient end of the permissible outcomes; i.e., one that avoided any term of imprisonment and imposed relatively modest fines, (totalling $1,000.00 combined, in relation to the four offences), with a term of probation.

Standard of Review

[10] In this particular case, there was much to be said, (and much that was said in the proceedings before the sentencing judge and the appellate proceedings before me), in favour of Mr Shamshiri being dealt with by a conditional discharge.

[11] However, I am mindful that my task is appellate in nature, and fundamentally distinct from that of the sentencing judge. In particular, s.718.3 of the Criminal Code makes it clear that sentencing discretion is to be exercised by the court that convicts a person, and it accordingly is not the duty of the appellate court to decide whether it would have reached the same conclusion had it been the sentencing court. 2

[12] Numerous appellate authorities have emphasized this, and the corresponding deferential standard of appellate review that must be applied in such cases.

[13] For example, as the Supreme Court emphasized in R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, at paragraph 89, an appellate court is not “given free reign to modify a sentencing order simply because it feels that a different order ought to have been made”. 3

[14] Rather, the nature of appellate review of sentencing involves a far more deferential approach, summarized and encapsulated by the Supreme Court in R. v. C.A.M., 1996 230 (SCC), [1996] 1 S.C.R. 500, at paragraph 90:

Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. 4

[15] In the same case, the Supreme Court made it clear that this deferential standard of review applies equally to situations where the sentencing in question did not follow a full trial but a guilty plea:

This deferential standard of review has profound functional implications. As Iacobucci J. explained in Shropshire, [supra], at para. 46, where the sentencing judge has had the benefit of presiding over the trial of the offender, he or she will have had the comparative advantage of having seen and heard the witnesses to the crime. But in the absence of a full trial, where the offender has pleaded guilty to an offence and the sentencing judge has only enjoyed the benefit of oral and written sentencing submissions, (as was the case in both Shropshire and this instance), the argument in favour of deference remains compelling. A sentencing judge still enjoys a position of advantage over an appellate judge in being able to directly assess the sentencing submissions of both the Crown and the offender. A sentencing judge also possesses the unique qualifications and experience and judgment from having served on the front lines of our criminal justice system. Perhaps most importantly, the sentencing judge will normally preside near or within the community which has suffered the consequences of the offender’s crime. As such, the sentencing judge will have a strong sense of the particular blend of sentencing goals that will be “just and appropriate” for the protection of that community. The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community. The discretion of a sentencing judge should thus not be interfered with lightly. 5

[16] With those guiding considerations in mind, I turn to the particular arguments advanced by the appellant in this case.

Factual Considerations

[17] The appellant suggested that the sentencing judge erred in principle by improperly taking judicial notice of facts neither agreed nor in evidence, and/or by misapprehending certain facts, all of which militated in favour of an inappropriate and unduly harsh sentence.

[18] In particular, it was the appellant’s contention that the ruling of the sentencing judge was tainted by:

a. findings that the underlying offences involved an elevated level of “sophistication, planning and deceit”, when there allegedly was nothing in the agreed facts or evidence to substantiate this but the judge’s improper resort to judicial notice; and

b. a mistaken belief that the appellant, when retrieving the two sets of tickets from VIA Rail, had used the “fake ID” later found in his possession.

[19] In my view, neither suggestion is well founded.

[20] In his sentencing submissions, Crown counsel suggested that the underlying offences reflected “an enterprise crime” that was “sophisticated, calculated and bold”, and then also expressly asked the court to “take judicial notice of the fact that crimes related to credit, credit cards and electronic transfer of funds et cetera are on the rise and cost the economy millions of dollars”.

[21] In reply, however, defence counsel took issue with this suggested reference to offences other than the ones to which Mr Shamshiri had pled guilty.

[22] In the result, there was no stated reliance on judicial notice in the sense requested.

[23] The sentencing judge did make reference to “the level of sophistication and planning” required to achieve the deceit inherent in credit card crimes. However, as indicated in her following remarks, she remained focused on the particular conduct of the appellant, and offered numerous reasons why that particular conduct clearly involved “sophistication, planning and deceit”:

This is calculated criminal behaviour. This is not an impulsive act of stealing something from a store. This involved some planning and deliberation. It involved making the fraudulent purchase on the credit card in the first place. Purchasing the train tickets and having successfully made that purchase, you might have said “Okay, that is going to be the extent of my criminal involvement”. But that was not the case. You chose to even hire a driving service to take you to Stratford. You are otherwise on the facts unconnected with Stratford. Your parents live in the North York area. You were attending school in London, but then chose to come to this community and purchase train tickets from Windsor to Ottawa with no real connection to Stratford at all. You purchased train tickets for travel between Windsor to Ottawa. Then, having successfully obtained those tickets, you went to make the fraudulent return, re-victimizing VIA Rail again, first using the fraudulent credit card and then making the fraudulent return. At the time you did that, you had in your possession fake identification, photo identification with your own photograph on it and a name so that could be presented to establish that you were the rightful owner of these fraudulently created credit cards, credit cards that could only be obtained by the commission in Canada of an offence. It is not only a matter of using one credit card, but you had in your possession three other credit cards that were created. That type of sustained, planned, deliberate and calculated criminal behaviour must be denounced and deterred in very clear terms. ...

I am unable to conclude in these circumstances that a conditional discharge would be proportionate to the gravity of the offence and your degree of responsibility, given the level of, as I have said, sophistication, planning and deceit that is required to complete these crimes in these circumstances.

[Emphasis added.]

[24] I note that the agreed facts and evidence also included, (in addition to the considerations specifically noted by the trial judge in support of her conclusion), such matters as:

a. an acknowledgment that the appellant effectively received assistance from unidentified others who manufactured the fraudulent credit cards;

b. evidence that the appellant supported his attempted ruse by a feigned telephone call to his fictional travel companion; and

c. evidence that the ruse was detected only belatedly by an attentive VIA Rail employee noticing a disconnect between the information on the face of the card produced and the electronic information imprinted on its magnetic strip, (which in my view highlights the sophisticated nature of the appellant’s crime and the corresponding difficulty of its detection).

[25] In the circumstances, I think the agreed facts and evidence before the sentencing judge provided ample reasons for her finding that the particular conduct of the accused involved “sophistication, planning and deceit”.

[26]

Moreover, to the extent the sentencing judge gave any consideration to

the prevalence of such crimes, and any corresponding enhanced need for

denunciation and deterrence, doing so would not necessarily have

required resort to judicial notice. In that regard, it should be

remembered that, according to the agreed facts and evidence, the prior

successful use of fraudulent credit cards to process fraudulent railway

ticket refunds, (including use of fraudulent cards bearing the

particular name found on the fraudulent credit cards used and possessed

by the appellant), had been sufficiently problematic to prompt VIA

Rail’s circulation of a loss prevention memorandum to its various

stations.

[27] As for the suggested error made by the sentencing judge in relation to the appellant’s purported use of the “fake ID” later found in his possession, a review of the transcript confirms that there was indeed some confusion in that regard during the course of the sentencing hearing.

[28] In particular:

a. in his initial outline of the supposedly reviewed and agreed facts, Crown counsel indicated that the appellant used that false photo identification by holding it out to the VIA Rail employee;

b. the appellant then emphasized that he simply was asked if he had identification; (i.e., that the VIA Rail employee did not ask to see it and it accordingly was not shown, although it admittedly was in the appellant’s possession); and

c. Crown counsel then repeated his information, (noted by the sentencing judge), that the employee recalled the appellant having produced the photo identification.

[29] Despite this initial confusion, it seems clear that the sentencing judge then proceeded on the basis of the factual position asserted by the appellant, and not that asserted by the Crown.

[30] As noted in the passage quoted above, the reasons of the sentencing judge make reference only to possession and not use of the fake ID; i.e., to the appellant having it in his possession at the relevant time so that it “could be presented” to establish that he was the rightful owner of these fraudulently created credit cards. This was a consideration quite properly cited in support of the judge’s finding that the conduct of the accused was calculated, planned and deliberate.

[31] In the result, I am unable to find that the sentencing judge erred by improper regard to facts not agreed or in evidence, or by any apparent misapprehension of the facts.

Consideration of Relevant Factors

[32] I turn next to the appellant’s contention that the sentencing judge erred by “failure to consider a relevant factor”.

[33] In that regard, the appellant says the judge failed to consider whether failure to impose a conditional discharge would be contrary to the public interest insofar as it might inhibit the appellant’s ability to pursue a medical career.

[34] In my view, this submission suggests an inappropriate restricted focus on what constitutes “a relevant factor” in this case, and unfairly fails to acknowledge the matters clearly considered by the sentencing judge.

[35] The possibility of a conditional discharge is set forth in s.730(1) of the Criminal Code, which reads as follows:

730. (1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

[Emphasis added.]

[36] Leaving aside the limitations relating to organizations and offences punishable by certain minimum sentences, (neither of which applies to the case at hand), the two additional “relevant factors” expressly requiring consideration in this case, as mandated by the legislation, accordingly were stated to be:

i. whether a conditional discharge would “be in the interests of the accused”; and

ii. whether a conditional discharge would be “not contrary to the public interest”.

[37] The trial judge quite clearly and expressly addressed her mind to both of these relevant factors, as indicated in her following remarks:

I have strongly considered Ms Robern’s submissions for a conditional discharge and recognize that a conditional discharge is available for this offence and may be imposed if a sentencing court concludes that a conditional discharge would be in the best interests of the accused and not contrary to the public interest.

A conditional discharge of course is in your best interests. It allows you to proceed in life without having a criminal conviction. The real issue here is whether a conditional discharge would be contrary to the public interest. It is a condition precedent that the court must consider that a grant of discharge is not contrary to the public interest.

[38] Moreover, in approaching these factors, the sentencing judge clearly had regard to the appellant’s scholastic and career plans, including his intended pursuit of a career in medicine. In particular:

a. Her reasons repeatedly mention the appellant’s intended pursuit of a medical career, and expressly describe that as “a very positive goal” that the appellant apparently was “focused on achieving”.

b. She was alive to the possible negative impact that a criminal conviction might have on that career, and expressly acknowledged the relevance of such concerns to whether a conditional discharge would be appropriate 6.

c. She expressly considered the Court of Appeal’s decision in R. v. Kalonji, 2010 ONCA 111, [2010] O.J. 551 (C.A.), which upheld a finding that a public interest would be served by a conditional discharge, insofar as it would enable an accused to carry on charity work and facilitate an aspiration to be admitted one day to medical practice. The sentencing judge noted the obvious analogies to the situation of the appellant in that regard. 7

[39] Given those realities, I think it would be unfair to suggest that the sentencing judge failed to consider the factors relevant to granting a conditional discharge, including the possible impact of that determination from the perspective of the appellant and the public interest.

[40] At most, the appellant’s complaint must be that the sentencing judge attributed insufficient weight to the possible detrimental impact on the public interest of the appellant possibly being constrained in pursuing his medical career, or overemphasized her other stated concerns about the perceived need for denunciation, deterrence and a sentence proportionate to the gravity of the offence and degree of responsibility of the offender.

[41] Once again, however, the applicable standard of review and need for appellate deference must be kept in mind. As Laskin J.A. explained in R. v. McKnight (1999), 1999 3717 (ON CA), 135 C.C.C. (3d) 41 (C.A.), at pp. 53-54:

This court has held that overemphasizing a relevant factor or failing to give enough weight to a relevant factor may amount to an error in principle. This does not mean, however, that an appellate court is justified in interfering with a trial judge’s exercise of discretion merely because it would have given different weight or emphasis to a factor relevant to the sentence. To suggest that a trial judge commits an error in principle because in an appellate court’s opinion the trial judge gave too much weight to one relevant factor or not enough weight to another is to abandon deference altogether. The weighing of relevant factors, the balancing process, is what the exercise of discretion is all about. To maintain deference to the trial judge’s exercise of discretion, the weighing or balancing of relevant factors must be assessed against the reasonableness standard of review. Only if by emphasizing one factor or by not giving enough weight to another the trial judge exercises his or her discretion unreasonably should an appellate court interfere with the sentence on the ground that the trial judge erred in principle.

[Emphasis added.]

[42] In this case, having carefully reviewed the matter, I am unable to say that the sentencing judge exercised her discretion unreasonably, in the sense required.

[43] In my view, her reasons reflect a cautious and considered review of the appropriate principles and factors, and a concerted effort to balance the competing considerations having regard to the specific circumstances of the case before her.

[44] She clearly was not blind to the competing principles and considerations.

[45] She gave extended and meaningful reasons for her conclusion that the need for denunciation, deterrence and a sentence proportionate to the gravity of the offence outweighed other considerations, (such as rehabilitation and the best interest of the appellant), making a conditional discharge inappropriate in the circumstances.

[46] Nor can I find that the sentencing judge unreasonably overemphasized those particular public interest considerations at the expense of appropriate concern for the public interest in not hindering the appellant’s pursuit of a medical career.

[47] In that regard, I note that the judge provided numerous objective reasons for her view that that the need for denunciation, deterrence and a sentence proportionate to the gravity of the offence and responsibility of the offender were demonstrable and immediate concerns. In contrast, the appellant’s scholastic and medical career plans, and the corresponding possible negative impact a conviction might have on his rehabilitation or the public interest, inherently were somewhat speculative. 8

[48] On the whole, while I may have given different weight to the various considerations before the sentencing judge, that is not the standard of review. Her approach was not clearly “unreasonable”, and therefore is entitled to deference.

Fitness of Sentence

[49] For similar reasons, I am unable to characterize the appellant’s sentence as “demonstrably unfit”, in the sense required for appellate intervention and variation.

[50] As indicated at the outset of this analysis, numerous considerations in this case favoured the granting of a conditional discharge, and defence counsel understandably referred to authorities such as R. v. Kalonji, supra, R. v. Snyder, [2011] O.J. No. 4904 (O.C.J.), R. v. McIntosh, 2012 ONCJ 216, [2012] O.J. No. 1772 (O.C.J.), wherein more mature offenders, having stolen much more in monetary terms, breaching the trust of employers, were dealt with by way of conditional discharge.

[51] However, appellate efforts to minimize disparity of sentences also must be tempered by deference, having regard to the extremely subjective underlying realities.

[52] As emphasized by the Supreme Court of Canada in R. v. C.A.M., supra, at paragraph 92:

Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred. For these reasons, consistent with the general standard of review we articulated in Shropshire, I believe that a court of appeal should only intervene to minimize the disparity of sentences where the sentence imposed by the trial judge is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes.

[53] Further implications of the inevitable fact variations and subjectivity inherent in sentencing were outlined by our Court of Appeal in R. v. Ramage, 2010 ONCA 488, [2010] O.J. No. 2970 (C.A.), at paragraph 70:

Appellate deference to the trial judge’s sentencing decision makes good sense. Sentencing is a fact-specific exercise of judicial discretion. It is anything but an exact science. In the vast majority of cases, there is no single sentence that is clearly preferable to all others. Instead, there is a range of reasonable options from which the trial judge must make his or her selection. That selection is driven by the judge’s evaluation of the sentence that best reflects his or her assessment of the combined effect of the many variables inevitably at play when imposing a sentence. Absent the discipline of deference, sentence appeals would invite the appellate court to repeat the same exercise performed by the trial judge, with no realistic prospect that the appellate court would arrive at a more appropriate sentence. Appellate repetition of the exercise of judicial discretion by the trial judge, without any reason to think that the second effort will improve upon the results of the first, is a misuse of judicial resources. The exercise also delays final resolution of the criminal process, without any countervailing benefit to the process.

[54] Having regard to that profoundly subjective process underlying the formulation of sentencing orders, and the other reasons for deference noted above, the Supreme Court repeatedly has emphasized that an appellate court may vary a sentence on the basis of its being “demonstrably unfit” or “clearly unreasonable” only if it falls outside the “acceptable range” of orders, such that it is “manifestly excessive or inadequate”. 9

[55] In my view, the refusal to grant a conditional discharge in the circumstances of this case cannot reasonably be characterized in that way.

[56] As the sentencing judge emphasized to the appellant during the course of her reasons, the consequences of his guilty plea “could have been much more significant” than the sentence she imposed. In particular, after the Crown’s election to proceed summarily on the four counts in question, the maximum sentence the Court could have imposed on the appellant was a fine of not more than five thousand dollars, a term of imprisonment not exceeding six months, or both, on each count. 10 In the result, the sentence imposed was on the more lenient end of the spectrum of possible outcomes.

[57] As noted above, the appellant relies on numerous decisions suggesting, by way of analogy, that the even more lenient disposition of a conditional discharge was possible and appropriate in this case.

[58] However, these decisions exemplify the difficulty inherent in such comparisons, having regard to the subjectivity inherent in sentencing and the inevitable variation in underlying circumstances.

[59] For example, as noted above, the appellant relies by way of analogy on R. v. Snyder, supra, and R. v. McIntosh, supra, (which did not involve credit card fraud, but other fraud-related offences and theft over $5,000.00). Again, the offenders there were dealt with by way of conditional discharge, despite being far more mature than the appellant, (who arguably will suffer more from imposition of a lifelong criminal conviction than someone closer to the end of their days), and despite their crimes initially inflicting losses of a more substantial nature.

[60] Yet it seems to me that age considerations operate in both directions, as the offenders in the Snyder and McIntosh cases also were able to demonstrate, by reference to decades of previously unblemished and exemplary conduct, that their offences were completely out of character and unlikely to be repeated. Moreover, that conclusion was reinforced in both cases by evidence of extraordinary and extenuating circumstances helping to explain why the misconduct took place and why it was unlikely to happen again; (e.g., temporary stress and strain brought about by personal bankruptcy and a parent’s illness). In contrast, the appellant failed to provide any explanation for his conduct in this case.

[61] Such variations make it difficult to conclude that the different treatment received by the appellant should be regarded as “manifestly excessive”.

[62] I find the appellant’s reliance on R. v. Kalonji, supra, to be similarly if not more problematic in that regard.

[63] Pursuant to the Supreme Court authorities outlined above, appellate intervention to vary the sentence in the case before me effectively would require a finding that the failure to grant a conditional discharge was a “substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes”. 11

[64] However, such a finding seems inherently at odds with our Court of Appeal’s express emphasis, in R. v. Kalonji, supra, at paragraph 2, that a conditional discharge is “not absolutely excluded” for this type of offence, but “it will only be in the most exceptional case that a conditional discharge will be appropriate”. [Emphasis added.]

[65] In my view, failure to impose a sentence said to be at the permissible but intentionally rare extremity of the “acceptable range” cannot be regarded as a “substantial and marked departure” from that range, warranting appellate intervention.

Conclusion

[66] For the above reasons, I am unable to find that the sentencing judge committed an error in principle, ignored relevant factors, or imposed a demonstrably unfit sentence.

[67] The appeal accordingly must be dismissed.

Justice I.F. Leach

Justice I. F. Leach

Date: April 2, 2013