ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
COURT FILE NO.: 12-396-AP
DATE: 2014/03/17
B E T W E E N:
HER MAJESTY THE QUEEN
K. Nenniger, for the Crown
Respondent
- and -
RAHIM CHARANIA
D. Ives, for the Appellant
Appellant
HEARD: March 4, 2014
REASONS FOR JUDGMENT
[On appeal from the judgment of the Honourable Justice K. McKerlie]
A.J. GOODMAN J.
[1] This is an appeal against the sentence imposed by McKerlie J. of the Ontario Court of Justice on August 2, 2012.
[2] On May 30, 2012, after trial, the appellant was convicted of Mischief to Data and Unauthorized use of a Computer contrary to their respective provisions of the Criminal Code. The latter count was stayed pursuant to the principle in R. v. Kineapple. The appellant received a fine of $1,300.00 and was placed on probation for 18 months with terms including restitution.
[3] While the appellant initially raised an appeal against conviction, that application was abandoned at the outset of the hearing.
Position of the Parties
[4] The appellant submits that the learned trial judge erred in law in treating the manner in which he conducted his defence as a “significant aggravating factor” on sentence, and that the sentence imposed was disproportionate and unfit. The trial judge employed erroneous and irrelevant aggravating findings in her reasons for sentence. The appellant submits that this court can and ought to substitute a conditional discharge.
[5] Crown counsel submits that the fine and probation was appropriate in the circumstances of this case. Crown counsel submits that the trial judge did not commit an error in principle, did not ignore any relevant factors and did not impose a demonstrably unfit sentence. The Crown submits that to tamper with the sentence imposed would be inconsistent with the deference that is owed to sentencing judges. Crown counsel submits that the trial judge applied all of the relevant sentencing principles and was alive to the issue of whether a conditional discharge was appropriate in this case.
Background
[6] The facts in this case have been laid out in appellant’s counsel’s factum and I have been provided with the relevant transcripts of the proceedings.
[7] Briefly, the appellant was employed by the nursing home and had been discharged by management. Later that same evening, the appellant used Ms. Caven’s username and password to remotely access her email. Once in Ms. Caven’s email, the appellant forwarded several emails relating to their meeting and his employment with the nursing home to his personal email account. No other emails related to any other persons or entities were compromised.
[8] The appellant was already familiar with some but not all of the material he forwarded because it related to his specific employment duties. Meanwhile, Ms. Caven attempted to remotely access the system using her username and password to complete some work. She was repeatedly denied access and eventually locked out of the system. This lead to a complaint.
[9] The nursing home and the police started an investigation. The appellant admitted to the nursing home officials and the police that he had accessed Ms. Caven’s email and forwarded several emails to his personal email account. However, he claimed he did so because Ms. Caven had called him that evening and told him that there were documents in her email that he should see and she had provided him her username and password. The appellant also told the police he now knew he should not have done anything with Ms. Caven’s account and he meant no harm.
[10] At trial, Ms. Caven denied providing the appellant with her username and password. Her phone records were admitted as evidence and showed no calls to the appellant. She denied sending the email that the appellant claimed came from her that contained her username and password, as well as the email apologizing for “throwing [the appellant] under the bus”. The appellant testified and maintained his position that Ms. Caven had called him that evening and provided him with her username and password.
[11] The trial judge rejected the appellant’s testimony and was not left with a reasonable doubt. No phone call had been made, the appellant had no permission to use Ms. Caven’s username and password, the emails with the username/password were fabricated and the constituent elements of both counts were made out on the evidence. The trial judge found the appellant guilty of the offences charged, however, she conditionally stayed one count.
Legal principles:
[12] The scope of appellate review of sentences has been set out by the Supreme Court of Canada: R. v. M.(C.A.) (1996), 1996 230 (SCC), 105 C.C.C. (3d) 327 (S.C.C.). In R. v. Shropshire (1995), 1995 47 (SCC), 102 C.C.C. (3d) 193 (S.C.C.), Iaccobucci J. held that deference is to be accorded to trial judges on sentencing matters:
An appellate court should not be given free reign to modify a sentencing order simply because it feels that a different order ought to have been made. The formulation of a sentencing order is a profoundly subjective process; the trial judge has the advantage of having seen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation of that sentence should only be made if the court of appeal is convinced that it is not fit. That is to say, that it has found the sentence to be clearly unreasonable.
[13] In R. v. L.J., 2008 SCC 31, [2008] S.C.J. No. 31 (S.C.C.) Lebel J. confirmed the limited scope of review on appeals against sentence:
Owing to the profoundly contextual nature of the sentencing process, in which the trier of fact has broad discretion, the standard of review to be applied by an appellate court is one based on deference. The sentencing judge has ‘served on the front lines of our criminal justice system’ and possess unique qualifications in terms of experience and the ability to assess the submission of the Crown and the offender. In sum, in the case at bar, the Court of Appeal was required – for practical reason, since the trier of fact was in the best position to determine the appropriate sentence for L.M. – to show deference to the sentence imposed by the trial judge.
[14] There are two grounds of appeal at play here; whether the sentence was demonstrably unfit or whether there exists an overriding and palpable error. The appellant focused his argument on the latter ground.
Analysis
[15] It is clear that a reviewing court must consider the trial judge’s reasons as a whole and not cherry pick in order to arrive at a conclusion that there is an error in principle.
[16] On my reading of the judgment, McKerlie J. canvassed all the issues and addressed the applicable legal principles in her extensive reasons during the course of the sentencing hearing. As appellant’s counsel points out, there are several areas in the reasons where the judge addressed particular aggravating factors. Principally, there are two pages in the transcript where the appellant focuses her argument. The trial judge held at page 15:
The extent to which you made and then continued to maintain false allegations against Ms. Caven is a significant aggravating factor for sentencing. It brings into sharp focus a number of objectives of sentencing, including the need to denounce unlawful conduct, to deter you specifically from committing offences and to promote a sense of responsibility and an acknowledgment of the harm done to victims and to the community. In this case, Ms. Caven was a victim of the offence and the community includes the vulnerable population of the nursing home at which you were the former Director of Care.
[17] On page 16 of her reasons, the trial judge held:
I conclude that in these particular circumstances, including the extent of the false accusations made against Ms. Caven, a conditional discharge would, in fact, be contrary to the public interest and would be inconsistent with the fundamental purpose and principles of sentencing in the Criminal Code.
A conviction, a deterrent fine and probation are required to meet the principle of proportionality and to reflect your high degree of responsibility for the offence and its aftermath.
[18] The jurisprudence in Ontario sustains that the manner in which an accused’s defence is conducted cannot be treated as an aggravating factor on sentencing. As the Court of Appeal stated in R. v. Bradley 2008 ONCA 179, [2008] O.J. No. 955 at paras. 15-17:
The Appellant submits that the trial judge erred in treating the Appellant’s “fabricated” evidence as an aggravating factor. We agree. In his reasons for sentence, the trial judge stated (at p. 23):
Also a further aggravating factor in my view is that the offender lied and fabricated his evidence as I found it.
The Crown argues that this error is mitigated by the trial judge’s later statement that denial of guilt is not an aggravating factor. We do not accept this submission. The two statements relate to different matters. The latter is the express recognition that an accused person is entitled to maintain his innocence. The former relates to the manner in which the defence is presented. Neither can be treated as aggravating factors for the purposes of sentencing for the reasons given by this court in R. v. Kozy, 1990 2625 (ON CA), 58 C.C.C. (3d) 500 at 506:
Just as an accused should never apprehend that a penalty will flow from a plea of not guilty, there should also be no perceived impingement upon the manner of presenting the defence. This is so whether it be counsel’s viciousness in attacking a complainant or lies told by the accused. The latter may lead to its own penalty on a trial and conviction for perjury, but within the trial for the offence of sexual assault both rank as tactics for the defence, however ill conceived, and they are embraced within the right to full answer and defence...
[19] The appellant submits that the trial judge in this case committed the same error that occurred in Bradley and Kozy in finding that the Appellant’s manner of defence and his untruthfulness (that is, his assertion that Ms. Caven provided him with her username and password) was a “significant aggravating factor” on sentencing.
[20] Notwithstanding Ms. Ninniger’s able argument, I do not accept that the trial judge was merely mentioning the false allegations in balancing the aggravating and mitigating factors or referencing the evidence in support of the appellant’s request for a conditional discharge. From my reading of the transcript it appears that McKerlie J. seized on the appellant’s manner of defence and his evidence as an aggravating factor, which in turn helped formulate and increase the sentence. I am also convinced that the sentencing judge in considering the overall analysis under s. 718 of the Code, specifically referred to the continuation and maintenance of false allegations against Ms. Caven.
[21] Clearly, the Ontario Court of Appeal directs that an accused should never apprehend that a penalty will flow from a plea of not guilty, and there should also be no encroachment on the appropriate sentence to be imposed based upon the manner of presenting the defence.[^1] In this case, it is apparent from the reasons that the trial judge considered and adopted as an aggravating factor the appellant’s untruthful evidence at trial. As that approach is not only irrelevant for sentencing but clearly an error in law, it falls to this court to establish a fit sentence.
[22] Having found that there was an overriding error in principle, I must now turn to the issue as to whether the sentence imposed ought to be varied.
Discussion
[23] The test is not whether I would have imposed a different sentence. Rather, appellate intervention is limited to: where the sentence is found to be: demonstrably unfit, clearly unreasonable, outside the acceptable range failure to consider relevant factors or overemphasis of the appropriate factors, an appellate court should only intervene to vary a sentence if it is demonstrably unfit or where it exhibits a substantial and marked departure from sentences customarily imposed for similar offenders who have committed similar offences, or was clearly excessive or inadequate. An appeal court can also intervene where the trial judge applied the wrong principle(s) or failed to consider a relevant factor.
[24] A trial judge’s decision in sentencing an accused is entitled to deference.
[25] I have been referred to and have considered the cases provided by both counsel. The appellate courts in Ontario and elsewhere across Canada have recognized that a sentence of a conditional discharge can satisfy the needs of general deterrence and denunciation. As Dubin J. A. for the Court of Appeal in R. v. Meneses, 1974 1659 (ON CA), [1974] O.J. No. 736 stated (at paras. 10 & 12):
The argument that a conviction and fine against this accused must stand to effect a more apparent deterrent to others must give way when other considerations are more paramount, and when the broad view of the public interest is considered. In our opinion, the knowledge of speedy apprehension, arrest and trial should be an effective deterrent to persons such as the accused who may be tempted to commit such an offence….
It is always to be borne in mind that a person who is granted a conditional discharge does not go scot-fee after committing the offence. In this case the accused is subject to the terms of the probation order, and in the event that the terms of the probation order are met, she will have earned her discharge. If the terms are not met she may be brought back and sentenced for the offence, and a conviction will be recorded against her.
[26] Appellant’s counsel makes a very persuasive argument for such a disposition in this particular case. However, does Ms. Ives’ argument rise to the level that the sentence ought to be varied based on the narrow discretion afforded an appeal court? In other words, is this a case where, having found an overriding error, a reduction in the sentence is justified by intervention of this appellate court? Deference must be shown to the sentencing judge as sentencing is a subjective exercise.
[27] In this case, the appellant was 32 years old at the time of the offences and he is now 34 years old. He is married and has two children. At the time of the offences his wife was pregnant with their second child. He has strong family and community support. The appellant was under considerable stress personally and professionally during the time of the offences.
[28] The appellant’s actions resulted in the nursing home making changes to its IT security system. The appellant has already paid restitution in the amount of $1,200.00 to the nursing home for these costs.
[29] Here, the potential impact of a criminal conviction on the offender’s current and potential employment opportunities is a relevant consideration in deciding between a criminal conviction and a conditional discharge. Most recently, in R. v. Pham, 2013 SCC 15, [2013] S.C.J. No. 100, the Supreme Court of Canada reaffirmed the principle that “collateral consequences” are relevant when deciding between otherwise appropriate types of sentences for a particular offender. These collateral consequences may be considered under the principles of parity and rehabilitation of the offender but must be proportionate to the degree of responsibility of the offender.[^2]
[30] The appellant is a first time offender with no prior criminal record. He has a Bachelor of Science in Nursing, with a minor in healthcare administration and is studying for his Master’s degree. Prior to these offences he had a solid employment history and had contributed to the community through volunteer work.
[31] During the course of the hearing, I admitted the appellant’s affidavit and received letter from Mr. Hannigan, having been satisfied that the threshold for the receipt of fresh evidence had been met. The evidence discloses that as a registered nurse the appellant will face additional consequences for his conduct, apart from those imposed by the court, as he is subject to disciplinary proceedings by the College of Nurses of Ontario. While success for reinstatement is far from guaranteed, a conviction will not enhance his chances of success in that regard.
[32] Clearly, a sentencing judge must consider all of the circumstances of the offence and the offender in relation to the provisions of s.718 to 718.2 of the Criminal Code. In addressing the principles of parity and totality, a judge is required to reflect upon the offender’s role in the crime, his or her antecedents, among many other factors. While the jurisprudence suggests that the principle of parity and totality must be considered, in reviewing the decision of a trial judge an appellate court must be careful in comparing sentences of other offenders.
[33] Justice McKerlie was alive to the issue of a conditional discharge and the impact on the appellant’s future as a registered nurse:
I am mindful of the submission that you were required to complete a criminal record check in order to secure your current employment at the London Health Sciences Centre. I have considered the scope of this offence in relation to your positive plans and aspirations for the future. You clearly have great potential and have many positive attributes as an employee and a community volunteer. I place significant weight on those mitigating personal circumstances and the fact that you have no prior record. I have considered the potential impact of a criminal conviction on your future employment opportunities.
[34] However, in the next paragraph, the learned trial judge appears to have discounted the significance of the mitigating factors and had fallen into error by repeating and emphasizing the aggravating features of the appellant’s false accusation, which in turn was reflected in finalizing her position on sentence. Justice McKerlie held:
I conclude that in these particular circumstances, including the extent of the false accusations made against Ms. Caven, a conditional discharge would, in fact, be contrary to the public interest and would be inconsistent with the fundamental purpose and principles of sentencing in the Criminal Code.
[35] While the sentence imposed here was not demonstrably unfit or exhibited a substantial and marked departure from sentences customarily imposed for similar offenders who have committed similar offences, the error committed by the sentencing judge in promoting the appellant’s defence as an aggravating factor and again when considering the viability of a conditional discharge leads me to conclude that the sentence was increased on that basis.
[36] In my view, in the totality of the circumstances, a conditional discharge would not be contrary to the public interest. First, the nature of the offences is such that the principles of deterrence and denunciation can be satisfied by a conditional discharge. At no time did the appellant’s actions put the vulnerable population at the nursing home at risk or in harm’s way; albeit he wrongly and illegally accessed the email of one other employee on one occasion to look at information relating to his own employment. While the appellant’s actions caused Ms. Caven some distress, his actions did not place her job in jeopardy. I cannot lose sight of the fact that the appellant has also paid restitution to the nursing home, thereby rectifying some of the harm he caused. As the trial judge acknowledged, the appellant’s future employment in his chosen profession is a relevant consideration. The evidence advanced during this hearing supports the appellant’s “collateral consequences” and his significant personal circumstances in countenancing an opportunity to have the offender gainfully re-employed in his chosen profession and contributing to his family and society-at-large.
Conclusion:
[37] Having reviewed the Reasons for Sentence, I am persuaded that the trial judge’s reasons for sentence reflect an error in principle. For all of the aforementioned reasons, I conclude that in these particular circumstances, including the extent of the false accusations made against Ms. Caven and the particular circumstances of the appellant, a conditional discharge would neither be contrary to the public interest nor would be inconsistent with the fundamental purpose and principles of sentencing in the Criminal Code.
[38] Therefore, I grant leave to appeal against sentence and I allow the appeal.
[39] With respect to the s. 430(5) (b) count, I set aside the sentence of a fine and probation and impose a conditional discharge with nine months’ probation. The terms of the probation will comprise the statutory terms. The two optional terms include the payment of restitution of $1200.00 pursuant to s. 738 of the Code, (which has already been fulfilled); and 60 hours of community service to be commenced within 30 days of this order and to be completed at a rate of not less than 10 hours per month in consecutive months, at the direction and to the satisfaction of the probation officer. The appellant is to report to a probation officer within 72 hours of the release of this decision.
A.J. GOODMAN J.
Released: March 17, 2014
COURT FILE NO.: 12-396 AP
DATE: 2014/03/17
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
RAHIM CHARANIA
Appellant
REASONS FOR JUDGMENT
[On appeal from the judgment of the Honourable Justice K. McKerlie]
A.J. Goodman J.
Released: March 17, 2014
[^1]: Reference is made to Kozy, 1990 2625 (ON CA), [1990] O.J. No. 1586 at para 14.
[^2]: See also R. v. Kalonji, 2010 ONCA 111, [2010] O.J. No. 551 (C.A.)