ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: SCA(P)446/13
DATE: 2015-09-15
B E T W E E N:
HER MAJESTY THE QUEEN
Christina Sibian, for the Respondent
Respondent
- and -
AHMAD SAAD
Breana Vandebeek, for the Appellant
Appellant
HEARD: June 9, 2014
REASONS FOR JUDGMENT
Barnes, J.
[1] This is an appeal from sentence imposed by the Honourable Justice Maresca of the Ontario Court of Justice on June 26, 2013.
[2] The Appellant pled guilty to the charge of public mischief. Justice Maresca sentenced him to a conditional sentence of 14 days followed by a one year term of probation.
[3] The Crown sought a 14 day custodial sentence. The Appellant sought a conditional discharge.
[4] The Appellant appeals the sentence on the following grounds:
(a) The trial judge overemphasized the importance of deterrence in refusing to impose a discharge. As the Appellant was a youthful, first-time offender, general deterrence should not have been given substantial weight in crafting the appropriate sentence.
(b) The trial judge failed to apply the appropriate test in concluding that a discharge was not appropriate in the circumstances.
[5] On January 11, 2015, I ruled that the trial judge did not err and I dismissed the appeal. These are my reasons.
BACKGROUND FACTS
[6] At the time of the offence, the Appellant was an MBA student. He commenced a for-profit business as part of his academic program.
[7] The Appellant started a business involving long distance telephone cards. The Appellant invested $15,000 into the business. This represented 25 percent of the total funds he received through three years of his MBA program.
[8] The complainant is Mr. Mohammed. He worked for the Appellant. Mr. Mohammed sold the telephone cards throughout Toronto. He paid the Appellant for the phone cards he sold. The Appellant was able to track the phone cards sold by Mr. Mohammed. He determined that Mr. Mohammed was not paying him for the cards he had sold.
[9] The Appellant demanded payment. Mr. Mohammed refused to pay. The Appellant contacted and informed the police that Mr. Mohammed had threatened him with a gun. The Peel Regional Police tactical unit was dispatched to Mr. Mohammed’s house. A search of Mr. Mohammed’s house did not yield a gun. Mr. Mohammed was arrested and spent three hours in custody.
[10] Civilians were evacuated from the adjacent business by the tactical unit during their operations at Mr. Mohammed’s home. The operation cost approximately $3,337.42. Twenty-four police officers were involved in the investigation.
[11] The Appellant was interrogated by the police and after about three hours revealed that his allegations were false.
LAW
[12] Sentencing is an individualized process. Absent an error in principle, a failure to consider relevant factors or an overemphasis of the appropriate factors, considerable deference should be given to the determination of the sentencing judge. An exception to this is where the sentence is demonstrably unfit: R. v. McDonnell, 1997 389 (SCC), [1997] 1 S.C.R. 948 at para. 17; R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227 at paras. 24, 26 and 31; R. v. M.(C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500 at para. 90.
[13] It is an error in principle for a sentencing judge to focus almost exclusively on general deterrence when sentencing a youthful first time offender: R. v. Dubinsky, 2005 5668 (ON CA) at para. 1 (Ont. C.A.); R. v. Priest, 1996 1381 (ON CA), [1996] O.J. No. 3369 at para. 15 (C.A.).
[14] Pursuant to s. 730 of the Criminal Code, a discharge is available when the following criteria are met:
730(1) The offence does not have a mandatory minimum sentence and is not punishable by a term of fourteen years or life imprisonment.
(2) A discharge is in the best interests of the accused; and,
(3) A discharge is not contrary to the public interest.
[15] A discharge is in the best interest of the accused where the deterrence of the accused is not a relevant consideration in all the circumstances: R. v. Sanchez-Pino, 1973 794 (ON CA), [1973] 2 O.R. 314 (C.A.); R. v. Fallofield, 1973 1412 (BC CA), [1973] B.C.J. No. 559 (C.A.).
[16] Once a court is satisfied that a discharge is in the best interests of the accused the court must consider whether a discharge is not contrary to the public interest: R. v. Sanchez-Pino, supra.
[17] Each case turns on its specific facts and the circumstances of each offender. However, in circumstances where an accused intentionally sets in motion an unwarranted police investigation against an innocent party, out of some malicious or improper intent, denunciation and deterrence take on significant importance: R. v. Delacruz, 2010 ONSC 2060 at para. 27; R. v. Dhaliwal, 2011 ONSC 1010 at para. 67.
POSITION OF THE PARTIES
[18] The Appellant submits that the trial judge overemphasized general deterrence and gave it undue weight during sentencing.
[19] The Appellant submits the following mitigating factors: he is youthful, has no criminal record, there is no evidence he was involved in a criminal life style, was enrolled in a university program, has no family, had suffered a significant traumatic event, was enrolled in a business program, had exemplary letters of support, had pled guilty, had an exemplary volunteer history, criminal behavior was unusual for the Appellant, he was remorseful and has excellent prospects for rehabilitation.
[20] The Appellant submits that the trial judge overemphasised general deterrence in sentencing. The Appellant further submits that the trial judge failed to consider whether a conditional discharge was in the Appellant’s interest and whether a conditional discharge was in the public interest.
[21] The Crown argues that the trial judge properly considered all the circumstances of the case including the fact that the Appellant’s actions targeted an innocent person.
[22] The Crown submits that the trial judge was entitled to conclude that in circumstances where an innocent person is the target of the mischief, general deterrence is an important consideration. The Crown further argues that the trial judge considered whether a conditional discharge was in the interest of the Appellant and also in the public interest.
[23] The trial judge was very thorough in her reasons. The trial judge conducted a thorough review of the facts of the case, the aggravating and mitigating factors of the case and was alive to the sentencing principles described in ss. 718, 718.1 and 718.2, and legal principles governing the imposition of a conditional sentence.
[24] The trial judge also considered the fact that the Appellant was a youthful offender, as well as the effects of any sentence imposed on his prospects for rehabilitation. In fact, the trial judge was aware of the importance of crafting a sentence that would not adversely interfere with the Appellant’s rehabilitation.
[25] The trial judge did not make specific reference to the provisions of s. 730 of the Criminal Code. The trial judge focused a significant portion of her reasons in assessing whether a conditional sentence was appropriate. However, when her reasons are read as a whole, it is clear that she was alive to the fact that the Appellant was a youthful offender and that while a conditional discharge will be in his best interest, it would not be in the public interest given the fact that his actions adversely affected an innocent person.
[26] This was a case in which an innocent third party was adversely affected by the Appellant’s actions and it was open to the trial judge to recognise general deterrence as an important sentencing principle.
CONCLUSION
[27] When the trial judge’s reasons are considered as a whole, and while specific reference to the provisions of s. 730 of the Criminal Code may have been preferable, I conclude that the trial judge did not overemphasize general deterrence in sentencing and considered whether a conditional discharge was in the Appellant’s interest and whether a conditional discharge was in the public interest. Therefore, the Appellant’s appeal is dismissed.
Barnes, J.
Released: September 15, 2015
COURT FILE NO.: SCA(P)446/13
DATE: 2015-09-15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
AHMAD SAAD
Appellant
REASONS FOR JUDGMENT
Barnes, J.
Released: September 15, 2015