Court File and Parties

Court File No.: CR-24-100000039-00AP Date: 2024-10-22 Ontario Superior Court of Justice

BETWEEN:

HIS MAJESTY THE KING Respondent – and – CARLOS ZAMORA Appellant

Counsel: Maya Sengupta-Murray, for the Respondent Ben ElzingaCheng, for the Appellant

Heard: October 22, 2024

Before: Pinto J.

Reasons for Decision on Sentencing Appeal

Overview

[1] On April 4, 2024, the appellant pled guilty and was convicted in the Ontario Court of Justice (OCJ) of criminal harassment of his former intimate partner, and failing to comply with a release order. Defence counsel had requested a conditional discharge. Instead, Ray J., the sentencing judge, agreed with the Crown’s sentencing proposal and sentenced the appellant to a conditional sentence of 90 days and 21 months probation.

[2] The appellant appeals his sentence on two grounds:

(a) The sentencing judge placed undue emphasis on deterrence and failed to consider whether a conditional discharge was contrary to the public interest;

(b) The judge misapprehended the evidence such that she erred in determining the aggravating factors.

[3] The appellant requests that the sentencing appeal be granted and that a conditional discharge with 24 months probation be imposed on the same probationary terms as imposed by the sentencing judge.

[4] For the reasons that follow, I find no error in the sentencing judge’s decision. The appeal is dismissed and the conditional sentence and probation order of the sentencing judge is affirmed.

Background

[5] The appellant is a 40-year old Canadian citizen. He had no criminal record prior to the conviction in the OCJ. He is self-employed.

[6] The appellant pled guilty to one count of criminal harassment and failing to comply with a release order.

[7] The appellant and complainant were in a 7-month long relationship. They broke up in November 2021. They have no children and did not live together. The appellant admitted to attending the complainant’s house uninvited twice before his arrest on March 9, 2022.

[8] On February 13, 2022, the complainant sent the appellant an email telling him that she did not want anything to do with him and to stop contacting her and threatened to call the police if he persisted. On February 15, 2022, the appellant responded to say that he was embarrassed and would stop immediately.

[9] On March 9, 2022, the complainant and a friend were at a bar on College Street in Toronto when the appellant showed up. The complainant and her friend went to another bar to avoid the appellant. When their evening was over, and the complainant and her friend were returning to their vehicle. They noticed the appellant sitting in his vehicle parked next to the friend’s car. The complainant confronted the appellant and told him to leave her alone or she would call the police. The appellant drove away.

[10] The complainant and her friend went back to the friend’s residence. The friend observed the appellant driving in the area. The appellant later came and knocked on her door saying he just wanted to talk. The complainant became concerned about her safety and called 911. Police attended the area and located the appellant who appeared quite intoxicated. He was arrested.

[11] The appellant was released on March 10, 2022 with a condition not to contact the complainant. He called the complainant four times. There were two missed calls and two voicemails left. In the voicemails, the appellant asked the victim to drop the charges and stated that the charges had impacted him negatively.

[12] Before the sentencing judge, defence counsel acknowledged the facts on behalf of the appellant. Ray J. gave the appellant and his counsel the chance to review the synopsis in more detail as it became apparent that the appellant did not agree that he had visited the victim 10 times before the March 9, 2022 date. Instead, the appellant acknowledged and admitted that he had done so twice.

[13] The victim was present at the time of the conviction and sentencing and did not wish to provide a Victim Impact Statement.

The Law Concerning a Sentencing Appeal

[14] Appellate courts show substantial deference to the sentence imposed by the trial judge, and should only interfere where the trial judge has committed an error in principle, failed to consider a relevant factor, or erroneously considered an aggravating or mitigating factor such that it appears from the trial judge’s decision that such an error had an impact on sentence: R. v. Lacasse, 2015 SCC 64 at para. 44.

Analysis

[15] On the first ground of appeal, the appellant submits that the sentencing judge placed undue emphasis on deterrence and failed to consider whether a discharge was contrary to the public interest. A related but different way of looking at this ground of appeal is that the sentencing judge purportedly failed to consider whether a conditional discharge was an appropriate sentence.

[16] I disagree.

[17] The summary conviction judge made the following comments that indicate she was fully alive to considering a conditional discharge:

And so first, I have been asked or reminded, we are supposed to consider it in every case, I have been reminded to consider the discharge provisions of the Criminal Code and except for when they exceed a certain sentence, I am supposed to consider them in any case. But I have been reminded to consider those provisions in your case.

[18] The judge specifically indicated that the appellant was the type of candidate who might qualify for a conditional discharge since he was gainfully employed, and a contributing member of society who hitherto had no criminal record. The judge added, “and I certainly do have to take that into account.”

[19] The judge then noted, “[a]nd the criteria in the law that I have to consider before I would agree to a discharge, and in your case a conditional discharge, is whether it is in your interest and whether it is contrary to the public interest.”

[20] The trial judge then pivoted to her main point about whether, notwithstanding the appellant being a candidate for discharge, the principles of sentencing pointed towards the necessity of a conviction. Here, the judge stated:

The other one, whether it would be contrary to the public interest, we look at all the principles of sentencing. And generally, if we think that a conviction is necessary in order to discourage you and others, and in your case it is the others that I am more concerned about from committing these offences, then we have to impose the conviction.

[21] Ultimately, the sentencing judge held that, “[a]t the end of the day, I am going to decide that it would be contrary to the public interest not to impose a conviction. So, I am not going to be imposing a conditional discharge.” In other words, tracking the wording of section 730(1) of the Criminal Code, the sentencing judge determined that, while it would be in the appellant’s interest that he receive a conditional discharge, it would be contrary to the public interest to impose such a sentence. The Code merely requires that the public interest not be negatively impacted in some way by the imposition of a discharge: R. v. May, 2012 ONSC 6797 at para. 16.

[22] The sentencing judge went on to refer to several factors that grounded her decision for why a conviction was necessary and why a conditional discharge was inappropriate:

(a) This was a case where the appellant admitted to criminally harassing his former intimate partner. Section 718.2 (a)(ii) of the Criminal Code specifically requires sentencing judges to consider such evidence. The judge also referred to “the prevalence of this kind of offence in the community” and the need to discourage others from doing it.

(b) The judge noted that the appellant also pled guilty to breaching his condition of release.

(c) There was repeat unwelcome contact.

(d) There was forethought and lack of spontaneity inherent in the criminal harassment and a high degree of responsibility on the part of the appellant, albeit mitigated partially by the possible influence of alcohol.

(e) The appellant tried to dissuade the complainant from testifying. I will have more to say about whether this was a fair characterization of the evidence.

[23] Accordingly, I find no error committed by the trial judge since she certainly considered the possibility of a conditional discharge, articulated that she had done so, but ultimately determined that a conviction was necessary in all the circumstances of this case.

[24] With respect to the second ground of appeal, the appellant submits that the sentencing judge misapprehended the evidence in two areas such that she erred in determining the aggravating factors:

(a) The first, concerning how many times the appellant contacted the complainant before March 9, 2022; and

(b) The second, where the sentencing judge found it “very, very aggravating” that the appellant tried to “dissuade [the complainant] from testifying.”

[25] In respect of the first area, the appellant relies on an exchange between defence counsel and the sentencing judge where it appears that the judge may have become somewhat confused about the evidence:

Ms. Fava (Defence counsel): [The appellant] says he attended twice. And that after he was told not to go there. Court: Right. Ms. Fava: So, not 10 times. Court: So, those other attendances were before, is that what he says? Ms. Fava: Well, he’s not – he – well, he was… Mr. Zamora: That was before. Ms. Fava: Yeah, before – just a minute. Court: Yeah, the others were before because he does recall – you said he does recall attending prior to the arrest date, but not sure how many times? Ms. Fava: Yeah, so after she made it clear that she did not want see (sic) him… Court: Yeah, twice. Ms. Fava: …on two occasions, yeah. Court: Mm-hmm. But he did go. Ms. Fava: Yes. Court: Before, and not sure how many times? Ms. Fava: Yes. Court: Okay, very well. I’m glad that that’s all clear because I have to make decisions based on clear either admission of facts or proof of facts.

[26] The appellant submits there was ambiguity in what facts were being accepted by the sentencing judge about how many times the appellant visited the complainant before March 9, 2022.

[27] The companion piece to the above evidence is later on in the sentencing judge’s reasons where she states:

And so, repetition is an aggravating factor. I appreciate that I cannot consider that it is as much repetition as I originally heard. And I certainly take into account the modified facts in that circumstance.

[28] While I agree with the appellant that the sentencing judge did not base her decision on a firm number as to how many times the appellant visited the complainant before March 9, 2022, the judge’s ultimate conclusion – that there was repetition – was not incorrect, nor was it an error for her to conclude that this repetition was an aggravating factor on sentencing.

[29] With respect to the second example, the appellant submits that the judge misapprehended the evidence concerning the messages that the offender left on the complainant’s voice mail which led to the judge to unfairly characterize the messages as an aggravating factor on sentencing. On the particular voicemail, which was about five minutes long, the appellant asked the complainant to drop the charges, told her how the charges were impacting his life, and begged her to drop the charges.

[30] I do not agree that the sentencing judge was wrong to call what the appellant admitted to doing as “dissuading [the complainant] from testifying”. He may not have explicitly told the complainant to not testify, but he did beg her to drop the charges and explained the impact that the charges were having on his life. It was reasonable for the sentencing judge to describe the appellant as dissuading the complainant from testifying.

[31] In effect, in respect of the second ground of appeal, the appellant is asking me to reweigh the evidence and come to a different conclusion on aggravating factors than did the sentencing judge. I am not prepared to do so.

Conclusion

[32] Having found no errors, the sentencing appeal is dismissed and the conditional sentence and probation order of the sentencing judge are upheld.

Pinto J. Released: October 22, 2024