Not so Endless Summer(s)

Mr Abdullahi was convicted after a trial of four offences relating to the possession of loaded restricted firearm. The only issue at trial was whether the accused was in possession of the firearm; he claimed he was not. The trial judge rejected the accused’s evidence and convicted him of the offences before the court. At the time Abdullahi was found to be in possession of the loaded restricted firearm he prohibited from doing so.

The trial judge imposed a global sentence of 6 years. The breakdown of the sentence was as follows:

  • Count 1:  Possession of a loaded restricted firearm (s. 95(1)):  4 years;
  • Count 3:  Possession of a firearm knowing its possession is unauthorized (s. 92(1)):  1 year consecutive to the s. 95(1) charge; and
  • Counts 4 and 5:  Possession of a firearm and possession of ammunition while prohibited:  1 year consecutive to the s. 95(1) and s. 92(1) sentences, but concurrent to each other.

Quigley J credited Abdullahi at a rate of 1.5:1 for 72 days of presentence custody as those days the offender was held in very crowded conditions. Abdullahi received no credit for the remaining 448 days of presentence custody.

Abdullahi appealed conviction and sentence.

The appellant’s main argument on the sentence appeal was that the trial judge erred in his assessment of the credit for pre-sentence custody. The Court of Appeal rejected that argument: 2015 ONCA 549.

In dealing with this argument the Court of Appeal noted first, that the sentencing judge did not have the benefit of the Supreme Court’s judgment in Summers, 2014 SCC 26.

The Court of Appeal briefly reviewed the principles in Summers and summarized them as follows:

First, the quantitative rationale for an enhanced credit is grounded in the loss of eligibility for early release and parole during pre-sentence custody.

Second, the qualitative rationale for an enhanced credit is to be applied to account for the relative harshness of the conditions in a detention center.

The Court of Appeal noted that the trial judge correctly applied the qualitative rationale in accounting for the harsh conditions during the 72 days where Mr Abdullahi shared a cell with two others.

The Court then noted that although loss of eligibility for early release is generally sufficient to grant enhanced credit it does not mean that such a credit is automatic. In fact, the specific circumstances of a particular offender may result in an adjustment or even denial of such a credit.

The Court held the following:

As observed in Summers, at para. 71, the quantitative rationale, that is loss of eligibility for early release and parole, will generally be a sufficient basis upon which to award credit at 1.5:1.  The credit is not, however, automatic.  If the circumstances of a specific offender render the possibility of early release or parole highly unlikely, then a trial judge can adjust, or even refuse enhanced credit:  Summers, at paras. 71, 79; R. v. Nelson, 2014 OJ. No. 5729, at para. 51-53. @para 18

In Mr Abdullahi’s case the Court noted that:

To assist in the proper application of Summers, this court received a report from the Ministry of the Solicitor General and Correctional Services outlining the appellant’s conduct since his incarceration of these charges.  His conduct could hardly be worse.  Unfortunately, his conduct since incarceration clearly demonstrates that he continues to engage in serious criminal and anti-social conduct even while in custody.  There is no realistic possibility that the appellant will be given any form of early release or parole.  Applying the quantitative rationale underlying enhanced credit for presentence custody, the appellant is not entitled to any credit beyond 1:1 credit. @para 19

As such even though the sentencing judge did not have the benefit of the decision in Summers, the Court of Appeal found no error in the allocation of the credit for pre-sentence custody.

This decision serves as an important reminder that the enhanced credit is not automatic but requires a quantitative and qualitative analysis, based on a sound evidentiary record, to be undertaken by the sentencing judge. 


Parity does not mean Equal

Sahota participated in a prison riot. He was part of a group that attacked another smaller (in numbers) group at the Joyceville Prison. Ultimately, the attack focused on a single victim who was beaten severely. Sahota’s involvement in the attack was viscous and “substantially in excess of anything done or even attempted by the other inmates” [@para 2].

Sahota participated in the initial attack, he then returned to the victim who lay bloody and unconscious on the floor. Armed with a pool cue, Sahota speared the victim in the groin. He pulled down the victim’s pants and speared him again in the genitals with the pool cue. He spat on the victim and stomped on him before leaving the room [@para 3].

Sahota was charged with attempted murder but plead guilty to the lesser and included offence of aggravated assault. The Crown sought a sentence of 8 to 10 years; the defence sought a term of imprisonment of 3 ½ to 5 years. The sentencing judge imposed a sentence of 7½ years less 45 days of pre-sentence custody. Sahota appealed: 2015 ONCA 336

The sentencing judge had heard and sentenced the other offenders involved in the attack. Sahota argued that the sentencing judge failed to properly apply the principle of parity  as required by section 718.2(b) of the Code.

In dismissing the appeal the Court held that “this principle is one of parity, not equivalence” [@para 6].  The Court explained that “the principle of parity means that any disparity between sentences for different offenders in a common venture requires justification” [@para 7]. In this case the actions of the offender in returning to the room, delivering blows to the unconscious and injured victim, and spitting on the victim clearly set this offender apart. The fact that the other offenders were sentenced on the basis of joint submissions:

did not compel [the sentencing judge] to impose an equivalent or near equivalent sentence on the appellant for an offence that reflected a significantly greater degree of  moral blameworthiness. [@para 8]

Before concluding the Court of Appeal noted that:

it was not inappropriate for a trial judge to consider that a guilty plea in the face of an overwhelming case may not be accorded the same weight as one in which an accused pleads guilty and gives of significant litigable issues. [@para 9]

In Sahota’s case the evidence of his involvement was overwhelming, whereas the identity of the individuals who participated in the initial attack was less clear and as the Court of Appeal put it each of them “may have challenged the Crown’s case on identification.”  [@para 9]


Ice Caps & Stupefying Substances: inferring and denouncing high doses

Mullins was convicted of sexual assault and administering a noxious substance. The young victim was 18 at the time of the offence and a close friend of Mullins’ daughter. Mullins elected to have a trial in the Superior Court of Justice before a judge and no jury. Mullins was convicted; in the reasons for sentence, 2015 ONSC 1724, Molly J summarized the crimes as follows.

Using his daughter’s upcoming birthday as a ruse to enlist the help of AS, the victim, to shop for a gift, Mullins lured the victim into his truck. He offered her an iced cappuccino and a marijuana cigarette – one or both of which was laced with enough benzodiazepines to knock her out.

For over 12 hours he held her in the truck, brutally and violently raping her. When he was done, he dropped her off at her father’s home, beaten and still feeling the effects of the drugs. AS had little recollection of the vicious and prolonged attack; she testified of flashes of memory which involved a bed, a shower and Mullins’ voice.

Once home AS was still weak and disoriented. She was covered in injuries she could not recall having sustained.

The most significant injuries were the bruising and abrasions to both hips, the extensive bruising at the front of both feet, and the jagged tear at the entry to the vagina.  The vaginal injury had long term sequelae, including an infection and problems that were ongoing even as of the date of trial, five years after the attack. [@ para 8].

Mullins’ semen was in AS’ vagina and had prescriptions for 2 of the 3 types of benzos AS had been drugged with. 

Mullins testified in his own defence; his evidence of consensual sexual encounters with AS was unequivocally rejected.

The Crown sought a penitentiary sentence in the upper single digits. The defence proposed a range of 3-6 years.

Molloy J noted that there were no strong mitigating factors [@para 17]. There were however a large number of particularly aggravating factors.

One of the disputed factors was whether Mullins was in a position of trust in relation to AS. After reviewing the governing principles Molly J held that:

in assaulting A.S. as he did, Mr. Mullins abused his position of trust in relation to her.  There are no air-tight compartments as to what may constitute a position of trust.  The factual context is the most important part of the analysis.  Mr. Mullins was 47 years old at the time of this offence; nearly 30 years older than A.S.  He was the father of her close friend, and A.S. thought of him in that sort of parental role.  He had no actual authority over her, but she frequently spent nights and weekends at his home with her friend Katlyn, and in that sense was from time to time under his control.  He befriended her at a time when he knew she was particularly vulnerable due to the breakdown of her parents’ marriage.  He gave her gifts, joked around with her, shared marijuana with her, and their relationship evolved into one where she trusted him.  It was as a result of that trust that he was able to lure her into his truck with a story about shopping for a birthday present for his daughter.  Completely unsuspecting and having absolute trust in her friend’s father, A.S. was tricked into a position of vulnerability and then horribly abused.  In my view, these circumstances fall squarely within the notions of “trust” referred to in Audet, and within the purpose and intention of this sentencing provision in the Criminal Code. @para 26

An additional aggravating factor in this case was the endangerment of AS’s life through the use of drugs to perpetrate the assault. Notwithstanding the fact that there was no way to establish from the tests done on AS which specific drugs were administered nor in what dosage, Molloy J used the unchallenged evidence of the forensic toxicologist to draw a number of conclusions:

First, the greater the dosage of benzodiazepines, the greater the possibility of anterograde amnesia.

Second, in excessive quantities benzodiazepines cause on a spectrum, drowsiness, lack of consciousness, coma and can be fatal.

Third, since AS lost consciousness so quickly it is likely that initial dose was high.

Fourth, since she had no memory of what occurred over the span of 12 hours and given the extent of the injuries, the initial dose must have been “extraordinarily massive or else subsequent doses were administered”. [@para 35]

Fifth, although not possible to say whether AS was comatose or just how close to death she came, Mullins endangered her life with his administration of such a high dose or doses. This is a “seriously aggravating factor” [@para 36].

Molloy J also treated the fact that the intercourse was unprotected as an aggravating feature as it left her vulnerable to disease and pregnancy. [@para 39].

After reviewing a number of sentencing decisions Molloy J concluded that a fit sentence was one of 9 years on the sexual assault and 4 years to be served concurrently on the administering of a stupefying substance.

Molloy J held that:

sexual assault is often, by its nature, a difficult offence to prove because it is committed in private and rarely has corroborative evidence.  The use of drugs to stupefy the victim of a sexual assault frequently results in a victim who believes she has been abused but is unable to describe what has happened to her because her memory is completely missing.  Often by the time she gets to a hospital there is no longer any trace of the drug in her system, which makes it an even more difficult case to prove.  Not only are assaults committed in this manner difficult to prove and therefore attractive to their perpetrators, they are also extremely dangerous for the victims.  For this reason, general deterrence is of particular importance in sentencing crimes of this nature. @para 68


Jumping to address growing recognition of gun crime

Abdiaziz Omar had a loaded 357 Taurus revolver. The police found him in possession of it, contrary to section 95 of the Code. He was carrying it around in his SUV, “concealed in a compartment under the cup holder in the centre console”. He was charged. He pleaded guilty. The sentencing judge noted, inter alia, that Omar posed “an immediate danger to the public”. Omar was sentenced to 6 years in jail. He appealed: 2015 ONCA 207.

Omar argued that the trial judge erred in his application of the “jump principle” and consideration of rehabilitative prospects. In considering this submission, the court noted the following:  (i) Omar had previously been convicted of the same offence (and other offences) for which he received a sentence of 6 and ½ months in jail; (ii) this first penitentiary sentence; (iii) Omar sought a sentence of four to five years jail.

While there were rehabilitative prospects and the sentence was a significant increase, the Court of Appeal noted that the trial judge was alive to these issues, citing the following passage from the trial judge’s reasons:

[H]owever, I think in the circumstances it may not adequately reflect the accused’s prospects for rehabilitation, particularly in light of the support of his family and friends in the community. I must also be cognizant of the ‘jump principle’. I must also consider this is Mr. Omar’s first penitentiary sentence and I must avoid imposing a crushing sentence, but a sentence still that will adequately address the paramount concerns of denunciation and deterrence.

The Court of Appeal dismissed the appeal. The trial judge made no error in principle and the sentence was fit. In conclusion the court noted that the range of fit sentences for this offence is “most significantly affected by growing judicial recognition of the reality of gun crime, as it should be” [@8].


Parity is not considered in isolation

Christopher Uniat was 18 years old. He decided to do a home invasion with some friends. He carried a shotgun with him. Once in the home Uniat held the occupants at gun point. He threatened to shoot them – the gun was in fact not loaded. Uniat was arrested and charged with robbery and conspiracy to commit robbery. He pleaded guilty to both charges. The sentencing judge imposed a sentence of 7 years jail. Uniat appealed: 2015 ONCA 197.

On appeal Uniat argued that the sentencing judge erred by failing to properly apply the principle of parity and placing too little weight on rehabilitative prospects of Uniat. Both grounds were readily rejected.

First, the principle of parity was not offended; while Uniat received a sentence in excess of his co-accused, it was warranted and his circumstances and involvement justify the departure.

The principle of parity does not require equivalent or near equivalent sentences to be imposed on all participants in a joint venture, irrespective of their role in the offence, their backgrounds and circumstances, and the manner in which their participation in the offences is resolved by the courts. The other principals were also youthful, but resolved their charges earlier on the basis of joint submissions. None had accumulated the impressive number of robbery convictions achieved by the appellant, or demonstrated such an unremitting unwillingness to abide by the terms of court orders or forms of release. The sentencing judge was well aware of the roles assigned to the others, their antecedents and the basis upon which their cases were resolved. The parity principle was not offended. [Emphasis added]; [@6].

Second, the sentencing judge did not lose sight of the objective of rehabilitation. Uniat’s troubling criminal past and failure under court orders undermined reliance on rehabilitation to justify a decrease in sentence.

Nor did the sentencing judge lose sight of the objective of rehabilitation. But sadly there is little positive revealed about those prospects. The appellant has proceeded with depressing regularity from one robbery to another, ignoring along the way his obligations under existing court orders. The pre-sentence report paints a bleak picture about the future. The appellant exhibits no remorse. Despite his youth, rehabilitation must occupy a secondary place in this sentencing analysis. The sentencing judge accorded it its due. [@8].

The sentence imposed by the sentencing judge, L’Oignon J, was fit and properly considered the relevant principles. The seven year sentence is significant for an 18 year old offender, but properly considered, it was warranted and just.


Cutting No Slack on Quantum in True Crime Sentencing

Andre O’Mar Slack was sentenced to eight years imprisonment in a federal penitentiary for weapons-related offences. His convictions included the possession of a loaded restricted firearm, and the unauthorized possession of a firearm – contrary to sections 95(1) and 91(1) of the Criminal Code. His 95(1) conviction was stayed in accordance with Kienapple.

Slack appealed from sentence based on two grounds.

First, Slack argued the sentencing judge erred in failing to grant enhanced credit at the rate of 1.5:1 for pre-sentence custody.

Second, Slack argued the sentencing judge erred by using the five-year mandatory minimum sentence set out in s. 95(2) of the Code as a “sentencing floor”, when the mandatory minimums in both R v Nur, 2013 ONCA 677 and R v Charles, 2013 ONCA 681 (both cases subsequently heard and reserved on November 7, 2014 at the Supreme Court of Canada) were held to unconstitutional [paras 5-6].

Slack’s first ground of appeal was successful. Based on Slack’s institutional conduct, the sentencing judge had declined to grant any enhanced credit for pre-sentence custody, finding that enhanced credit was not necessary to achieve a fair sanction based on the Court of Appeal’s decision in R v Summers, 2013 ONCA 147. However, the sentencing judge did not have the benefit of the Supreme Court’s decision in Summers (2014 SCC 26). Writing for the Supreme Court, Karakatsanis J outlined that pre-sentence custody is generally sufficient to give rise to the inference that the offender has lost eligibility for parole or early release, which in turn justifies enhanced credit. It falls to the Crown to challenge this inference. The Crown can advance such a challenge by demonstrating that the offender’s bad conduct renders it unlikely that parole or early release will be will be granted: see Summers, supra and R v Houlder, 2014 ONCA 372 [para 10-15].

Here, it fell to the Crown to counter the available inference. While Slack had three documented incidents of misconduct during his pre-sentence custody, the Court of Appeal concluded the sentencing judge fell into error by denying enhanced credit based solely on this evidence. Slack’s institutional record was thin, and the Crown was unable to demonstrate such misconduct would disentitle him to parole or early release. Further, the authority to deny statutory release is narrow, and unlike the regime which applies to provincially-incarcerated inmates, loss of credit towards early release is not a sanction that may be imposed for misconduct under the Corrections and Conditional Release Act (CCRA). The minor incidents which took place in pre-sentence custody did not give rise to the type of reasonable grounds required to demonstrate a denial of parole ineligibility or early release [paras 16-20].

Although the Court of Appeal set aside the sentencing judge’s determination of credit and substituted credit to be granted at 1.5:1, Slack’s second ground of appeal failed, regarding the quantum of sentence imposed.

The Court of Appeal clarified that while the mandatory minimums in Nur –three years for a first conviction under s. 95(1) – and the companion case Charles –five years for a second or subsequent conviction under s. 95(2)(a)(ii) and s. 95(1)– were both struck down, nothing in those cases displaced the developed sentencing range applicable to offenders convicted of a second or subsequent s. 95(1) offence. Both Nur and Charles affirm that offenders convicted of “truly criminal conduct” in relation to firearms offences must receive exemplary sentences that emphasize deterrence and denunciation [para 23].

Slack’s case was just that: one of true crime. It was his second s. 95(1) offence. He had a lengthy criminal record, which included convictions such as the use of an imitation firearm during the commission of a robbery, assault, trafficking in a scheduled substance, and breaching a firearm prohibition order [para 24].

Further, the Court highlighted that Slack was in unauthorized possession of loaded, restricted firearm in circumstances that posed a real and immediate danger to the public. The gun was readily accessible in an unlocked, running car; which Slack had abandoned in a public parking lot, in broad daylight. Given his serious and lengthy record, the nature of the predicate offences, and the four-year sentence received for his first s. 95(1) offence, the Court of Appeal concluded that Slack’s conduct could only be viewed as falling at the “true crime” end of the s. 95(1) spectrum discussed in Nur and Charles. The convictions cried out for a substantial penitentiary sentence [paras 25-26].

For these reasons, there was no basis to interfere with the eight year sentence imposed by the sentencing judge for the firearms-related offences. Therefore, the Appeal was only granted in part, with respect to the pre-sentence custody.


This case highlights that the impact of the Summers decision on the granting (and challenging) of enhanced credit is necessarily different depending on whether the offender is serving a provincial or federal sentence - different regimes govern early release. Still, while Slack was found to be entitled to this credit, the Court was unequivocal that the quantum of sentence imposed was justified given the “true crime” nature of both the offences, and Slack’s consistent pattern of criminal conduct. The striking down of the mandatory minimums in Nur and Charles, which the Supreme Court has yet to rule on, does nothing to negate the often serious penitentiary sentences required in cases such as these.


Manslaughter & Sentence: Riskiness is Aggravating

Toronto florist Felicia Hosany died a horrific death at the hands of Nevin Joseph and Andre Clarke. The two men stormed Hosany’s flower shop in the winter of 2008. They were wearing masks, and their purpose was to rob her. During the attack, Clarke bound Hosany’s entire face so tightly with duct tape that she died of suffocation.

A jury convicted Clarke of manslaughter. Dambrot J, of the Superior Court of Justice, sentenced Clarke to a global sentence of 18 years imprisonment, less pre-trial custody. Clarke appealed from both conviction and sentence: 2014 ONCA 777.

With respect to his sentence appeal, Clarke advanced two arguments.

First, Clarke argued that the trial judge erred by attributing a specific state of mind to him – recklessness as to the likelihood of death – that was at odds with the jury’s verdict of manslaughter.

Second, he argued that a sentence of 18 years was outside the typical range for manslaughter [para 15].

Concerning the first argument, Clarke submitted that the jury must have accepted only one of two facts in reaching their verdict: that Clarke either did not bind the victim, or, that he bound her, but left a hole in the duct tape for Hosany to breathe through [para 16].

The Court of Appeal rejected these submissions. At trial, Dambrot J concluded that “the circumstances of the case lead…inexorably to the view that while the offender did not know that what he was doing was likely to cause death, he did know that what he was doing put her at risk of death – but he did not care” [para 18, emphasis added]. The Court of Appeal concluded the trial judge was permitted to make such a finding, and did not err in citing Clarke’s knowledge of the risk of death as an aggravating factor [paras 18-19].

Clarke’s acquittal from first degree murder implicitly demonstrated that the jury was not satisfied beyond a reasonable doubt that Clarke either intended to kill the victim, or that he knew that what he was doing was likely to cause death. As such, these conclusions would not have been open for the trial judge to reach [para 21].

The mens rea for manslaughter is the objective foreseeability of the risk of bodily harm, which is neither trivial nor transitory, in the context of a dangerous act. Foreseeability of the risk of death is not required: R v Creighton (1993), 83 CCC (3d) 346 (SCC). Although a foreseeability of the risk of death is not required, such a mental state is not precluded for a manslaughter conviction [para 24]. In fact, as what occurred in this case, the foreseeability of the risk of death can be an aggravating factor in the imposition of a harsher sentence for manslaughter [para 24].

The Court of Appeal accordingly concluded that the trial judge was entitled to make such a factual finding. Further, in using the term “inexorably”, it was clear to the Court of Appeal that Dambrot J was satisfied of this factual finding beyond a reasonable doubt, as is required for aggravating factors upon sentence [para 25].

Concerning the second argument, the Court of Appeal concluded that the trial judge gave extensive and compelling reasons for the sentence imposed. While it was outside of the “normal range”, it was not demonstrably unfit. The trial judge was entitled to deviate from the range, based on circumstances that distinguished this case significantly. The offence was one of extreme gravity; Clarke was an offender of high moral culpability. There were callous, aggravating features, including the horrifying and intimidating treatment of the victim [para 31, 34 and 37].

For these reasons, Clarke’s sentence appeal was dismissed. The trial judge did not err in the crafting of his sentence. A global sentence of 18 years imprisonment, less pre-trial custody, was upheld.


Denouncing Animal Cruelty

Craig Wright abused six dogs over a period of 17 months, while operating a dog training business in Oshawa. After a trial Mr. Wright was convicted of five charges of animal cruelty and one charge of neglecting an animal.

The trial judge imposed a suspended sentence and gave Mr. Wright 95 days of credit for pre-sentence custody. The trial judge also ordered a section 447.1 prohibition order, prohibiting Mr. Wright from having control or possession of an animal for five years. However, the trial judge refused to prohibit Mr. Wright from residing with an animal. Mr. Wright owned a dog and the trial judge was concerned that a prohibition against living with an animal would punish his wife and children.

On appeal, the Court of Appeal allowed the appeal and varied Mr. Wright’s sentence: 2014 ONCA 675. In a brief endorsement the Court found the trial judge’s sentence to be “manifestly inadequate,” imposed a nine month jail sentence, and varied the prohibition order to prohibit Mr. Wright from residing with an animal:

Having regard to the gravity of the specific charges, the number of convictions, the respondent’s criminal record which demonstrates both a propensity for violence and a disregard for judicial orders (the appellant was on probation at the time of these offences), the respondents abject failure to accept the criminality of his conduct and the amendments to the Criminal Code in 2008 which signal an added determination by Parliament to deter and punish those who would engage in acts of cruelty to animals, we think the sentence was manifestly inadequate.
In our view, further incarceration was required. We would impose a sentence of nine months. Given the appellant credit for three months presentence, he has six months to serve.
We would vary the 447.1(1)(a) order to include a prohibition against “residing” with any animal or bird. [at paras 1-3]

One of the issues argued in this appeal was the significance of amendments to the Criminal Code that increased the maximum sentence for animal cruelty. Parliament amended the animal cruelty provisions of the Criminal Code in 2008, raising the maximum sentence to imprisonment for five years.

The Court of Appeal recognized that increasing the maximum penalty for animal cruelty offences signalled Parliament’s intent to denounce and deter animal cruelty. The Court considered Parliament’s intent as one of the factors supporting further incarceration in this case.

On this point, the Court of Appeal echoed the recent decision of Justice Alder in R v Helfer, [2014] OJ No 2984 (OCJ):

This type of behaviour must be denounced. When parliament enacted the changes to the Criminal Code provisions respecting animal cruelty, they did so to reflect our society's view towards animal abuse and cruelty. Those who inflict pain on animals, those who are deliberately brutal towards animals will face harsher sentences than in the past, as our society considers this behaviour morally reprehensible and the courts must attempt to denounce and deter this behaviour. [at para 83]


Court Order to Fix a Mistake

When a sex offender is convicted of two or more sexual offences at the same time they are required by law to be registered is accordance with the Sex Offender Information Registration Act (SOIRA) for a period of life. Although this is clearly written in s490.013 of the Code and there is no discretion for the Court to do anything other than impose the order for less than the prescribed period, judges and counsel have been getting the duration of the orders just plain wrong. The question becomes what to do when someone notices the error. Is the sentencing judge functus? Does a correction to the order require an appeal?  That was precisely the issue before Ontario Superior Court Justice Goldstein in Alvaranga-Alas, 2014 ONSC 4725 (SC).

Alvaranga-Alas was convicted of two counts of sexual assault. At the sentencing hearing the crown submitted that a 10 year SOIRA order was appropriate. The defence did not demur and Justice Rutherford imposed the 10 year order. Shortly thereafter the Crown discovered that an error had been made. In fact, by operation of s.490.013(2.1) the SOIRA order was, without any discretion, to be made for a period of life.

The Crown applied to the sentencing judge to correct the erroneous order. Justice Rutherford declined to correct the order and determined instead that she was functus. She held that the proper forum for the application to correct the order was to an appellate court.

Justice Goldstein sitting as a summary conviction appeal court first noted that:

There is conflicting authority on both points. One line of authority in this Court holds that a sentencing judge has the inherent authority to correct a SOIRA order after it is made: see R. v. D.M., 2014 ONSC 141 (SC). A line of authority in the Ontario Court of Justice holds that a sentencing judge does not: R. v. J.E. 2013 ONCJ 247 (CJ). The problem is that there is no clear route of appeal from the decision of the Ontario Court of Justice sitting as a summary conviction court in relation to a SOIRA order. [citations not original] @para 8.

Justice Goldstein however found it difficult to imagine that either the sentencing judge or an appellate court for a summary conviction matter lacked the power to correct an erroneous error. If that were the case it is not hard to see that:

[a]n obvious injustice could result: an offender might be erroneously subjected to a lifetime SOIRA order when, in fact, the offence called only for a 10-year order. No rule of statutory interpretation requires a court to find that Parliament created a regime where injustice could be done but not undone. @para 9

Section 490.012(4) of the Code permits a 90 day period following the imposition of sentence that would allow a court that does not “consider the matter” when it imposes sentence. Justice Goldstein rejected the argument that this provision would allow for the correction of an erroneous SOIRA order and that its application was limited to circumstances where the Court failed to consider the issue at all. It does not apply, according to Justice Goldstein where the Court considers the issue but gets it wrong.

Instead Justice Goldstein held that courts have an inherent jurisdiction to correct an erroneous SOIRA order because the order is automatic and not at all discretionary. Unlike the situation where a judge turns their mind to and crafts an illegal sentence having considered other sentencing options, (for example the illegal jail, fine and probation combination) in the case of a SOIRA order “only one outcome is possible” @para 69. Moreover, “no judge could possibly have a manifest intention to make an incorrect calculation” @para 69.

Justice Goldstein further found support for the inherent jurisdiction view in the fact that there is a lack of a clear route of appeal in summary conviction matters to correct a SOIRA order.

Justice Goldstein concluded that the ordering judge had the jurisdiction to correct the order and had erred by declining to do so. This failure of jurisdiction was best remedied by remitting the matter to the ordering judge with a writ of mandamus compelling Justice Rutherford to exercise her jurisdiction pursuant s.490.012 of the Code.


New & Notable: Sentencing is not a Never-Ending Process

James Sipos is a dangerous offender. He was so designated by a court in 1998. Some 12 years later his appeal was before the Ontario Court of Appeal where he presented fresh evidence; that evidence indicated that he had made much progress in his treatment – “progress that was not foreseen at the time of his sentencing in 1998” [para 48]. His appeal was dismissed by the ONCA and he appealed to the Supreme Court. On appeal it was admitted and recognized that the sentencing judge committed the Johnson error. What remained, however, was whether a new hearing was warranted due to this error and/or as a result of the proposed fresh evidence. Cromwell J concluded that there was “no role for the fresh evidence in relation to the curative power” on appeal [para 41] and dismissed the appeal: 2014 SCC 47.

In addressing the appeal Cromwell J began by noting:

In dangerous offender appeals, the appellate court may use its curative power to dismiss an appeal even though there was a legal error at first instance. This power may be used only where the legal error was “harmless” in the sense that there is no reasonable possibility that the result would have been different had the error not been made. It follows that a legal error does not necessarily require reconsideration of the sentence. The appellate court must consider whether the error had any impact on the result. But there is a heavy onus on the Crown: it must show that there is no reasonable possibility that the result would have been different had the error not been made. [Para 35].

In the present case, in relation to the proposed fresh evidence, Cromwell J held that there must be some connection between the “fresh evidence and the sentencing judge’s legal error” [para 37]. In this case, the fresh evidence related to the rehabilitative prospects of the offender. Cromwell J’s conclusion on this point:

In this case, the fresh evidence has nothing to do with the impact of the legal error made by the sentencing judge. There is no dispute that, on the record before the sentencing judge, the only realistic option was a dangerous offender designation [para 38].

In coming to this conclusion, Cromwell J held, contrary to the offender’s position – that the issue is what the “outcome might conceivably be today [with the fresh evidence]” – that the issue is “whether the past decision would have been the same notwithstanding the error” [para 40]. Recognizing that it is possible that “after-the-fact evidence” may influence a court on sentencing, Cromwell J noted that “post-sentencing rehabilitative efforts and prospects will only exceptionally” meet the test for intervention and that “generally speaking [these are] matters for the correctional authorities to consider” [para 43].

Cromwell J concluded [at para 48], in relation to the proposed fresh evidence:

This evidence shows that Mr. Sipos has made commendable progress in recent years, progress that was not foreseen at the time of his sentencing in 1998. However, Dr. McMaster’s report, viewed in light of the full record before the sentencing judge, falls considerably short of showing that the dangerous offender designation was unreasonable. I agree with Doherty J.A. that, placing ourselves in the position of the sentencing judge with the added information from Dr. McMaster’s assessment, there is no reasonable possibility that the result would have been different. It follows that there is also insufficient evidence to show that the sentencing judge’s decision, even had he had the benefit of Dr. McMaster’s report, was unreasonable. As Doherty J.A. put it:
I do not think that Dr. McMaster’s risk assessment casts any doubt on the trial judge’s assessment that as of 1998, an indeterminate sentence was the appropriate sentence.  Despite the positive treatment developments, Dr. McMaster still viewed the appellant’s potential release into the community as about six years distant.  We now know, with the benefit of hindsight, and accepting Dr. McMaster’s opinion, that on a “best case” scenario, the appellant’s potential for release into the community was at least some 18 years away in 1998. [Emphasis added; para. 34.]

A final notable point raised by Cromwell J in dismissing the appeal was that “[r]outinely deciding sentence appeals on the basis of after-the-fact developments could both jeopardize the integrity of the criminal process by undermining its finality and surpass the appropriate bounds of appellate review” [para 30].