COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Bourdon, 2012
    ONCA 256

DATE: 20120423

DOCKET: C53975

MacPherson, Armstrong and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rene Bourdon

Appellant

Julie Santarossa, for the appellant

Nadia Thomas, for the respondent

Heard: March 2, 2012

On appeal from the sentence imposed on March 1, 2011 by
    Justice James R.H. Turnbull of the Superior Court of Justice.

Juriansz J.A.:

[1]

In June 2004, the appellant was designated as a Long Term Offender (LTO)
    and sentenced to a Long Term Supervision Order (LTSO). The order was, at the
    time of sentencing, anticipated to continue to April 28, 2013. He appeals his
    sentence, relying on an error made by the sentencing judge in calculating his
    credit for pre-sentence custody. As he was released from imprisonment on
    September 26, 2011 on statutory release, he seeks to reduce the duration of the
    LTSO.

[2]

On August 23, 2010, the appellant was convicted of two counts of
    breaching his LTSO. On March 1, 2011 he was sentenced to two years imprisonment
    for the first breach and to one year in custody for the second breach to be
    served consecutively. The sentencing judge stated he would be given credit of
    1.5 days for each day in pre-trial custody and calculated that credit to be 781
    days premised on the 521 day period between the date of his arrest, April 28,
    2009 and October 21, 2010. The selection of October 21, 2010 is not explained.
    The appellant was convicted on August 23, 2010 and sentenced on March 1, 2011.
    In his reasons, the sentencing judge stated that the appellant was found guilty
    on October 1, 2010, but the indictment reflects that a new pre-sentence report
    was ordered on that date. The appellant did not appear in court on October 21,
    2010.

[3]

The parties agree that the sentencing judge intended to give the
    appellant 1.5 to 1 credit for his pre-sentence custody. His pre-sentence
    custody amounts to 673 days, beginning with his arrest on April 28, 2009 and
    ending on March 1, 2011 when he was sentenced. The proper credit calculated at
    the rate of 1.5 to 1 would amount to a credit of 1009 days. Thus, the
    sentencing judge granted the appellant 228 days (about 7½ months) less credit
    than he might have otherwise received.

[4]

Relying on this error the appellant, who is now out of custody, seeks to
    have the credit the judge intended to give him applied to reduce the length of
    the LTSO that he is currently serving. If his sentence is reduced, the
    appellants LTSO, which was suspended while he served his sentence, would
    recommence earlier and expire earlier.

[5]

I would grant leave to appeal his sentence, but dismiss the appeal.
    Notwithstanding the sentencing judges error, I would not disturb the sentence
    he imposed. The sentence actually imposed was fit.

[6]

The appellant was convicted on December 1, 2003 of two counts of sexual
    assault on victims he had rendered unconscious with a stupefying drug, one
    count of administering a stupefying drug with intent to commit sexual assault,
    and one count of unlawful possession of property.  The offences occurred between
    1999 and 2003 in North Bay and involved three different victims. He drugged the
    three victims with drinks referred to as paralyzers. He had sexual
    intercourse with the first and second victims after drugging them.  The second
    victim was the wife of a friend. He drugged her while she was at work.  The
    third victim was his downstairs neighbour. She had no clear memory of the
    events until admitted to hospital. He had drilled holes in her apartment so he
    could observe her in her bedroom. For these offences, the appellant was
    sentenced to 5 years incarceration less pre-trial custody at a 2 for 1 ratio
    and made subject to a Long-Term Supervision Order for a period of 7 years
    following his release.

[7]

The Long-Term Supervision Order began to run on November 9, 2005 when
    the appellant was released to a community care centre, and was initially anticipated
    to end 7 years later on November 8, 2012. However, as the sentencing judge
    noted, he immediately embarked on a course of infractions.

[8]

On December 1, 2005 a suspension warrant was issued and executed when he
    was found to be accessing pornography and escort service websites as well as
    chat rooms. The National Parole Board of Canada issued a reprimand on January
    27, 2006 and returned him to the community care centre on January 30, 2006.

[9]

Less than two months later, on March 20, 2006, a second suspension
    warrant was issued and executed when the appellant was alleged to have had
    contact with another residents girlfriend. He was returned to the community
    care centre on April 19, 2006.

[10]

On
    May 8, 2006 the third suspension warrant was issued and executed because the
    appellant was found to have violated the condition that he have no contact with
    females without prior authorization from his parole supervisor. He was again
    released to community care on August 15, 2006.

[11]

The
    fourth suspension warrant was issued and executed on September 26, 2006 when he
    failed to provide detailed billing for his cell phone charges. As well he had
    failed to disclose to his parole supervisor that he had been on a trip to North
    Bay in the presence of a 17-year-old female and had rented a hotel room for
    her. He was charged with breaching his long-term supervision order on November
    23, 2007.

[12]

He
    was sentenced for that breach on July 2, 2008. He received a sentence of four years
    incarceration less credit for 644 days of pretrial custody at a ratio of 2 to
    1.

[13]

He
    was released on statutory release on October 23, 2008 and reached his warrant
    expiry on December 20, 2008, when his long-term supervision order recommenced
    with a condition that he reside at a community care centre.

[14]

Shortly
    after, on February 2, 2009, a fifth suspension warrant was issued and executed
    when the appellant was found in possession of a computer capable of accessing
    the Internet and a CD containing pornographic images of young women. On April
    28, 2009 he was charged with the two counts of breaching his LTSO in this case.

[15]

In
    his reasons, the sentencing judge noted that the appellant had never completed
    any of the treatment programs he had started and that the risk he posed to the
    public remained high. He did not take supervision seriously and blamed others
    continuously for his circumstances and did not accept responsibility for his
    actions.

[16]

The
    appellants effective sentence on these two counts was 10 1/2 months
    incarceration, given the 781 days of credit he received. As noted he was
    released 6 1/2 months later on September 26, 2011. His LTSO, which was
    suspended during his sentence, recommenced at his warrant expiry on January 12,
    2012. If his appeal is successful it would end some 7 1/2 months earlier than
    it is currently set to expire.

[17]

I
    agree with the Crowns submission that it should be kept in mind that the time
    a long-term offender spends in presentence custody cannot be regarded as dead
    time, as the LTSO continues to run until conviction. As Justice Masse put it
    in R. v. Nelson, [2007] O.J. No. W5704 (OCJ) at para 30-31:

[A]lthough the long-term supervision order is interrupted
    while an offender serves a sentence, it continues to run until such time as
    sentence is actually pronounced. It would be an anomalous result for an
    offender to receive both a credit towards his long-term supervision order for
    pre-sentence custody as well as an enhanced credit towards sentence. That could
    not have been the intention of Parliament.

[18]

The
    issue has been considered by this court in one previous case,
R. v. Ipeelee,
[2009] O.J. No. 5402 (appeal allowed on other grounds, [2002] S.C.J. No. 13.)
    where the court said this at para. 10:

Did the sentencing judge err by refusing enhanced credit?

The sentencing judge refused to give the appellant enhanced
    credit for the six months he spent in pre-sentence custody. In the circumstance
    of this case, I see no error. As the sentencing judge noted, the time under the
    long-term supervision order continues to run while the offender is in
    pre-sentence custody for breach of a condition of the order. Moreover, the lack
    of credit for time served towards early release, a factor usually cited as a
    reason for enhanced credit, is less relevant here as the appellant is unlikely
    to be granted early release.

[19]

One
    goal of an LTSO to rehabilitate offenders and reintegrate them into the
    community by supervising them after they are released from imprisonment.  If
    the offender is in custody awaiting trial on charges of breaching the LTSO,
    nothing can be accomplished towards reintegrating the offender into the
    community. Some rehabilitation is possible because long term offenders, unlike
    other accused persons, can be transferred to a federal penitentiary with
    treatment programmes available while awaiting sentence (s. 135(2)
Corrections
    and Conditional Release Act
s.c. 1992, c. 20 as amended). The lack of
    access to such programs is considered a rationale for enhanced credit for time
    in pre-trial custody. In this case, it is not clear why the appellant was not
    transferred to a federal penitentiary.

[20]

Here,
    the appellant has spent a total of 1337 days (664 days on his first breach and
    673 days on the breaches in this case) in custody while his LTSO continued to
    run. That period amounts to more than one half of the original 7 year period
    the LTSO was intended to apply.

[21]

I
    recognize that the awarding of credit for pre-sentence custody is a matter
    within the discretion of the sentencing judge. Here, despite the sentencing
    judges factual mistake in granting the appellant less credit for pre-sentence
    custody than it seems he intended to, I would not disturb the sentence actually
    imposed. The sentence actually imposed was fit for the offences considering the
    circumstances of the appellant, and the rationale for a LTSO for a period of 7
    years is not undermined by the sentencing judges calculation error. The
    considerations I have discussed point towards less credit for pre-trial custody
    while a LTSO is in effect than in other cases.

[22]

I
    would grant leave to appeal sentence but dismiss the appeal.

R.G. Juriansz J.A.

I agree J.C.
    MacPherson J.A.

I agree R.P.
    Armstrong J.A.

Released: April 23, 2012


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Caravaggio, 2012 ONCA 248

DATE: 20120419

DOCKET: C53525

Doherty, MacPherson and Sharpe JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Francis Adrian Caravaggio

Appellant

Heather Pringle and Kate Oja, for the appellant

Catrina Braid, for the respondent

Heard and released orally: April 13, 2012

On appeal from the convictions and sentence entered on March
    8, 2011 by Justice Wolfram U. Tausendfreund of the Superior Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of trafficking in a Schedule 1 drug contrary
    to the
Controlled Drugs and Substances Act
and was sentenced to 15
    months.  He appeals both conviction and sentence.

Conviction Appeal

[2]

The sole issue raised on the conviction appeal is whether the trial
    judge erred in dismissing the appellants
Charter
motion to exclude
    evidence of the drugs found in his possession when he was arrested.

[3]

We see no error in the trial judges ruling that the police officer who
    found the drugs on the search incident to the appellants arrest had reasonable
    and probable grounds for the arrest.

[4]

The officer had information from an unnamed informant that the appellant
    was selling drugs from his vehicle.  The informant had been used by the officer
    on prior occasions and had provided reliable information.  The informant was
    known to be involved in the drug subculture.  He provided details as to the
    description of the appellant, the colour and specific make of the appellants
    car and the appellants residence.  The police officer corroborated that
    information by running a CPIC check to determine the appellants identification
    and address and by going to a location near the appellants residence where he
    observed a man whose appearance corresponded to the information he had been
    given in the car described by the informant.  The car was parked in an alley
    near a café known for drug-dealing.  The motor of the car was running and a
    male person was leaning through the window of the car speaking to the
    appellant.

[5]

While the officer could not say that he observed a drug transaction
    between the appellant and the other man, their interaction certainly was
    suspicious and at least consistent with a drug transaction.  When combined with
    the information obtained from the informant, the officers observations of the
    appellant, his vehicle and its location, there was sufficient basis for the
    trial judge to find that the officer had reasonable and probable grounds to
    arrest the appellant.

[6]

We do not agree with the submission that the trial judges reasons were
    inadequate.  The trial judge did confront the inconsistencies in the evidence
    of the police officers and he explained why he found reasonable and probable
    grounds despite those inconsistencies.

[7]

Accordingly, the conviction appeal is dismissed.

Sentence Appeal

[8]

We do not agree that the trial judge erred by failing to give adequate
    consideration to the possibility of a conditional sentence in the circumstances
    of this case.  The trial judge specifically considered that option but found
    that it would be inconsistent with the fundamental purposes and principles of
    sentencing as he found the appellant to have engaged in drug trafficking
    entirely for personal commercial gain and in light of the appellants prior
    criminal record which includes six convictions and two drug convictions.
    Moreover, the appellant breached his bail pending this appeal, was re-arrested
    and is currently serving another sentence for another drug offence.  In these
    circumstances, a conditional sentence would be, to say the least, problematic.

[9]

Accordingly, leave to appeal sentence is granted but the sentence appeal
    is dismissed.

D. Doherty J.A.

J.C. MacPherson J.A.

Robert J. Sharpe J.A.


WARNING

The President
    of the panel hearing this appeal directs that the following should be attached
    to the file:

An order
    restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4)
    or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4     (1)
Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of
    the following offences;

(i)   an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172,
    172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or
    347,

(ii)  an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151
    (seduction of a female between 16 and 18), 153 (sexual intercourse with
    step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent
    or guardian procuring defilement) or 167 (householder permitting defilement) of
    the
Criminal Code
, chapter C-34 of the Revised Statutes of Canada,
    1970, as it read immediately before January 1, 1988; or

(b)     two
    or more offences being dealt with in the same proceeding, at least one of which
    is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2)
In proceedings in respect of
    the offences referred to in paragraph (1)(a) or (b), the presiding judge or
    justice shall

(a)  at the first reasonable opportunity, inform any
    witness under the age of eighteen years and the complainant of the right to
    make an application for the order; and

(b)  on application made by the complainant, the prosecutor
    or any such witness, make the order.

(3)
In proceedings in respect of
    an offence under section 163.1, a judge or justice shall make an order
    directing that any information that could identify a witness who is under the
    age of eighteen years, or any person who is the subject of a representation,
    written material or a recording that constitutes child pornography within the
    meaning of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)
An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community. 2005, c. 32, s. 15;
    2005, c. 43, s. 8(3)(b).

486.6     (1)
Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)
For greater certainty, an
    order referred to in subsection (1) applies to prohibit, in relation to
    proceedings taken against any person who fails to comply with the order, the
    publication in any document or the broadcasting or transmission in any way of
    information that could identify a victim, witness or justice system participant
    whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. D.R., 2012 ONCA
    253

DATE: 20120419

DOCKET: C52471

Doherty, MacPherson and Sharpe JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.R.

Appellant

Frances Brennan, for the appellant

Roger A. Pinnock, for the respondent

Heard and released orally: April 13, 2012

On appeal from the conviction entered on June 8, 2010 and
    the sentence imposed on July 21, 2012 by Justice Roland J. Haines of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant was convicted on June 8, 2010 of incest and sexual assault
    in relation to his daughter between January 1, 2005 and April 18, 2009.  He was
    sentenced on July 21, 2010 to four years imprisonment, concurrent for each
    offence.  He appeals both the convictions and the sentence.

[2]

The appellant contends that the trial judges reasons are insufficient
    to permit meaningful appellate review:
R. v. Sheppard
, [2002] 1 S.C.R.
    869.

[3]

We do not accept this submission.  The trial judge delivered oral
    reasons for judgment covering 19 pages.  The reasons demonstrate a firm grasp
    of the evidence and recognition that the central issue was credibility.  The
    trial judge was alive to both the defence theory of motive to fabricate and the
    appellants firm denial of any sexual misconduct with his daughter.  The trial
    judge also confronted the frailties in the complainants evidence.

[4]

The appellant submits that the trial judge erred by shifting the burden
    of proof to the appellant.  He did this when he rejected the appellants
    evidence by accepting the evidence of the complainant and the son of the
    appellants partner.

[5]

There is nothing wrong with this approach to the evidence: see
R. v.
    J.J.R.D.
, [2006] O.J. No. 4749 (Ont. C.A.), at para. 53.

[6]

The appellant contends that the trial judge erred in his application of
R.
    v. W.D.
, [1991] 1 S.C.R. 742.

[7]

We disagree.  The trial judge concluded his reasons with this summary,
    an entirely accurate reflection of
W.D.
:

Accordingly, I do not accept Mr. [Rs] testimony and do not
    find that it raises a reasonable doubt.  I am, however, satisfied beyond a
    reasonable doubt on the testimony of [S.R.] and [D.C.] that [D.R.] is guilty as
    charged on counts one and two.

[8]

The appellant did not pursue his unreasonable verdict issue in oral
    argument.  For the sake of completeness, we record that we see no merit in this
    submission.

[9]

The appellants sentence appeal is only a contingent one  namely, if we
    uphold the convictions only in relation to the April 17, 2009 incident, then
    the global sentence should be reduced.  Since we do not think that the trial
    judges conclusion that there was a pattern of assaults was unreasonable, it
    follows that the four year sentence imposed by the trial judge should stand.

[10]

The
    conviction and sentence appeals are dismissed.

Doherty
    J.A.

J.C.
    MacPherson J.A.

Robert
    J. Sharpe J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. DeSousa, 2012 ONCA 254

DATE:  20120420

DOCKET:  C53843

Doherty, MacPherson and Sharpe JJ.A.

BETWEEN

Her Majesty the Queen

Applicant (Appellant)

and

Tina Maria DeSousa

Respondent

Kevin Wilson, for the applicant (appellant)

M. Halfyard, for the respondent

Heard:  April 10, 2012

On appeal from the order dated April 7, 2011 made by
    Justice J.E. Allen of the Ontario Court of Justice directing that the
    respondent be discharged absolutely.

Doherty J.A.:

I

INTRODUCTION

[1]

The respondent pleaded guilty to a charge of importing Catha edulis
    Forsk (khat), a Schedule IV drug, into Canada contrary to s. 6(1) of the
Controlled
    Drugs and Substances Act
, S.C. 1996,
    c. 19
.  Counsel for the Crown and counsel for the respondent
    presented a joint submission whereby the respondent would serve a 60-day
    conditional sentence on the statutory terms and with a term requiring that she
    abide by a curfew.

[2]

The trial judge rejected the joint submission and granted the respondent
    an absolute discharge.

[3]

The Crown appealed. At the conclusion of oral argument, we advised
    counsel that the appeal would be dismissed with reasons to follow.  These are
    those reasons.

II

PROCEEDINGS BELOW

[4]

On the guilty plea, the Crown read in the following facts:

On Monday, December 28, 2009, at 3:55 p.m., Tina Maria DeSousa
    arrived in Toronto. She is a Canadian citizen. She arrived from Amsterdam and
    she was referred to secondary examination for further inspection.  The Border
    Service officer at the inspection booth inspected her luggage and pressed down
    on the suitcase and noted a strong odour. He opened the suitcase and discovered
    that it contained fresh bundles of khat, and she was placed under arrest for
    smuggling khat contrary to section 159 of the
Customs Act
and
    subsequently she was interviewed by the RCMP and she was charged for importing
    khat contrary to section 6(1) of the
CDSA
.  She had apparently
    travelled from Montreal to Minneapolis, then to London, England, and then to
    Amsterdam, and then she returned back to Toronto. The total amount: 34
    kilograms. Estimated street value: $17,000.

[5]

Counsel provided a brief biographical sketch of the respondent.  She was
    28 years of age, single, had no criminal record, was attending a college
    program, and was financially supported by her mother.  Counsel advised the
    trial judge that the respondent was remorseful and noted that the guilty plea
    had been entered at a relatively early stage in the proceeding.

[6]

The trial judge then made the following observations:

Well, in the first place, its very difficult to understand why
    this stuffs against the law.  Its not in England.  I read everything I can
    get my hands on about it and I find it difficult to be persuaded of anything
    other than what I was told by a federal Crown attorney when I had my first case
    which was we think this is almost as dangerous as coffee.

[7]

After offering his opinion on the wisdom of the legislation, the trial
    judge moved on to criticize Air Canadas security measures.  Neither his
    opinion of the legislation, nor his views of the adequacy of Air Canadas
    security measures had any relevance to the proceedings or the trial judges
    function at those proceedings.  Unfortunately, these and other irrelevancies came
    to dominate the hearing.

[8]

In the face of the joint submission and without any request from the
    defence, the trial judge chose to adjourn the sentencing to allow the
    respondent to perform some community service.

[9]

The respondent returned to court for sentencing approximately two months
    later.  She had performed about 25 hours of community service.  During a dialogue
    with Crown counsel, it became apparent that the trial judge had misapprehended
    the joint submission, thinking that it was for a conditional discharge and not
    a conditional sentence.  The latter, a term of imprisonment, is of course a
    much more serious disposition than the former which does not result in a
    criminal record.

[10]

After
    Crown counsel reminded the trial judge that the agreement between counsel was
    for a conditional sentence and not a conditional discharge, the trial judge
    immediately said Okay, well thats fine, alright.  So it appears that Im not
    accepting your  your joint submission.

[11]

Despite
    the trial judges quick and clear indication that he would not follow the joint
    submission, Crown counsel argued that the trial judge was obliged to follow the
    joint submission unless he was satisfied that the proposed sentence was contrary
    to the public interest or would bring the administration of justice into
    disrepute.  The trial judge rejected this argument, indicating that his
    discretion to depart from a joint submission was only limited in the way asserted
    by Crown counsel if he was inclined to impose a harsher sentence than the
    sentence agreed upon in the joint submission.

[12]

Crown
    counsel made further submissions as to the appropriateness of the sentence
    agreed upon.  Defence counsel, who no doubt felt constrained by the joint
    submission, said very little once it became apparent that the trial judge would
    not impose the recommended sentence.

[13]

In
    granting the absolute discharge, the trial judge emphasized the absence of any
    evidence that khat posed any danger or caused any harm.  The trial judge also
    opined that the sentence contemplated by the joint submission would provide no general
    deterrence but would have potentially serious negative ramifications for the
    respondent in that it would result in her having a criminal record.

III

ANALYSIS

[14]

There
    are two issues raised on this appeal:

·

What standard should a trial judge apply in determining whether
    it is appropriate to impose a sentence that is more lenient than a sentence
    proposed by way of joint submission?

·

What is the appropriate disposition?

A. When Should a Judge Undercut a
    Joint Submission?

[15]

Resolution
    discussions between informed and competent counsel and guilty pleas based on
    joint submissions as to the disposition are a proper and necessary part of the
    administration of criminal justice in Ontario:  The Honourable G. Arthur
    Martin, O.C., O. Ont., Q.C., LL.D., Chair,
Report of the Attorney Generals
    Advisory Committee on Charge Screening, Disclosure and Resolution Discussions
(Martin Report) (Toronto: Ontario Ministry of the Attorney General, Queens
    Printer for Ontario, 1993), at p. 290; see further pp. 281-290.  A joint
    submission should provide the trial judge not only with the proposed sentence,
    but with a full description of the facts relevant to the offender and the
    offence.  Advanced in this way, the joint submission gives the trial judge a
    proper basis upon which to determine whether it should be accepted.

[16]

A
    trial judge is not bound by a joint submission.  The imposition of a fit
    sentence is ultimately the trial judges responsibility:  see
R. v. Cerasuolo
(2001), 151 C.C.C. (3d) 445, at para. 7 (Ont. C.A.).  Trial judges must,
    however, give considerable weight to joint submissions.  A trial judge should
    depart from a sentence proposed in a joint submission only in limited
    circumstances.  Finlayson J.A. put it this way in
Cerasuolo
, at para.
    8:

This court has repeatedly held that trial judges should not
    reject joint submissions unless the joint submission is contrary to the public
    interest and the sentence would bring the administration of justice into
    disrepute... This is a high threshold and is intended to foster confidence in
    an accused, who has given up his right to a trial, that the joint submission he
    obtained in return for a plea of guilty will be respected by the sentencing
    judge.

[17]

The
    trial judge referred to
Cerasuolo
.  He viewed it as applicable only
    where a trial judge proposed to jump a joint submission.

[18]

Cerasuolo
was a case in which a trial judge imposed a three
-year
    sentence in the face of a joint submission for one year.  Unsurprisingly,
    Finlayson J.A. emphasized the negative impact on the accuseds legitimate interests
    flowing from the trial judges rejection of the joint submission.
Cerasuolo
did
not, however, indicate that a trial
    judge should not be guided by the same principles before deciding to depart
    from a joint submission by imposing a more lenient sentence than that proposed.
    That question was not before the court in
Cerasuolo
.

[19]

The
    Martin Report, the most important examination of the criminal process in
    Ontario in the last 40 years, made several recommendations relating to plea
    discussions and joint submissions.  Following established authority and using
    language that would appear later in
Cerasuolo
, the Martin Report
    recommended that a sentencing judge should not depart from a joint submission
    unless the proposed sentence would bring the administration of justice into
    disrepute, or was otherwise not in the public interest:  see p. 327,
    Recommendation 58.  The Martin Report did not distinguish between jumping and
    undercutting a joint submission.

[20]

It
    is helpful to quote at some length the explanation offered in the Martin Report,
    at pp. 328-30, for this particular recommendation:

The Committee recognizes that an
    important, sometimes the most important, factor in counsels ability to
    conclude a resolution agreement, thereby deriving the benefits that such
    agreements bring, is that of certainty.
Accused persons are, in the Committees
    experience, prepared to waive their right to a trial far more readily if the
    outcome of such a waiver is certain, than they are for the purely speculative
    possibility that the outcome will bear some resemblance to what counsel has
    agreed to.  And likewise,
from the perspective of Crown
    counsel, agreed upon resolutions that have a stronger, rather than weaker sense
    of certainty to them, are more desirable because there is less risk that what
    Crown counsel concludes is an appropriate resolution of the case in the public
    interest will be undercut.

While the presiding judge cannot have his or her sentencing
    discretion removed by the fact of there being a joint submission,
it is
nonetheless appropriate, in the Committees view, for the
    sentencing judge to have regard to the interest of certainty in resolution
    discussions when faced with a joint submission.  Accordingly, where there is no
    reason in the public interest or in the need to preserve the repute of the
    administration of justice to depart from a joint submission, a sentencing judge
    should, in the Committees opinion, give effect to the need for certainty in
    agreed upon resolutions
by accepting the joint submission of
    counsel.

...

...proceeding in this manner also continues to ensure that the
    sentencing judge remains the ultimate arbiter of the propriety of the sentence,
    and that the sentence is demonstrated to be fit in the circumstances.  The sentencing
    judge will not, in the Committees view, have committed any error in principle
    in accepting a joint submission, as recommended above, provided he or she
    arrives at the independent conclusion, based upon an adequate record, that the
    sentence proposed does not bring the administration of justice into disrepute
    and is otherwise not contrary to the public interest.  [Emphasis added.]

[21]

The
    Martin Report recognizes that certainty of result plays a valuable role in the
    criminal justice system.  The report also recognizes that certainty serves not
    only the interests of the accused, but those of the Crown as representative of
    the public interest.  To the extent that judges reject joint submissions,
    certainty suffers.  This is true whether the judge jumps or undercuts the joint
    submission.

[22]

Certainty
    of result is, of course, not the ultimate goal of the sentencing process.  Certainty
    must yield where the harm caused by accepting the joint submission is beyond
    the value gained by promoting certainty of result.  The standard described in both
Cerasuolo
and the Martin Report  that is, whether the proposed
    sentence would bring the administration of justice into disrepute or would
    otherwise not be in the public interest  draws the line where certainty of
    result must give way to other criminal justice interests.  I think the standard
    is applicable regardless of whether a trial judge is inclined to go above or
    below the sentence proposed in the joint submission.

[23]

In
    holding that a trial judge should apply the same test when deciding whether to
    depart from a joint submission, upward or downward, I do not suggest that the
    factors relevant to the application of that standard will be identical in both
    situations.  If a trial judge is considering imposing a higher sentence than
    the sentence agreed upon, concerns about the fairness to an accused who has
    given up a right to a trial in anticipation of a certain sentence will figure
    largely in the trial judges determination of whether the agreed upon sentence
    in the joint submission is so low as to bring the administration of justice
    into disrepute or is otherwise not in the public interest.  Obviously, concerns
    about the accuseds fair trial rights are not in play if the trial judge is
    considering imposing a sentence that is lower than the agreed upon sentence.

[24]

As
    alluded to in the extract
from
the Martin Report set out above, where a judge is considering undercutting a
    joint submission, he or she must have regard to the communitys reasonable
    expectations that the court will impose a sentence in accordance with that
    agreed upon in the joint submission.  Confidence in the operation of the justice
    system may suffer where an accused enjoys the benefits of a plea bargain, perhaps
    for example escaping prosecution on other more serious charges, but is not
    required to serve the sentence agreed upon as part of that bargain.  In
    deciding whether to reject the joint submission, trial judges must be alive to
    that potential negative impact on the administration of justice.  The
    consideration of that potential impact finds expression in the standard
    articulated in
Cerasuolo
and the Martin Report.

[25]

For
    these reasons, the trial judge erred in principle.  He should not have departed
    from the joint submission unless he was satisfied that the standard set down in
Cerasuolo
required that departure.

B. What is the Appropriate
    Sentence?

[26]

It
    is unnecessary to address the trial judges reasons.  For the reasons set out
    above, he erred in principle in his treatment of the joint submission.  Counsel
    on appeal agree that the trial judge made further errors, particularly in
    taking into consideration various irrelevant matters, including his personal opinion
    of the wisdom of the legislation.  The trial judges approach to sentencing
    repeats the errors identified in
R. v. Song
(2009), 100 O.R. (3d) 23,
    at paras. 6-13 (Ont. C.A.).  Furthermore, counsel agree that the interests of
    justice are best served by considering the appropriate sentence as of the date
    of the appeal, some 12 months after the original sentencing.

[27]

In
    our view, the material put before the trial judge and this court by the Crown did
    not justify the imposition of a term of imprisonment, even one to be served in
    the community.  We say that having regard to the following:

·

The Crown chose to lead no evidence about any specific harm referable
    to the importation of khat.

·

There was no evidence that the respondent knew that the
    importation of khat was illegal.  It is apparently legal in some countries,
    including the United Kingdom, where the respondent obtained the drug.  The manner
    in which the respondent brought the drug into Canada in her suitcase would also
    lend some credence to the assertion that she was unaware that it was illegal to
    bring the drug into Canada.

·

There was no evidence that the respondent was involved in any
    kind of a commercial enterprise or stood to make any profit from her actions.

[28]

It
    was incumbent on the Crown, even on a joint submission, to put before the trial
    judge facts relevant to the nature of the offence that justified the imposition
    of a term of imprisonment.  In putting forward the joint submission, the Crown
    seem to have relied exclusively on a sentencing guideline developed by
    prosecutors that called for incarceration of a length to be determined by
    reference to the amount of the drug imported.  While guidelines for prosecutors
    making sentencing submissions are helpful, they are not themselves a
    justification for the imposition of a sentence which is consistent with those
    guidelines.

[29]

There is nothing in the circumstances particular to the respondent that
    could justify a jail term.  She is a young first offender with a promising
    future.

[30]

Having regard to the entirety of the circumstances as they relate both to
    the offence and the offender, a jail term is unwarranted.  A joint submission
    requiring a jail term, even one to be served in the community, was not in the public
    interest.  A number of sentencing options not involving incarceration may have
    been appropriate at the time of trial.  We concluded, however, that as matters
    stood at the time of the appeal, a discharge was in the best interest of the
    accused and not contrary to the public interest, and therefore accorded with
    the standards set out in s. 730(1) of the
Criminal Code
.

[31]

Crown
    counsel suggested that the court consider offering some sentencing guidelines for
    offences involving the importation of khat.  It would appear that charges
    involving the drug are not common and there are only a few trial judgments in
    which courts have considered the appropriate sentence for the importation of
    that drug.  This slim record provides no basis upon which this court could safely
    offer any helpful sentencing guidelines.

IV

CONCLUSION

[32]

As indicated at the end of oral argument, the appeal is dismissed.

RELEASED:  DD  APR 20
    2012

Doherty
    J.A.

I
    agree J.C. MacPherson J.A.
I agree Robert J. Sharpe J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Fundi, 2012
    ONCA 227

DATE: 20120410

DOCKET: M41130 (C51151)

Hoy J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Abraham Fundi

Applicant

Breese Davies, for the applicant

Michael Bernstein, for the respondent

Heard: April 2, 2012

On an application for bail pending the determination of an
    application for leave to appeal to the Supreme Court of Canada.

Hoy J.A.:

[1]

The applicant, Abraham Fundi, was involved in the violent, armed robbery
    of about $500,000 of jewellery and $35,000 of cash from a jewellery store in
    November 2006. Cell phone records were used by the police in their
    investigation. Jewellery and cash were found at the applicants home. The
    applicant was convicted of conspiracy to commit robbery and possession of
    property obtained by crime and sentenced to five years imprisonment. This court
    upheld his conviction:
R. v. Mahmood
, 2011 ONCA 693, 107 O.R. (3d)
    641. He is currently incarcerated in a minimum security institution.

[2]

The applicant now seeks bail pending the determination of his
    application for leave to appeal to the Supreme Court of Canada. The Crown
    opposes bail.

[3]

The test for bail pending an application for leave to appeal to the
    Supreme Court of Canada is set out in s. 679(3) of the
Criminal Code
, R.S.C. 1985, c. C-46
. This court may
    grant bail if the applicant establishes: (a) his application for leave to appeal
    is not frivolous; (b) he will surrender himself into custody in accordance with
    the terms of any release order; and (c) his detention is not necessary in the
    public interest.

[4]

For the reasons that follow, bail is denied.

(a)

Merits of the leave
    to appeal application

[5]

In the course of their investigation, the police obtained conventional
    search warrants under s. 487 of the
Criminal Code
to obtain cell phone
    records and to search the homes of the applicant and other suspects. The trial
    judge found that the warrants were improper.  However, the trial judge admitted
    the cell phone records obtained under one of the two warrants issued in respect
    of phone records and the evidence seized under the residential warrants under
    s. 24(2) of the
Charter
. In the case of the cell phone records
    admitted, the trial judge concluded that, while the information furnished did
    not support the issuance of a warrant under s. 487 of the
Criminal Code
,
    it would sustain a telephone records order under s. 492.2(2). Section 492.2(2)
    allows a justice to order provision of a copy of telephone records if there are
reasonable grounds to suspect
that an offence has been or will be
    committed and the information would assist in the investigation of the offence.

[6]

The applicants ground for appeal is that s. 492.2, which permits access
    if a reasonable suspicion is made out, is unconstitutional. He submits that s.
    8 of the
Charter
requires a reasonable grounds standard before
    citizens privacy interests in cell phone records gives way to the states
    interest in law enforcement. Counsel for the applicant concedes that this court
    declined to entertain argument on the constitutionality of s. 492.2 on the
    basis that it was not argued at trial, there was an insufficient evidentiary
    foundation, and the Crown would be prejudiced. The applicant argues that this
    court erred in doing so, because s. 492.2 affected the trial judges s. 24(2)
    analysis. Counsel for the applicant submits that the pervasive use of cell
    phones makes the constitutionality of s. 492.2 of national interest.

[7]

The Crown agrees that the constitutionality of s. 492.2 is an important
    issue. The Crown argues, however, that given this court declined to consider
    the issue as it was not argued at trial, it is so remote that leave would be
    granted by the Supreme Court of Canada that the appeal is, in fact, frivolous.
    An order was not issued under s. 492.2(2). The existence of s. 492.2(2) was
    simply a factor in the trial judges s. 24(2) analysis. Moreover, the Crown
    submits that there is no conflicting appellate authority on the issue.

[8]

Leave to appeal is granted sparingly by the Supreme Court of Canada.
    Given that the constitutional issue was not argued at trial, or before this
    court, and the lack of inconsistent appellate authority, in my view the chances
    of leave being granted are remote. However, as Doherty J.A. observed in
R.
    v. Drabinsky,
2011 ONCA 647, 276 C.C.C. (3d) 277, it is difficult for a
    judge of this court to determine whether an application for leave to appeal to
    the Supreme Court of Canada is frivolous. Like Doherty J.A. in
R. v.
    Drabinsky,
I am prepared to accept that this application clears that low
    hurdle, because the applicant has not, in my view, shown that his release is in
    the public interest.

(b)

Flight Risk

[9]

The applicant was on bail, without incident, for an aggregate of nearly
    five years, before trial, pending appeal to this court, and again pending the
    release of this courts decision. He surrendered himself into custody when
    required. His home, his family, including his children, and the family business
    are in Toronto. Family members are again proposed to be his sureties.

[10]

The
    Crown does not argue that the flight risk criterion warrants the denial of bail
    in this case. I am satisfied that the applicant will surrender into custody in
    accordance with the terms of any release order.

(c)

Public Interest

[11]

Counsel
    for the applicant concedes that the applicant was convicted of a serious crime,
    and that it is in the public interest that those convicted of crimes serve
    their sentences. Counsel for the applicant argues, however, that if the court
    is satisfied that the applicant will surrender into custody, that interest will
    ultimately be satisfied if the applicant is unsuccessful.

[12]

The
    public interest criterion in s. 679(3)(c) was discussed by a five-judge panel
    of this court in
R. v. Farinacci
(1993), 86 C.C.C. (3d) 32 (Ont.
    C.A.). Arbour J.A., for the court, explained the meaning of the public
    interest in this context:

The concerns reflecting public interest, as expressed in the
    case law, relate both to the protection and safety of the public and to the
    need to maintain a balance between the competing dictates of enforceability and
    reviewability. It is the need to maintain that balance which is expressed by
    reference to the public image of the criminal law, or the public confidence in
    the administration of justice. The public interest criterion in s. 679(3) of
    the [
Code
] requires a judicial assessment of the need to review the
    conviction leading to imprisonment, in which case execution of the sentence may
    have to be temporarily suspended, and the need to respect the general rule of
    immediate enforceability of judgments.

[13]

As
    noted by Doherty J.A. in
R. v. Drabinsky
, at para. 9:

Where an accused is convicted of a serious crime and sentenced
    to a significant jail term, public confidence in the effective operation of the
    justice system must suffer if years go by before the accused serves that
    sentence.

And at para. 10:

The pendulum must swing towards enforceability and away from
    bail pending further review after the correctness of the convictions entered at
    trial has been confirmed on appeal.

[14]

On
    this application, the balance is in favour of enforceability.  The applicant
    has been convicted of a serious and violent crime, and remained at liberty for
    almost five years after committing the crime. His conviction was confirmed on
    appeal to this court. The applicant has no further right of appeal and only has
    what I consider a remote chance of obtaining leave from the Supreme Court. Any
    right of review that the applicant has is tenuous. The public interest requires
    that the general rule of immediate enforcement of judgments be observed.

[15]

Counsel
    for the applicant argues that if leave is granted, and bail has not been
    granted, the applicant risks completing the entire custodial portion of a
    sentence in respect of a conviction that may be overturned. The parties expect
    that the Supreme Court will determine whether leave will be granted by June of
    this year. If leave is granted, it is open to the applicant to then seek bail,
    on the basis of the change in circumstances.

Released: April 10, 2012                                        Alexander
    Hoy J.A.

AH