



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sona, 2014 ONCA 859

DATE: 20141201

DOCKET: M44468

(C59644)

LaForme J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Sona

Applicant/Appellant

Howard K. Krongold, for the applicant/appellant

Nick Devlin, for the respondent

Heard: November 28, 2014

ENDORSEMENT

INTRODUCTION

[1]

Mr. Sona was found guilty of the
    offence of preventing or endeavouring to prevent an elector from voting at the
    federal election held on May 2, 2011, contrary to the provisions of the
Canada
    Elections Act
, S.C. 2000, c. 9.  He was
    sentenced to nine months imprisonment. Mr. Sona is appealing his conviction,
    although he is presently not in a position to demonstrate a viable ground of
    appeal for his conviction. He will also seek leave to appeal from sentence
.

[2]

On this application the Crown is
    not opposing Mr. Sonas request for leave to appeal his sentence and says that
    this court can proceed with this application assuming leave will be granted. It
    is in this context that Mr. Sona requests that he be granted bail.
    Consequently, the basis of this bail application is focused solely on his
    sentence appeal
.

[3]

For the reasons that follow, I
    would grant the application. Mr. Sonas appeal is not frivolous, he will
    surrender into custody in accordance with the terms of the release order, and
    his detention is not necessary in the public interest.

BACKGROUND

[4]

As counsel for Mr. Sona puts it,
    this is a notorious and extraordinary case.  During the 2011 federal election,
    approximately 7,000 electors in Guelph, who were believed to be unsupportive of
    the Conservative Party candidate, received an automated robo-call purporting
    to be from Elections Canada. The message said that the location of a polling
    station had been changed, and directed electors to attend a different polling
    location. Between 150 and 200 electors attended the wrong polling location as a
    result of these calls. The robo-call message was false.

[5]

At the time of the offence Mr.
    Sona was 22 years old and the communications director for the Conservative
    candidate in the riding of Guelph during the election campaign. The trial judge
    found that more than one person was likely involved in the scheme; however, Mr.
    Sona is the only person to have been charged in relation to the robo-calls
    scandal.

[6]

In his sentencing decision, the
    trial judge described the scheme as a plan to ... effectively ... attempt to
    manipulate the outcome of the election in the Guelph riding by endeavouring to
    prevent voters from voting. This was a federal election undertaken to elect
    representatives who form the governing body in our nation:
R. v.
    Sona
, 2014 ONCJ 606, at para. 46(4).
    Indeed, it was a plan to deny Canadians a right guaranteed under s. 3 of our
Charter
    of Rights and Freedoms
, namely:

Every citizen of Canada has the right to vote in an election of
    the members of the House of Commons or of a legislative assembly and to be
    qualified for membership therein.

[7]

There can be no question that Mr.
    Sona has been found guilty of a very serious offence. And, as the trial judge
    expressed it, given the seriousness of the offence and the mitigating factors
    favouring Mr. Sona: This is a difficult and troublesome sentencing:
Sona
, at para. 48.

THE TEST

[8]

Under s. 679(3) of the
Criminal
    Code
, R.S.C. 1985, c. C-46,
Mr. Sona
must satisfy
this
    court
that:
(i)
his appeal is not frivolous;
(ii)
he will
    surrender into custody in accordance with the terms of the release order; and
(iii)
his
    detention is not necessary in the public interest
.

[9]

At the time of the hearing and for
    the purposes of this application Mr. Sona is not in a position to demonstrate
    the viability of an appeal of his conviction. Consequently, for the purposes of
    this application, it is the viability of the appeal of his sentence that must
    be considered. Further, at this stage he is no longer presumed innocent, but
    rather, he is guilty of the charge he faced at trial for the reasons given by
    the trial judge.

[10]

The question that will be
    scrutinized on the sentence appeal is whether the trial judge committed an
    error in principle, failed to consider a relevant factor, or overemphasized
    appropriate factors. If the trial judge did not so err, a high level of
    deference is afforded to the trial judges decision unless the sentence is
    demonstrably unfit:
R. v. M. (C.A.)
, [1996] 1 S.C.R. 500, at p. 565.

[11]

The Crown opposes this application
    on the basis of the first and third branches of the test. The Crown
submits that
the
    grounds of appeal
advanced by Mr. Sona
    are not
arguable
and fail to
satisfy
    the very low threshold of not being frivolous.
In light of Mr. Sonas history and background, the Crown does not take
    issue with the surrender into custody component of the test.

[12]

As for the third branch of the test, the Crown asserts
    that it is not in the public interest to release Mr. Sona.
Mr. Sona submits
that
    the real crux of this application is whether the

sentence appeal has sufficient
    merit to outweigh the public interest in immediate

enforcement of
    a sentence imposed.


ANALYSIS

(1)

The appeal is not frivolous

[13]

An appeal is not frivolous if the
    proposed grounds raise arguable issues.
Mr.
    Sona

is not required to go so far as to show that a
ground
of
    appeal
has a likelihood of success on
    appeal
. R
ather, he only
has
to satisfy
the
    court
that
it
is a viable ground of appeal
    that would warrant appellate intervention if established:
R. v. Manasseri
,
    2013 ONCA 647, 313 O.A.C. 55, at para. 38.
Here Mr. Sona argues that he meets this standard
.

[14]

Mr. Sona
submits that for
the
    offence he was found guilty of
, it is
    arguable that a nine-month sentence of
imprisonment
is outside the range
of sentences available. At the very least, Mr. Sona argues
that
the
sentence
he
    received
is at the wrong end of the range
    that ought to be imposed in
his
circumstances.
He
    also advances two other grounds that he says are arguable, namely, that the
    trial judge erred in: (i)
finding that
    there was no evidence of rehabilitation
;
    and (ii) failing
to consider general
    deterrence on similarly

situated

individuals
.

[15]

I accept that the grounds of
    appeal are arguable and are not frivolous.

I agree with
Mr. Sona
that he
is the first
person
to have
    been convicted of this

offence, and
as
    the trial judge observed,
there are no
    precedents to help establish an appropriate range of sentence
:
Sona
,
    at para. 42. The novelty of this case makes it more difficult for the Crown to
    show that the appeal is frivolous. Importantly, the Crown, while not accepting
    that there are arguable grounds of appeal, quite fairly acknowledged that the
    administration of justice, in these circumstances of first impression, will be
    served by this courts guidance that will result from this appeal. I concur
    with th
is fair and helpful observation.

(2)

Mr. Sona will surrender into custody

[16]

Mr. Sonas history and background
    demonstrate that he
would surrender into
    custody
in accordance with the terms of
    any release order
.
The
position
    taken by the Crown on this second branch is fair, helpful and one that I
    accept.


(3)

Detention is not necessary in the public interest

[17]

In the less than perfect system of criminal justice, courts endeavour
    to administer justice with fairness and compassion while ensuring just enforcement
    of our laws that serve to protect and guide our society. And, throughout this
    process, courts seek to dispense justice in a manner that enhances the systems
    reputation and promotes public confidence in it
.

[18]

On this application the court is
    required to consider
the public
    perception of the administration of justice
when deciding whether Mr. Sonas application for release pending appeal
    is appropriate
. Importantly, t
he public perception that is considered at this stage
    derives from a public that is reasonably informed about the criminal process
    and the particular circumstances of the case
.

[19]

The public interest component
    requires that I balance the need to review the sentence of nine months
    imprisonment imposed by the trial judge with the need to respect
the general rule of immediate enforceability of the
    decision:
Manasseri
, at paras. 40-43.
That is to say,
reviewability
    versus enforcement, to borrow the language commonly used in the jurisprudence.

[20]

Reviewability arises where
judgments or decisions
ought to
be reviewed and any errors
    corrected, especially where an appellants liberty is at stake
.
Public
    confidence in the administration of justice mandates that,
i
n these
    circumstances, justice usually requires release from custody pending the
    review.

[21]

On the other hand
,
public
    confidence in the administration of justice usually
requires that judgments or decisions of
the courts
be
    enforced
. A
person convicted of a very serious offence, who advances grounds of
    appeal that are arguable but weak,
should
    not be
release
d

from custody
pending
    appeal:
R. v. Farinacci

(1993), 86 C.C.C. (3d) 32 (Ont. C.A.), at
    pp. 47-48.


(a)

Application of the public interest component to this case

[22]

I conclude that Mr. Sonas
    detention pending his appeal is not necessary in the public interest.

[23]

The ultimate objective in
    sentencing is to arrive at one that is fit and proper given the specific
    offender and the specific offence. In a very thorough and thoughtfully reasoned
    decision, the trial judge decided that nine months imprisonment is a fit and
    proper sentence for Mr. Sona.

[24]

As I noted earlier, Mr. Sona
    wishes to challenge the trial judges decision on the basis that it is neither
    fit nor proper in all the circumstances. And, he asks that while this decision
    is being reviewed, he be released from prison. I have concluded that he should
    be granted his request.

[25]

The offence that Mr. Sona has been
    convicted of is, again, very serious.  At the same time, when sentenced
, Mr. Sona was 26 years old and, having lost his
    employability in politics, was working successfully as a machinist. He was
    sentenced as a youthful, first-time offender.
His pre-sentence report outlines the emotional toll this has taken on
    Mr. Sona and his parents. Imprisonment aside, Mr. Sona has suffered, and
    continues to suffer, consequences for his criminal conduct.

[26]

I concur with counsel
    for Mr. Sona that Mr. Sona has been subjected to more than the usual ignominy
    of a public trial and conviction.  Most youthful first-time offenders enjoy
    some measure of obscurity; Mr. Sonas trial has been fervently covered by the
    national media. Given the serious offence he committed, I am not being critical
    when I make this observation.

[27]

Significantly, i
t is virtually certain that Mr. Sonas sentence appeal
    will be moot  or very nearly so  by the time this appeal is decided.
That is, he will have served most, if not all, of his
    sentence when this court has the opportunity to consider whether it was the
    correct sentence.

[28]

The principle of reviewability
    is strengthened where a youthful offender is compelled to serve his or her
    brief sentence before having the opportunity to have his or her challenge heard
    on appeal. The entitlement to bail is strongest when to deny it would render
    the appeal of any value whatsoever for all practical purposes:
R. v.
    Farinacci
(1993), 86 C.C.C. (3d) 32 (Ont.
    C.A.), at pp. 47-48. That is so in this case.

[29]

Finally, in the interest of
    maintaining the publics confidence in the administration of justice, I note
    that if released from custody, there is very little likelihood that Mr. Sona
    will commit any further criminal acts, nor does he pose a danger to the
    public.

CONCLUSION

[30]

In this case

a case of a
    sentencing without precedent
and where
    there are
arguable grounds of appeal


Mr. Sona
ought
    to ha
ve an opportunity to have this c
ourt
consider
the fitness of his sentence before he is required to
    serve it.
I am convinced that the
    publics
confidence in the administration
    of justice
will not be diminished

if Mr. Sona is
release
d
from custody pending the review
of his sentence
.
    A public reasonably informed of the criminal process and the particular
    circumstances of this case would understand this result.

[31]

For these reasons, the application
    for release pending appeal
is granted
.
An order will
    go pursuant to the agreed upon draft order counsel filed on this application.

[32]

I will end by giving my thanks to
    both counsel for their professional and just approach in this case. Their
    submissions were extremely helpful and very much appreciated. The
    administration of justice has been well served.

H.S.
    LaForme J.A.


