



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), (2.1), (2.2), (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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(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 victim of the right to make an application for the order; and

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

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of
    the victim or the prosecutor, 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);
    2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s.
    18..

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. Hannora, 2020 ONCA 335

DATE: 2020601

DOCKET: C67730

Fairburn, Nordheimer and
    Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mahmoud Hannora

Appellant

Jacob Stilman, for the appellant

Natalya Odorico, for the
    respondent

Heard: in writing

On appeal from the sentence imposed on September
    14, 2018 by Justice Guy P. DiTomaso of the Superior Court of Justice.

REASONS FOR DECISION

[1]

Mr. Hannora appeals the sentence imposed on him
    arising from his conviction on three counts after a trial with a jury. Mr.
    Hannora was sentenced to three years on a count of unauthorized possession of a
    restricted firearm, one year consecutive on a count of possession of a firearm
    while prohibited, and three years consecutive on a count of receive material
    benefit from sexual services, for a total sentence of seven years. Mr. Hannora
    abandoned his conviction appeal.

[2]

The background facts can be stated briefly. The
    complainant was a sex trade worker who entered into a relationship with the
    appellant. The complainant continued to work in the sex trade while she was in
    this relationship with the appellant. The appellant received monies from the
    complainant which he used for his own personal expenses. The complainant also
    moved into a condominium that the appellant owned and paid rent to the
    appellant.

[3]

On occasions during the relationship, the
    appellant was abusive towards the complainant. There were acts of physical
    violence. On one occasion, during an argument, the appellant produced a loaded
    handgun and threatened the complainant with it. It appears that the appellant
    had the handgun with him on other occasions, including when he went out in
    public. The complainant handled the handgun and, at one point, asked if she
    could shoot it.

[4]

The relationship ended after a few months.

[5]

The appellant was 27 years old at the time of
    sentencing. He has a criminal record that includes convictions for theft under,
    mischief, break and enter, possession of a weapon and a number of breaches of
    court orders. It is of some importance that the longest sentence that the
    appellant had received, prior to these convictions, was for a total of 330 days,
    or slightly less than a year.

[6]

There was a pre-sentence report before the
    sentencing judge that spoke positively about the appellant. As the sentencing
    judge observed, the appellant had accepted responsibility for his actions, and
    enjoyed strong family support. The sentencing judge also said, Mr. Hannora has
    been described as a mature young man who had been making efforts to better
    himself, and who now needs to continue to learn from his mistakes.

[7]

In our view, the sentencing judge erred in his
    approach to the sentences he imposed by failing to properly apply the totality
    principle. The only mention of the totality principle made by the sentencing
    judge was with respect to the three year sentence he imposed on the firearms
    conviction, when he reduced what he considered to be an otherwise fit sentence
    on that count from 4 to 3 years.

[8]

The totality principle is properly applied to
    the total sentence imposed on an offender. Its purpose, where consecutive sentences
    are imposed, is to ensure that the total sentence is proportionate to the
    culpability of the offender. As Lamer C.J. said in
R. v. M. (C.A.)
,
[1996] 1 S.C.R. 500, at p. 531:

The totality principle, in short, requires a
    sentencing judge who orders an offender to serve consecutive sentences for
    multiple offences to ensure that the cumulative sentence rendered does not
    exceed the overall culpability of the offender.

[9]

Having determined the fit disposition for each
    count, and running the sentences consecutive to one another, the trial judge
    was required to look at the total sentence of 7 years and ask whether it
    exceeded the overall culpability of the appellant. The failure to do so reflects
    an error in principle, one that impacted the sentence imposed:
Lacasse
,
at para. 44. Accordingly, it falls to this court to do so.

[10]

In the circumstances of this case, having regard
    to the circumstances of the offending conduct, a total 7 year sentence for a 27
    year old offender who the trial judge accepted had positive prospects for
    rehabilitation, was genuinely remorseful, and whose previous longest sentence
    was less than a year, outstripped his overall culpability. On the
    rehabilitation aspect, we repeat the observation of Watt J.A. in
R. v.
    Angelis
, 2016 ONCA 675, 133 O.R. (3d) 575 (C.A.), where he said, at para.
    51:

Totality is a principle of sentence the
    purpose of which is to ensure that the total sentence imposed does not
    extinguish the rehabilitative potential of the offender.

[11]

While we do not diminish the seriousness of the
    appellants conduct, the total sentence was excessive given the mitigating
    factors that we have mentioned. The principle of totality should be applied to
    reduce the overall length of time the appellant must serve in custody.

[12]

It is recognized that one way to reconcile the
    overall sentence with the totality principle is to impose concurrent sentences,
    where otherwise the sentences would be consecutive: Clayton C. Ruby, et al.,
Sentencing
,
    9th ed. (Toronto: LexisNexis, 2017), at
§
2.75. This approach has been favoured by this court in a variety of
    decisions, including
R. v. Jewell

(1995), 100 C.C.C. (3d) (Ont.
    C.A.), where Finlayson J.A. said, at p. 279:

In performing this function, the trial judge
    will have to consider not only the appropriate sentence for each offence, but
    whether in light of totality concerns, a particular sentence should be
    consecutive or concurrent to the other sentences imposed.

[13]

Taking into account the mitigating factors that
    we have mentioned above, the appropriate total sentence in this case would have
    been one of four years. That result can be accomplished by making the sentence
    on the receive material benefit count concurrent to the other two counts.

[14]

We would grant leave to appeal sentence, allow
    the appeal, and make the sentence on count #3 concurrent to the sentences on
    counts #1 and #2. We would also set aside the victim fine surcharge.

Fairburn
    J.A.

I.V.B.
    Nordheimer J.A.

Harvison
    Young J.A.


