



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sharma, 2019 ONCA 274

DATE: 20190409

DOCKET: C65413

Pardu, Nordheimer and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Ajay Sharma

Respondent

Lisa Csele, for the appellant

Robert Lepore, for the respondent

Heard: February 28, 2019

On appeal from the sentence imposed on April 27, 2018 by
    Justice Kathryn L. Hawke of the Ontario Court of Justice.

Pardu J.A.:

A.

overview

[1]

The Crown appeals from a sentence imposed on a
    guilty plea to fraud. The respondent operated a tax return preparation business.
    He added false claims of business losses to 37 of his clients tax returns for
    the 2009-2012 taxation years, potentially resulting in a loss of federal tax
    revenue of $488,178.37. The revenue authorities are in the process of
    reassessing interest and potential penalties for the affected taxpayers, and
    the amount of the ultimate actual loss, if any, is not known. The respondent
    personally benefited from the scheme in the amount of $96,946.

B.

the decision of the sentencing judge

[2]

The sentencing judge imposed a conditional
    sentence of two years less a day. She added conditions intended to promote the
    respondents rehabilitation and reduce the risk that he re-offend. For the
    first eight months, he was under house arrest; for the next eight months he was
    subject to a curfew from 10:00 p.m. to 6:00 a.m.; the conditional sentence was
    followed by probation for three years. He was fined $96,946, with the provision
    that $70,000 had to be paid towards that fine during the term of the
    conditional sentence.

[3]

The respondent is now 67 years old. The
    sentencing judge acknowledged that the respondent has generalized anxiety
    disorder and problems with alcohol. Further, the respondent provided some
    evidence that he suffers from heart disease and high blood pressure. He has a
    criminal record including convictions for uttering forged documents in 1990 and
    1994, and frauds in 2000 and 2006 for which he was sentenced to one day of
    imprisonment, and for which the sentence was suspended, respectively. He also
    has several convictions for impaired driving.

[4]

The Crown asked for a two year sentence and a
    fine, in the amount that was ultimately ordered by the sentencing judge. The
    defence agreed to the fine and submitted that a conditional sentence of up to
    two years less a day would be adequate.

[5]

The sentencing judge observed that the
    respondent was working and that he could continue working if he received a
    conditional sentence. She took note of his health issues. She noted the
    aggravating factors. This included the planning and deliberation associated
    with the commission of the offence and the breach of trust, although the latter
    was somewhat attenuated by the possibility that some of the clients were
    actively involved in the filing of false returns. Other aggravating factors
    noted by the sentencing judge included the medium to larger scale of the fraud and
    the respondents criminal record.

[6]

She then turned to the mitigating factor, the
    early indication of a guilty plea. The sentencing judge noted that the plea came
    early and that pleas in fraud cases save the justice system resources.

[7]

The sentencing judge then turned to the crux of
    the issue:

the issue
    becomes whether, given the principles of general deterrence and denunciation,
    is a real jail sentence required in the circumstances or can these principles
    be satisfied through terms in a conditional sentence order. In thinking about
    that, certainly there are some symbolic things in terms of general deterrence
    that a real jail sentence involves but I think its also fair to consider some
    practical considerations. And I think that the public is reasonably astute to
    some of these practical considerations. There is an agreed upon fine in this
    case. Its a substantial fine. That fine has a general deterrence aspect in and
    of itself but one of the things that is important with a fine is that it be
    paid and real incarceration would result in him not working. The defendant is
    65. I think its a very open question if he could re-establish himself in the
    employment market after being away from it and in jail. And, also there would
    be competing expenses that would stack up over the time that hed be in jail,
    things like housing and such, the cost of that continues whether you are in
    jail or not. So, there is every reason, I think, to believe that going to jail
    would hamper his ability to pay the fine. And, as I mentioned before, I think
    it is an important element as part of this sentencing proposal. And, I think
    there is a way to have terms satisfy general deterrence and denunciation that
    would pull the entire sentence together as one package that satisfies the
    principles of sentence.

C.

parties positions

[8]

On appeal, the Crown submits that the sentence
    imposed was manifestly unfit, and that the sentencing judge erred by giving
    priority to enabling the respondent to continue working and pay the fine by
    imposing a conditional sentence. The Crown submits that the sentencing judge
    ignored the legal principles of denunciation and deterrence.

[9]

The Crown points to cases in which this court
    has declined to intervene with custodial sentences imposed in large fraud
    cases, where the appellant seeks a conditional sentence on appeal:
R.
    v. Mathur,
2017 ONCA 403;
R. v. Pastore
, 2017 ONCA 487;
R. v. Wilson
, 2016
    ONCA 888 .

[10]

The respondent takes the position that appellate
    intervention is not justified. He argues that the sentence imposed is within
    the range of sentences imposed for this type of offence, and even if it were
    not within the sentencing range, this would be insufficient to warrant appellate
    intervention. The respondent submits that the sentence is not manifestly unfit
    and that the sentencing judge considered all appropriate sentencing principles.

D.

analysis

[11]

I would briefly note that a conditional sentence
    is available here because this offence was committed before the effective date
    of amendments to the
Criminal Code
, R.S.C.
    1985, c. C-46, s. 742.1 which removed the availability of a conditional
    sentence for fraud over $5,000.

[12]

I accept that the two year sentence sought by
    the Crown would not have been an unfit sentence in this case, had it been
    imposed by the sentencing judge, however as indicated in
R. v.
    Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 58,
    60:

[58] There will always be situations that call
    for a sentence outside a particular range: although ensuring parity in
    sentencing is in itself a desirable objective, the fact that each crime is
    committed in unique circumstances by an offender with a unique profile cannot
    be disregarded. The determination of a just and appropriate sentence is a
    highly individualized exercise that goes beyond a purely mathematical
    calculation. It involves a variety of factors that are difficult to define with
    precision. This is why it may happen that a sentence that, on its face, falls
    outside a particular range, and that may never have been imposed in the past
    for a similar crime, is not demonstrably unfit. Once again, everything depends
    on the gravity of the offence, the offenders degree of responsibility and the
    specific circumstances of each case. LeBel J. commented as follows on this
    subject:

A judge can
    order a sentence outside that range as long as it is in accordance with the
    principles and objectives of sentencing. Thus, a sentence falling outside the
    regular range of appropriate sentences is not necessarily unfit. Regard must be
    had to all the circumstances of the offence and the offender, and to the needs
    of the community in which the offence occurred. (
Nasogaluak
, at para. 44)

[60] In other words, sentencing ranges are primarily guidelines,
    and not hard and fast rules:
Nasogaluak
, at para. 44. As a result, a
    deviation from a sentencing range is not synonymous with an error of law or an
    error in principle. Sopinka J. stated this clearly in
McDonnell
,
    although he was referring in that case to categories of assault:

in my view it can never be an
    error in principle in itself to fail to place a particular offence within a
    judicially created category of assault for the purposes of sentencing. If the
    categories are defined narrowly, and deviations from the categorization are
    generally reversed, the discretion that should be left in the hands of the
    trial and sentencing judges is shifted considerably to the appellate courts.
    [para. 32]

[13]

Here, the sentencing judge imposed an integrated
    package of measures intended to promote the public interest, secure the respondents
    continued employment, facilitate the respondents payment of the fine and
    reduce the risk of re-offence. She expressly considered denunciation and
    deterrence; as is evidenced by the passage reproduced earlier in my reasons,
    she gave meaningful thought to whether a real jail sentence was required given
    the principles of deterrence and denunciation.

[14]

I would dismiss the appeal for three reasons.

[15]

First, the sentence imposed mirrors in many
    respects, the course the respondent would have followed had the two year
    sentence been imposed as requested by the Crown. The respondent would have been
    eligible for parole after serving one third of a two year sentence, i.e. at eight
    months:
Corrections and Conditional Release Act,
S.C. 1992, c. 20. s. 120(1). Incarcerated persons serving fixed
    sentences of two years or more who are not paroled after serving one third or
    more of the sentence are almost always released on statutory release after
    serving two thirds of their sentence, or after 16 months of a two year sentence:
CCRA
s. 127(3). After that time, the incarcerated
    person would be supervised on parole until the expiry of the two year sentence:
CCRA
, s. 127(7).

[16]

Here, the respondent was on house arrest for eight
    months, and subject to a restrictive curfew for the following eight months. The
    period of probation imposed on the respondent by the sentencing judge
    substantially increases the time during which he is under supervision, for three
    years after his two year less a day conditional sentence.

[17]

The respondent has now served the eight months
    of house arrest and several months towards the second period under curfew. Were
    we to accede to the Crowns request to now impose a two year sentence, he would
    have to re-serve eight months of the custodial sentence before being eligible
    for parole, which in a sense he has already served.

[18]

Even if this court were to give some credit for
    the terms of the conditional sentence already served, because of the
    differences between the federal and provincial prison regimes, the respondent
    would still substantially re-serve the sentence. For example, if this court
    were to impose a one year reformatory sentence, he would likely serve 8 months
    of that sentence, then be released without supervision. Remission in provincial
    institutions is earned for good behaviour while in custody, credited at 15 days
    per month served, as calculated under the federal
Prisons and
    Reformatories Act
, R.S.C., c. P-20, s. 6 (incorporated by
    reference to Ontario reformatories by ss. 28 and 28.1 of the
Ministry
    of Correctional Services Act
, R.S.O. 1990, c. M. 22):
R.
    v.

Plante
,

2018 ONCA 251, at para. 4. As per
R. v. Summers
, 2014 SCC 26, [2014] 1 S.C.R. 575, at para. 25, in the majority of
    cases, those serving reformatory sentences are released on remission after
    serving two thirds of their sentence.

[19]

Second, I am not satisfied that the sentencing
    judge erred in principle. In
R. v. Klundert
,
    2011 ONCA 646, 107 O.R. (3d) 561, leave to appeal refused, [2011] S.C.C.A. No.
    512, an analogous case of tax evasion, this court allowed the sentence appeal
    and imposed a one year conditional sentence instead of the one year prison term
    originally imposed. As
Klundert
held, there is
    no absolute rule that a conditional sentence is not appropriate in tax evasion
    cases: at para. 21. In my view, under the operative version of s. 742.1, the
    same is true for this analogous conviction for fraud over $5000.

[20]

It was open to the sentencing judge here to
    conclude that the public interest and the objectives of sentencing would be
    better met by a package allowing the respondent to continue his employment, pay
    the fine and remain under supervision for an extended time on terms designed to
    reduce the risk of re-offence. This was not a violent offence. Given the nature
    of the fraud, where the ultimate actual loss is unknown, and given the age,
    circumstances and health of the respondent, I am not satisfied that
    incarceration in an institution was the only option. The sentencing judge
    expressly considered the need for denunciation and deterrence and imposed an
    integrated package of measures that satisfied these sentencing principles.

[21]

Deference applies to sentences which might be
    viewed as more lenient as well as those which are stiffer.

[22]

As explained by Laskin J.A. in
R. v.
    McKnight
(1999), 44 O.R. (3d) 263 at p. 273:

Moreover, this court
    has held that over-emphasizing a relevant factor or failing to give enough
    weight to a relevant factor may amount to an error in principle. This does not
    mean, however, that an appellate court is justified in interfering with a trial
    judge's exercise of discretion merely because it would have given different
    weight or emphasis to a factor relevant to the sentence. To suggest that a
    trial judge commits an error in principle because in an appellate court's
    opinion the trial judge gave too much weight to one relevant factor or not
    enough weight to another is to abandon deference altogether. The weighing of relevant
    factors, the balancing process is what the exercise of discretion is all about.
    To maintain deference to the trial judge's exercise of discretion, the weighing
    or balancing of relevant factors must be assessed against the reasonableness
    standard of review. Only if by emphasizing one factor or by not giving enough
    weight to another, the trial judge exercises his or her discretion unreasonably
    should an appellate court interfere with the sentence on the ground that the
    trial judge erred in principle.

[23]

In addition, the principle of restraint in
    sentencing still means that incarceration is the sanction of last resort:
R.
    v. Hamilton
(2004), 72 O.R. (3d) 1, at para. 96. In light of
    the position taken by Crown counsel at the sentencing, that an appropriate sentence
    was one of two years, it is difficult to characterize the sentence imposed by
    the trial judge as manifestly unfit, even though the prevailing caselaw might
    suggest it was exceptional.

[24]

Third, it would be unfair to re-incarcerate the
    respondent after he has substantially served the house arrest portion of the
    conditional sentence. In
R. v.

Hamilton
, Doherty J.A. for this court concluded that a sentencing judge
    erred in imposing a conditional sentence on cocaine couriers, where the usual
    sentence would have been in the two year range, and where conditional sentences
    were rarely available because of the serious nature of the offence and the
    damage done by those crimes to Canadian society. He concluded that actual
    incarceration for 20 months and two years less a day would have been
    appropriate for one of the offenders, and actual incarceration of two years
    less a day would have been appropriate for the other offender:
Hamilton
, at para. 164. This court declined however to re-incarcerate the
    offenders after they had served close to 17 months of the conditional sentence,
    as was explained at paras. 165-66,

[165] The ultimate question is, however, should
    these respondents be sent to jail now? They have served close to seventeen
    months of their conditional sentences. There is no suggestion that they have
    not complied with the terms of those sentences or that they have committed any
    further offences. This court has recognized both the need to give offenders
    credit for conditional sentences being served pending appeal and the added
    hardship occasioned by imposing sentences of imprisonment on appeal. The
    hardship is readily apparent in these cases. Had the respondents received the
    appropriate sentences at trial, they would have been released from custody on
    parole many months ago, and this sad episode in their lives would have been a
    bad memory by now.

[
166
]
    This was a significant appeal for the administration of justice. The decision
    of the trial judge raised important issues that required the attention of this
    court. Appeals take time. Lives go on. Things change. These human realities
    cannot be ignored when the Court of Appeal is called upon to impose sentences
    well after the event
. The administration of
    justice would not be served by incarcerating the respondents for a few months
    at this time. They have served significant, albeit, inadequate sentences. To
    impose now, what would have been a fit sentence at trial, would work an undue
    hardship on the respondents.
The administration of justice
    is best served by allowing the respondents to complete their conditional
    sentences. [Emphasis added.]

[25]

As in
Hamilton
, the administration of
    justice would not be served by re-incarcerating the respondent after he has
    served the house arrest portion of the conditional sentence. To require him to
    serve a custodial type sentence twice would work an undue hardship on the
    respondent, and the public interest is better served by allowing him to
    complete the conditional sentence and observe the terms of the three year
    probation term imposed.

[26]

Accordingly, I would dismiss the appeal.

Released: April 9, 2019

GP

G. Pardu J.A.

I agree I.V.B. Nordheimer J.A.

I agree A. Harvison Young J.A.


