



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sona, 2016 ONCA 452

DATE: 20160609

DOCKET: C59644 and C59729

Feldman, MacPherson and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Appellant/Respondent

and

Michael Sona

Respondent/Appellant

Howard L. Krongold, for Michael Sona

Nick Devlin and Jennifer Conroy, for the Attorney
    General of Canada

Heard: May 18, 2016

On appeal from the sentence imposed by Justice G. F.
    Hearn of the Ontario Court of Justice on November 19, 2014.

MacPherson J.A.:


A.

Introduction

[1]

Michael Sona was convicted of preventing or endeavouring to prevent an
    elector from voting in a federal election contrary to s. 281(g) of the
Canada
    Elections Act
, S.C. 2000, c. 9 (the 
CEA
). He was sentenced to
    nine months incarceration followed by 12 months probation.

[2]

Unusually, both parties appealed. Both contended that the custodial
    portion of the sentence was unfit  Mr. Sona said it was too harsh; the Crown
    said it was too lenient.

[3]

The two appeals were heard together on May 18, 2016. At the conclusion
    of the hearing, the court indicated that both appeals were dismissed, with
    written reasons to follow. These are those reasons.

B.

Facts

(1)

The
    parties and events

[4]

Michael Sona was a young man from a good family. He grew up in Guelph.
    He graduated with honours from both high school and the University of Guelph.
    Following graduation from university, Mr. Sona moved to Ottawa in 2009 and
    became involved in the political internship program with the Conservative Party
    of Canada (the CPC). He then became a Communications Assistant in 2010 and a Communications
    Parliamentary Affairs Manager in 2012.

[5]

During the 2011 federal election, Mr. Sona returned to Guelph where he
    became Communications Director for the local CPC candidate. In this role, he
    became a major and active participant in a scheme designed to prevent some
    non-supporters of the CPC from voting.

[6]

Ultimately, the scheme became well-known in the media as the robo-calls
    scandal. The scheme involved sending 7,676 automated telephone calls on the
    day of the election, May 2, 2011, telling voters that their polling station had
    been changed to a different location. The intent was to send voters to a false
    location to prevent or discourage them from voting. The robo-calls message was
    false and not authorized by Elections Canada.

[7]

It is not possible to know exactly how these calls affected voters.
    However, at the trial it was agreed that 150 to 200 voters attended the false
    polling station as a result of the calls. Some of these voters tore up their
    voter information cards and walked away. Other voters chose not to vote because
    of the inconvenience of the false location.

[8]

Following the election, Mr. Sona boasted to fellow workers and friends
    about his role in the robo-calls scheme.

[9]

Two years later, in April 2013, Mr. Sona was charged that he:

[D]id wilfully prevent or endeavour to prevent an elector from
    voting at an election contrary to paragraph 281(g) of the
Canada Elections
    Act
and by so doing committed an offence contrary to paragraph 491(3)(d)
    of the
Canada Elections Act
.

[10]

Following
    a five day trial, Mr. Sona was convicted of this offence.

(2)

The
    sentence

[11]

At
    the sentence hearing, the Crown sought a term of imprisonment of 18 to 20
    months. Defence counsel asked for a non-custodial sentence, a short sharp
    custodial sentence of 14 to 30 days, or a conditional sentence.

[12]

The
    sentencing judge comprehensively discussed the relevant aggravating and mitigating
    factors. He was well aware of the core principles of sentencing. He concluded:

[48] This is a difficult and troublesome sentencing. I have
    considered the aggravating and mitigating circumstances, the principles to be
    applied and I have exercised some restraint given the fact that Mr. Sona is in
    fact a youthful first time adult offender.

[49] I have concluded and find that the conduct of Mr. Sona on
    the days leading up to the May 2, 2011 federal election was egregious and had
    considerable impact not only on this particular community, but also on our
    democratic process. General deterrence and more importantly denunciation
    mandate a period of imprisonment in my view and are the driving principles to
    be considered. The principles of restraint and rehabilitation together with the
    mitigating circumstances set out simply impact the length of any sentence to be
    imposed. I am satisfied that a period of imprisonment is appropriate and I am
    also satisfied that the fundamental principles of sentencing cannot adequately
    be addressed by a conditional sentence.

[50] Individuals such as Mr. Sona notwithstanding the lack of
    record and their apparent good character must appreciate that this type of an
    offence is an affront to the electoral process and is conduct that simply
    cannot be classified as anything less than very serious. Individuals who choose
    to take part in this type of conduct can expect significant consequences.

[51] Mr. Sona and another or others by their conduct have
    impacted the lives of many. Presumably Mr. Sona, given his background and his
    involvement with government services, was an individual who championed the
    democratic right of everyone to cast their vote in a fair and unhampered
    manner. He took very active steps to see that that did not happen and the
    sentence must be such that the serious nature of this conduct is made apparent
    to those similarly inclined. Anything less than a period of imprisonment would
    fall short in my view of properly denouncing such conduct.



[54] Mr. Sona will be sentenced to a period of imprisonment of
    9 months to be followed by a period of probation of 12 months.

C.

Issue

[13]

Mr.
    Sona and the Crown appeal the sentence. Both appeals present the same issue:
    did the sentencing judge err by imposing an unfit sentence?

D.

Analysis

(1)

Mr.
    Sonas appeal

[14]

Mr.
    Sonas position is that the sentencing judge committed two errors
[1]
in his sentencing reasons that, taken together, resulted in an unfit sentence.
    On appeal, Mr. Sona accepts that a custodial sentence was not
per se
unfit; however, he submits that, absent the two errors, a proper custodial
    sentence would have been about 90 days.

[15]

First,
    Mr. Sona contends that the sentencing judge overemphasized the principles of
    denunciation and general deterrence in his reasons. He points to two passages
    in the sentencing reasons to support this submission:

[44] The cases further provide that where there is interference
    with the electoral process, those who interfere with it must expect that
    deterrence and denunciation will be primary sentencing objectives.



[49]  General deterrence and more importantly denunciation
    mandate a period of imprisonment in my view and are the driving principles to
    be considered.

[16]

Mr.
    Sona submits that the words primary sentencing objectives and the driving
    principles in these passages suggest that the sentencing judge fell into error
     he was focussed too much on the nature of the offence (which he described as
    serious, and egregious and representing a complete disregard for our
    political system and its values) and too little on the individual circumstances
    of the offender and his rehabilitative potential.

[17]

I
    do not accept this submission. In my view, when the sentencing reasons are read
    as a whole, it is clear that the sentencing judge was well aware of, and
    applied, all of the relevant sentencing principles, including rehabilitation.
    In context, the words primary sentencing objectives and the driving
    principles signal that, in a very rare case where a political worker engaged
    in premeditated and serious activities designed to deprive several thousand
    electors of their right to vote, denunciation of his choice and activities and
    deterrence of similar activity by others in the future are important sentencing
    objectives. In my view, this was a perfectly reasonable signal to send.

[18]

Second,
    Mr. Sona asserts that the sentencing judge erred by, in effect, dismissing
    rehabilitation as a sentencing factor. He refers to
R. v. Brown
, 2015
    ONCA 361, 126 O.R. (3d) 797, where this court said:

[7]  The primary objectives in sentencing the youthful first
    time offender remained individual deterrence and rehabilitation. In balancing
    the factors, the sentencing judge still had to impose the shortest term of
    imprisonment that was proportionate to the crime and the responsibility of the
    offender, given his young age.

[19]

In
    my view, the sentencing judge did precisely what
Brown
and many other
    cases mandate. The sentencing judge took account of the many mitigating factors
    relating to Mr. Sona  his youth; the absence of a criminal record; the strong
    support of his family and community, especially his church community; a
    positive pre-sentence report; the fact that his actions in this matter seem to
    be out of character for him; and the fact that the charge has been outstanding
    for a significant period of time and has effectively hung over the head of Mr.
    Sona and his family and supports.

[20]

Having
    recorded all of these mitigating factors, the sentencing judge turned
    immediately to the final section of his reasons, titled Sentence to be
    Imposed. After observing that [t]his is a difficult and troubling
    sentencing, he said explicitly: I have also exercised some restraint given
    the fact that Mr. Sona is in fact a youthful first time adult offender.

[21]

In
    my view, the sentencing judges reasons, read as a whole, fully and properly
    took into account Mr. Sonas prospects for rehabilitation and his individual
    circumstances.

(2)

The
    Crowns appeal

[22]

The
    Crown contends that Mr. Sonas offence amounted to a serious electoral fraud.
    It submits that a custodial sentence of nine months was inadequate as a
    condemnation of conduct that subverted the integrity of our democracy. The
    Crown invites this court to enunciate a general principle that key players in
    large-scale attempts to fraudulently alter the outcome of elections, including
    by depriving electors of the right to vote, will ordinarily be subject to
    penitentiary terms of imprisonment and sentences in the range of 2-5 years
    should be the norm. The Crown asserts that a fit sentence for Mr. Sona was
    three years imprisonment, but that since the Crown in this case limited its
    position to a sentence of 18-20 months before the trial judge, fairness
    dictates that the sentence should be capped at that level on this occasion.

[23]

In
    support of its position, the Crown relies on several decisions imposing
    sentences for various aspects of electoral fraud in the United Kingdom, the
    United States and Australia: see
R. v. Brindley
, [1997] 2 Cr. App. R.
    (S.) 353;
R. v. Khan et al.
, [2009] EWCA 2483, 2009 WL 3829413;
R.
    v. Hussain
, [2006] 1 Cr. App. R. (S.) (62), [2005] EWCA 1866;
Unites
    States v. Cole
, 41 F.3d 303 (7
th
Circ.); and
R. v. Ehrmann
,
    [2001] QCA 50.

[24]

The
    Crown also relies on, and draws an analogy from, several leading decisions of
    this court imposing sentences for major professional or commercial frauds: see
R.
    v. Bertram
, 40 O.A.C. 317, [1990] O.J. No. 2013 (C.A.);
R. v. Bogart
(2002)
, 61 O.R. (3d) 75, 167 C.C.C. (3d)
    390 (C.A.);
R. v. Dobis
, 58 O.R. (3d) 536, [2002] O.J. No. 646 (C.A.);
R. v. Drakes
, 2009 ONCA 560, 252 O.A.C. 200; and
R. v. Maxwell
,
    2014 ONCA 316, [2014] O.J. No. 1921.

[25]

I
    do not accept the Crowns submission. I begin with an important contextual
    point. Crown counsel at trial was aware of, cited, and strongly relied on some
    of the foreign electoral fraud and Ontario fraud cases set out above. Indeed,
    these cases were a centrepiece of his submissions at the sentence hearing.

[26]

Trial
    counsels position on sentencing can be summarized in this fashion:

(1)

a conditional sentence is not appropriate;

(2)

a sentence of 18 to 20 months is a fit and appropriate sentence in the
    circumstances for an individual such as Mr. Sona, after trial; and

(3)

if Mr. Sona had been a more senior individual, a campaign
    manager, [the Crown] might well have been seeking a penitentiary term of
    imprisonment in relation to this conduct.

[27]

Against
    this backdrop, I reject the Crowns submission on appeal that this court should
    enunciate a range for electoral fraud cases and that the range should be two to
    five years. I do so for two reasons.

[28]

First,
    fixing a range in this appeal would be premature. This appears to be the first
    case dealing with an offence under the
CEA
. Thus, I am sympathetic to
    what the sentencing judge said when reviewing the foreign cases dealing with
    interference with the electoral system:

[42]  These cases are of some assistance although I am told
    that Mr. Sona is the first individual to be found guilty of such an offence as
    that before the court under the
Canada Elections Act
and there are no
    precedents to help establish an appropriate range of sentence.

[29]

Generally
    speaking, an appellate courts decision to enunciate a range for a particular
    offence flows from experience  with many offenders, many offences, and many
    different circumstances surrounding the offences. Put bluntly, the notion of a range
    is antithetical to the scenario of a first offence ever by anybody.

[30]

Second,
    in my view it would be wrong to fix a range that precludes, in all cases, the
    imposition of a non-penitentiary sentence. Again, on the basis of a single
    case, it is impossible to know anything about the variety of offenders and
    offences that may give rise to convictions under the
CEA
. In the
    context of a one case experience, absolutism now may be the enemy of fairness
    down the road.

[31]

The
    Crowns second position on this appeal is that the nine month sentence imposed
    by the sentencing judge was unfit. Central to this submission is the Crowns
    assertion that the sentencing judge did not take sufficient account of the
    reality that what Mr. Sona did was an affront to, and an attack on, democratic
    institutions and values.

[32]

I
    am not persuaded by this submission. There is no doubt that the sentencing
    judge was alive to, and took account of, Mr. Sonas background and personal
    circumstances in imposing sentence. These led him to exercise some restraint
    for a youthful first time adult offender.

[33]

However,
    I do not think that the sentencing judge overemphasized this factor. On the
    contrary, on many occasions the sentencing judge spoke about the great values
    of Canadian democracy and the need to protect democratic institutions and
    processes from attack. I cite but one of many possible examples of this
    component of the sentencing judges reasons:

[46]  The plan to which Mr. Sona was a party was effectively
    an 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.
    This was not an amateurish Grade 8 election campaign for student council.
    Conduct such as that of Mr. Sona is not suitable at any time. It is not only
    criminal, but distasteful and disturbing and is a step above other political
    tricks that the court has heard of in evidence including such things as sign
    removal and bingo cards. Defence counsel argues that this was simply a prank
    gone terribly bad. This was much more than a prank and nothing in the
    evidence points to it being such. The evidence in fact points in the other
    direction that this was a deliberate and considered course of criminal conduct
    specifically designed to subvert the inherent fairness of the electoral
    process.

[34]

In
    my view, this is a forceful and eloquent comment about Canadian democracy and
    its institutions and processes. The sentencing judge clearly included it in the
    calculus of factors he considered in imposing a sentence on Mr. Sona.
    Importantly, this and similar passages in the sentencing judges reasons will
    speak into the future if similar cases should arise.

E.

Disposition

[35]

Both
    appeals are dismissed.

Released: June 9, 2016 (K.F.)

J.C. MacPherson J.A.

I agree. K. Feldman J.A.

I agree. P. Lauwers J.A.





[1]
In his factum, Mr. Sona sets out three potential errors. In my view, there is
    some overlap in these issues and, based on Mr. Krongolds oral argument at the
    hearing, it is fair to say that his position is that the sentencing judge made
    two errors in his reasons.


