



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Berhe, 2018 ONCA 930

DATE: 20181122

DOCKET: C62881

Feldman, Roberts and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Yohannes Berhe

Appellant

Yohannes Berhe, in person

Louis Strezos, duty counsel

Andrew Hotke, for the respondent

Heard: November 5, 2018

On appeal from the decision
    of the Summary Convictions Appeal Court dated October 17, 2016 by Justice
    Akhtar of the Superior Court of Justice, allowing the appeal from the sentence
    imposed on July 22, 2015 by Justice Hogan of the Ontario Court of Justice and
    dismissing the appeal from the sentence imposed on September 10, 2015 by
    Justice Khawly of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The applicant seeks leave to appeal from the decision of the summary
    conviction appeal court in respect of the sentences imposed following
    convictions in two cases. In the first case, the summary conviction appeal
    judge set aside the sentence imposed by Hogan J., because it constituted an
    illegal sentence under s. 731 of the
Code
with three components:  a
    period of custody, probation and a fine. Under that section, a period of
    probation may be added to either a fine or a period of custody but not both. The
    sentencing judge had added the small fine to the sentence of custody and
    probation in order to reduce the amount of the victim fine surcharge.

[2]

The summary conviction appeal judge corrected the illegality by removing
    the fine. He also imposed a $100 victim fine surcharge on each count, holding
    that imposing a small fine in order to reduce the mandatory victim fine
    surcharge is improper. In the second case, the summary conviction appeal judge
    upheld the sentence imposed by Khawly J., who had refused to impose a small
    fine as part of the sentence only for the purpose of reducing the amount of the
    victim fine surcharge.

[3]

The issue on which the applicant seeks leave to appeal is whether the
    summary conviction appeal judge was correct in holding that a sentencing judge
    may not impose a small fine as part of a sentence for the purpose of reducing
    the mandatory victim fine surcharge. This issue was explained and submitted by
    Mr. Strezos, acting as duty counsel.

[4]

Despite his helpful articulation of the issue, leave to appeal is
    dismissed for two reasons.

[5]

First, the issue does not arise squarely on the facts of either case. The
    issue of the propriety of a small fine imposed only to reduce the victim fine
    surcharge arose on the appeal from Hogan J. to the summary conviction appeal
    judge, but in addressing the issue, he was entitled to impose the sentence he
    did. Everyone agrees that the summary conviction appeal judge turned an
    unlawful sentence into a lawful sentence. The applicants complaint is that he
    chose to delete the fine rather than the period of custody or the probation, as
    the means by which to turn the sentence into a lawful one. That decision fell
    within an exercise of his discretion. Similarly on the appeal from Khawly J.,
    the original sentence imposed was a legal sentence which was upheld on summary
    conviction appeal. Deference is owed to those decisions.

[6]

Second, the appeal of this courts decision in
R. v Tinker
, 2017
    ONCA 552, 136 O.R. (3d) 718, challenging the constitutional validity of the
    victim fine surcharge, is under reserve at the Supreme Court of Canada, where
    that court will have the opportunity to consider and discuss the purpose and
    parameters of the victim fine surcharge. That discussion may well impact the
    concern raised by the applicant.

[7]

Accordingly, the sentences that were ultimately imposed attract
    deference and there is no issue of significance to the administration of justice
    beyond what will likely be dealt with in
Tinker
.
The
    application for leave to appeal is therefore dismissed.

K.
    Feldman J.A.

L.B.
    Roberts J.A.

Fairburn
    J.A.


