



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. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7), (8) or
    (9) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

486.5       (1)     Unless
    an order is made under section 486.4, on application of the prosecutor in
    respect of a victim or a witness, or on application of a victim or a witness, a
    judge or justice may make an order directing that any information that could
    identify the victim or witness shall not be published in any document or
    broadcast or transmitted in any way if the judge or justice is of the opinion that
    the order is in the interest of the proper administration of justice.

(2)  On application of the
    prosecutor in respect of a justice system participant who is involved in
    proceedings in respect of an offence referred to in subsection (2.1), or on
    application of such a justice system participant, a judge or justice may make
    an order directing that any information that could identify the justice system
    participant shall not be published in any document or broadcast or transmitted
    in any way if the judge or justice is satisfied that the order is in the
    interest of the proper administration of justice.

(2.1) The offences for the purposes
    of subsection (2) are

(a) an offence under section 423.1, 467.11, 467.111,
    467.12, or 467.13, or a serious offence committed for the benefit of, at the
    direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2), 17(1), 19(1),
    20(1) or 22(1) of the
Security of Information Act
; or

(d) an offence under subsection 21(1) or section 23 of the
Security
    of Information Act
that is committed in relation to an offence referred to
    in paragraph (c).

(3)  An order made under
    this section does not apply in respect of the disclosure of information in the
    course of the administration of justice if it is not the purpose of the
    disclosure to make the information known in the community.

(4)   An applicant for an
    order shall

(a) apply in writing to
    the presiding judge or justice or, if the judge or justice has not been
    determined, to a judge of a superior court of criminal jurisdiction in the
    judicial district where the proceedings will take place; and

(b) provide notice of
    the application to the prosecutor, the accused and any other person affected by
    the order that the judge or justice specifies.

(5)   An applicant for an
    order shall set out the grounds on which the applicant relies to establish that
    the order is necessary for the proper administration of justice.

(6)   The judge or justice
    may hold a hearing to determine whether an order should be made, and the
    hearing may be in private.

(7)   In determining
    whether to make an order, the judge or justice shall consider

(a) the right to a fair
    and public hearing;

(b) whether there is a
    real and substantial risk that the victim, witness or justice system
    participant would suffer harm if their identity were disclosed;

(c) whether the victim,
    witness or justice system participant needs the order for their security or to
    protect them from intimidation or retaliation;

(d) societys interest
    in encouraging the reporting of offences and the participation of victims,
    witnesses and justice system participants in the criminal justice process;

(e) whether effective
    alternatives are available to protect the identity of the victim, witness or
    justice system participant;

(f) the salutary and
    deleterious effects of the proposed order;

(g) the impact of the
    proposed order on the freedom of expression of those affected by it; and

(h) any other factor
    that the judge or justice considers relevant.

(8)   An order may be
    subject to any conditions that the judge or justice thinks fit.

(9)   Unless the judge or
    justice refuses to make an order, no person shall publish in any document or
    broadcast or transmit in any way

(a) the contents of an
    application;

(b) any evidence taken,
    information given or submissions made at a hearing under subsection (6); or

(c) any other
    information that could identify the person to whom the application relates as a
    victim, witness or justice system participant in the proceedings.
2005, c. 32, s. 15; 2015, c. 13, s. 19

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. Omar, 2018 ONCA 599

DATE: 20180629

DOCKET: C63902

Feldman and Benotto JJ.A. and Sachs J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Liban Omar

Appellant

Dirk Derstine, for the appellant

Craig Harper, for the respondent

Heard: March 26, 2018

On appeal from the sentence imposed by Justice Anne M.
    Molloy of the Superior Court of Justice on March 29, 2017, with reasons
    reported at 2017 ONSC 1833.

Benotto J.A.:

[1]

The appellant was charged with first degree murder. He testified in his
    own defence at a trial by jury. He claimed he knew detailed information about
    the murder because the person who committed it had shared the information with
    him. However, he refused to reveal the identity of that person. After the jury
    acquitted the appellant, the trial judge convicted him of contempt and
    sentenced him to three years imprisonment.

[2]

The appellant appeals his sentence on the basis that the trial judge
    erred by: (i) going behind the murder acquittal and sentencing him as if it
    were possible he was the murderer; and (ii) failing to give him credit for the
    three and a half years he spent in pre-trial custody on the murder charge.

Background

[3]

A homeowners surveillance camera captured a brutal murder on a
    residential street. The footage showed the victim being shot in his car,
    tumbling from the car onto the street and dragging himself along the street.
    All the while, the assailant shot the victim several more times, beat him and
    then administered a fatal shot. The murderer fled in the victims car. Although
    the footage recorded the murderers actions, no identification could be made.
    The appellant was arrested and charged with first degree murder. He was denied
    pre-trial bail and was held in custody for 3.5 years prior to trial.

[4]

The Crowns case against the appellant was based in part on numerous
    statements he made to the police during an undercover Mr. Big operation.
    These included the appellant admitting to having committed the murder and
    providing detailed information about the circumstances in which it was carried
    out.

[5]

At trial, the appellant elected to testify in his own defence. He
    testified that he was lying when he told the police he was involved in the
    murder. He stated he knew details of the murder not because he was the murderer,
    but because the real murderer had shared the information with him. Despite
    claiming to know the murderers identity, the appellant steadfastly refused to
    name that third party. He testified that he was afraid he and his family would
    be in danger if he became known as an informant in the community.

[6]

The trial judge ordered the appellant to answer the Crowns questions
    regarding the identity of the purported third party murderer. She warned the
    appellant repeatedly of the consequences of refusing to answer [in two ways: 1)
    that it would reflect badly on him before the jury; and 2) he could be held in
    contempt] and gave him the opportunity to consult with counsel. After speaking
    with counsel, the appellant still refused to provide the name. As a result, the
    trial judge cited him for contempt and directed that the issue would proceed
    before her at the conclusion of the trial.

[7]

After lengthy jury deliberations, the jury found the appellant not
    guilty of first degree murder. Following the acquittal, the contempt matter
    came back before the trial judge. The appellant conceded that his refusal to
    answer constituted contempt of court. The only issue was an appropriate sentence.

Reasons for Sentence

[8]

The trial judge imposed a sentence of three years imprisonment. She
    observed that the appellant was either lying about the existence of the third
    party, thereby helping to secure his own acquittal, or telling the truth about
    the third party, enabling that person to escape justice by not providing his
    name. She explained, at para. 3:

If [the appellant] was telling the truth about
    the mystery man who he said described to him in great detail the brutal
    killing of [the deceased], then his failure to name that man has enabled the
    killer to escape justice. Alternatively, if [the appellant] was lying
    about the existence of the mystery man, his refusal to answer proper
    questions on cross-examination prevented the authorities from being able to
    expose that lie and helped to secure his acquittal. Either way, at least in
    part, [the appellants] contempt in the face of the court enables a vicious
    murderer to walk freely in our community. [Footnote omitted.]

[9]

The trial judge acknowledged she was bound by the jurys verdict of
    acquittal and could not make any findings against the appellant that would be
    necessarily inconsistent with that acquittal. She reasoned, however, that it
    was impossible to know if the jury reached its verdict because it believed that
    somebody else committed the murder. She stated, at para. 19:

Clearly, I am bound by the jurys verdict of
    acquittal. I also cannot make any findings against [the appellant] that would
    be necessarily inconsistent with that acquittal. However, I cannot know what
    was in the minds of the jurors when they reached that verdict, nor the basis
    for it In particular, I cannot know whether the jury believed [the
    appellants] testimony about the mystery man who gave him all the details of
    the murder or his explanation for not revealing the name of that man.

[10]

The trial judge determined there were possible alternatives to the jury
    accepting the appellants evidence regarding the mystery man. Specifically,
    the jury could have found that the circumstances of the Mr. Big operation were
    such that any statements flowing from it could be given little weight, particularly
    given the various conflicting versions of the event the appellant provided
    officers over time. Or, the jury could have had a reasonable doubt about the
    appellants guilt based on his evidence at trial combined with his statements
    to the police. She concluded, at para. 19:

It is entirely possible that the jury found [the
    appellant] not guilty, without being satisfied that somebody else committed, or
    even probably committed the murder. I simply do not know.

[11]

Accordingly, the trial judge held that for the purposes of sentencing,
    she was not bound to accept the appellants testimony at trial as true. She
    stated, at para. 20:

I must not make any findings that are
    inconsistent with his acquittal on the murder charge, but that does not require
    me to make a positive finding that [the appellant] did not provide the name of
    the mystery man because he was afraid for his own life or that of his family. What
    I cannot do, however, is make a positive finding that [the appellant] was
    actually the real murderer and invented the story about the mystery man to
    cover up his own crime. Such a finding would be inconsistent with his acquittal
    by the jury.

[12]

The
    trial judge declined to award credit for the three and a half years the
    appellant spent in pre-trial custody for the murder charge. She determined that
    this time in custody was not
as a result of the contempt charge
    for which she was sentencing him and, therefore, s. 719(3) of the
Criminal
    Code
did not apply.

Position of the Parties

[13]

The
    appellant argues that the trial judge erred by sentencing him on the basis that
    he may have been the murderer. Although the trial judge acknowledged the
    fundamental principle that an acquittal is the equivalent of a finding of
    innocence, he argues she nonetheless sentenced him as if it were possible that
    he was the murderer. Further, the appellant submits that the trial judge erred
    by failing to provide him with credit for the pre-trial custody on the murder
    charge. He submits that there is a factual nexus between the contempt and the
    time served.

[14]

The
    Crown asserts that while the trial judge had to accept the necessary
    implications of the jurys verdict, she correctly determined that she was not
    bound to find that the jury accepted that a third party was the murderer. The
    Crown submits that the jurys verdict did not require any factual finding
    related to the alleged third party; the jury simply could have had a doubt
    about the appellants guilt and believed he lied to the police without
    necessarily believing his story about a third party.

Analysis

[15]

I
    agree with the appellant that it would have been an error for the trial judge
    to sentence him on the basis that he may have been the murderer. However, as I explain,
    despite certain language in her reasons, I do not accept that this is what the
    trial judge did or that the impugned language had any impact on the sentence imposed.
    I see no basis to interfere. Nor do I see any basis to interfere with the trial
    judges determination as to pre-trial custody.

(1)

The sentence imposed

[16]

The
    appellants acquittal is the equivalent of a finding of innocence:
R. v. Verney

(1993), 67 O.A.C. 279
    (C.A.), at paras. 14 & 20.
In
R. v. Grant
, [1991] 3 S.C.R. 139,
    a case concerning issue estoppel in criminal proceedings, the Supreme Court explained,
    at p. 153:

It is a well-established principle in our
    criminal law that an acquittal is equivalent to a finding of innocence, and
    that any issue, the resolution of which had to be in favour of the accused as
    a prerequisite to the acquittal, is irrevocably deemed to have been found
    conclusively in favour of the accused. [Citation omitted.]

[17]

Consequently, the trial judge was bound to accept the jurys acquittal and
    any findings of fact that necessarily arose therefrom: see also
Grdic v. The Queen
, [1985] 1 S.C.R. 810, at pp.
    825-26;
R. v. Brown
, [1991] 2 S.C.R. 518,
    at pp. 522-23; and

Verney
, at
    para. 20.

[18]

The trial judges reasons indicate
that she was alive to the
    fact that she was bound by the jurys verdict. She confirmed this on several
    occasions in her reasons. For example, she stated:

It follows from that verdict that
    the jury was not satisfied beyond a reasonable doubt that [the appellant was
    the shooter]. I am bound by that result and any express or implied factual
    implications arising from it. Further, in sentencing [the appellant], I cannot
    take into account any fact that is inconsistent with the jurys verdict (at para.
    14);

Clearly, I am bound by the jurys
    verdict of acquittal (at para. 19); and

I must not make any findings that are inconsistent with his
    acquittal on the murder charge (at para. 20).

[19]

The appellant submits that the trial judges comments about whether the
    appellant may have been lying when he testified about the friend who told him
    he was the murderer, meant that the appellant was potentially the murderer. I
    do not agree. The trial judges reasons read as a whole demonstrate that her
    comments were made in the context of highlighting the seriousness of the
    contempt. The appellants contempt of court allowed a murderer to go free. The
    discussion in the impugned sections of her reasons was referable to the
    evidence in the trial she had just presided over. The appellant said he was
    lying when he gave the police information that only the murderer would know
    because he got the information from the murderer. The appellant took advantage
    of this statement to exonerate himself, yet refused to name the murderer
    thereby allowing the perpetrator to go free. The trial judges analysis was a
    reiteration of these facts.

[20]

Further,
    the trial judge explicitly stated, at para. 20, that she could not make a
    positive finding that the appellant was the real murderer.

[21]

In
    any event, for the purposes of this appeal, even if the judges language was equivocal,
    it did not have an impact on the sentence. Appellate intervention is therefore
    not required, or indeed justified.

[22]

Sentencing
    decisions are entitled to a high degree of deference. An appellate court may
    only interfere with a sentence if it is demonstrably unfit or the sentencing
    judge commits an error of law or principle that has an impact on the sentence:
R. v. Lacasse
, 2015 SCC 64,
[2015] 3 S.C.R. 1089,
at paras. 11,
43-44 & 52.
While
    the three-year sentence imposed was high, contempt of court is a very serious
    crime, which strikes at the heart of the administration of justice:
R. v. Aragon
, 2018 ONCA 124, at para. 1. It is
    a sanction imposed by courts to maintain the dignity and authority of the
    judge and to ensure a fair trial:
B.C.G.E.U. v.

British Columbia
    (Attorney General)
, [1988] 2 S.C.R. 214, at p. 238,
    citing
Balogh v. Crown Court at St.
    Albans
, [1974] 3 All E.R. 283 (C.A.).

[23]

Broadly speaking,
contempt of court consists of any conduct that
    obstructs or interferes with the administration of justice or that shows
    disrespect for the court and its process:
R. v.
    Glasner
(1994), 19 O.R. (3d) 739 (C.A.), at p. 748. It
    includes a witnesss refusal to answer a question properly put to him or her at
    trial, including the identity of a person involved in criminal activity: see e.g.
R. v. Johnston
,
    [1976] O.J. No. 1144 (C.A.). As Arbour J. observed in
R. v. Arradi
, 2003 SCC 23, [2003]
    1 S.C.R. 280, at paras. 34-35:

The refusal by a
    witness  even if he or she is the accused  to answer the questions put to him
    or her is an affront to the authority of the court, and it must be remedied in
    the court in such a way that the jury itself understands that compliance with
    the relevant law is not optional and understands the consequences for anyone
    who violates his or her oath.

When the appellant decided to testify, he swore
    to tell the whole truth. Despite the judges numerous warnings, he refused to
    answer the questions put to him. The judge had to preserve the authority of the
    court, and citing the appellant for contempt was an appropriate method of
    achieving that end.

[24]

As in
Arradi
,
    the appellant did not have to testify at trial. He chose to. At that point, he
    swore to tell the whole truth. Despite this promise, and despite numerous
    warnings from the trial judge, the appellant refused to answer the
Crowns
    questions regarding the identity of the person he claims committed the murder.

[25]

Unlike
    the trial judge in
Arradi
,

the
    trial judge did not sentence the appellant during the trial but waited until its
    conclusion. In the result, she avoided
giving the jury the
    impression that she had made a determination as to his credibility.

[26]

The
    appellants refusal to answer proper questions was a significant affront to the
    administration of justice. The trial judge outlined and applied the relevant
    sentencing principles. She was in the best position to consider the seriousness
    of the contempt in the context of a long trial over which she presided.

Pre-trial custody

[27]

I now turn to the pre-trial custody issue. Pre-trial custody
    arising as a result of the offence can be credited to an offender pursuant to
    ss. 719(3)-(3.1) of the
Criminal Code
:

Determination of sentence

(3) In determining the
    sentence to be imposed on a person convicted of an offence, a court may take
    into account any time spent in custody by the person as a result of the offence
    but the court shall limit any credit for that time to a maximum of one day for
    each day spent in custody.

Exception

(3.1) Despite subsection (3), if the circumstances justify
    it, the maximum is one and one-half days for each day spent in custody unless
    the reason for detaining the person in custody was stated in the record under
    subsection 515(9.1) or the person was detained in custody under subsection
    524(4) or (8).

[28]

The
    three and a half years the appellant spent in custody was in relation to the
    first degree murder charge, not the contempt. The trial judge rejected the
    appellants submission that the nexus between the murder charge and the
    contempt engaged s. 719(3). She did not accept that the pre-trial custody on
    the murder charge meant that the sentence on the contempt was as a result of
    the murder charge, concluding there was no causal relationship between two.
    Specifically, she stated, at para. 65: [The appellant] was convicted of
    contempt because he refused to comply with a lawful order of the court. The
    fact that he was on trial does not create any kind of causal relationship
    between the charge before the court and the contempt.

[29]

Further,
    in declining to grant credit the trial judge stated, at para 67:

The specific and general deterrence goals of sentencing in
    contempt cases would be undermined if individuals in custody who committed
    contempt of court were permitted to simply apply time they had banked on
    other charges instead of serving time on the contempt charges.

[30]

I
    see no error in the trial judges exercise of discretion.

Disposition

[31]

I
    would grant leave to appeal the sentence but dismiss the appeal.

M.L. Benotto J.A.

I agree K. Feldman
    J.A.


Sachs J. (ad hoc) (dissenting):

[32]

Reading
    the trial judges reasons as a whole it is my view that the trial judge did
    sentence the appellant on the basis that he may have been the murderer. In
    doing so she made an error in principle by violating a fundamental principle of
    criminal law that an acquittal by a jury is equivalent to a finding of
    innocence (see
Grdic v. The Queen
, [1985] 1 S.C.R. 810;
R. v.
    Grant
, [1991] 3 S.C.R. 139 and
R. v. Verney
, (1993) 87 C.C.C.
    (3d) 363 (Ont. C.A.)).

[33]

While
    the trial judges reasons indicate that she was alive to the fact that she was
    bound by the jurys verdict, her reasons also reveal that, in the end, the fact
    that the appellant may have been the murderer was a fundamental aspect of her
    reasoning with the respect to the appropriate sentence she should impose.

[34]

There
    are two places in the trial judges reasons where this is made explicit. First,
    in the Introduction section of her reasons, where she is summarizing why she
    has imposed the sentence she did, she states the following at para. 3:

For the reasons that follow, I find that the appropriate
    sentence is three years. If Mr. Omar was telling the truth about the mystery
    man who he said described to him in great detail the brutal killing of Mr.
    Farah, then his failure to name that man has enabled a killer to escape justice.
Alternatively, if Mr. Omar was lying about the existence of the mystery
    man, his refusal to answer proper questions on cross-examination prevented the
    authorities from being able to expose that lie and helped secure his acquittal.
    Either way, at least in part, Mr. Omars contempt in the face of the court
    enables a vicious murderer to walk free in our community.
In my view, these
    circumstances put Mr. Omar at the highest end of the sentencing range for
    offences of this nature. I am further of the view that he should receive no
    credit for the time spent in custody on the murder charge. (emphasis added).

[35]

From
    this paragraph it is clear that one of the alternatives she considered in
    sentencing Mr. Omar is that he may have gotten away with murder and that this
    had an effect on her view that he should receive the highest sentencing range
    for his offence and that he should be given no credit for the time he spent in
    custody on the murder charge.

[36]

The
    second place where the trial judge makes explicit the fact that she felt that
    Mr. Omar may have been guilty of murder is in the section of her reasons
    entitled Proportionality and the Gravity of the Offence. This section occurs
    after the discussion where the trial judge reminded herself that she was bound
    by the jurys verdict of acquittal. In spite of this, the trial judge states
    the following at para. 35 of her reasons:

Mr. Omar had detailed knowledge of the circumstances of the
    shooting that were not known to the public. He was directly involved in
    disposing of the murder weapon, another handgun owned by Mr. Farah, and other
    property stolen from Mr. Farah. He knew where Mr. Farahs car had travelled
    after the shooting, and what had been done with it after the fact.
Either he
    was the lone gunman who shot Mr. Farah, or he knows the identity of that man.
Either
    way, he has frustrated the course of justice by his refusal to answer proper
    questions. If he was lying about the existence of this mystery man, he
    effectively insulated himself from cross-examination by preventing the police
    from investigating the possibility or impossibility that the person he named
    did the killing. If he was not lying about the existence of the real killer,
    his refusal to give that name to the police has resulted in a murderer going
    free. Neither alternative is consistent with achieving justice. (emphasis
    added).

[37]

As
    already stated, in sentencing Mr. Omar on the basis that he may, in fact, have
    been the murderer, the trial judge committed an error in principle. As a
    result, her decision is entitled to less deference and this court is entitled
    to sentence Mr. Omar without any consideration of the fact that he may have
    gotten away with murder.

[38]

In
    determining what sentence to impose on Mr. Omar the trial judge did a thorough,
    but concise review of the case law. What that revealed is that while the
    maximum sentence for contempt is five years, that penalty has never been
    imposed. The maximum sentence ever imposed on someone found guilty of contempt
    for the first time is three years and for someone found guilty of contempt for
    the second time is four years. That sentence was imposed on a witness who
    refused to testify at the separate trials of two other men who were charged
    with first degree murder in relation to an execution-style killing by drug traffickers.
    The witness had engaged in a life of crime for twenty years. He was sentenced
    to three years for the first contempt and to four years for the second. In both
    cases, the witnesss polite and respectful conduct was taken into account by
    the court as a mitigating factor.

[39]

Mr.
    Omar received the same sentence as the witness described above. This is in
    spite of the fact that he was a youthful (19 when he was arrested) first
    offender who pleaded guilty, was polite and respectful to the court and who had
    taken steps to improve his situation in life since being released from prison.

[40]

The
    trial judge found that Mr. Omars contempt was worse than that of a witness who
    had been subpoenaed to testify as he had a choice as to whether to testify.
    However, the nature of the case against Mr. Omar was such that he had no
    realistic choice but to testify. He had confessed to the murder, and his only
    chance of proving his innocence was to explain why he had confessed to the
    undercover officers and explain the presence of the corroborating evidence.

[41]

What
    is also troubling is the trial judges refusal to give Mr. Omar any credit for
    the three and a half years that he served in custody awaiting trial on the
    murder charge of which he was eventually acquitted. In my view, this is a
    circumstance that should have been taken into account when sentencing Mr. Omar
    for contempt.

[42]

The
    trial judge refused to give Mr. Omar credit for the time that he spent in
    custody on the murder charge because the time that he spent in custody was not as
    a result of the offence that she was now sentencing him for, namely, contempt
    of court. For that reason, she found that s. 719(3) did not apply.

[43]

The
    trial judge also considered whether she should consider Mr. Omars pre-trial
    incarceration as a circumstance to be taken into account under s. 726.1 of the
    Code. She accepted that she had the right to do so, but she decided not to
    because she found there was no factual nexus between the murder charge and
    the contempt charge. In her view, Mr. Omar was seeking to apply time that he
    had banked on a totally unrelated charge to reduce the sentence he should
    serve for the contempt charge. To allow such a result would undermine the goals
    of specific and general deterrence in sentencing for contempt.

[44]

In
R. v. Barnett
, 2017 ONCA 897, this Court dealt with when and how a
    trial judge is entitled to take pre-sentence incarceration into account when
    sentencing an offender. In doing so it discussed the relationship between ss.
    719(3) and s. 726.1. It also highlighted how the fairness of the sentencing
    process is enhanced when an accused does receive credit for the time spent in
    custody prior to sentencing. In doing so the majority referred to the following
    quote from Iacobucci J.s reasons in
R. v. Hall
, 2002 SCC 64, [2002]
    S.C.J. No. 65, at para. 47:

Liberty lost is never regained and can never be fully
    compensated for; therefore, where the potential exists for the loss of freedom
    for even a day, we, as a free and democratic society, must place the highest
    emphasis on ensuring that our system of justice minimizes the chances of an
    unwarranted denial of liberty.

[45]

On
    the basis of the reasoning in
Barnett
, I accept that this is not a
    case where credit for pre-trial incarceration should be given under s. 719(3),
    as Mr. Omar was released from custody as soon as he was acquitted of murder
    even though he was still facing the contempt charge. However, as
Barnett
makes
    clear and the trial judge accepted, Mr. Omars pre-trial incarceration can
    still be considered as relevant information under s. 726.1. As put by this Court
    at paras. 40 and 42 of
Barnett
:

[40] We turn now to s. 726.1. The
    section is a statutory statement of the self-evident- the court should consider
    any relevant information in determining the fit sentence. An accuseds
    pre-sentence incarceration may be relevant information.

......

[42] Section 726.1 operates differently than ss. 719(3) and
    (3.1). Section 726.1 may make pre-sentence incarceration a factor to be
    considered, along with other relevant factors, in determining the relevant
    sentence. Sections 719(3) and (3.1) do not speak to the factors relevant to
    determining a fit sentence, but rather instruct as to the manner in which
    pre-sentence custody should be counted to mitigate what has been determined to
    be the appropriate sentence. As the two provisions operate very differently,
    trial judges should be careful to distinguish between the two when considering
    the impact of pre-sentence custody on the determination of the sentence to be
    imposed.

[46]

With
    respect to the concern about banking time on a totally unrelated charge, the
    reality is that if Mr. Omar had not been on trial for murder he would not have
    testified and would not have been convicted of contempt. In other words, it is
    only because Mr. Omar was on trial for murder that he committed the contempt.
    It is true that he could have chosen to answer the questions that were put to
    him (and thus avoided being convicted of contempt), but that does not mean that
    there is no factual nexus between the murder charge and the contempt charge.
    There is clearly a nexus.

[47]

As
    the trial judge points out, the purpose of the sentence of imprisonment for
    contempt is to protect the integrity of the administration of justice. Further,
    the fundamental purpose of sentencing is to contribute to a respect for the law
    (see s. 718 of the Code). In this case, two things happened in Mr. Omars
    murder trial that affected the reputation of the administration of justice. The
    first is that Mr. Omar refused to answer a question that was put to him in
    spite of being ordered to do so by the court. The second is that Mr. Omar served
    three and half years in custody for a crime of which he was found innocent. To
    give effect to the first while giving none to the second undermines, rather
    than promotes respect for the law.

[48]

For
    these reasons, I find that the sentence imposed on Mr. Omar was harsh and
    excessive. Therefore, I would grant leave to appeal the sentence, allow the
    appeal, and vary the sentence imposed from three years to two years. This
    sentence is significant enough to satisfy the goals of specific and general
    deterrence.

Sachs J. (ad hoc)

Released:


