



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    shall not be published in any document or broadcast or transmitted in any way,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    REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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    identify the victim shall not be published in any document or broadcast or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. Shah, 2017 ONCA 872

DATE: 20171115

DOCKET: C62965

Watt, Brown and Roberts JJ. A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Shah

Appellant

Michael Dineen, for the appellant

Lorna Bolton, for the respondent

Heard: November 3, 2017

On appeal from the sentence imposed by Justice Michael G.
    Quigley of the Superior Court of Justice, dated April 22, 2016, with reasons
    reported at 2016 ONSC 2651.

REASONS FOR DECISION

[1]

The appellant seeks leave to appeal from the sentence imposed on his
    convictions of six separate counts of robbery, assault and sexual assault.

[2]

The appellant committed all of these offences at random in a matter of minutes
    at around 6:00 a.m. on October 22, 2014, against three women who happened to be
    on the street at the time. As the trial judge stated, these were despicable
    crimes against totally innocent unsuspecting women. The appellant savagely
    assaulted two of the victims, one of whom he also sexually assaulted, and
    terrified all three of them. All three victims have suffered lasting harm
    because of the appellants senseless and vicious actions, which, as the trial
    judge also found, brought to an end the prospect that any of them would ever
    have another ordinary day.

[3]

The appellant pleaded guilty on the first day of trial to five counts of
    robbery and assault.  Following a two-day trial, he was found guilty of one further
    count of sexual assault. About two and one-half months later, on April 22,
    2016, the trial judge imposed a global custodial sentence of 5 years and 1 month,
    less credit of 26.5 months, resulting in a sentence to be served of 34.5 months.

[4]

The appellant takes no issue with the appropriateness of the five to six
    year sentencing range accepted by the trial judge, but submits that the trial
    judge made the following errors, which unduly extended the sentence imposed:

(i)

The trial judge treated what he found to be a lack of genuine remorse by
    the appellant as an aggravating factor;

(ii)

The trial judge gave only negligible weight to the appellants guilty
    plea; and

(iii)

The trial judges calculation of credit for pre-disposition custody failed
    to account for time served between the sentencing hearing and the imposition of
    sentence.

[5]

Following the hearing, we granted leave to appeal the sentence, allowed
    the appeal and substituted a global sentence of 32 months with reasons to
    follow. These are those reasons, which reflect that the appeal was allowed on
    the third ground.

Did the trial judge err in treating a lack of remorse as an
    aggravating factor?

[6]

The appellant submits that the error is contained in the last sentence
    of para. 71 of the Reasons for Sentence, which concluded the trial judges
    analysis of the several serious aggravating factors that he found to be
    present in this case:

It is also aggravating here that Mr. Shah is not a first-time
    offender and that his prior offences involve domestic assaults against women. Further,
    he continues to have no insight whatsoever into the conduct that gave rise to
    those convictions, a level of conduct which now seems to have been exacerbated
    by the circumstances of these offences. His statement to me once again displays
    he has no understanding or insight into the nature of the damage that he has
    caused.
That necessarily calls into question the extent to which he can
    actually feel the remorse that he claims about his conduct.
[Emphasis
    added.]

[7]

There is no dispute that it was open to the trial judge on the record to
    form the conclusion that the appellant lacked genuine remorse for his conduct. However,
    the appellant submits that the structure of the trial judges Reasons for
    Sentence suggests that he treated an absence of genuine remorse by the
    appellant as an aggravating factor.

[8]

Lack of remorse is not ordinarily a relevant aggravating factor on
    sentencing:
R. v. Valentini
[1999] O.J. No. 251 (C.A.), at para. 82. It
    cannot be used to punish the accused for failing to plead guilty or for having
    mounted a defence:
Valentini
, at para. 83;
R. v. J.F.
, 2011
    ONCA 220, at para. 84, 105 O.R. (3d) 161; aff'd on other grounds in 2013 SCC
    12, [2013] 1 S.C.R. 565. Absence of remorse is a relevant factor in sentencing,
    however, with respect to the issues of rehabilitation and specific deterrence,
    in that an accuseds absence of remorse may indicate a lack of insight into and
    a failure to accept responsibility for the crimes committed, and demonstrate a
    substantial likelihood of future dangerousness:
Valentini
, at para. 82
;
R. v. B.P.
(2004),
    190 O.A.C. 354 (C.A.), at para. 2.

[9]

In the present case, the placement of the phrase concerning the
    appellants lack of genuine remorse is awkward. However, when the Reasons for
    Sentence are considered in their entirety, we do not agree that the trial judge
    treated the appellants lack of genuine remorse as an aggravating factor. Certainly,
    there is no indication that the trial judge increased the sentence because the
    appellant lacked genuine remorse.

[10]

Rather,
    we read the trial judges query about the appellants lack of genuine remorse as
    connected to his conclusion about the appellants lack of insight into his
    offences, and his ultimate decision, in the paragraph immediately following, to
    give relatively little weight to the appellants guilty plea on that basis. This
    does not equate to treating lack of remorse as an aggravating factor. The trial
    judge was entitled to take the appellants lack of genuine remorse into account
    for the purpose of assessing the amount of credit that should be given for his
    guilty plea. There is no basis to interfere.

Did the trial judge err by giving only negligible weight to the
    appellants guilty plea?

[11]

The
    appellant submits that the trial judges failure to give more than two weeks
    credit for his guilty plea to five of the six counts amounted to reviewable
    error.

[12]

We
    do not accept this submission.

[13]

As
    the appellant conceded, the trial judges determination of what weight, if any,
    should be given to the appellants guilty plea, was an exercise of his
    discretion. The credit to be given for a guilty plea cannot be reduced to any
    particular formula, but will depend on the circumstances of each case:
R. v.
    Daya
, 2007 ONCA 693, at para. 15, 229 O.A.C. 291;
R. v. Faulds
(1994), 20 O.R. (3d) 13 (C.A.), at p. 17.

[14]

The
    trial judges conclusion that the appellant should not be given significant
    credit for his guilty plea in the circumstances of this case, which included
    the timing of the plea on the morning of trial, was reasonable. We see no error
    in the trial judges exercise of his discretion and cannot intervene.

Did the trial judge err in his calculation of credit for pre-disposition
    custody by failing to account for time served between the sentencing hearing
    and the imposition of sentence?

[15]

The
    parties agree that the trial judge erred in his calculation of the credit to be
    applied to the appellants sentence on account of pre-disposition custody and
    that further credit should be allowed.  However, they disagree as to the amount
    of that credit.

[16]

The
    trial judge determined that the appropriate global custodial sentence was 61
    months. He allowed a credit of 26.5 months, which appeared to account for 25
    months credit for pre-disposition custody, an additional 30 days of credit to
    account for lockdown circumstances while the appellant was in pre-disposition custody,
    and two weeks credit for the appellants guilty plea. This left a sentence of
    34.5 months remaining to be served by the appellant.

[17]

We
    agree that the trial judge erred in failing to include credit for the 50
    additional days that the appellant spent in pre-disposition custody between
    March 3, 2016 (the date of the sentencing hearing) and April 22, 2016 (the date
    the sentencing judgment was delivered). Allowing credit on a 1.5:1 basis, this
    amounts to an additional 2.5 months of pre-disposition custody that should be
    applied to the appellants sentence. This reduces the appellants global sentence
    to 32 months in custody.

Disposition

[18]

Accordingly,
    we grant leave to appeal the sentence, allow the appeal on the third ground,
    and reduce the appellants global sentence to 32 months in custody.

David Watt J.A.

David Brown J.A.

L.B. Roberts
    J.A.


