R. v. Ali, 2022 ONCA 736
WHAT YOU NEED TO KNOW
-Where an offence otherwise meets the eligibility criteria for a conditional sentence in s. 742.1 of the Criminal Code, the imposition of such a sentence is not automatically excluded from consideration because the offence involves violence.
- Where a number of sentencing objectives are relevant to a case, and some favour custody, while others favour a conditional sentence, a sentencing judge should weigh them.
BACKGROUND
The appellants, Shadib and Mohammad Ali, are brothers. After a judge alone trial, they were each convicted of aggravated assault arising out of an attack on the complainant, who was punched, knocked to the ground and kicked in the head and lower back. The trial judge sentenced the appellants to 15 months in custody following by two years of probation.
ISSUE ON APPEAL
The appellants appealed against their convictions; this appeal was dismissed.
This summary focuses on the appellants’ appeal against sentence. The appellants sought leave to appeal their sentence on the basis that the trial judge erred in failing to impose a conditional sentence instead of a custodial sentence.
Disposition – Conviction appeal dismissed; Leave to appeal sentence granted; Sentence appeal allowed; Conditional Sentence of 15 months imposed.
REASONS FOR SENTENCE
The trial judge declined to impose a conditional sentence largely due the level of violence involved in the assault. The trial judge concluded that the extreme level of violence required a sentence focused on deterrence and denunciation and that a conditional sentence in this case would fail to meet those objectives.
THE ERRORS IN PRINCIPLE
The trial judge made two errors in principle justifying appellate intervention:
1) The level of violence involved in the offence did not automatically exclude an appropriately crafted conditional sentence: see R. v. Proulx, 2000 SCC 5, at para. 79.
2) A sentencing judge should determine whether a conditional sentence is appropriate in a given case by considering and weighing the ability of a conditional sentence to meet the deterrence and denunciation objectives, and other relevant objectives such as restraint and rehabilitation.
(1) Conditional Sentences and Violence
Where an offence otherwise meets the eligibility criteria for a conditional sentence in s. 742.1 of the Criminal Code, the imposition of such a sentence is not automatically excluded from consideration because the offence involves violence. While conditional sentences are served in the community, they are also a punitive sanction capable of achieving the objective of denunciation and deterrence, particularly when crafted with punitive provisions such as house arrest. That being said, in some cases, a conditional sentence may not provide enough deterrence and denunciation. This is not the case, however, simply because of the presence of violence in the commission of an offence. The sentencing judge must weigh the various sentencing objective, those that militate in favour of a conditional sentence, and those in favour of incarceration, in determining a fit sentence in the circumstances.
(2) Failure to consider restraint and rehabilitation in determining appropriateness of a conditional sentence
Where a number of sentencing objectives are relevant to a case, and some favour custody, while others favour a conditional sentence, a sentencing judge should weigh them.
Here, the trial judge identified restraint and rehabilitation as relevant considerations but failed to consider whether a custodial sentence or one served in the community would better address those objectives.
It was an error in principle for the sentencing judge to fail to consider or explain why a period of incarceration, would promote rather than hinder rehabilitation, or why a conditional sentence would not foster the goal of rehabilitation for the appellants.
Read the full decision here.
For more information on sentencing objectives and “weighing the factors” check out Emond’s Sentencing: Principles and Practice, chapter 1, Volume 12 of the Criminal Law Series.