C59729/C59644

COURT OF APPEAL FOR ONTARIO

BETWEEN:

HER MAJESTY THE QUEEN

Appellant/Respondent

–and–

MICHAEL SONA

Respondent/Appellant

_________________________________________

FACTUM OF MICHAEL SONA (Respondent/Appel lant)

_________________________________________ Howard L. Krongold Abergel Goldstein & Partners LLP 116 Lisgar Street, Suite 200 Ottawa, Ontario K2P 0C2 (613) 235-9779 (613) 235-8317 fax howard@agpllp.ca Of Counsel for the Respondent/Appellant

INDEX

PART I – STATEMENT OF THE CASE ...................................................................... 1�Mr. Sona’s appeal from sentence. ............................................................................. 1�Mr. Sona’s response to the Crown’s appeal. .............................................................. 2�

PART II – SUMMARY OF THE FACTS ...................................................................... 2�The background for the offence. ............................................................................. 2�Mr. Sona’s background. ........................................................................................... 3�The positions on sentence taken at trial. .................................................................. 6�

PART III – ISSUES AND LAW ..................................................................................... 7�1.� The trial judge erred in finding that a nine-month jail sentence was necessary to

achieve denunciation and deterrence. ................................................................ 7�1.1� The trial judge overemphasized general deterrence in the context of Mr. Sona’s

youth. ............................................................................................................. 8�1.2� The trial judge erred in finding that there was no evidence of rehabilitation. .. 9�1.3� In assessing general deterrence, the trial judge failed to consider the effect of

any sentence of imprisonment on similarly-situated individuals. ................... 11�1.4� A fit sentence. ............................................................................................... 14�

2.� Response to the Crown’s appeal: A nine-month jail sentence was certainly not manifestly inadequate. .................................................................................... 15�

PART IV — ORDER REQUESTED .......................................................................... 20�

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PART I – STATEMENT OF THE CASE

1 The trial judge imposed a 9 month jail sentence, followed by 12 months of probation,

on Michael Sona for breaching s. 281(g) of the Elections Act. Mr. Sona has appealed to

decrease the sentence, and the Crown has appealed to increase it.

2 Mr. Sona respectfully submits that the trial judge erred in principle, and that the

sentence exceeded what was necessary to achieve the objectives of denunciation and

deterrence. The conduct here was clearly very grave, but given his youth and the

significant personal consequences Mr. Sona has endured, this was an ideal case for a

conditional sentence of imprisonment or a short, sharp jail sentence.

Mr. Sona’s appeal from sentence.

3 The record before the trial judge was clear: a good young man of great promise was

brought to his knees as a result of his terrible decision—taken in the context of a

pressure-cooker political campaign—to take part in this offence. Mr. Sona was a

campaign volunteer, and had no financial or direct personal interest in the outcome of

the Guelph election. And despite the seriousness of the offence, there was clear evidence

of Mr. Sona’s previous good character. From these facts, it was apparent that Mr. Sona, a

22 year-old shouldering considerable responsibility, lost his moral bearings during a

campaign that had developed a “siege mentality.” Mr. Sona was a young man who, as the

trial judge concluded, got carried away in a tense, hyper-partisan atmosphere that, at the

time, he obviously did not have the maturity to cope with.1

4 While the trial judge gave careful and thoughtful reasons, Mr. Sona respectfully submits

that a short, sharp jail sentence, or a lengthier conditional sentence, would have been a

fit sentence, fully capable of addressing the principles of sentencing, including

1 Reasons for Sentence, p. 192, ll. 28 – 31.

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denunciation and deterrence. Mr. Sona respectfully submits that, in assessing the

requirements of general deterrence, and in assessing Mr. Sona’s rehabilitation, the trial

judge erred in principle. Moreover, unlike the large-scale fraud cases relied upon by the

Crown, Mr. Sona had no pecuniary interest in the outcome of the election. This was not

a case where the court had to be concerned that others would view a short sentence of

imprisonment as simply a cost of doing business. The ignominy Mr. Sona has endured as

a result of a terrible decision he made as a very young man, and Mr. Sona’s complete

reversal of fortune, combined with the loss of freedom attendant from a short jail

sentence or a conditional sentence of imprisonment, is sufficient to send a powerful

message condemning his conduct.

Mr. Sona’s response to the Crown’s appeal.

5 In crafting a fit sentence, the trial judge’s job was not to devise a general “range” for this

offence, but to impose a sentence appropriate to the specificities of this case. At trial,

Croft Michaelson Q.C., experienced Crown counsel, advancing the same argument and

relying on the same cases as those advanced on appeal, argued that the top end of the

range for Mr. Sona would be a jail sentence of 18 to 20 months. On appeal, the Crown

has failed to identify any error in principle that would have served to reduced the

sentence the trial judge imposed. It cannot reasonably be suggested that, in the context of

this offence and this offender, the nine-month jail sentence imposed on Mr. Sona was

manifestly inadequate.

PART II – SUMMARY OF THE FACTS

The background for the offence.

6 During the 2011 federal election, approximately 7000 electors in Guelph who were

believed unsupportive of the Conservative Party candidate received an automated

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“robo-call” purporting to be from Elections Canada. The message said that the location

of a polling station had been changed, and directed the elector to attend a different

polling location. Between 150 and 200 electors attended the wrong polling location as a

result of these calls. The message was, of course, false.

7 At the time, Mr. Sona was a promising 22 year-old of previously impeccable reputation.

He was employed in Ottawa, but was ultimately persuaded to became the

communications director on the Guelph campaign, a volunteer position remunerated

only by an honorarium. The campaign in Guelph was, it appears, extremely tense, and a

great deal of partisan animosity arose between the staff in the Conservative office and the

campaign of the main opposition party. A “siege mentality” developed in the

Conservative campaign office as a whole.2 The trial judge found that the plan to commit

the offence was most likely implemented as a result of what were perceived to be

escalating “dirty” tactics by the opposition.3

8 The trial judge accepted that the evidence indicated that more than one person was likely

involved in the scheme. For example, the trial judge noted that there was good deal of

evidence suggesting that one such person may have been Andrew Prescott, who avoided

prosecution and gave self-serving, and quite dubious, evidence pursuant to an immunity

agreement.4

Mr. Sona’s background.

9 Mr. Sona grew up in a loving and supportive family, with strong moral values. Mr. Sona’s

father is a minister at a non-denominational Christian church, a position he took up

after leaving a lucrative career in business. Aside from his involvement in politics, much

2 Reasons for Judgment, p. 32, ll. 21 -22; p. 75, ll. 19 – 23. 3 Reasons for Judgment, p. 76, ll. 3 – 5. 4 Reasons for Judgment, at pp. 61 – 62.

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of Mr. Sona’s social life has been structured around his involvement in the church.5 He

has strong community support from his family and a close group of pro-social peers.6

During his school years, Mr. Sona struggled with Attention Deficit Hyperactive

Disorder, but graduated with honours from both high school and from his

post-secondary studies at the University of Guelph.7 Mr. Sona moved to Ottawa in 2009

after he obtained a political internship. He was then employed as a Communications

Assistant (2010-2011) and a Communications Parliamentary Affairs Manager (2012).8

10 In 2011, Mr. Sona accepted a position as the communications director for the

Conservative party candidate in Guelph. The position was essentially a volunteer

position, remunerated only by a modest honorarium.9

11 It appears that those inside the campaign office viewed it to be a particularly dirty

campaign,10 and there was evidence that a “siege mentality” developed.11

12 The false “robo-calls” came to public attention almost immediately, though the

investigation went on for a considerable period of time. It was about two years (from

April 2011 to April 2013) before Mr. Sona was charged, but he was known to be a

person of interest for a considerable period of time before charges were laid.12 In the

pre-sentence report, Mr. Sona revealed that he had struggled with periods of stress and

5 Pre-sentence Report, Appeal Book, p. 39. 6 Pre-sentence Report, Appeal Book, p. 39. 7 Pre-sentence Report, Appeal Book, p. 39. 8 Pre-sentence Report, Appeal Book, p. 40. 9 Transcript (October 17, 2014), p. 98, l. 29 – p. 99, l. 2. 10 Reasons for Judgment, p. 51. 11 Reasons for Judgment, pp. 32, 75. 12 Transcript (October 17, 2014), 109, l. 25 – p. 111, l. 7.

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depression. Most striking, in approximately 2012, he attempted suicide. Fortunately, the

gun jammed.13

13 In the pre-sentence report, and in letters filed by his counsel, Mr. Sona was described as a

“very responsible, industrious, compassionate, respectful and dedicated young man who

values his family, friends, and church.”14 For example, his father attested to Mr. Sona’s

commitment to his mother and grandfather when they were suffering from serious

medical problems, and to his general pro-social attitude and involvement in the life of his

church.15 Andrea Gayed, a supply teacher and close friend, who met Mr. Sona at church

when he relocated to Ottawa, knew Mr. Sona as a hard worker with a high sense of ethics

and integrity whose faith was very important to him.16 She noted Mr. Sona had immense

difficulties while the charges were outstanding.17 Raeburn MacDougall, a church elder,

also attested to Mr. Sona’s character, and his commitment to their small community

church and its religious values. He noted that Mr. Sona called to advise him of the

charges. Mr. Sona was emotional, and offered to leave the church in order to spare its

reputation. Mr. MacDougall also noted that Mr. Sona was under a great deal of stress as

a result of the charges, and sometimes presented as nervous or depressed. Mr. Sona

candidly told Mr. MacDougall that it was likely a mistake for him to have gotten

involved with politics.18

14 In August 2013, while awaiting trial, Mr. Sona was hired by Archer Precision as an

apprentice machinist, a position that will allow him eventually to qualify as a machinist,

13 Pre-sentence Report, Appeal Book, pp. 41 – 42. 14 Pre-sentence Report, Appeal Book, p. 41. 15 Letter from Frank Sona, Appeal Book, p. 110 – 111. 16 Pre-sentence Report, Appeal Book, p. 42. 17 Pre-sentence Report, Appeal Book, p. 42. 18 Pre-sentence Report, Appeal Book, p. 43; Letter from Raeburn MacDougall, Appeal Book, pp. 115 – 116.

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earning around $25 to $35 an hour.19 Mr. Sona was hired at this job by Alex Mazerolle,

who knew Mr. Sona through their church. Mr. Sona was described as a “fantastic

employee” and “great friend.” Mr. Mazerolle considered Mr. Sona to be one of his best

employees.20 Mr. Sona was characterized as responsible and trustworthy.21 A number of

individuals interviewed for the pre-sentence report viewed this job as a tremendous

opportunity for Mr. Sona.22

15 The author of the pre-sentence report noted that Mr. Sona took the interview process

seriously. He was cooperative and stated he would be respectful of the ultimate outcome

of the court process. He expressed sentiments that endorsed and valued democracy and

the legal system.23

16 Mr. Sona was granted bail pending appeal by this Honourable Court on December 1,

2014, after spending 13 days in custody.

The positions on sentence taken at trial.

17 Before the trial judge, experienced defence counsel argued for a suspended sentence with

significant community service or, alternatively, a “short, sharp” sentence of incarceration

or a lengthier conditional sentence of imprisonment.

18 Before this Court, the Crown has repudiated the position it took in the trial court as to

the appropriate sentence for Mr. Sona. At trial, the prosecution was represented by

experienced Crown counsel, Croft Michaelson Q.C. In his sentencing submissions,

Mr. Michaelson’s primary position was a custodial sentence of 18 to 20 months’

19 Letter from Alex Mazerolle, Appeal Book, p. 112. 20 Pre-sentence Report, Appeal Book, p. 40. 21 Pre-sentence Report, Appeal Book, p. 40. 22 Pre-sentence Report, Appeal Book, pp. 40 – 41. 23 Pre-sentence Report, Appeal Book, p. 41.

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traditional imprisonment. He characterized this proposed term of imprisonment as “an

exemplary sentence.”24 He also acknowledged to the trial judge, “you may think I’m too

high on the actual incarceration period.”25

19 Mr. Michaelson was aware of, and relied upon, the same foreign authorities the Crown

now relies upon before this Court. In asking for a lower sentence for Mr. Sona than was

imposed in most of those cases, Mr. Michaelson implicitly acknowledged that those cases

warranted considerably greater punishment. With regard to the American sentencing

cases, Mr. Michaelson conceded, “I don’t know that the sentences are particularly helpful

in our case.”26

20 And, while advancing the primary position that a jail sentence was necessary to achieve

deterrence and denunciation, Mr. Michaelson also acknowledged the availability of a

conditional sentence of imprisonment and, in the alternative, sought a conditional

sentence of 18 to 20 months’ duration.

PART III – ISSUES AND LAW

1. The trial judge erred in finding that a nine-month jail sentence was necessary to achieve denunciation and deterrence.

21 The trial judge gave detailed and thoughtful reasons, but it is respectfully submitted that

he committed three subtle errors in principle that, cumulatively, led him to refuse to

impose a conditional sentence or a shorter period of traditional incarceration.

24 Submissions by Mr. Michaelson, Transcript (October 17, 2014), p. 148, ll. 22 – 25. 25 Submissions by Mr. Michaelson, Transcript (October 17, 2014), p. 150, ll. 29 – 30. 26 Submissions by Mr. Michaelson, Transcript (October 17, 2014), p. 142, ll. 25 – 29.

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1.1 The trial judge overemphasized general deterrence in the context of Mr. Sona’s youth.

22 Mr. Sona was sentenced as a youthful first-time offender.27 While general deterrence and

denunciation weighed heavily in the balance, the trial erred in finding them to be the

“primary” principles in this case.

23 When sentencing a youthful first offender, “the paramount considerations are

rehabilitation and specific deterrence; a sentencing judge should not place undue weight

on general deterrence.”28 As Rosenberg J.A. held in Hayman:

A first sentence of imprisonment especially for a first offender should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence.29

24 Even where the crime is very serious, such that deterrence and denunciation must be

weighed heavily, it is an error to treat these factors as the primary considerations in

crafting a fit sentence. In Brown, the trial judge held, “the concept of general deterrence

and denunciation is paramount. It is not exclusive but it is paramount, it is the primary

consideration.”30 This Court found the trial judge erred:

General deterrence and denunciation had to be weighed heavily in sentencing this serious violent crime. However, it was an error to say these factors had become “the primary consideration”. 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.31

27 Reasons for Sentence, p. 176, ll. 15 – 16; p. 192, ll. 3 – 4. 28 R. v. Ijam, 2007 ONCA 597 at para. 55 (underlining added). 29 R. v. Hayman (1999), 135 C.C.C. (3d) 338 (Ont.C.A.) at para. 22 (underlining added). 30 R. v. Brown, 2015 ONCA 361 at para. 2. 31 Brown, supra at para. 7 (underlining added).

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25 The trial judge’s reasons in this case echo the error in Brown. Here, the trial judge held

that, in the case of electoral offences, “deterrence and denunciation will be primary

sentencing objectives,”32 and that:

the principles of general deterrence and denunciation are certainly primary factors to consider the court still considers that general deterrence cannot be the sole consideration here. Appropriate consideration must be given to the rehabilitation of the accused if the circumstances indicate that that is an appropriate principle for this court to take into account.33

Likewise, in rejecting a conditional sentence, the trial judge described general deterrence

and denunciation as the “driving principles to be considered.”34

26 In erroneously giving overwhelming emphasis to denunciation and deterrence,

notwithstanding Mr. Sona’s youth, the trial judge erred in principle. This error led the

trial judge to reject a conditional sentence,35 and can reasonably be expected to have

resulted in the imposition of a longer period of imprisonment.

1.2 The trial judge erred in finding that there was no evidence of rehabilitation.

27 The trial judge found that there was “little before the court to show that Mr. Sona is a

good prospect for rehabilitation” based on the fact that he had pleaded not guilty and

had not resiled from that position after trial.36 This finding was inconsistent with the

uncontroverted evidence about the steps Mr. Sona had taken to restart his life on a new

footing, and the trial judge’s own finding that Mr. Sona was “highly unlikely” to

reoffend.37

32 Reasons for Sentence, p. 187. 33 Reasons for Sentence, p. 186. 34 Reasons for Sentence, p. 193, ll. 29 – 30. 35 See Reasons for Sentence, p. 193, l. 29 – p. 194, l. 8. 36 Reasons for Sentence, p. 194 – 195. 37 Reasons for Sentence, p. 192.

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28 It is not an aggravating factor for an accused to maintain his innocence after trial. As this

Court noted in Roks, an accused is “entitled to assert and maintain his innocence.”38

Treating that as an aggravating factor is “scarcely compatible with the presumption of

innocence.”39

29 On the question of dangerousness—the flip side of rehabilitation—this Court has held

that a perceived lack of remorse is a questionable basis upon which to find that an

accused is likely to endanger the community. In Levert, for example, Rosenberg J.A. held:

Courts must be circumspect in using a perceived lack of remorse as evidence of future dangerousness. There was nothing in this case to show that the appellant, because he lacked remorse, would commit further offences while serving a sentence in the community. In R. v. Proulx 2000 SCC 5 (CanLII), (2000), 140 C.C.C. (3d) 449 (S.C.C.) at 482–84, Lamer C.J.C. examined the factors to be considered in assessing whether the safety of the community would be endangered by a conditional sentence. He gave particular attention to the risk of re-offence and generally approved of cases where courts enumerated such objective factors as the offender’s prior record, record of compliance with court orders, the nature of the offence, the degree of participation, lifestyle, mental state and conduct while on judicial interim release. Using these more objective criteria I think it unlikely that the appellant would be a danger to the community while serving a conditional sentence in the community.

30 In Mey, Tulloch J. (as he then was) applied Levert in holding that “[while] lack of

remorse and/or acceptance of responsibility can be a factor, it must be connected to a

heightened chance that the appellant would in fact re-offend.”40

31 Here, the trial judge held that the fact that Mr. Sona maintained his innocence was not

“necessarily” an aggravating factor, and then went on to treat it as one. The trial judge

erroneously held that the fact that Mr. Sona did not admit guilt meant that there was

“little” before the court suggestive of his rehabilitative potential:

38 R. v. Roks, 2011 ONCA 526 at para 166. 39 Roks, supra. 40 R. v. Mey, [2009] O.J. No. 1280 at para. 117, rev’d on other grounds, 2011 ONCA 288.

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Mr. Sona has pled not guilty to the offence and he is not to be penalized for pleading not guilty and being found guilty. The absence of a guilty plea is simply an absence of a mitigating factor. Further, I should note that the Crown has emphasized during the course of submissions that the court should consider as effectively an aggravating factor the apparent lack of remorse or contrition on the part of Mr. Sona. I do not find the lack of remorse in the circumstances here is necessarily an aggravating factor, but it is a factor to be considered as an indicator perhaps of the true character of Mr. Sona and simply leaves the court with finding nothing in the evidence nor anything before the court that could reasonably be drawn upon to appreciate that Mr. Sona does have insight into his conduct. There is therefore little before the court to show that Mr. Sona is a good prospect for rehabilitation given the absence of information available. The lack of remorse is simply an indicator to the court that the prospect for rehabilitation may be lessened. However rehabilitation is always ultimately a factor to be considered even in the presence of lack of remorse or insight given the age of Mr. Sona, the consequences that he has faced to date, his educational background and his background otherwise. One cannot assume that rehabilitation should be absolutely excluded as a consideration and I do not do that. 41

32 Respectfully, the trial judge’s conclusion that there was “little before the court to show

that Mr. Sona is a good prospect for rehabilitation” is difficult to square with his earlier

acknowledgement that “further criminal conduct on the part of Mr. Sona is highly

unlikely”42 and the uncontroverted evidence showing Mr. Sona’s actual steps to find a

new, productive occupation far from the world of politics.

1.3 In assessing general deterrence, the trial judge failed to consider the effect of any sentence of imprisonment on similarly-situated individuals.

33 In weighing the requirements of general deterrence, the trial judge was required to

consider the likely effect of this sentence on similarly-situated individuals—that is,

youthful individuals of previously unblemished character acting as volunteers in a

political campaign.43 In this regard, the trial judge erred by fixing the length, and form,

41 Reasons for Sentence, p. 194 – 195. 42 Reasons for Sentence, p. 192 [underling added] 43 See Costa, infra.

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of the term of imprisonment by focusing on “those involved in political campaigns at any

level,”44 instead of focusing on similarly-situated offenders.

34 This error was significant. In assessing the requirements of general deterrence, a key

factor in this case was that even a short period of imprisonment, combined with the

other effects of a criminal conviction, is a devastating sentence to impose on a young

adult of previously good character and high aspirations.

35 Mr. Sona’s own circumstances are illustrative. Mr. Sona’s life has been completely

upended by these charges, and the consequences of this conviction will reverberate for

the rest of his life. Mr. Sona had devoted much of his young life to politics, and to

pursuing a career in that arena. And he was not only committed, but capable—he was

described as being “very good at what he did.”45 He came from a good family, and was

committed to his church. He had an impeccable reputation.

36 This conviction has changed everything. His promising career is over. His relationships

with his peers and co-workers in politics have ended. His reputation has been destroyed.

He has brought shame and hardship not only on himself, but on his family and his close-

knit church community. And he has been subjected to more than the usual ignominy of

a public trial and conviction. Most youthful first-time offenders enjoy some measure of

obscurity. Mr. Sona’s trial has been voraciously covered by the national media. Although

Mr. Sona has found gainful and respectable employment as a machinist, this was not his

chosen path.

37 Against this backdrop—a good young man who has been brought to knees by this

conviction—this Court now considers how much imprisonment, and in what form, is

44 Reasons for Sentence, p. 196, ll. 11 – 12. 45 Reasons for Judgment, p. 17.

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necessary to denounce Mr. Sona’s conduct, and to deter others from committing such an

offence. Against the backdrop of what Mr. Sona has gone through, stepping into a jail

cell for any duration is—both symbolically and practically—a profoundly harsh

punishment for someone who has come from where Mr. Sona has come from, and has

fallen as far as he has. As Watt J. (as he then was) observed in Costa,46 it is against this

backdrop, and not in the abstract, that the requirements of general deterrence must be

assessed:

General deterrence does not occur in a vacuum. It is satisfied when the sentence imposed is sufficient to deter others in circumstances similar to those of the accused from similar conduct. At bottom, persons are deterred. They are deterred from conduct. They will be deterred from such conduct, if at all, by a sentence that, to them, will signal that the cost exceeds the benefit. The persons to be deterred are individuals of previously or otherwise unblemished character. The conduct from which they are to be discouraged is self-help in the apprehension of offenders.

The fact of certain conviction to a person of previous good character is a matter of no little significance. Likewise, the imposition of a term of imprisonment. Awareness that the courts regard such conduct seriously to the point of erasing accumulated good character by the entry of a conviction, and incarcerating such a person, will discourage most law-abiding citizens from needless private law enforcement and confrontation. It is not so much the quantum of the term of imprisonment, rather the fact and virtual certainty of its imposition, if anything, that will deter.

38 All in all, it is the specificities of this offence and this offender (and similarly-situated

individuals) that needs to be examined. The comparison the Crown draws to complex,

lucrative financial frauds is ill-fitting. Mr. Sona received no financial or direct personal

benefit from the offence. Unlike serious financial frauds, where the rewards of the crime

are so significant and the likelihood of detection so low, no one would view even a short,

sharp jail sentence for Mr. Sona as a worthwhile “cost of doing business.” Mr. Sona was

driven by partisan fervor and emotion, not greed. He was not a mature offender, who

made a carefully-weighed decision. The trial judge was prepared to accept that Mr. Sona

46 R. v. Costa, [1996] O.J. No. 299 (Gen. Div.), paras. 40-41.

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got caught up in the “siege mentality” that pervaded the campaign office as a whole,47

and found that the decision to commit the offence was likely a result of what was

perceived to be escalating “dirty” tactics by the opposition.48

39 Moreover, Mr Sona did not take advantage of an esteemed position in the community to

commit this offence. The victims here were not misled because they trusted Mr. Sona.

While Mr. Sona’s role in the campaign may—or may not, it is far from clear—have

afforded him access to the lists used to commit the offence, the victims were not fooled

because Mr. Sona played upon his good reputation to trick them.

1.4 A fit sentence.

40 Mr. Sona respectfully submits that a nine-month sentence of imprisonment was

manifestly excessive. A short, sharp sentence of imprisonment, or a lengthier conditional

sentence, would have satisfied the needs of denunciation and deterrence while giving

effect to the principle of restraint. Because of his youth, which required that any sentence

of imprisonment be as short as possible, and because of the powerful deterrent effect of

any period of imprisonment on those who are similarly situated, this was an ideal case for

a short, sharp period of imprisonment. A sentence of 30, 60, or 90 days traditional

imprisonment, perhaps on an intermittent basis, would have sufficed.

41 A lengthier conditional sentence of imprisonment would also have achieve those

objectives. The Supreme Court held in Proulx that “a conditional sentence of

imprisonment is punitive and capable of providing significant denunciation and

deterrence.”49 While there are cases where the principles of deterrence and denunciation

47 Reasons for Sentence, p. 192, ll. 27 – 30; Reasons for Judgment, p. 32, ll. 21 -22; p. 75, ll. 19 – 23. 48 Reasons for Judgment, p. 76, ll. 3 – 5. 49 R. v. Proulx, [2000] 1 S.C.R. 61 at para. 127.

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are so pressing that a conditional sentence will be unsuitable, given Mr. Sona’s youth,

and the extraordinary toll this case has taken on him, no one, properly informed of the

effect these charges have had, would think that Mr. Sona has gotten off easy if he is

spared a lengthy reformatory sentence.

2. Response to the Crown’s appeal: A nine-month jail sentence was certainly not manifestly inadequate.

42 The Crown has appealed from Mr. Sona’s sentence, seeking to increase it.

43 Mr. Sona respectfully submits that the trial judge’s sentence was far from manifestly

inadequate. In imposing a significant reformatory sentence, the trial judge recognized all

of the aggravating factors the Crown now relies upon. No one suggests the trial judge

committed any error in principle that would have served to decrease the sentence. And no

reasonable, well-informed observer would think that, given everything that has happened

to Mr. Sona, a nine-month jail sentence is a slap on the wrist.

44 The Crown’s submissions focus on the appropriate “range.” But, especially in a case

where there are no precedents, a sentencing judge’s job is not formulate an abstract range

of sentences that might be imposed on other offenders in other circumstances.

Sentencing ranges are primarily descriptive, not prescriptive. The Supreme Court

recently held that ranges are “nothing more than summaries of the minimum and

maximum sentences imposed in the past,” and are “used mainly to ensure the parity of

sentences”50—a factor that has little if any application where the sentence for the offence

at issue is a matter of first impression. Moreover, even when a “range” does exist, it

50 R. v. Lacasse, 2015 SCC 64 at para. 57.

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remains “only one tool among others that are intended to aid trial judges in their

work.”51

45 While failing to articulate clearly any error in principle, the Crown complains that the

trial judge “lost sight” of the nature of the offence and the fact that this was a crime that

adversely affected the democratic process.

46 Respectfully, those complaints have no purchase in the record. The trial judge clearly

understood the nature of Mr. Sona’s conduct. In his Reasons for Sentence, and in his

exhaustive Reasons for Judgment, the trial judge set out a careful and detailed portrait of

Mr. Sona’s involvement in the offence. He did not pull any punches, and it can hardly be

suggested that the trial judge failed to understood what Mr. Sona was convicted of

doing.52

47 Similarly, the trial judge at various points, and at length, recognized that this was an

offence that constituted an “interference in the democratic process” and was for that

reason a matter of the “utmost seriousness.”53 In the trial judge’s summary of the

aggravating and mitigating factors, he identified several ways in which the interference

with the political process was an aggravating factors.54 He characterize the offence as

“egregious,”55 and an “affront to the electoral process.”56 The trial judge described it as

having a considerable impact on this community and beyond.57 The suggestion that,

51 Lacasse, supra at para. 69. 52 See esp. Reasons for Sentence, pp. 170 – 173. 53 Reasons for Sentence, p. 187, ll. 1 – 8; see generally, p. 186, l. 32 – p. 188, l. 32. See also p. 174, l. 1 to p. 176, l. 5; p. 193, ll. 24 – 29. 54 Reasons for Sentence, p. 188, ll. 15 to p. 191, l. 31. 55 Reasons for Sentence, p. 193, ll. 24 – 29. 56 Reasons for Sentence, p. 194, l. 12; and see generally, p. 194, ll. 9 – 29. 57 Reasons for Sentence, p. 193, ll. 24 – 29.

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nevertheless, the trial judge somehow failed to appreciate the seriousness of the offence is,

respectfully, unfounded.

48 The few relevant sentencing cases from Canada do not assist the Crown in showing that

the nine-month sentence imposed here was manifestly inadequate.

49 Rizzotto58 involved criminal conduct that was even more serious, and was committed by a

mature adult in a position of trust. The manager of a municipality rigged an election,

and was convicted of a Criminal Code offence. The accused was in a position of trust,

effectively in charge of supervising the election, and he was entrusted with custody of the

ballot boxes. He removed from the ballot boxes about one-quarter of the ballots cast for

the challenger, replacing them with forged ballots in favour of the incumbent. His

scheme to stuff the ballot boxes was calculated, sophisticated, and could easily have gone

unnoticed. (For example, in advance of the election the accused procured samples of the

deputy returning officers’ signatures to make his forgeries more convincing, and he

ensured the correct number of ballots would be in each box to avoid detection.) A 12

month sentence of imprisonment was imposed, along with a $15,000 fine.

50 Other Canadian sentencing cases involving election offences, while of less direct

relevance, also do not support the Crown’s position that a sentence in excess of 9 months

imprisonment was required. For example:

• In Del Mastro,59 a summary conviction appeal court upheld the sentence imposed on a sitting M.P. (and member of the House Ethics committee) of one month jail, followed by a four month conditional sentence, for his involvement in a scheme to exceed personal and campaign spending limits. Del Mastro illegally paid $21,000 for campaign services, obtaining a fraudulent backdated invoice for a fraction of that amount, and then relied on the false documentation in filing his campaign return to Elections Canada.

58 R. v. Rizzotto, [1986] N.W.T.J. No. 32 (S.C. N.W.T.) 59 R. v. Del Mastro, 2016 ONSC 2017.

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• In Brière,60 a 60 year-old city councilor was found guilty of conspiracy and breach of trust for conspiring to avoid a municipal election to ensure that the mayor stayed in power. The court imposed a suspended sentence.

51 Foreign sentencing cases are always of limited assistance, but the foreign cases cited by

the Crown do not even provide strong support to the Crown’s claim that the sentence

imposed here was too low. Even assuming that the quantum of foreign sentences can

readily be imported into the Canadian context, the cases cited by the Crown in which

“penitentiary-level” sentences were imposed all involved more serious, and more

blameworthy, conduct than that at issue here. In each case, a candidate orchestrated a

conspiracy to surreptitiously rig an election by casting fraudulent ballots combined with

other aggravating conduct (manipulating vulnerable electors; fabricating evidence and

committing perjury to cover up the offence; or threatening witnesses):

• In R. v. Hussain, [2005] EWCA Crim 1866 (C.A.) (sentence of 3 years, 7 months upheld on appeal), the offender stood for elected office as a Labour Party candidate. He ultimately won the election. A substantial percentage of the constituents in his area came from the same ethnic community as the offender and spoke little or no English. The offender “took advantage of members of his own community who were less educated and less able to protect themselves” by convincing them to hand over their postal ballots.61 The offender then had the ballots filled out in his own favour. This was a concerted effort, involving a number of co-conspirators, to rig an election by casting fraudulent ballots. The offender, who had lost the previous election by 92 votes, tampered with 233 postal ballots in an effort to secure himself an elected position. At Mr. Sona’s trial, in discussing Hussain, Mr. Michaelson acknowledged to the trial judge that “the facts differ from this one.”62

• In R. v. Khan, [2009] EWCA Crim 2483 (C.A.), the Conservative Party candidate successfully rigged an election, along with several co-conspirators, by fabricating a large number of non-existent or “ghost” voters, who purported to vote for the candidate by postal ballot. The scheme resulted in the candidate’s election. When irregularities were detected, the conspirators fabricated correspondence from the “ghost” voters in order to validate those votes. When that proved unsatisfactory, and an Election Court was formed to investigate the vote, the

60 R. c. Brière, 2015 QCCQ 9632. 61 Hussain, supra at para. 16. 62 Submissions by Mr. Michaelson, Transcript (October 17, 2014), p. 136, ll. 25 – 31.

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conspirators fabricated additional documents in an effort to deceive the tribunal, and gave perjured evidence. The trial court sentenced one offender to three years, four months (reduced on appeal to two years, ten months).63 The other two offenders did not appeal their sentences of three years, six months and four years, six months. It appears that other co-accused—presumably less culpable offenders—received sentences ranging from four to 18 months’ imprisonment.64

• With regard to the American sentencing case law, Mr. Michaelson conceded, “I don’t know that the sentences are particularly helpful in our case.”65 Moreover, the facts of the case relied upon by the Crown on appeal, United States v. Cole, 41 F.3d 303 (7th Circ.), are very different from those here. The offender received a 46-month sentence. He was a deputy voter registrar and a candidate. He helped a number of people obtain absentee ballots. He then had them sign the ballot before he, or a co-conspirator, took the ballots and voted by punching the actual ballot and submitting it. Several witnesses were paid for their votes with beer or cigarettes. The sentence was imposed pursuant to the U.S. Sentencing Guidelines, and the trial judge found that the statutory aggravators included leading a conspiracy involving five or more persons, violating a position of trust, and obstructing justice by (it appears) threatening a witness.

52 The other foreign sentencing cases cited by the Crown simply do not support an increase

in the sentence imposed on Mr. Sona:

• In R. v. Brindley, [1997] 2 Cr. App. R. (S.) 353, the offender was a local councilor. He stole £1000 from a political fundraiser. While on bail for the theft, he said he would arrange for two married constituents to vote by proxy while they were on vacation. Instead, he took their voting cards and attended the polling station with another couple, impersonating the absent voters. When the deception was detected, the offender lied to the polling agent, saying he had no idea how the voting cards had ended up in the wrong hands. His 8 month sentence for both theft and the election fraud was upheld on appeal.

• The Crown’s factum states that the offender in the Australian case R. v. Ehrmann, [2001] QCA 50 received a three year sentence. But, as the Crown’s factum observes in a footnote, that sentence in fact only required her to serve 9 months in prison, with the balance to be served on a recognizance to be of good behavior. Moreover, the fraudulent behavior she engaged in was hardly, as the Crown’s factum suggests, “small-scale.” The offender was an elected councilor and the secretary of her local branch of the Labour Party. On three occasions, in relation to three separate elections, she and another offender forged false enrollment forms. The forms were used to select the Labour Party candidate for the

63 Khan, supra at para. 38 64 Khan, supra at para. 8 65 Submissions by Mr. Michaelson, Transcript (October 17, 2014), p. 142, ll. 25 – 29.

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area. On one occasion, the forms were used to support a candidate favoured by the two offenders; in another case, they were used to support Ehrmann’s own nomination. Despite the small number of forged voter enrollments, it appears that they may well have been capable of affecting the candidate selection (although, in the end, the forged endorsements did not need to be relied upon). The President of the Court of Appeal for Queensland noted that it is “an aggravating factor when the perpetrator of the electoral fraud is a holder of public office and an office holder in a major political party,” and Thomas J. observed that the offender committed the offence “to obtain personal advantage for herself and her political allies.” Ehrmann’s co-accused, who pleaded guilty quickly and was very cooperative with authorities, was not incarcerated, receiving a suspended sentence.

PART IV — ORDER REQUESTED

53 Mr. Sona respectfully requests that his sentence be reduced on such terms as this

Honourable Court deems fit.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

April 11, 2016

________________________________ Howard L. Krongold Of Counsel for the Respondent/Appellant

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SCHEDULE A — AUTHORITIES CITED

R. v. Ijam, 2007 ONCA 597

R. v. Hayman (1999), 135 C.C.C. (3d) 338 (Ont.C.A.)

R. v. Brown, 2015 ONCA 361

R. v. Roks, 2011 ONCA 526

R. v. Mey, [2009] O.J. No. 1280

R. v. Costa, [1996] O.J. No. 299 (Gen. Div.)

R. v. Proulx, [2000] 1 S.C.R. 61

R. v. Lacasse, 2015 SCC 64

R. v. Rizzotto, [1986] N.W.T.J. No. 32 (S.C. N.W.T.)

R. v. Del Mastro, 2016 ONSC 2017

R. c. Brière, 2015 QCCQ 9632

R. v. Hussain, [2005] EWCA Crim 1866 (C.A.)

R. v. Khan, [2009] EWCA Crim 2483 (C.A.)

United States v. Cole, 41 F.3d 303 (7th Circ.)

R. v. Brindley, [1997] 2 Cr. App. R. (S.) 353

R. v. Ehrmann, [2001] QCA 50

HER MAJESTY THE QUEEN —and— MICHAEL SONA C59729/C59644 Appellant/Respondent Respondent/Appellant

COURT OF APPEAL FOR ONTARIO

FACTUM OF MICHAEL SONA (Respondent/Appel lant)

Howard L. Krongold Abergel Goldstein & Partners LLP 116 Lisgar Street, Suite 200 Ottawa, Ontario K2P 0C2 (613) 235-9779 (613) 235-8317 fax howard@agpllp.ca Of Counsel for the Respondent/Appellant