C59729/C59644

COURT OF APPEAL FOR ONTARIO

BETWEEN:
HER MAJESTY THE QUEEN
Appellant/Respondent
and

MICHAEL SONA
Respondent/Appellant

_________________________________________

FACTUM OF MICHAEL SONA

( Re s p o n d e n t / Ap p e l l a n t)

_________________________________________
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. Sonas appeal from sentence. ............................................................................. 1
Mr. Sonas response to the Crowns appeal. .............................................................. 2
PART II SUMMARY OF THE FACTS ...................................................................... 2
The background for the offence. ............................................................................. 2
Mr. Sonas 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. Sonas
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 Crowns appeal: A nine-month jail sentence was certainly not
manifestly inadequate. .................................................................................... 15
PART IV ORDER REQUESTED .......................................................................... 20

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.

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. Sonas appeal from sentence.

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 decisiontaken in the context of a
pressure-cooker political campaignto 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. Sonas 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

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

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

denunciation and deterrence. Mr. Sona respectfully submits that, in assessing the
requirements of general deterrence, and in assessing Mr. Sonas 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. Sonas 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. Sonas response to the Crowns appeal.
5

In crafting a fit sentence, the trial judges 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

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

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. Sonas background.

Mr. Sona grew up in a loving and supportive family, with strong moral values. Mr. Sonas
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
Reasons for Judgment, p. 32, ll. 21 -22; p. 75, ll. 19 23.
Reasons for Judgment, p. 76, ll. 3 5.
4
Reasons for Judgment, at pp. 61 62.
2
3

of Mr. Sonas 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

Pre-sentence Report, Appeal Book, p. 39.

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.
5
6

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. Sonas
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. Sonas 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,

Pre-sentence Report, Appeal Book, pp. 41 42.

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.
13
14

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. Michaelsons primary position was a custodial sentence of 18 to 20 months

Letter from Alex Mazerolle, Appeal Book, p. 112.

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.
19
20

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

exemplary sentence.24 He also acknowledged to the trial judge, you may think Im too
high on the actual incarceration period.25
Mr. Michaelson was aware of, and relied upon, the same foreign authorities the Crown

19

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 dont know that the sentences are particularly helpful
in our case.26
And, while advancing the primary position that a jail sentence was necessary to achieve

20

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.
21

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

Submissions by Mr. Michaelson, Transcript (October 17, 2014), p. 148, ll. 22 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.
24
25

1.1
22

The trial judge overemphasized general deterrence in the context of Mr. Sonas
youth.

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

Reasons for Sentence, p. 176, ll. 15 16; p. 192, ll. 3 4.

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).
27
28

25

The trial judges 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. Sonas 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

27

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

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 judges own finding that Mr. Sona was highly unlikely to
reoffend.37

Reasons for Sentence, p. 187.

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.
32
33

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 dangerousnessthe flip side of rehabilitationthis 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 48284, 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 offenders 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:

R. v. Roks, 2011 ONCA 526 at para 166.

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

10

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 judges 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
unlikely42 and the uncontroverted evidence showing Mr. Sonas actual steps to find a
new, productive occupation far from the world of politics.
1.3

33

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

In weighing the requirements of general deterrence, the trial judge was required to
consider the likely effect of this sentence on similarly-situated individualsthat 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,

Reasons for Sentence, p. 194 195.

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

11

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. Sonas own circumstances are illustrative. Mr. Sonas 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 capablehe 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 closeknit 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. Sonas 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 backdropa good young man who has been brought to knees by this
convictionthis Court now considers how much imprisonment, and in what form, is
44
45

Reasons for Sentence, p. 196, ll. 11 12.

Reasons for Judgment, p. 17.

12

necessary to denounce Mr. Sonas 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 isboth symbolically and practicallya 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.

13

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. Sonas role in the campaign mayor may not, it is far from clearhave
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

40

A fit sentence.

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

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.
47

14

are so pressing that a conditional sentence will be unsuitable, given Mr. Sonas 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 Crowns appeal: A nine-month jail sentence was certainly not
manifestly inadequate.

42

The Crown has appealed from Mr. Sonas sentence, seeking to increase it.

43

Mr. Sona respectfully submits that the trial judges 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 Crowns submissions focus on the appropriate range. But, especially in a case
where there are no precedents, a sentencing judges 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
sentences50a 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.

15

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. Sonas 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. Sonas 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 judges 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,

Lacasse, supra at para. 69.

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.
51
52

16

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 Crowns position that a sentence in excess of 9 months
imprisonment was required. For example:

58
59

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.

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

R. v. Del Mastro, 2016 ONSC 2017.

17

51

In Brire,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.

Foreign sentencing cases are always of limited assistance, but the foreign cases cited by
the Crown do not even provide strong support to the Crowns 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. Sonas 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 candidates 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

R. c. Brire, 2015 QCCQ 9632.

Hussain, supra at para. 16.
62
Submissions by Mr. Michaelson, Transcript (October 17, 2014), p. 136, ll. 25 31.
60
61

18

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-accusedpresumably less culpable offendersreceived sentences
ranging from four to 18 months imprisonment.64

52

With regard to the American sentencing case law, Mr. Michaelson

conceded, I dont 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.

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 Crowns factum states that the offender in the Australian case R. v.
Ehrmann, [2001] QCA 50 received a three year sentence. But, as the
Crowns 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 Crowns 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

Khan, supra at para. 38

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

19

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 Ehrmanns 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. Ehrmanns 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

20

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. Brire, 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

21

HER MAJESTY THE QUEEN

Appellant/Respondent

and

C59729/C59644

MICHAEL SONA
Respondent/Appellant

COURT OF APPEAL FOR ONTARIO

FACTUM OF MICHAEL SONA

( Re s p o n d e n t / Ap p e l l a n t)

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