Ontario Court of Appeal Releases Sona Decision

Although, it was known last month that the appeal of the convention of Michael Sona was denied, the exact reasons for that decision by the Ontario Court of Appeal was not known... Until now. On Thursday, the court posted the rationale for their decision, and it seems that they're satisfied with the judgement of the trial judge and his reasons despite the objection of both Crown and defense.

On the defendant's side, Sona's attorney argued that Guelph judge Gary Hearn was too focused on trying to send a message about the seriousness of the offense, and that his client's youth and the "significant personal consequences" he suffered should have granted him less time in jail. Justice James C. MacPherson, in his written decision, disagreed.

"The sentencing judge took account of the many mitigating factors relating to Mr. Sona – his youth; the absence of a criminal record; the strong support of his family and community, especially his church community; a positive pre-sentence report; the fact that his actions in this matter 'seem to be out of character for him'; and the fact that the charge 'has been outstanding for a significant period of time and has effectively hung over the head of Mr. Sona and his family and supports,'" MacPherson wrote.

"Having recorded all of these mitigating factors, the sentencing judge turned immediately to the final section of his reasons, titled 'Sentence to be Imposed.' After observing that '[t]his is a difficult and troubling sentencing,' he said explicitly: 'I have also exercised some restraint given the fact that Mr. Sona is in fact a youthful first time adult offender,'" he added. "In my view, the sentencing judge’s reasons, read as a whole, fully and properly took into account Mr. Sona’s prospects for rehabilitation and his individual circumstances."

As for the Crown's appeal to increase Sona's sentence on the grounds that an electoral fraud should be sentenced along the same lines as commercial fraud, MacPherson rejected that because it would be "premature" to set a fixed range for sentencing given that this is the first time that someone's been charged and convicted under the Canada Elections Act. "Generally speaking, an appellate court’s decision to enunciate a range for a particular offence flows from experience – with many offenders, many offences, and many different circumstances surrounding the offences," he wrote. "Put bluntly, the notion of a ‘range’ is antithetical to the scenario of a ‘first offence ever by anybody.’"

The Crown also asserted that Hearn put too much emphasis on leniency given Sona's background and not enough on the seriousness of the crime, which was an "affront to, and an attack on, democratic institutions and values." However, MacPherson said that Hearn took into account a "calculus of factors" when handing down the sentence. "In my view, this is a forceful and eloquent comment about Canadian democracy and its institutions and processes," he said of Hearn's decision. "The sentencing judge clearly included it in the calculus of factors he considered in imposing a sentence on Mr. Sona. Importantly, this and similar passages in the sentencing judge’s reasons will speak into the future if similar cases should arise."

The passage MacPherson referred to:

The plan to which Mr. Sona was a party was effectively an attempt to manipulate the outcome of the election in the Guelph riding by endeavouring to prevent voters from voting. This was a federal election undertaken to elect representatives who form the governing body in our nation. This was not an amateurish Grade 8 election campaign for student council. Conduct such as that of Mr. Sona is not suitable at any time. It is not only criminal, but distasteful and disturbing and is a step above other political “tricks” that the court has heard of in evidence including such things as sign removal and bingo cards. Defence counsel argues that this was simply a “prank” gone “terribly bad”. This was much more than a “prank” and nothing in the evidence points to it being such. The evidence in fact points in the other direction that this was a deliberate and considered course of criminal conduct specifically designed to subvert the inherent fairness of the electoral process.

Sona is currently serving his nine month sentence for "preventing or endeavouring to prevent an elector from voting."