R. v. Rezaie (M.) (1996), 96 O.A.C. 268 (CA)
MLB headnote and full text
Her Majesty The Queen (respondent) v. Mehdi Rezaie (appellant)
(C21163)
Indexed As: R. v. Rezaie (M.)
Ontario Court of Appeal
Austin, Laskin and Moldaver, JJ.A.
December 24, 1996.
Summary:
The accused was convicted of sexual assault, forcible confinement, choking and threatening death. He was sentenced to five years’ imprisonment for sexual assault, with three years concurrent for forcible confinement, three years concurrent for choking and two years concurrent for threatening death. The accused appealed the sentence, arguing that the trial judge erred by failing to take into account 11½ months the accused had spent in custody pending his trial and sentencing. He argued further that the trial judge erred in ordering that he serve one-half his sentence before becoming eligible for parole pursuant to s. 741.2 of the Criminal Code.
The Ontario Court of Appeal varied the sentence by setting aside the order under s. 741.2 but otherwise dismissed the appeal.
Criminal Law – Topic 5670
Punishments (sentence) – Imprisonment and parole – Parole – Period of ineligibility – The accused was sentenced to five years’ imprisonment for sexual assault, three years for forcible confinement, three years for choking and two years for threatening death, the latter three sentences being concurrent – The trial judge imposed an order under s. 741.2 of the Criminal Code, making the accused ineligible for parole until he had served one-half his sentence – The Ontario Court of Appeal set aside the order because the trial judge failed to give specific reasons why the order was required and the accused was given no notice that the order might be imposed and no opportunity to make submissions – In making the order in these circumstances, the trial judge denied the accused procedural fairness – See paragraphs 30, 31.
Criminal Law – Topic 5670.8
Punishments (sentence) – Imprisonment and parole – Parole – Power of court to delay parole – [See
Criminal Law – Topic 5670
].
Criminal Law – Topic 5848.2
Sentencing – Considerations – Time already served – The Ontario Court of Appeal stated that a sentencing judge should ordinarily give credit for pretrial custody, or at least should not deny credit without good reason – See paragraph 25.
Criminal Law – Topic 5848.2
Sentencing – Considerations – Time already served – The accused lured a woman to his apartment and sexually assaulted her – He was sentenced to five years’ imprisonment for sexual assault, three years for forcible confinement, three years for choking and two years for threatening death, the latter three sentences being concurrent – The accused appealed, arguing that the trial judge failed to take into account 11½ months’ pretrial and pre-sentence custody – The Ontario Court of Appeal held that the trial judge took into account irrelevant considerations in denying credit for at least 6½ months of custody which constituted an error in principle – Therefore the appeal court could impose the sentence it thought fit, however, the court ruled that a five year sentence was fit, even giving credit for pretrial and pre-sentencing custody – See paragraphs 23 to 29.
Criminal Law – Topic 5868
Sentence – Forcible confinement – [See second
Criminal Law – Topic 5848.2
].
Criminal Law – Topic 5895
Sentence – Threats – [See second
Criminal Law – Topic 5848.2
].
Criminal Law – Topic 5932
Sentence – Sexual assault – [See second
Criminal Law – Topic 5848.2
].
Criminal Law – Topic 6200
Sentencing – Appeals – Variation of sentence – General principles – The Ontario Court of Appeal discussed when an appellate court would interfere with a sentence imposed by a trial judge – See paragraphs 17 to 22.
Cases Noticed:
R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 17].
R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 78 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 17].
Fox v. Legal Aid (1977), 14 O.R.(2d) 668 (Ont. H.C.), refd to. [para. 20].
Friends of Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321; 88 D.L.R.(4th) 1, refd to. [para. 20].
Reza v. Minister of Employment and Immigration, [1994] 2 S.C.R. 394; 167 N.R. 282; 72 O.A.C. 384; 116 D.L.R.(4th) 61, refd to. [para. 20].
R. v. M.N.T. (1991), 51 O.A.C. 37 (C.A.), refd to. [para. 26].
R. v. Tallman, Tallman, Laboucan and Auger (1989), 94 A.R. 251; 68 C.R.(3d) 367 (C.A.), refd to. [para. 26].
R. v. Squires (1975), 8 Nfld. & P.E.I.R. 103; 8 A.P.R. 103; 25 C.C.C.(2d) 202 (Nfld. Prov. Ct.), varied (1977), 11 Nfld. & P.E.I.R. 457; 22 A.P.R. 457; 35 C.C.C.(2d) 325 (Nfld. C.A.), refd to. [para. 26].
R. v. Goulet (J.) (1995), 79 O.A.C. 233; 97 C.C.C.(3d) 61 (C.A.), refd to. [para. 31].
R. v. Post (J.J.) et al. (1996), 72 B.C.A.C. 312; 119 W.A.C. 312 (C.A.), refd to. [para. 31].
R. v. Ferguson (N.A.) (1995), 64 B.C.A.C. 211; 105 W.A.C. 211 (C.A.), refd to. [para. 31].
Statutes Noticed:
Criminal Code, R.S.C. 1985, c. C-46, sect. 721(3) [para. 24]; sect. 726.2 [para. 31]; sect. 741.2 [para. 30].
Authors and Works Noticed:
Canadian Sentencing Digest (1982), pp. 141 to 144 [para. 26].
Counsel:
Alan D. Gold, for the appellant;
Wesley W. Marsden, for the respondent.
This appeal was heard on October 9, 1996, before Austin, Laskin and Moldaver, JJ.A., of the Ontario Court of Appeal. On December 24, 1996, Laskin, J.A., delivered the following judgment for the Court of Appeal.
