2022 QCCA 1188, 2022 QCCA 1188

Mostaway c. R. 2022 QCCA 1188 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-007292-202 ( 500-01-174719-184 ) MINUTES OF HEARING DATE: September 2, 2022 CORAM: THE HONOURABLE GUY GAGNON, J.A. PATRICK HEALY, J.A. FRÉDÉRIC BACHAND, J.A.

APPLICANT COUNSEL robert mostaway Mtre kwadwo DAMOA yeboah ( KDY Legal ) By videoconference RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre Marianna Ferraro ( Director of Penal and Criminal Prosecutions ) On appeal from a judgment rendered on February 6, 2020 by the Honourable Marie-Josée Di Lallo of the Court of Quebec, Criminal and Penal Division , District of Montreal . NATURE OF THE APPEAL: Motion for leave to appeal from a sentence referred ( Section 675 (1) (

b) of the Criminal Code ). Clerk at the hearing : Lesly Ramos Courtroom: Pierre-Basile-Mignault HEARING 11:18 Commencement of the hearing. Mtre Yeboah presents a verbal motion to cease representing Mr. Mostaway. 11:20 Submissions by Mtre Ferraro concerning the motion to cease representing.

11:21 Discussion between the Court and the lawyers. 11:24 Recess of the hearing. 11:39 Resumption of the hearing. 11:40 Mr. Mostaway advises that he agrees to have his lawyer cease representing him and he is ready to proceed today. The motion is not contested by Mtre Ferraro. 11:42 The Court grants the verbal motion of Mtre Yeboah to cease to represent the applicant. Submission by Mr. Mostaway. 11:46 Recess of the hearing. 11:48 Resumption of the hearing. The Court announces that it is not necessary to hear Mtre Ferraro. 11:49 BY THE COURT: Judgment – see page 3. Conclusion of the hearing.

Lesly Ramos, Clerk at the hearing JUDGMENT [ 1 ] The jurisprudence of the Supreme Court [1] and this court has made clear for many years that an appellate court will not interfere with the determination of sentences in the absence of an error of principle or a misapplication of relevant principles that resulted in the imposition of an unfit sentence. Otherwise appellate courts must not substitute their discretion for that of sentencing judges and must defer to their discretionary decisions.

The standard of appellate intervention is thus high. [ 2 ] In this case the applicant seeks leave to appeal against the decision of the sentencing judge to decline a discharge and to impose a suspended sentence with probation and an order for 240 hours of community service. [ 3 ] The applicant pleaded guilty to one count of criminal harassment of a police officer. The harassing conduct consisted of repeated communications over a sustained period by various means that intimidated the victim.

The applicant has previous convictions, including another for criminal harassment, and among past sentences there were two suspended sentences. Although the judge was satisfied that the applicant’s interests might be well served by a discharge she was not satisfied that this conclusion was in the public interest. She also considered mitigating factors in the applicant’s favour.

In the circumstances, including previous convictions and sentences, these conclusions were not only reasonable but unimpeachable. [ 4 ] The applicant has not identified an error of principle or a misapplication of relevant principles that could justify this court’s intervention to modify the sentencing judge’s exercise of discretion. FOR THESE REASONS THE COURT : [ 5 ] DISMISSES the application for leave to appeal against sentence. GUY GAGNON, J.A. PATRICK HEALY, J.A. FRÉDÉRIC BACHAND, J.A.