R v Ostamas, 2022 MBCA 68

Citation: R v Ostamas, 2022 MBCA 68 Date: 20220901 Docket: AR22-30-09791 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Madam Justice Karen I. Simonsen Madam Justice Lori T. Spivak BETWEEN : ) R. T. Amy HER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) R. N.

Malaviya ) for the Respondent ) ) Appeal under r 45 of the - and - ) Manitoba Criminal Appeal ) Rules ; and r 37.3 of the MB, ) Court of Appeal Rules ) JOHN PAUL OSTAMAS ) Joint written submissions filed: ) August 22, 2022 (Accused) Appellant ) ) Judgment delivered: ) September 1, 2022 On appeal from 2016 MBQB 136 CHARTIER CJM (for the Court): [ 1 ] This is a sentence appeal. [ 2 ] The accused pled guilty to three counts of second degree murder committed in 2015. In 2016, he was sentenced to life imprisonment and, pursuant to

section 745.51 of the Criminal Code , was ordered to serve the 25-year periods of parole ineligibility consecutive on all three counts, such that there was no possibility of parole for 75 years. At the time,

section 745.51 permitted consecutive parole ineligibility periods of 25 years in cases involving multiple murders. [ 3 ] On May 27, 2022, the Supreme Court of Canada, in R v Bissonnette , 2022 SCC 23 , declared

section 745.51 unconstitutional as it breached

section 12 of the Canadian Charter of Rights and Freedoms . [ 4 ] On June 20, 2022, this Court granted the accused’s request to extend the time to file an appeal of his sentence. [ 5 ] The accused now seeks leave to appeal his sentence, arguing that, given that

section 745.51 has been found to be unconstitutional, the total parole ineligibility period of 75 years is an illegal sentence. He asks that the three 25-year periods of parole ineligibility be made concurrent rather than consecutive. [ 6 ] The Crown joins the accused in seeking leave and, if granted, requests that his sentence be varied as he proposes in order to conform to the Supreme Court’s decision in Bissonnette . Moreover, both parties agree that this appeal may be determined on the basis of written materials filed, without an oral hearing being held (see r 37.3 of the MB, Court of Appeal Rules , MR 555/88R ). [ 7 ] In Bissonnette , the Supreme Court declared

section 745.51 unconstitutional. It held that this provision “authorizes a court to order an offender to serve an ineligibility period that exceeds the life expectancy of any human being, a sentence so absurd that

it would bring the administration of justice into disrepute” (at para 7). Interestingly, it referenced this very case, R v Ostamas , 2016 MBQB 136 , as an example of someone being “sentenced to die in prison” (at para 78; see also para 79). The Supreme Court also struck down

section 745.51 retroactively to its enactment in 2011 (see para 143). As a result, it reduced the sentence in Bissonnette to the maximum period of parole ineligibility of 25 years. [ 8 ] We are all of the view that, in order to conform to the law as it is now understood, l eave to appeal sentence is granted and the appeal is allowed. The sentence is varied to make the three maximum 25-year periods of parole ineligibility concurrent to one another. All other aspects of the sentence remain the same. CJM JA JA