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Ontario Court of Appeal upheld restitution, a fine in lieu of forfeiture, and the minimum default jail term in a fraud sentence appeal.
The Federal Court dismissed Jing Jing He’s injunction motion, finding no serious issue or irreparable harm and awarding the Attorney General $500 in costs.
Given the aggravating factors (breach of trust, violence against intimate partner and child, presence of loaded firearm and bear spray, evidence of planning in making weapons accessible, significant victim impacts including PTSD in victims and children), and balancing mitigation (first offender, remediation while on remand, guilty pleas, cooperation), the appropriate aggregate custodial sentence was fixed at 8 years before credit but reduced under totality and Summers remand credit to a resultant effective term of 1,688 days (4 years, 7 months and 14 days). Sentence was allocated to counts as…
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Payments made from the appellant's LIF accounts are neither "money transferred under Division 7" nor "benefits" as defined in the PBSA; therefore s.70(1) does not exempt those payments from attachment and the chambers judge correctly ordered forfeiture; the chambers judge also correctly declined to appoint a receiver because the forfeiture order was sufficient to secure payments and the receiver powers sought exceeded the authority to attach payments.
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Judge balanced the primacy of denunciation, deterrence and public protection for serious firearms offences against mitigating Gladue factors and evidence of rehabilitation in custody, found the defence explanation of accidental possession not credible, applied enhanced pretrial credit of 1,294 days to concurrent primary counts, concluded a federal sentence was necessary and imposed a global sentence of five years four months on Count 1 with a consecutive one year on Count 5 (global six years four months), together with ancillary orders including forfeiture, lifetime firearms prohibition, DNA…
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Section 490(9), read with s.490(5) and triggered by a s.489.1 report, is the appropriate statutory mechanism to determine disposition of seized property; judicial oversight continues until conclusion of any forfeiture proceeding; the Crown bears the onus to prove beyond a reasonable doubt that seized items were not lawfully possessed in order to obtain forfeiture; ordinary rules of evidence apply and Charter claims may be raised in the forfeiture hearing.
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Convictions entered on counts 1–14; global sentence of seven years' imprisonment imposed at lower end of Crown's range to reflect extreme seriousness, aggregate danger and aggravating features balanced against mitigating factors of dated record, exemplary conduct in custody and rehabilitation prospects; apportionment: counts 1–7 five years concurrent; count 8 three years concurrent; count 9 five years concurrent; count 10 two years consecutive; counts 11–14 two years concurrent as specified; credit of 987 days pretrial custody deducted; ancillary orders include DNA sample, lifetime weapons pr…
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The court accepted the joint submission and imposed one day in custody because, on the particular facts, the aggravating nature of the offence was outweighed by significant mitigating and collateral factors: the offender's long custodial sentence in Colorado, the detainer's negative effect on parole (causal connection), lengthy delay and resulting evidentiary issues, the guilty plea, rehabilitation efforts, and the application of the totality principle; the court found these circumstances justified accepting a joint submission that would otherwise appear lenient for a brutal weaponized mansla…
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Given the gravity of intimate-partner sexual assault and the primacy of denunciation and deterrence, but having found significant mitigating factors (notably alcohol-use disorder reducing moral culpability, absence of prior violent record, stable community supports and manageable risk), the Court concluded a community-based punitive sanction (a 10-month conditional sentence order, adjusted to account for 11 months remand credit) was fit; concurrent sentencing applied to the sexual assault and assault counts while threats and breach counts were consecutive; ancillary orders (DNA, 10-year SOIRA…
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The court accepted a joint sentencing submission and imposed a 3-year global jail term for unlawful possession of a loaded prohibited firearm and a prohibited magazine.
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