Appeal Court asked if law regarding sentence imposition wrong

By John L. Hill

Law360 Canada (May 15, 2023, 2:16 PM EDT) --
John Hill
John L. Hill
One of the least challenged aspects of prison law is disputes arising from sentence calculation. It usually involves simple mathematics — addition and subtraction. It sometimes arises that errors in what the judge says orally are not what is transcribed on the warrant of committal. Even in those rare instances where such errors are made, an exception to the functus officio doctrine permits a judge to revisit the endorsement to correct errors (R. v. Krouglov 2017 ONCA 197).

Therefore, it comes as a surprise to see experienced counsel bringing a case to the Ontario Court of Appeal seeking a revision to a sentence imposed in a criminal case arguing in essence that the law regarding sentence imposition is wrong and not merely a judicial clerical error. Yet, that is what happened in R. v. Owusu-Sarpong, 2023 ONCA 336 argued May 3, 2023, with decision handed down on May 10.

Toronto counsel John Fennel urged the Appeal Court to find that a 16-year sentence imposed was improperly calculated and the warrant of committal should be for 15 years.

The events leading to the conviction were particularly nasty. It involved a 2018 home invasion of a 69-year-old man who was beaten and robbed requiring hospitalization.

The trial judge imposed sentences on a multi-count indictment but giving credit for time served in custody enhanced due to the fact that much of it was served in COVID-19 lockdown conditions. The sentences imposed were: Robbery — six years, nine months; Unlawfully in a dwelling house — five years concurrent; forcible confinement — two years concurrent; aggravated assault — 10 years concurrent; sexual assault with a weapon — two years concurrent; possession of a loaded restricted or prohibited firearm — five years consecutive; possession of a firearm contrary to a court order — one year consecutive.

At first glance, such a sentence would seem to impose a global sentence of 16 years’ imprisonment. Yet, Owasu-Sarpong’s counsel valiantly challenged the method in which the sentence was imposed. Had he been successful, it would have changed the way sentence computations have been imposed to date.

The first ground of appeal challenged the concept that the trial judge established the global sentence first and then made the sentences for individual crimes fit the overall sentencing structure. But here the Court of Appeal disagreed. It is not an error to impose an overall sentence followed by adding up the total for each individual conviction (R. v. Milani 2021 ONCA 567; R. v. Ahmed 2017 ONCA 76). The Supreme Court of Canada has explained that either of the two methods can be used to apply the totality principle when imposing consecutive sentences (R. v. Friesen 2020 SCC 9) even though in some provinces individual crime penalties are assessed first. In Ontario it has become the practice to determine the global sentence first and then impose individual sentence by counts afterward.

The more serious challenge was to making the firearms offences consecutive to the home invasion offences. The appellant’s position was that the five-year firearms possession should be concurrent with the breach of the order not to be in possession and thus reduce the global sentence to 15 years.

The Appeal Court held that even though the firearms offences were not discovered until a later time, there was a nexus between the use of the firearms and the commission of the home invasion. The trial judge’s sentence was consistent with an Ontario appeal decision that states “offending conduct should not be viewed in a compartmentalized fashion that minimizes the interrelation of the crimes and the corresponding heightened gravity of the offences and moral blameworthiness of the offender,” (R. v. Stuckless 2019 ONCA 504). Furthermore, it is now accepted precedent that breaches of firearms prohibition should be served consecutively to a sentence for unlawful firearms possession (R. v. Ferrigon  [2007] O.J. No. 1883 and R. v. Claros 2019 ONCA 626.

Even though the appellant’s counsel did not succeed in changing the manner in which sentences are calculated in Ontario, he deserves full marks for the attempt. It is always useful to challenge traditional ways of doing things and even if the Appeal Court concludes that procedures need not change, the court is forced to take a fresh perspective on procedures always assumed to be proper.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books), which was published Sept. 1. Contact him at

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