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Criminal - Appeal - Reincarceration. R. v. Ghoreishi
In R. v. Ghoreishi (Ont CA, 2026) the Ontario Court of Appeal allowed a Crown sentencing appeal for conviction for sexual assault, while "staying execution of that sentence" - this to avoid post-appeal re-incarceration:[30] In cases of serious sexual assault, the primary considerations on sentencing are denunciation and deterrence: R. v. R.S., 2023 ONCA 608, 168 O.R. (3d) 641, at para. 39. Conditional sentences will rarely be appropriate in these cases: R.S., at para. 4. The range for sexual assault involving penetration is generally three to five years’ imprisonment: R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, at para. 77. As Mr. Ghoreishi was only sentenced to a 20-month conditional sentence, the trial judge was obligated to explain why that significant departure from the range was justified and how the sentence she imposed adequately accounted for the principles of denunciation and deterrence. No satisfactory explanation was provided.
[31] Mr. Ghoreishi’s offences are serious. The jury’s verdict reflects that the appellant was found to have threatened the complainant, forcing her to have sex with him under duress, while also assaulting her. Mr. Ghoreishi took advantage of the complainant’s vulnerability as a new immigrant to Canada and betrayed the trust she had placed in him for his own sexual gratification. As reflected in her victim impact statement, and accepted by the trial judge, the offences had a significant impact on the complainant, leading her to be fearful and distrustful of physical contact and to harbour insecurities about her relationship with her now-husband, S.M.
[32] The mitigating factors which the trial judge considered – Mr. Ghoreishi’s lack of criminal record; his history of living a prosocial life; and his positive rehabilitative prospects – did not on their own justify the departure from the range. As noted by Fairburn A.C.J.O at para. 77 of A.J.K., “[a]bsent some highly mitigating factor, the forced penetration of another person will typically attract a sentence of at least three years in the penitentiary.”
[33] In this case, I am satisfied that a conditional sentence was demonstrably unfit. A penitentiary sentence was required in order to achieve the sentencing objectives of deterrence and denunciation. In my view, in light of the mitigating factors in this case, a fit global sentence for Mr. Ghoreishi’s offences was at the lower end of the three to five year range – a penitentiary term of three years.
[34] Mr. Ghoreishi asks that, in the event the sentence appeal is allowed, this court not reincarcerate him. He has now served the entirety of his conditional sentence and sending him to prison at this stage would serve no useful purpose. If credit were given for time served on his conditional sentence, Mr. Ghoreishi would already be at or near his statutory release date. The Crown did not argue that reincarceration was necessary or desirable in argument before us.
[35] I agree with Mr. Ghoreishi that, in the circumstances, it is not in the interests of justice that he be reincarcerated. This court is generally reluctant to reincarcerate an offender who has already served the sentence originally imposed: Davatgar-Jafarpour, at para. 50. Imprisoning Mr. Ghoreishi at this point would merely serve to disrupt his employment and housing, and hinder his rehabilitation. In this case, the principles of denunciation and deterrence may be adequately addressed through allowing the sentence appeal, denouncing the sentence originally imposed, substituting the sentence that ought to have been imposed, but staying execution of that sentence. . R. v. Kulatheeswaran
In R. v. Kulatheeswaran (Ont CA, 2026) the Ontario Court of Appeal considered the criminal sentencing issue of 'reincarceration' after a successful Crown appeal:[29] This court retains discretion to decline to order reincarceration where doing so would not meaningfully advance the purposes and principles of sentencing. In R. v. Smickle, 2014 ONCA 49, 306 C.C.C. (3d) 351, at para. 10, this court recognized that, while the appellate court should identify the appropriate sentence to mark the error if the original sentence was too low, in some circumstances reincarceration at the time of appeal is not required. More recently, in R. v. R.S., 2023 ONCA 608, 168 O.R. (3d) 641, at paras. 41-42, this court acknowledged that written reasons may sufficiently denounce and deter wrongful conduct where the offender has already served a significant portion of the sentence imposed. . R. v. Elias
In R. v. Elias (Ont CA, 2026) the Ontario Court of Appeal dismissed a Crown criminal sentencing appeal, this brought against a guilty plea for sentencing for "possessing child pornography".
Here the court considered the situation where a defendant is re-incarcerated after a successful Crown appeal:[63] Where an appellate court concludes that a sentence is unfit but allowing a Crown sentence appeal would end an ongoing conditional sentence and subsequent probation, the court may denounce the sentence imposed below as unfit but nevertheless dismiss the appeal: see, for example, in R. v. M.M., 2022 ONCA 441; R. v. R.S., 2023 ONCA 608, 168 O.R. (3d) 641; R. v. C.P., 2024 ONCA 783; and Pike, at paras. 194-195. In each of these cases, the court found it significant that the offender had served most or all of his non-custodial sentence when this court rendered its decision. The timing of an offender’s eligibility for parole has also been considered a relevant factor: see Pike, at para. 194; C.P., at para. 44; and M.M., at para. 20. Finally, in C.P., at para. 43 and R.S., at para. 42, the court considered that a penitentiary sentence would reduce the oversight and supervision of the offender in the community because a probationary period cannot attach to a custodial sentence over two years. . R. v. Sheppard
In R. v. Sheppard (SCC, 2025) the Supreme Court of Canada allowed a Crown appeal, this from an Alberta CA variation of a sentence for jury convictions for "sexual interference and invitation to sexual touching".
Here the court considers ordering 'reincarceration', the situation where an appeal results in an sentence increase that may require return to custody after the prior sentence was served:D. Reincarceration
[106] Having concluded that the court below erred and that the original sentence should be restored, I turn now to the issue of reincarceration. The respondent argues that it would not be in the interests of justice to order his reincarceration (R.F. (amended), at paras. 80 et seq.).
[107] In support of his arguments against reincarceration, the respondent brought a motion before this Court to adduce new evidence consisting of two Parole Board of Canada decisions, one granting the respondent day parole and the other granting him full parole. The Crown opposed the motion.
[108] Following the hearing, this Court unanimously allowed the new evidence motion, allowed the Crown’s appeal and restored the respondent’s original sentence of 6 years’ incarceration, less 11 days’ credit for 7 days of pretrial custody. We also issued an order for the respondent to surrender himself to the proper authorities to be reincarcerated. What follows are our reasons for allowing the motion for new evidence and ordering reincarceration.
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(2) Conclusion on Reincarceration
[117] In the circumstances of this case, I am satisfied that denunciation and deterrence cannot be achieved without reincarceration given the gravity of the respondent’s offences, and in particular his pattern of abusing children while in a position of power. These objectives are especially pressing when considering reincarceration for sexual offences against children, as Parliament has legislated the primacy of denunciation and deterrence in relation to these offences (Criminal Code, s. 718.01). I also note that the respondent still has the majority of his sentence left to serve, and, unlike in other cases, the Crown has not conceded that reincarceration should not be ordered (see, e.g., Bertrand Marchand, at para. 102; Proulx, at para. 132). On the whole, the interests of justice compel reincarceration in the circumstances of this case. The respondent is therefore to be reincarcerated to serve the remainder of his custodial sentence.
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