Judge’s retroactive change to sentence ‘unfair;’ Appeal Court frees man

TORONTO – A judge was wrong to retroactively change an otherwise appropriate sentence for a man convicted of drug possession without telling him, Ontario’s top court has ruled.

As a result, the Court of Appeal quashed the prison term the judge had given Paul Hasiu, saying the process was profoundly unfair to him.

Hasiu was already in prison serving six years for robbery when Judge Stephen Hunter, in November 2016, convicted him of possessing narcotics for the purposes of trafficking, and sentenced him to two years in custody.

Hunter failed to say, however, whether the new term was to run concurrent to the earlier sentence or in addition to it — and no one at the time thought to ask.

Prison authorities at Collins Bay Institution sought clarity and the answer from the court was “concurrent,” court records show. As a result and because he was due for statutory release, they let Hasiu go.

Hasiu travelled to Kitchener, Ont., reunited with his family, and began work in his father’s business.

However, three days after Hasiu’s release, Hunter changed the information recording the drug sentence to include the phrase: “Consecutive to current sentence being served.” He told neither Hasiu nor the prosecution. Police arrested Hasiu eight days after his release and sent him back to prison.

Hasiu appealed, arguing Hunter had no right to do what he did.

The prosecution countered it was “obvious” the possession sentence would be consecutive to the robbery sentence, which is why it didn’t raise the issue at the time. The prosecution further admitted an “administrative error” had occurred, but said the mistake was corrected quickly and caused minimal harm to Hasiu.

“I do not believe the record supports the Crown’s position,” Justice Gloria Epstein wrote for the Appeal Court. “The amendment to the information seriously compromised the appearance of fairness and cannot be sustained.”

For one thing, the Appeal Court said, Hunter made the changes without notifying the affected parties or giving them an opportunity to make submissions about them — contrary to the fundamental values of fairness and openness.

For another, the change was “particularly unfair” to Hasiu by forcing him back to prison just when things were finally looking up for him, the court said.

The court also found that it’s OK for judges to change a sentence after imposing it, but only where the change does not amount to a “reconsideration” of the original decision. But Hunter’s sentencing reasons did not clarify what was in his mind.

“I am unconvinced that the amendment to the information is consistent with the sentencing judge’s manifest intent at the sentencing hearing,” Epstein said.

The possibility therefore exists, the court said, that Hunter did change his mind after being contacted by the prison — which would be “profoundly unfair” and “could reasonably trouble an informed person.”

As a result, the Appeal Court quashed the stiffer punishment and ordered Hasiu’s immediate release.