COURT OF APPEAL FOR ONTARIO
O’CONNOR A.C.J.O., GILLESE and WATT JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
SHAWN RAHAMAN
Appellant
Frank Addario for the appellant
John McInnes for the respondent
Heard: November 21, 2007
On appeal from the sentence imposed by Justice Dianne M. Nicholas of the Ontario Court of Justice on November 6, 2007.
1As Indira Maharaj stepped off a bus on her way to work in Ottawa on February 4, 2005, she was surprised to see her former boyfriend, the appellant, walking towards her. It was a weekday and the appellant lived in a Toronto suburb. He escorted Ms. Maharaj to his car parked a short distance from the bus stop.
2Once inside his car, the appellant displayed a knife and began to question Ms. Maharaj about her recent trip to Trinidad. Over the next several hours, the appellant confined Ms. Maharaj, causing her to miss a full day of work. During this confinement, the appellant assaulted Ms. Maharaj and ripped a necklace she was wearing from her neck.
3On June 14, 2007, the appellant pleaded guilty to counts of:
carrying a weapon for the purpose of committing an offence;
unlawful confinement; and
assault
in connection with the events of February 4, 2005. On November 6, 2007, a provincial court judge sentenced the appellant to imprisonment for a term of nine months to be followed by a period of probation for two years.
4The appellant says that, as a first offender who pleaded guilty, was remorseful and gainfully employed, and represents no danger of re-offending, the sentencing judge erred in failing to permit him to serve his sentence in the community.
A. BACKGROUND FACTS
1. The Prior Relationship
5The appellant and Ms. Maharaj began their relationship on December 31, 2003. About three months later, Ms. Maharaj interrupted the relationship. Her family had relocated to Ottawa and she was unhappy with the appellant whom she considered possessive and constantly finding fault with her. In the latter part of 2004, the couple’s relationship was intermittent and carried on at a distance.
2. The Trip to Trinidad
6On January 11, 2005, Ms. Maharaj went to Trinidad for a vacation and visit. She delayed telling the appellant of her visit for fear of his reaction. The appellant does not dispute that Ms. Maharaj may have told him about her trip, but maintains that either he did not hear what she said or what she told him failed to register with him.
3. The Appellant’s First Trip to Ottawa
7While Ms. Maharaj was in Trinidad, the appellant arrived at her home looking for her. She learned of this visit from her brother whom she instructed not to advise the appellant any further about her plans or whereabouts.
4. The Events of February 4, 2005
8At about 10:40 a.m. on February 4, 2005, Ms. Maharaj alighted at a bus stop at the shopping centre in Ottawa where she worked. Almost immediately, she saw the appellant walking towards her. She became concerned about why he was there.
9The appellant escorted Ms. Maharaj to his car parked nearby. Once the couple were inside the car, the appellant displayed a knife that he was carrying and began an interrogation of Ms. Maharaj about her trip to Trinidad, a subject that he would revisit several times over the entire period of her confinement. The appellant took Ms. Maharaj’s cell phone and told her that she would not be going to work that day.
10The appellant kept his knife visible as he pressed Ms. Maharaj for the details of her trip to Trinidad. During the day, the appellant choked and slapped Ms. Maharaj. He ripped a necklace from her neck. He directed her to call her supervisor to say that she would not be at work that day.
11Over the next several hours, the appellant drove around and stopped at different places in the Ottawa area. He explained to Ms. Maharaj that he was “going through a lot” at home and at work. He asked her repeatedly why she was hurting him and he cried frequently. The appellant became angry when he began to receive telephone calls inquiring about his and Ms. Maharaj’s whereabouts.
12At about 4:00 p.m., Ms. Maharaj finally convinced the appellant to let her out of the car. She promised not to call the police, but telephoned them as soon as she had arrived home with her sister. Early the following morning, the appellant called Ms. Maharaj and asked her why she had broken her promise and had called the police.
5. The Arrest of the Appellant
13On February 10, 2005 the appellant was arrested at his place of work in Mississauga. In response to a question about what had happened on February 4, 2005, the appellant said “Love’s rage. Man, I loved her so much, I just didn’t think”. The appellant denied that he had intended to hurt Ms. Maharaj: “I just wanted to scare her”.
6. The Prior Plea Proceedings
14After several pre-trial conferences with a judge of the trial court, the parties drafted an Agreed Statement of Facts which included a description of their prior relationship and an account of the events of February 4, 2005. The appellant entered guilty pleas before the pre-trial judge on June 26, 2006.
15When sentencing proceedings were scheduled to take place before the pre-trial judge on March 6, 2007, the appellant took issue with a portion of the Agreed Statement of Facts that had to do with his prior knowledge of Ms. Maharaj’s trip to Trinidad. The prosecutor insisted on the admission as drafted as a condition of her acceptance of the plea to the lesser offence of unlawful confinement. The sentencing proceedings foundered, the pleas of guilty were struck, and a date for a preliminary inquiry selected.
7. The Pleas of Guilty
16After a slight redraft of the original Agreed Statement of Facts, the appellant entered guilty pleas to the three counts on which he was arraigned on June 14, 2007. Sentencing submissions were made on October 2, 2007 and sentence passed on November 6, 2007 more that two and one-half years after the events that formed the basis of the charges.
8. The Materials Filed on Sentence
17The sentencing judge was provided with a pre-sentence report, as well as an addendum to that report, several psychiatric reports and a letter from the John Howard Society reciting the appellant’s attendance at counselling sessions offered by the society. Ms. Maharaj provided a victim impact statement.
18A fair reading of the psychiatric reports supports the conclusion that the appellant does not suffer from any identifiable mental disorder and is not in need of any psychiatric treatment or other intervention. The psychiatrists, one of whom is a forensic psychiatrist, concluded that the risk of recidivism is, at worse, minimal. Both doctors characterized the conduct as an isolated instance of aberrant behaviour for which the appellant is truly remorseful.
9. The Effect of the Appellant’s Offences
19The appellant’s conduct has had and continues to have a significant impact on Ms. Maharaj. She had to take a leave of absence from her work and has repeated nightmares. She was diagnosed with alopecia, a loss of hair because of substantial stress, and has attended several counselling sessions in an attempt to resolve her post-traumatic stress.
20During the fall of 2006, Ms. Maharaj returned to work with a keener awareness of her surroundings and those with whom she must deal. Her anxiety has been exacerbated by the time taken to resolve the charges against the appellant.
B. THE DECISION OF THE SENTENCING JUDGE
1. The Position of the Prosecutor
21At trial, the prosecutor sought a custodial sentence of twelve months and rejected any suggestion that the appellant should serve this sentence in the community. The principles of denunciation and of general deterrence, together with the aggravating circumstance that the offences constituted abuse of the appellant’s estranged domestic partner, rendered unfit service of the sentence in the community.
2. The Position of the Appellant
22Counsel for the appellant contended that any sentence of imprisonment imposed upon the appellant should be served in the community as s. 742.1 of the Criminal Code permits. Serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing.
3. The Decision of the Sentencing Judge
23The sentencing judge rejected the submission that the appellant should serve his sentence in the community. She acknowledged that the appellant had pleaded guilty, was a first offender and had “professed remorse”. Further, the sentencing judge accepted that the appellant did not suffer from any psychiatric condition that might require intervention and was remorseful for his conduct.
24On the other hand, the sentencing judge found several aggravating features. The confinement was protracted. The appellant had a knife and travelled a substantial distance to confront the complainant. He threatened, choked and assaulted her. She was his former domestic partner. This conduct caused Ms. Maharaj significant and ongoing harm. A conditional sentence would not meet the dominant sentencing principles of repudiation, denunciation and deterrence; rather, it would cause the community to lose confidence in the administration of justice, thus bring it into disrepute.
C. THE GROUNDS OF APPEAL
1. The Position of the Appellant
25Mr. Addario, on behalf of the appellant, identifies three specific errors by the sentencing judge to overcome the deference he acknowledges should be accorded her decision refusing to permit the appellant to serve his sentence in the community according to the terms of a conditional sentence order:
i. failure to award credit for time spent in pre-sentence custody as a result of the erroneous assignment of sole responsibility for the delay in disposition to the appellant;
ii. improper characterization of the appellant’s report to psychiatrists about his conduct as an attempt to minimize the nature of the offence to his own advantage; and
iii. failure to award the appellant credit for the lengthy period during which he was out of custody but subject to restrictive terms of judicial interim release.
26Mr. Addario contends that the errors made by the sentencing judge, both individually and collectively, affected not only the length but also the manner in which the sentence is to be served. Length and manner of service cannot be disentangled, the one from the other.
27Mr. Addario points out that, even acceeding to the quantum of sentence proposed by the prosecutor at trial, in the absence of any requirement of a minimum sentence, the appellant was entitled to uncompromised consideration of a conditional sentence. The appellant poses no danger to the community. He is a youthful first offender who is gainfully employed. The conduct here was a “one-off,” not the product of any psychiatric disorder. The prospect of recidivism is remote. A conditional sentence would be consistent with the fundamental purpose and principles of sentencing that prevail here. The authorities that command incarceration involve protracted violence different in its nature and extent from what happened here, and offenders with established records and a palpable prospect of recidivism.
2. The Position of the Respondent
28For his part, Mr. McInnes, for the respondent, takes the position that any error made by the sentencing judge in the attribution of sole responsibility for the delay in concluding proceedings to the appellant, as well as in the failure to award credit for time spent in custody or on restrictive terms of judicial interim release, is not linked to the refusal to permit service of the sentence in the community.
29Mr. McInnes says that the appellant adduced no evidence about any hardships encountered while he was bound by the judicial interim release order. The terms of the order on their face, are not especially onerous. Indeed, while bound by these terms, the appellant was able to establish a relationship of some permanence with another young woman.
30The sentencing judge’s characterization of the appellant’s rendition of the circumstances of the offence to Dr. Johnson as an attempt to minimize the nature of his offences, according to Mr. McInnes, was well-founded. The version of events offered by the appellant and those acknowledged in the Agreed Statement of Facts, differ substantially and amply support the sentencing judge’s conclusion.
31According to Mr. McInnes, even absent deference, the sentences imposed were fit. These offences were planned. A weapon was taken along on a lengthy trip the object of which was confrontation. The crimes involved violence and degradation. The entire incident occupied several hours and arose out of a prior domestic relationship that the appellant refused to acknowledge was over.
D. ANALYSIS
1. The Scope of Appellate Review
32Appellate courts are bound to show substantial deference to sentences imposed at first instance, whether after trial or following entry and acceptance of pleas of guilty. This deference reaches decisions about whether to permit service of a sentence of imprisonment in the community. See, R. v. Ijam 2007 ONCA 597 at para. 13 per MacPherson J.A.
33Appellate interference with a sentence is warranted only if the sentencing judge has erred in principle or has imposed a sentence outside the acceptable range of sentence. An error in principle may involve a failure to take into account a relevant factor, consideration of an irrelevant factor, assignment of insufficient weight to a relevant factor, overemphasis of relevant factors and, on a more general level, an error of law. See, R. v. Rezaie (1996), 1996 CanLII 1241 (ON CA), 112 C.C.C. (3d) 97 (Ont. C.A.) at p. 103 per Laskin J.A.
34The appellant stakes his claim for appellate interference in the soil of error in principle. He advances no argument that the quantum of sentence imposed lies beyond an acceptable range of sentence for offences of which he has been convicted, although he takes issue with the manner in which the sentencing judge decided the sentence must be served.
2. Failure to Award Credit for Restrictive Terms of Release
35The appellant was released from custody four days after his arrest. The recognizance on which he was released required that he:
i. live with his sureties, his brothers, in their parents’ house in Mississauga; and
ii. not be away from his home except for verifiable employment or with a surety.
The recognizance did not include a curfew or permit absence from the home for medical or humanitarian reasons.
36The sentencing judge refused to award any credit to the appellant for the lengthy period during which the appellant’s liberty had been restricted by the terms of his release. The sentencing judge grounded her refusal to award credit on two factors:
i. the terms of release were not restrictive, since it did not include house arrest or inhibit the appellant’s ability to develop a further romantic relationship; and
ii. the lengthy delay in resolving the case, thereby the prolonged period restricted liberty, was entirely the fault of the appellant.
37It is beyond controversy that the sentencing judge was wrong to assign sole responsibility for the delay in resolving the outstanding charges to the appellant. A more accurate assignment would have included a prosecutorial contribution. An earlier resolution foundered because of the prosecutor’s insistence on the appellant’s admission of the entire Agreed Statement of Facts. The appellant was not prepared to admit that he knew in advance about the complainant’s planned trip to Trinidad. The prosecutor then in charge of the case was not prepared to proceed absent such an admission, although the complainant could have been called to testify on the trial of an issue. See, Criminal Code s. 724(3)(e). This sticking point was later resolved by insertion of wording proposed by the appellant’s trial counsel when the first resolution attempt began to unravel.
38The decision of the sentencing judge to refuse credit for the time the appellant spent on judicial interim release on the ground that the appellant was wholly responsible for the delay in resolution was based on a misapprehension of the reasons underlying the failed resolution. That said, it was open to the trial judge to refuse credit on the basis that the appellant had not demonstrated that the conditions of release had prejudiced or imposed undue hardship upon him. See, Ijam, supra.
3. Minimization of Conduct in Psychiatric Evaluations
39The sentencing judge considered as an aggravating factor the appellant’s minimization of his conduct during psychiatric interview. In the first report of Dr. Johnson, for example, the appellant told the psychiatrist that he (the appellant) had a fight with and had slapped his girlfriend. The account reported by Dr. Johnson makes no mention of a knife or the necklace the appellant acknowledged having ripped from the complainant’s neck. In a report prepared fifteen months later, after correspondence from the appellant’s trial counsel, Dr. Johnson noted that the appellant did not deny the presence of the knife or the lengthy confinement of Ms. Maharaj in his car.
40On its face, the account first provided by the appellant to Dr. Johnson about the events of February 4, 2005 did minimize the seriousness of the offences the appellant later admitted. But this account was not one in which the appellant persisted during his discussions with Dr. Kunjukrishnan or in the Agreed Statement of Facts.
4. The Availability of Review
41A fair reading of the sentencing judge’s reasons as a whole reveals two errors:
i. failure to award credit for restrictive judicial interim release terms because of an improper assignment of exclusive responsibility for delay in resolution to the appellant; and
ii. consideration as an aggravating factor of the appellant’s account to Dr. Johnson, a version of events on February 4, 2005 that attempted to minimize the seriousness of the appellant’s conduct.
As a result of these errors, the deference due to the sentencing judge’s decision falls away and it becomes necessary to consider the fitness of the sentence imposed.
5. A Fit Sentence
42The principal complaint about unfitness has to do not with the quantum of sentence imposed, but rather with the manner in which the appellant is to serve his sentence.
43The offences of which the appellant has been convicted are not punishable by a minimum term of imprisonment. No one suggests that any term of imprisonment imposed should exceed two years. To determine whether the appellant should be permitted to serve his sentence in the community, it is necessary to consider whether service of the sentence in the community would endanger the safety of the community and be consistent with the fundamental purpose and principles of sentencing in ss. 718 to 718.2 of the Criminal Code.
44To permit the appellant to serve a sentence of imprisonment of nine months in the community would not endanger the safety of the community. The appellant is a first offender who is unlikely to recidivate. He is gainfully employed. He is not labouring under any major mental illness or related condition that would render him a danger to the community, or any identifiable segment of that community. He has strong family support and lives in a stable home environment.
45The fundamental purpose of any sentence, according to s. 718 of the Criminal Code, is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by the imposition of just sanctions with any one or more of several sentencing objectives.
46In cases involving violence arising out of an existing or failed domestic or romantic relationship, the predominant sentencing objectives are denunciation and deterrence. See, R. v. Boucher (2004), 2004 CanLII 17719 (ON CA), 186 C.C.C. (3d) 479 (Ont. C.A.) at p. 488 per Simmons J.A. Further, sentences imposed must promote a sense of responsibility in offenders and an acknowledgement of the harm done, not only to the immediate victim, but also to the community at large. In cases like this, the likelihood of enduring psychological trauma to the victim from the irrational, controlling and obsessive nature of the misconduct is significant. See, Boucher, supra, at p. 487 per Simmons J.A.
47Each case is different. Some cases warrant conditional sentences. Others do not. This case involves planned conduct. The appellant refused to accept rejection and to acknowledge the end of his relationship with the complainant. Instead, bent on confrontation, he armed himself with a knife and drove from Mississauga to Ottawa. He planned to confront the victim, by his own admission, to scare her. The confinement lasted several hours. The victim missed work and was compelled to lie to her employer about the reasons for her absence. She was assaulted, a chain ripped from around her neck. The appellant’s conduct demeaned and degraded her.
48As a result of the appellant’s conduct the victim had to take a leave of absence from her work. She required therapy and counselling and reports increased anxiety and a prolonged period of post-traumatic stress.
49This is a close case. Despite the errors made by the sentencing judge, I am satisfied that she reached the correct result in rejecting the claim for service of the sentence in the community. Unlawful confinement, brandishment of a weapon and assault will not be tolerated as acceptable methods to rekindle a flagging romantic relationship.
50In the result, I would grant leave to appeal but dismiss the appeal from sentence.
RELEASED: JAN 3, 2008
“David Watt J.A.”
DO’C “I agree Dennis O’Connor A.C.J.O.”
I Agree E.E. Gillese J.A.”
