COURT OF APPEAL FOR ONTARIO
Laskin, Gillese and Strathy JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Stevan Ellis
Appellant
Mark Halfyard and Lance Beechener, for the appellant
Nick Devlin and Stephen Dawson, for the respondent
Heard: July 17, 2013
On appeal from the conviction entered on April 21, 2010 and from the sentence imposed on July 29, 2010, by Justice Thea P. Herman of the Superior Court of Justice, sitting without a jury, with reasons for conviction reported at 2010 ONSC 2390.
1The appellant was a member of the Refugee Protection Division of the Immigration and Refugee Board (IRB). In this position he was responsible for deciding refugee claims. He was convicted of breach of trust in connection with his office, contrary to s. 122 of the Criminal Code, R.S.C. 1985, c. C-46, by suggesting to a refugee claimant that he would approve her application if she engaged in intimate relations with him.1 He was sentenced to 18 months’ imprisonment.
2The appellant appeals his conviction and sentence. He also brings an application for leave to adduce fresh evidence on his sentence appeal.
3For the reasons that follow, I would dismiss the fresh evidence application and dismiss the appeal from conviction. I would grant leave to appeal the sentence, but dismiss the appeal.
A. The Facts
4There is no real dispute about the facts, because the key interaction between the appellant and the complainant – a forty-five minute meeting on the patio of a Starbucks café – was surreptitiously audio- and video-recorded by the complainant and her boyfriend. The following is a summary.
5On July 17, 2006, the appellant conducted a hearing to determine a refugee claim by the complainant, Ms. Ji Hye Kim. Ms. Kim was 25 years old. She had come to Canada from South Korea, and claimed that she was afraid to return because she had been abused by her father and threatened by gang members seeking to recover her father’s debts. Her counsel argued that she would receive no protection from the state if she were forced to return to Korea.
6At the conclusion of the hearing, the appellant reserved his decision. He said he would release his reasons as soon as possible. As Ms. Kim was leaving the hearing room, the appellant asked her where she worked. She told him she worked at a Korean restaurant at Jarvis and Front streets in Toronto. He said that he liked Korean food and that he might drop in.
7About eight weeks later, on September 13, 2006, the appellant went to the restaurant at lunch time. Ms. Kim did not initially recognize him. When she realized who he was, she asked whether he had reached a decision on her case. He told her that he had not. They had a short discussion, during which the appellant told her that he had visited the restaurant twice since the hearing, but had not seen her.
8The appellant returned to the restaurant nine days later, on September 22, 2006. At his request, Ms. Kim seated the appellant in her section. She told him that she had been unable to sleep and asked whether he had decided her case. He said he had not yet made his decision. She asked whether she could ask him some questions. He replied that they should not discuss her case in the restaurant and suggested that they meet for coffee. It was agreed that they would meet the following Tuesday, September 26, at 7:00 p.m.
9After discussing the matter with her boyfriend, who was angry because he thought the appellant wanted to have sex with her, Ms. Kim and her boyfriend decided to record the next meeting. On September 26, she was fitted with an audio recorder. Her boyfriend borrowed a video camera, rented a car, and parked across from a Starbucks patio on Bloor Street.
10Ms. Kim was seated at a table on the patio when the appellant arrived. After some preliminary small talk, during which the appellant said he had been at a wine tasting where he had a lot to drink, he asked Ms. Kim some questions about her refugee claim, including questions about the physical abuse by her father.
11The appellant had brought Ms. Kim’s immigration file with him. He took a draft of his decision from his briefcase. He told her that when he first wrote his decision, he was not able to decide in her favour: “I got ‘no’. Not, not a person that needs protection”.
12He said that after thinking more about it, and seeing her, he thought, “you’re too nice”. He continued, “I’ve been trying to find, trying to find a way to say ‘yes’ for you … It’s ‘no’ right now. But I haven’t issued it yet.” He was thinking about changing his decision, he said, and had not completely made up his mind.
13The appellant asked Ms. Kim about her marital status. She said she was separated from her husband. He mentioned her evidence at the hearing that her husband had been abusive: “… he was bad to you too right. He beat you and stuff, he was very bad.” Ms. Kim agreed.
14The appellant told Ms. Kim that he might be able to help her get a job at a resort in Huntsville, because she had a diploma in hotel management. He said he would help her to get work: “I know you had a hard life and I want to help you”.
15At this point, the appellant explained that while he had initially said “no” to her application, he was going to try to say “yes”, because he would not be able to sleep if he said “no”. He said he was going to work on it, because he really wanted to be friends with her. Ms. Kim expressed gratitude, saying that he was “saving [her] life”. He also noted that he was going to “have to write [the decision] really well for [her]” because “Korea has got a good government”.
16As the conversation continued, the appellant stated that he really liked Ms. Kim and wanted to be friends with her. He told her that he had to go to a meeting at 7:30 p.m., but said he should have the decision finished by the following Wednesday. He told her that as a result of the information he had obtained from her he was going to be able to “change things around”. He suggested that they meet the day before he finished his decision, the following Tuesday, and “have a big celebration”.
17The appellant then asked Ms. Kim whether she had a boyfriend. She replied that she was “kind of” living with her boyfriend. The following conversion ensued:
Mr. Ellis: That’s okay. You know what, I’ve got a wife too, so its okay.
Ms. Kim: Okay.
Mr. Ellis: So it doesn’t matter, so we can be secret on this too. Okay?
Ms. Kim: Okay.
18The appellant explained to Ms. Kim that he had a “terrible marriage,” so he had a girlfriend, but that he was “going to break up with her” because “she want[ed] [him] to leave [his] wife”. He was not looking for a steady girlfriend. He said he needed someone “on the side”. The following exchange then occurred:
Mr. Ellis: Yeah, but you know I'm a good person but yeah so, the long and short of it, I, you know, I want to be good friends with you, and I know you've got a boyfriend, I've got a wife, so I mean, if we do things together on the side, that's okay, that's fine, but I don't want to be, you know, don't worry I'm not going to be demanding, I'm not going ask you to move in with me or anything like that.
Ms. Kim: Oh okay!
Mr. Ellis: I'm not going to fall in love with you, don't worry about that.
Ms. Kim: Oh okay.
Mr. Ellis: I just legitimately uhm, you know, legitimately want to help you. Okay?
Ms. Kim: Thanks very much. [Emphasis added.]
19The appellant emphasized the need for secrecy. After discussing Ms. Kim’s relationship with her boyfriend, the appellant told her not to tell him about their discussion:
Mr. Ellis: Don't talk to him either. Yeah, cause, cause. If you go talk to him now, and tell him oh yeah, I had coffee with, you know my judge, and he's going to help me next thing you know if I say yes, and if you ever break up with him he might try to make trouble, he'll say oh yeah, you know that guy, she you know, fucked with the judge, fucked him and that's why, she's fucking him that's why he said yes, you know what I mean, because people have, people’s minds do funny things, particularly when they break up and stuff, I don't want that to happen.2
20The appellant then cautioned her not to tell her lawyer about their discussions:
And certainly, don’t tell your, certainly don’t, don’t tell your lawyer … you know, I shouldn’t be doing this, I know I mean I shouldn’t be meeting you without him.
21He explained that he had to go to his meeting:
… I wish I had more time, but this guy called me today and I was hoping to go for dinner with you, and like spend a couple of hours with you and doing stuff.
22He repeated that they would meet the following Tuesday, and said:
So, why don’t we uhm, why don’t we meet next Tuesday, around the same time, and, but definitely it’s going towards you, so please sleep good, okay?
Ms. Kim replied that this was okay with her.
23The appellant repeated that he was going to try to have his decision signed by the following Wednesday, and confirmed they would meet “Tuesday night”.
24The day after the Starbucks meeting, Ms. Kim’s boyfriend sent a composite audio and video recording of the meeting to the Chair of the IRB. The appellant was suspended from his position at the IRB on September 28 and on October 2, 2006, the Chair of the IRB issued a press release confirming the suspension pending internal review. On October 3, 2006, the recording was delivered to the RCMP. The next day, Ms. Kim gave a videotaped, sworn statement to the RCMP, consistent with the requirements in R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740 (the “KGB statement”).
25In the meantime, the media got hold of the story, which was widely publicized. The appellant’s wife learned of the story from the reporting. Shortly thereafter he sought psychiatric help. He was arrested and charged on October 12, 2006.
26The video and audio recording of the meeting at Starbucks was introduced in evidence at trial. Ms. Kim testified at trial and was cross-examined at considerable length. The trial judge found her to be a credible witness and rejected the defence attack on her credibility. The appellant did not testify.
B. The CONVICTION APPEAL
(1) The Trial Judge’s Reasons
27The central issue at trial was whether the Crown had established beyond a reasonable doubt that the appellant had offered to give Ms. Kim a positive decision on her refugee claim in exchange for engaging in intimate relations. The defence conceded that if he had done so, the offences were made out.
28After hearing the evidence, the trial judge concluded that there was no reasonable doubt that the appellant had suggested to the complainant that he would give her a positive decision in exchange for something from her. While he never said so directly, the words he spoke and the circumstances in which he spoke them left no reasonable doubt about his meaning. The trial judge stated, at paras. 165-68:
Mr. Ellis never directly told Ms. Kim that he would change his decision from no to yes if she had a relationship with him. Rather, he repeatedly said he was thinking of changing his decision and he repeatedly said he wanted a relationship with her, without explicitly saying that one was in exchange for the other.
This was not a conversation between two equals, freely discussing and agreeing to a relationship. Rather, it was a situation of one person with considerable power over the other proposing a relationship, while dangling the prospect of a positive decision. Mr. Ellis did not have to make the link between a relationship and a positive decision explicit. In these circumstances, the link was implicit.
Ms. Kim’s only role in the discussion was to indicate whether she agreed to the relationship. It was not a free choice. Ms. Kim knew that had she not agreed, she risked a negative decision.
In considering the circumstances in which the discussion took place, the particular words that were spoken and the conversation as a whole, it is my opinion that there is no reasonable doubt that when Mr. Ellis met with Ms. Kim on September 26, 2006, he suggested to her that he would give her a positive decision in exchange for something from her.
29The trial judge then considered whether the something was an intimate relationship – that is, whether the appellant suggested that he would give a positive decision on the refugee claim in exchange for intimate relations with Ms. Kim. She found that the Crown had established beyond a reasonable doubt that he had done so, at paras. 170-78:
Mr. Ellis’ first reference to what he wanted from Ms. Kim did, indeed, begin with being friends and learning Korean. The discussion, however, changed over the course of the meeting to suggest a far more intimate relationship. That part of the discussion began when Mr. Ellis asked Ms. Kim if she had a boyfriend. When she said that she did, he indicated that it was not a problem because he had a wife.
Mr. Ellis said he also had a girlfriend, but he thought he was going to break up with her. He went on to say that he needed a girlfriend “on the side” because he had a terrible marriage.
In my opinion, he made his intentions clear when he stated:
... the long and short of it, I, you know, I want to be good friends with you, and I know you’ve got a boyfriend, I’ve got a wife, so I mean, if we do things together on the side, that’s okay, that’s fine, but I don’t want to be, you know, don’t worry I'm not going to be demanding, I’m not going to ask you to move in with me or anything like that ... I’m not going to fall in love with you, don’t worry about that.
Ms. Kim understood that when Mr. Ellis said these words, he was suggesting a physical relationship.
“Doing things together on the side” is a euphemism for a sexual relationship. Mr. Ellis used the same expression when he said he needed a girlfriend “on the side.” The fact that Mr. Ellis assured Ms. Kim he was not going to ask her to move in with him and was not going to fall in love with her, further supports this interpretation. Tellingly, he did not tell her that he was not going to ask her to have sex with him.
In my opinion, Mr. Ellis’ meaning is clear. He was breaking up with his girlfriend. Because of the state of his marriage, he needed to have a girlfriend. He wanted Ms. Kim to be that girlfriend. However, given that Ms. Kim had a boyfriend, Mr. Ellis wanted to assure her that she did not have to worry about him being overly-demanding or falling in love with her.
During the course of their conversation, Mr. Ellis repeatedly told Ms. Kim not to tell her boyfriend. His concern with her boyfriend finding out further supports the conclusion that he was suggesting more than a mere friendship.
I consider, as well, the overall circumstances. The meeting on September 26 was not a matter of impulse or happenstance. It was pre-arranged. Mr. Ellis came to the meeting with Ms. Kim’s immigration file, prepared to discuss her case. He knew that what he was doing was wrong. He knew, as well, that he was placing his career at risk. It does not make sense that he would have assumed this risk just for the pleasure of having coffee or the occasional dinner and learning Korean.
In considering the circumstances of the meeting and what Mr. Ellis did and said, I conclude that the Crown has established beyond a reasonable doubt that Mr. Ellis suggested to Ms. Kim that she have intimate relations with him in exchange for a positive decision in her case.
(2) Grounds of Appeal
30The appellant advanced two grounds of appeal.3 First, he submitted that the trial judge misapprehended Ms. Kim’s evidence. He submitted that her evidence, properly understood, was that she did not understand the appellant to be proposing a sexual relationship. Second, he submitted that the verdict was unreasonable, because the proposition of an intimate relationship was not the only available inference from the appellant’s words and conduct. He argued that the evidence concerning his intent was circumstantial and was consistent with the exploration of the possibility of a relationship with the complainant – even a platonic relationship.
31We did not find it necessary to call on the Crown to argue the conviction appeal. I will explain why.
Misapprehension of the Evidence
32The appellant submitted that the trial judge misapprehended the evidence. That is, her reasoning was based on “a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to the evidence”: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 538. He relied on the principles expressed by Doherty J.A. in Morrissey,at p. 541:
When will a misapprehension of the evidence render a trial unfair and result in a miscarriage of justice? The nature and extent of the misapprehension and its significance to the trial judge's verdict must be considered in light of the fundamental requirement that a verdict must be based exclusively on the evidence adduced at trial. Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction then, in my view, the accused's conviction is not based exclusively on the evidence and is not a “true” verdict. Convictions resting on a misapprehension of the substance of the evidence adduced at trial sit on no firmer foundation than those based on information derived from sources extraneous to the trial. If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.
33The appellant submitted that while the audio/video recording was a central piece of evidence, the trial judge also relied on Ms. Kim’s understanding of his words to conclude that he was proposing a physical relationship. He argued that the trial judge misapprehended portions of Ms. Kim’s evidence concerning her interpretation of his intention and that the finding that the appellant was proposing an intimate relationship therefore cannot stand.
34At trial, Ms. Kim was referred in examination-in-chief to the appellant’s statement, quoted above, that he wanted to be good friends, but that he was not going to fall in love with her. She was asked what she understood by the statement. She said:
I understood as that ah um that me become his girlfriend, and then he said that he doesn’t want fall in love with me so that part I interpreted as a physical relationship that he doesn’t want.
35In cross-examination, the defence put to Ms. Kim a portion of the KGB statement, in which she had said that the appellant did not say anything about sex. The questions and answers in that statement were as follows:
Det. Sean Devine [SD]: So there’s a good chunk of it that I missed hum, and, and from what I understand there was hum, some talk of hum, sexual hum, some sort of sexual talk…
Ms. Kim [JK]: Huh uh.
SD: in that conversation. Is that correct? Cause I, cause I haven’t seen it?
JK: Not exactly. Hum, hum no.
SD: There was no sexual talk at all. So basically there was hum, favours hum, he had thought that you were gonna be friends.
JK: Yes, girlfriend like...
SD: A girlfriend, why do you say that?
JK: It’s because he said hum, he’s breaking up with hum, his girlfriend, and he will be leaving his family in two years and he said I need a girlfriend, and, he really liked me, he said that five times, he really liked me he wanted to be friends...
SD: Yup, no,
JK: he was not my boyfriend,
SD: Yep, it’s just I haven’t seen the tape so I just.
JK: That’s why I read an article saying he wanted to change refugee status with sex. But he didn’t say that...
SD: Yeah.
JK: He didn’t say about the sex.
SD: Okay.
JK: But...I didn’t, but if I see him yesterday, next Tuesday, [inaudible, not transcribed] he’d probably, I’m not sure, but it would of happened yet but...
SD: What, what do you believe him to be, like do you, what do you think, he is his title his job?
JK: [inaudible, not transcribed] all this conversation, I’m not sure, he didn’t ask me to have sex with him, in the way that you, he didn’t say that directly but, he’s, he was really friendly nice talking to me, like “Oh I really like you, I don’t want you to go back to Korea” so just friend with me, but, I have...therefore he’s using his position.
36The appellant submitted that Ms. Kim’s evidence, read in conjunction with her statement, disclaimed any understanding of a proposition for a sexual relationship and that the trial judge misapprehended her evidence when she found that Ms. Kim understood that he was suggesting a physical relationship. He argued that in light of the trial judge’s misapprehension of this evidence, and the central role it played in her reasons, it would be unsafe to found a conviction on it – even if the court were to conclude that the audio/video evidence, standing alone, would be sufficient for a conviction.
37The trial judge found that Ms. Kim’s evidence was credible and that her evidence at trial was consistent with the KGB statement – although the appellant did not directly state that he wanted a sexual relationship with her, he suggested it indirectly. The trial judge made specific findings about what Ms. Kim concluded from the appellant’s words, at paras. 144-45:
Ms. Kim testified that Mr. Ellis never directly said to her that he would give her a positive decision on her refugee claim in return for an intimate or sexual relationship. However, she understood that this is what he was referring to indirectly.
Ms. Kim said she felt uncomfortable when Mr. Ellis began to talk about them being friends. When he told her he wanted to be good friends with her and said they would “do things together on the side” but he would not be demanding, she thought he was referring to having a physical relationship with her. She believed she had to decide between having her refugee claim rejected and having a relationship with Mr. Ellis.
38The trial judge’s conclusion was based on Ms. Kim’s evidence taken as a whole. Part of her evidence-in-chief might have been open to the interpretation that, in relation to one specific phrase the appellant had used, she did not understand him to be speaking of a physical relationship. But, there were other parts of her evidence where she confirmed that that she understood that the appellant was either directly or indirectly suggesting a physical relationship. In cross-examination, it was put to her that there was no discussion of sex during the conversation. Ms. Kim replied:
When he mentioned that I have my boyfriend and he’s married, and when he mentioned about being boyfriend/girlfriend between him and I, I could understand the physical relationship.
39When it was put to Ms. Kim that in her KGB statement she had said that the appellant had not asked to exchange sex for refugee status, she said:
He didn’t mention the actual word sex. That’s what I meant.
40Counsel then put to her in cross-examination:
Q. No, but I understand that, but more than that he didn’t say that he was going to exchange refugee status with sex, did he?
Ms. Kim: He didn’t say exactly what you said --
Q. Mm-hm?
Ms. Kim: But what I meant was that indirectly he suggested, that’s what I mean.
41Having listened to and watched the recording of the conversation at Starbucks, and having heard Ms. Kim’s evidence, including her explanation of the alleged inconsistencies in her KGB statement, the trial judge found that the appellant suggested that he would give Ms. Kim a positive decision on her refugee claim – he would change the ‘no’ to a ‘yes’ – if she engaged in sexual relations with him. He was not simply suggesting a friendship.
42Viewed in isolation from the rest of the evidence, the statements to which the appellant refers might be capable of benign interpretation. However, viewing the evidence as a whole, there was ample support for the trial judge’s conclusion that he was proposing an intimate relationship. The trial judge did not misapprehend the evidence.
43Accordingly, I would reject this ground of appeal.
Unreasonable Verdict
44The test to determine whether a verdict of a jury or a trial judge is reasonable has been set out in a number of cases in the Supreme Court of Canada, including R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36. It is “whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered.” In Biniaris, the Supreme Court noted that in the case of a judgment of a judge sitting without a jury, the appellate court may be able to identify a flaw in the evaluation of the evidence or in the analysis that will explain the unreasonable conclusion. Justice Arbour stated, at para. 37:
… in trials by judge alone, the court of appeal often can and should identify the defects in the analysis that led the trier of fact to an unreasonable conclusion. The court of appeal will therefore be justified to intervene and set aside a verdict as unreasonable when the reasons of the trial judge reveal that he or she was not alive to an applicable legal principle, or entered a verdict inconsistent with the factual conclusions reached. These discernable defects are themselves sometimes akin to a separate error of law, and therefore easily sustain the conclusion that the unreasonable verdict which rests upon them also raises a question of law.
45The appellant submitted that this case did not turn on credibility and that the issue was one of the sufficiency of the evidence. He submitted that the trial judge failed to consider whether guilt was the only reasonable inference that flowed from the evidence. He argued that an equally available inference was that he had not yet formed the necessary intent and that his discussions with the complainant were at the exploratory stage. His words and conduct, he says, were consistent with those of a lonely and unhappy man, who wanted to pursue some form of personal relationship with the complainant, whether platonic, sexual, or yet-to-be-determined. While his conduct was unethical and offensive, it was not unlawful.
46The appellant pointed to four circumstances in support of this submission:
there was no explicit reference to a sexual relationship, and at various points in the conversation he referred to his desire to be “friends”;
the complainant herself was unclear about his intentions, and at one point, referred to above, interpreted his words to mean that he did not want a physical relationship;
his references to secrecy were consistent with an acknowledgment that his conduct was not ethical;
no inference can be drawn from the fact that he was putting his job at risk by meeting with her – he may simply have wanted to help her, and it cannot be concluded that he was meeting with her for his personal benefit.
47In sum, the appellant argued that his conduct was consistent with wanting to get to know the complainant better and not having formed an intention to propose a sexual relationship.
48The trial judge was alive to this issue. She noted that while the meeting at Starbucks began with a casual discussion about being friends and learning Korean, it changed over the course of the meeting to a discussion of a more intimate relationship, in which the appellant said that he needed a girlfriend “on the side” because he had a terrible marriage. The trial judge also found that on the evidence as a whole Ms. Kim understood the appellant was proposing a physical relationship. His reference to keeping a secret, while potentially ambiguous in the abstract, loses its ambiguity when considered in the context of his other words and contact. The same is true with respect to his expressed desire to be “friends”.
49I have set out the critical portions of the trial judge’s reasons above. She found that the surrounding circumstances and the words used by the appellant at the meeting were consistent with a proposal for sex and inconsistent with any other rational conclusion.
50The trial judge’s findings were fully supported by the evidence – not only the evidence of what transpired at Starbucks, but all the surrounding circumstances. The trial judge’s conclusions were also consistent with common sense and human experience. A 47-year-old refugee adjudicator who proposes to a 25-year-old female refugee claimant that he will change his decision in her favour if she will be his girlfriend “on the side” is not suggesting that he wants a platonic relationship. As the trial judge noted, it was telling that the appellant made no attempt to reassure Ms. Kim that he was not proposing a sexual relationship.
51I agree as well with the Crown’s submission that in considering the reasonableness of the verdict, I am entitled to treat the appellant’s failure to testify as an inability to provide an innocent explanation for his conduct: R. v. Dell (2005), 2005 CanLII 5667 (ON CA), 194 C.C.C. (3d) 321 (Ont. C.A.), leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 524, at para. 35.
52In short, I see no flaw in the trial judge’s understanding or evaluation of the evidence that would permit this court to intervene. Her conclusion was the only reasonable one on the evidence. Accordingly, I would dismiss the conviction appeal.
C. THE SENTENCE APPEAL
53At trial, the Crown sought a sentence in the range of three to three and a half years. The defence asked for a sentence of less than two years, to be served in the community by a conditional sentence. The trial judge concluded that a conditional sentence would not be appropriate, as it was not consistent with the fundamental purpose and principles of sentencing set out in s. 718 of the Code. She held that, notwithstanding the presence of significant mitigating factors, including the appellant’s bipolar disorder, the principles of general deterrence and denunciation required a period of imprisonment. She therefore imposed a sentence of 18 months’ incarceration.
54The appellant acknowledged that the offence was serious and that, in the absence of his bipolar disorder, a period of imprisonment would have been appropriate. He submitted, however, that the trial judge minimized the scope of his disorder and the causative role it played in the commission of the offence. In the result, he submitted, the trial judge gave undue emphasis to denunciation and deterrence, inadequate consideration to his rehabilitation and erred in sentencing him to a term of incarceration, rather than imposing a conditional sentence.
55I will begin by reviewing some of the evidence at the sentencing hearing. Other aspects of the evidence will be discussed later. I will then summarize the trial judge’s reasons in more detail, explaining how she addressed the issues raised by the appellant. I will next consider the fresh evidence application. After setting out the positions of the parties on sentencing, I will analyze the issues on the sentence appeal.
(1) The Evidence on the Sentencing Hearing
56The appellant was 47 years old at the time of the offence and 51 when he was sentenced. He was married, with two children, ages 20 and 15. He had practised as a lawyer for four years, and then served two terms as a Toronto City councillor. After being defeated in the election of 1997, he returned to the practice of law. He was appointed to the IRB in 2000 and was reappointed in 2002 for a five year term.
57He was suspended from his position with the IRB after being charged and he subsequently resigned. The IRB conducted a review of all the cases he had adjudicated and found no matters of concern.
58In early October, 2006, the appellant saw a psychiatrist and has been in treatment since that date. He voluntarily reported the matter to the Law Society and was required to work under supervision, pending disciplinary proceedings.
59At the sentencing hearing, Ms. Kim read a victim impact statement in which she noted that the appellant, the man who was deciding her future and whether she could stay in Canada, tried to take advantage of her. As a result of the offence, she was left with the feeling that she could not trust him, the IRB, or anyone else in Canada. She was subjected to a second IRB refugee hearing, investigations by the IRB and the RCMP and media attention. She had trouble sleeping and stayed away from work for a month. Her refugee application was ultimately granted.
60The appellant’s wife, Ruth Neal-Ellis, testified on his behalf. She filed a letter in which she described her husband as having had bouts of depression and moodiness, followed by “reckless” and “very impulsive” behaviour, especially around the time of the offence. She said his behaviour was out of character between December 2005 and the summer of 2006. He acted impulsively at times and pursued a “frenetic lifestyle”. She described how he became obsessed with his work and was irritable and short-tempered at home. He drove recklessly and behaved impulsively and erratically on family vacations. He had an extra-marital affair, but she did not become aware of it until after his arrest.
61In cross-examination, Ms. Neal-Ellis described her husband as being controlling at times, “high energy”, “domineering” and behaving “frenetically”, to the extent she barely recognized him. She acknowledged that, in spite of all this, she did not seek medical help for him. She also acknowledged that she did not observe any unusual behaviour during the week of September 26th, when the Starbucks meeting had occurred.
62The Crown tendered an affidavit of Lois Figg, Assistant Deputy Chair of the Refugee Protection Division of the IRB, and defence counsel cross-examined her on it. The records of the IRB showed that during the year ending September 2006, Mr. Ellis completed 196 claims, tying with one other adjudicator for the highest number of claims processed. She indicated that his case load was generally consistent with the IRB’s scheduling norms, except for six particular weeks, centred around the summer of 2006, when he was scheduled to complete a greater number of cases than normal. There were other times during the year when he had fewer cases than normal.
63It appeared to Ms. Figg that, but for the holiday he took in August 2006, he was working a regular schedule in the period July to September 2006. He made no claims for stress leave or workplace illness, other than normal sick leave.
64The trial judge also heard expert evidence from two psychiatrists, Dr. Hill and Dr. Parikh. Medical reports of two other psychiatrists, Dr. Rootenberg and Dr. Ozersky, were filed in evidence as part of the information relied upon by Dr. Hill in the preparation of his report. To put the evidence of Dr. Hill and Dr. Parikh in perspective, I will briefly summarize the reports of Dr. Rootenberg and Dr. Ozersky.
65Dr. Rootenberg was a forensic psychiatrist who assessed the appellant at the request of his lawyer. He interviewed the appellant twice in September 2007 and again in February 2009. He concluded that the appellant met the diagnostic criteria for Bipolar Affective Disorder, manifesting both depressive and manic symptoms. Another possible diagnosis was Bipolar II disorder, which includes depressive and hypomanic episodes. He concluded that the appellant’s “conduct during the material time was markedly influenced by his mood instability and impulsivity, which impacted adversely on his judgment”. Dr. Rootenberg noted that the appellant “reportedly consumed more wine than usual on the date in question at a social event, which was uncharacteristic for him and may have disinhibited his conduct further.”
66Dr. Ozersky was the Senior Psychiatric Consultant to the Mood Disorders Clinic at the University Health Network. He conducted a psychiatric evaluation of the appellant in October 2007. He diagnosed the appellant as suffering from Bipolar II Disorder, “rapid cycling type,” and Attention Deficit Hyperactivity Disorder. It was Dr. Ozersky’s opinion that the appellant was “hypomanic” at the time of his meeting with Ms. Kim at Starbucks.
67Dr. Ozersky opined that during the time preceding the offence the appellant displayed other hypomanic behaviour, such as excessive spending (buying twenty-five silk ties), going on a European vacation that he could not afford, and requesting that his workload be increased. Dr. Ozersky regarded this last behaviour as an example of “grandiosity”. He also noted that the appellant had been conducting an extra-marital affair around the time of the offence and observed that although this could be an expression of “very normal human behaviour,” taken with his other behaviours it was “an atypical expression of his underlying Bipolar Disorder.” He concluded:
I believe at the time of the index incident, the bipolar disorder impaired his [judgment], made him impulsive, and he was grandiose enough to think he was the helpful saviour.
68These last comments as to impulsivity and grandiosity must be understood in the context of the appellant having told Dr. Ozersky that he had “accidentally” met Ms. Kim at the café and had told her that he would be willing to “be her friend” and was “willing to help her”. He had denied any sexual intent. In other words, in recounting the events to his psychiatrist, the appellant had minimized the considerable and protracted planning and preparation that went into his meeting with Kim and did not disclose that his conduct was directed towards personal gratification.
69Dr. Hill was a practicing psychiatrist who treated the appellant for four years after his arrest. He acknowledged that the Crown’s expert, Dr. Parikh was an expert in the study and research of mood disorders and conceded that his own involvement in the area was limited to the clinical care of people with mood disorders. He said that he might at the time have 10 or 15 patients with bipolar disorder serious enough to require medication in his private practice. He diagnosed the appellant as having bipolar disorder.
70He reviewed the medical reports of Dr. Ozersky and Dr. Rootenberg, as well as the recording of the meeting at Starbucks and the letters of support from the appellant’s colleagues and friends. It was Dr. Hill’s opinion that prior to and at the time of the offence the appellant was showing signs of mental illness consistent with Bipolar II disorder with hypomanic episodes. He described this disorder as: “a clinical course that is characterized by the occurrence of one or more major depressive episodes[,] accompanied by at least one [h]ypomanic [e]pisode.” He characterized a hypomanic episode as “a distinct period during which there is an abnormally and persistently elevated, expansive, or irritable mood that lasts at least four days that is clearly different from the person’s usual mood.” During that period, at least three of these symptoms will have occurred: (a) inflated self-esteem or grandiosity; (b) decreased need for sleep; (c) excessive talkativeness; (d) flights of ideas; (e) distractibility; (e) increase in goal-directed activity; (f) excessive involvement in pleasurable activities that have a high potential for painful consequences, such as buying sprees, sexual indiscretions or foolish investments.
71In his evidence, Dr. Hill expressed the opinion that he was “quite comfortable in saying that [bipolar disorder] did play a part [in the appellant’s involvement in the offence]”. The illness had a deleterious effect on his behaviour, causing him to act in an erratic and undisciplined way.
72Dr. Parikh filed a report on behalf of the Crown. He also testified at trial. Dr. Parikh was the Deputy Psychiatrist-in-Chief at the University Health Network and a Professor of Psychiatry at the University of Toronto. He specialized in mood disorders, particularly bipolar disorder. He had served as head of the Bipolar Clinic at the Clarke Institute of Psychiatry (later CAMH) from 1994 to 2002 and had written extensively on mood disorders. He had “personally treated thousands of people with bipolar disorder” and “trained many hundreds” of physicians “on the diagnosis and management of bipolar disorder”.
73Having read the medical reports, including Dr. Hill’s, and having viewed the recording of the Starbucks meeting, Dr. Parikh concluded that the appellant’s behaviour at the time of the meeting at Starbucks could not be adequately explained by bipolar disorder. He concluded:
In summary, Mr. Ellis reports a number of unusual symptoms suggestive of some difficulties in mental health. However, the specific constellation of symptoms and signs, together with the context of the behaviours potentially demonstrating a hypomanic state, are only slightly supportive of the possibility that Mr. Ellis was in a bipolar 2 hypomanic state at the time of the offence. Furthermore, Mr. Ellis is noted to have approached Ms. Kim for further contact on July 17th at the end of the IRB hearing, on September 13th, September 22nd and on September 26th. Individuals in a hypomanic state might have made impulsive or poor decisions or behaviours on one or several closely timed occasions, but the persistence of behaviour from July through September suggests that hypomania would not be the reason for such behaviour. As such, bipolar 2 disorder does not adequately explain the behaviour of Mr. Ellis on September 26th.
In the body of his report, Dr. Parikh noted that it is unusual for hypomanic episodes to last more than a few weeks.
74In addition to this evidence, the appellant filed 56 supportive reference letters at the sentencing hearing. The letter writers came from all walks of life, and included people who knew him in his public and private lives, lawyers who had appeared before him at the IRB, family members, co-workers and community leaders. All spoke highly of him, his excellent work at the IRB, his professionalism, integrity and strong work ethic. Many described his conduct in this case as entirely out of character. Some spoke of the suffering he and his family had endured as a result of the charges and conviction. Several indicated that his behaviour around the time of the offence seemed erratic, anxious and distracted.
75I now turn to the trial judge’s reasons for sentence.
(2) The Trial Judge’s Reasons for Sentence
76After reviewing the facts and the general principles applicable to sentencing, the trial judge considered the aggravating and mitigating circumstances. The aggravating factors included:
the abuse of the appellant’s quasi-judicial position;
the abuse of a power imbalance, aggravated by the fact that Ms. Kim was young, female, and, to his knowledge, had been the victim of abuse by her husband and father;
his knowledge, as a lawyer and an IRB member, that his conduct was wrong;
the act was not impulsive, having been the culmination of two prior meetings; and
the fact that the appellant’s actions undermined the integrity of the IRB and of the refugee determination system in Canada.
77The judge also considered the mitigating factors, including:
the appellant’s unblemished career and his otherwise positive record as an IRB adjudicator;
the impact of the offence on his wife and children, including the emotional and financial impacts flowing from the loss of his job;
the numerous letters in support of the appellant from friends, relatives and lawyers, who spoke to his competence, diligence, integrity and dedication to public service;
reference by some of the letter writers to their own observations of the appellant’s agitation, distress and fatigue in the months before the incident; and
the appellant had apologized to the complainant, and to his family and the community, for the harm he had done to them.
78The trial judge found that although Dr. Hill was not an expert on bipolar disorder, he had been treating the appellant for almost four years on a regular basis, and his diagnosis of Bipolar II disorder was supported by Dr. Ozersky and Dr. Rootenberg. She therefore concluded that the appellant had bipolar disorder, and that it may have affected his judgment at the time of the offence. She found this was also a mitigating factor.
79She noted, however, that his conduct was not impulsive. He first expressed interest in Ms. Kim after the hearing on July 17, 2006, when he asked where she worked and said he might come by. He went to her place of work twice, before actually meeting her on September 13, 2006. On his last visit to the restaurant, he suggested that they meet somewhere else so that they could talk about her case. This led to the meeting at Starbucks. On that occasion, as the trial judge noted, “he arrived at the meeting, with her file in hand, prepared to discuss her case” (at para. 52).
80The trial judge concluded on this point, at para. 85:
I note, however, that Mr. Ellis’ conduct was not impulsive – it occurred over a period of time and was well planned. Mr. Ellis was otherwise functional at work during that period of time. Furthermore, while the hypomania may have affected Mr. Ellis’ judgment, he was, nonetheless, aware that what he was doing was wrong, and that he was placing both himself and Ms. Kim at significant risk.
81The trial judge then turned to the determination of the appropriate sentence. The principal issue was whether a conditional sentence would be appropriate. In order to impose such a sentence:
(a) the offence must be one that does not carry a maximum term of 10 years or more, or a minimum term;
(b) the court must impose a custodial sentence of less than two years;
(c) service in the community would not endanger the safety of the community; and
(d) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing.
(R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 46.)
82The first requirement was satisfied because the offence carried a maximum term of five years’ imprisonment and there was no minimum sentence.
83In considering the second factor – whether a sentence of less than two years was appropriate – the trial judge reviewed a number of cases involving breach of trust by public officials, including cases in which mental illness may have played a part in the offender’s conduct: R. v. Bournbonnais (28 June 2006), unreported (Que. S.C.); R. v. Ramsay, 2004 BCSC 756, 22 C.R. (6th) 76; R v. Bispo, 2004 ONCJ 331, 67 W.C.B. (2d) 346; R. v. Davies (2005), 2005 CanLII 63757 (ON CA), 199 C.C.C. (3d) 389 (Ont. C.A.); R. v. Power, 2009 BCSC 1514, [2009] B.C.J. No. 2194, varied, 2010 BCCA 21, 281, B.C.A.C. 152;4 R. v. Gagnon, [2003] O.J. No. 5583 (S.C.).
84The trial judge took from these authorities that “the overriding principles to be applied in breach of trust cases are general deterrence and denunciation” (at para. 91). She noted that in many breach of trust cases, the offenders, like the appellant, had no prior criminal record, were upstanding members of the community and they and their families had paid a significant price for their offence.
85Having considered all the aggravating and mitigating factors, including that the appellant’s judgment may have been impaired by his bipolar disorder, she concluded that a sentence of less than two years would be appropriate. Thus, the second criterion for a conditional sentence was met.
86The third requirement was also met. The trial judge found that the appellant was aware of the consequences of his conduct and she accepted his psychiatrist’s opinion that he was at minimal risk to re-offend.
87The final question was whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing. The trial judge considered whether the sentencing objectives of denunciation and general deterrence could be met by serving the sentence in the community. She noted that there were breach of trust cases falling on either side of the issue.
88In some cases, courts had concluded that a conditional sentence could adequately serve the objective of denunciation and deterrence: R. v. Bunn, 2000 SCC 9, [2000] S.C.R. 183; R. v. Lawson, [2001] O.J. No. 1562 (S.C.); R. v. Moore (27 July 2007), unreported (Ont. S.C.); Bispo.
89In other cases, courts had found that denunciation and deterrence would not be satisfied by a conditional sentence: R. v. Shoniker, [2006] O.J. No. 5368 (S.C.); Davies.
90Ultimately, the trial judge concluded that the blameworthiness of the appellant’s conduct, the gravity of his breach of trust, and the impact of the offence on the justice system, demanded a period of imprisonment to satisfy the requirements of general deterrence and denunciation. Her reasons, at paras. 105-110, bear repeating in full:
It is my opinion, however, that Mr. Ellis’ conduct was of comparable blameworthiness [to cases involving fraud or sexual assault by persons in a position of trust]. Mr. Ellis had enormous power over Ms. Kim: her entire future rested on his decision. She told Mr. Ellis that a positive decision was like “saving my life”. Any consent that she might have given to a sexual relationship in these circumstances could hardly have been voluntary.
Not all breaches of trust are equally grave. The position that Mr. Ellis had is an important factor in determining the seriousness. As an adjudicator in a quasi-judicial position, he stood near the top of the spectrum. While it is arguable that a breach of trust offence committed by an adjudicator should be treated more leniently than an offence committed by a judge, the decisions that Mr. Ellis made had a far more significant impact on the lives of the people who appeared before him than many of the decisions that judges make.
Mr. Ellis held a position of prestige, privilege and power. His acts not only harmed Ms. Kim. Individuals appearing before the IRB and members of the public are entitled to expect only the highest standards of conduct. In particular, they are entitled to expect that decisions will be rendered fairly and impartially, without reference to any extraneous considerations.
Mr. Ellis breached the significant trust that had been placed in him and the obligations that he bore to the people who appeared before him and to the Canadian public. His actions undermined public confidence in the integrity of the Canadian immigration and refugee system and in the administration of justice.
The justice system is one of the pillars of the free and democratic society that we, as Canadians, enjoy. The cornerstone of that justice system is the rule of law and the values of fairness, integrity and respect. Mr. Ellis’ actions struck at the core of those values. They call for denunciation in the strongest terms.
In my opinion, in these circumstances, and notwithstanding the significant mitigating factors, the principles of general deterrence and denunciation require a period of imprisonment.
91In the result, the trial judge imposed a sentence of 18 months’ imprisonment.
(3) Fresh Evidence Application
92The appellant brought an application for leave to introduce fresh evidence on the appeal. The evidence consisted of his affidavit dated July 11, 2013, attaching five exhibits: (a) a second report of Dr. Ozersky, dated April 23, 2009; (b) a report of the appellant’s psychotherapist, dated July 11, 2013, concerning his treatment, his prognosis and the impact of incarceration on his mental health; (c) a letter from the appellant’s employer, dated July 11, 2013, stating that if given house arrest he would be offered full-time employment; (d) a letter from the appellant’s pastor, dated July 11, 2013; and (e) a reference letter from the Cabbagetown Youth Centre, dated July 10, 2013, where the appellant volunteered.
93The test for the admission of fresh evidence is set out in R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775:
(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen.
(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
(3) The evidence must be credible in the sense that it is reasonably capable of belief; and
(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. [Citation Omitted.]
(See also, R. v. Phillion, 2009 ONCA 202, 241 C.C.C. (3d) 193, at paras. 160-62; Truscott (Re), 2007 ONCA 575, 225 C.C.C. (3d) 321, at paras. 92-93.)
94The key piece of fresh evidence the appellant seeks to rely upon is an additional report of Dr. Ozersky, which was written before the sentencing hearing. Dr. Ozersky did not testify at the sentencing hearing, nor was his report put in evidence by the defence. His original report was simply filed, with the agreement of counsel, as one of the reports Dr. Hill had considered in the preparation of his own report. As I have noted, that report had a serious weakness – namely, the appellant had told Dr. Ozersky that he had accidently met Ms. Kim at a coffee shop, offered to be her friend, was willing to help her and that he had denied any sexual intent. It appears that Dr. Ozersky had not seen the video recording at the time of his original report and he was unaware that the meeting was a carefully planned attempt to procure sex in exchange for a favourable ruling on Ms. Kim’s refugee application.
95It appears, therefore, that the decision not to introduce Dr. Ozersky’s original report in evidence, or to call him as a witness at trial, was a deliberate tactical decision made by defence counsel. Moreover, I am not satisfied that defence counsel was unaware of the existence of the second report or could not have become aware of it through the exercise of reasonable diligence. Nor has the appellant established that Dr. Hill considered Dr. Ozersky’s second report in the preparation of his own report, with the result that the second report would not be admissible on the same limited basis as the first report.
96The appellant chose not to testify at trial and at the sentencing hearing. Having made a tactical decision not to do so, his evidence concerning the events surrounding the incident, and between the incident and his sentencing, should not be admitted.
97The balance of the proposed fresh evidence is of the same tenor as the evidence adduced on the sentencing hearing and would not have affected the result.
98For these reasons, I would dismiss the fresh evidence application.
99I turn to the parties’ submissions on appeal.
(4) The Submissions on Appeal
100The appellant acknowledged in the court below and in this court that breach of trust by a judicial officer will normally require a sentence that emphasizes denunciation and deterrence. He submitted, however, that these principles are attenuated when the offender has a mental illness.
101He made two principal submissions. First, he submitted that the trial judge minimized the extent of his bipolar disorder. He argued that hypomania could last for weeks or months if not treated and that he was hypomanic in weeks before and during the September 26 meeting. The trial judge failed to appreciate that his hypomanic state diminished his culpability, and this error undermines her decision to impose a term of incarceration.
102The appellant’s second submission was that the trial judge erred in principle by relying almost exclusively on denunciation and deterrence and giving insufficient weight to the need for treatment and rehabilitation. While she treated his bipolar disorder as a mitigating factor, she failed to account for it when she considered the appropriate sentence.
103The Crown submits that the trial judge displayed a balanced and fair approach to the issue of the appellant’s mental illness. She concluded that the appellant’s illness played a causal role in the commission of the offence. It was for her to determine the extent of that role.
104The Crown says that having heard the evidence of the psychiatrists, and having read their reports, the trial judge concluded that although the appellant had a mental illness that may have affected his judgment, his conduct was planned, occurred over a considerable period of time, he knew it was wrong and knew he was taking a risk. She took into account that the appellant had attempted to mislead his psychiatrist about the circumstances of his encounter with Ms. Kim, making his conduct appear accidental and altruistic. These findings were within her domain and were available to her on the evidence.
(5) Analysis
105A sentencing judge is entitled to deference, as to both the sentence imposed and the underlying facts regarding the offence: see R. v. Majnoon, 2009 ONCA 876, 257 O.A.C. 108, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 288, per Feldman J.A., dissenting on another issue, at para. 14, referring to R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 91. In R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at paras. 14-15, the Supreme Court confirmed the applicable principles:
In its past decisions, this Court has established that appellate courts must show great deference in reviewing decisions of trial judges where appeals against sentence are concerned. An appellate court may not vary a sentence simply because it would have ordered a different one. The court must be "convinced it is not fit", that is, "that ... the sentence [is] clearly unreasonable" (R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, at para. 46, quoted in R. v. McDonnell, 1997 CanLII 389 (SCC), [1997] 1 S.C.R. 948, at para. 15). This Court also made the following comment in R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 90:
... absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.
(See also R. v. W. (G.), 1999 CanLII 668 (SCC), [1999] 3 S.C.R. 597, at para. 19; A. Manson, The Law of Sentencing (2001), at p. 359; and F. Dadour, De la détermination de la peine: principes et applications (2007), at p. 298.)
Owing to the profoundly contextual nature of the sentencing process, in which the trier of fact has broad discretion, the standard of review to be applied by an appellate court is one based on deference. The sentencing judge has "served on the front lines of our criminal justice system" and possesses unique qualifications in terms of experience and the ability to assess the submissions of the Crown and the offender (M. (C.A.), at para. 91). In sum, in the case at bar, the Court of Appeal was required - for practical reasons, since the trier of fact was in the best position to determine the appropriate sentence for L.M. - to show deference to the sentence imposed by the trial judge.
106I approach the sentence appeal having regard to these principles. Did the trial judge commit an error in principle, fail to consider a relevant factor or overemphasize appropriate factors? If not, is the sentence nevertheless demonstrably unfit?
107The trial judge found that the appellant’s mental illness was a mitigating factor, reducing the sentence he would otherwise have received to a sentence of less than two years. The issue then before her was whether his culpability for the offence was sufficiently attenuated by his mental illness to adjust the balance of the sentencing principles in favour of his rehabilitation and away from denunciation and deterrence.
108The appellant did not testify at the sentencing hearing. It was left to the trial judge to determine, having regard to all the evidence, including the circumstances of the offence and the expert evidence, the extent to which his culpability may have been reduced by his mental illness.
109In this regard, the trial judge made findings of fact that are grounded in the evidence and are entitled to deference:
the appellant knew what he was doing was wrong;
he was aware of the significant risk he was taking, and was willing not just to assume that risk for himself, but also to place Ms. Kim at risk;
the offence was not an impulsive act; rather, “it occurred over a period of time and was well planned” (at para. 85); and
he was otherwise functional at work during the relevant time period.
110There was ample support for the conclusion that the appellant’s actions were well planned. From the day of the hearing to the day of the meeting at Starbucks, he pursued her. He went to the restaurant where she worked on four separate occasions in an eight week period. He escalated the level of engagement at each of his three meetings with her, after evaluating her vulnerability, her degree of concern and securing her confidence. On the day of the third meeting, at Starbucks, he called her twice to make the arrangements. Both times he used public pay phones, rather than his cell phone. The trial judge found that this was to avoid leaving an evidentiary trail.
111These findings were central to the trial judge’s conclusion. While the appellant’s bipolar disorder may have affected his judgment at the time of the offence, it did not reduce his culpability to the point that a focus on his rehabilitation outweighed the need for a sentence consistent with denunciation and deterrence that would normally result from the abuse of his position of trust.
112Having seen and heard the expert psychiatric evidence, the trial judge was aware that the diagnosis of Bipolar II Disorder was based on the presence of depressive episodes accompanied by hypomanic episodes. “Hypomania” does not mean extreme mania; it means “less than mania.” Dr. Hill described hypomania as a “milder form of mania”. He said that in a hypomanic episode:
Sociability is usually increased, and there may be an increase in sexual activity or interest. There may be impulsive activity such as buying sprees, reckless driving or foolish business investments. However, such activities are usually organized, are not bizarre and do not result in the level of impairment that is characteristic of a manic episode. [Emphasis added].
113Similarly, Dr. Parikh, who was an acknowledged expert in mood disorders, particularly bipolar disorder, had this to say:
Individuals with bipolar 2 disorder have an episodic illness. Most of the time between episodes, individuals have no symptoms and can function normally. When in a depressive episode, individuals often function poorly, with problems dependent on the severity of the depression. When hypomanic, however, functioning may be improved. For example, individuals often experience increased energy, increased creativity, and increased productivity during a hypomanic episode. Some areas of functioning, such as getting along with people, may be worsened during hypomania if the individual shows impatience, irritability, or inappropriateness towards others. If there are inappropriate behaviours with others, it [sic] would be mild and within a person’s understanding of right and wrong, analogous to a person with mild alcohol intoxication who says or does something inappropriate. By definition, hypomanic episodes are mild and do not result in any major disability. [Emphasis added].
114The trial judge’s conclusions on the impact of the offence on the appellant’s culpability are consistent with these opinions.
115As well, the trial judge was entitled to consider the fact that the appellant’s condition had never reached a level that he or his wife considered treatment (prior to his suspension from the IRB). Moreover, most of his symptoms were self-reported and, as the trial judge noted, he was not always forthright with his psychiatrist. Both the appellant and his wife had an interest in exaggerating his symptoms. In fact, the evidence was that he was performing normally at work.
116The authorities, some of which were referred to by the trial judge, indicate that it is not enough to determine that the offender had a mental illness at the time of the offence. The trial judge must also determine the extent to which that illness contributed to the conduct in question and the impact of that finding on the appropriate sentence. The trial judge will consider whether there a causal connection between the offender’s mental illness and the commission of the offence and, if so, whether it diminished the offender’s culpability.
117There is no doubt that an offender’s mental illness is a factor to be taken into account in sentencing. Where mental illness plays a role in the commission of the offence, the offender’s culpability may be diminished, punishment and deterrence may be ineffective or unnecessary and treatment and rehabilitation of the offender may be paramount considerations. As this court explained in R. v. Batisse,2009 ONCA 114, 93 O.R. (3d) 643, at para. 38:
… here the appellant's mental health problems played a central role in the commission of the offence. In such circumstances, deterrence and punishment assume less importance. As this court emphasized in R. v. Robinson (1974), 1974 CanLII 1491 (ON CA), 19 C.C.C. (2d) 193, at p. 197, where offenders commit offences while they are out of touch with reality due to mental illness, specific deterrence is meaningless to them. Further, general deterrence is unlikely to be achieved either since people with mental illnesses that contribute to the commission of a crime will not usually be deterred by the punishment of others. As well, severe punishment is less appropriate in cases of persons with mental illnesses since it would be disproportionate to the degree of responsibility of the offender. In such circumstances, the primary concern in sentencing shifts from deterrence to treatment as that is the best means of ensuring the protection of the public and that the offending conduct is not repeated. This is especially so where a lengthy prison term may be regarded as counterproductive: see also R. v. Hiltermann (S.G.) (1993), 1993 CanLII 16387 (AB CA), 141 A.R. 223 (C.A.), and R. v. Peters (D.A.) (2000), 2000 NFCA 55, 194 Nfld. & P.E.I.R. 184 (Nfld. C.A.), at paras. 18-19.
118In Batisse, Gillese J.A. found that the appellant’s mental health issues played a central role in the commission of the offence. She was described as having serious mental health challenges, which were the product of “an atrocious childhood and an abusive early adulthood” (at para. 39). The court found that these mental health challenges led to the commission of the offence. The appellant was remorseful and pleaded guilty.
119This court’s decision in Davies, one of those considered by the trial judge, also illustrates the point well. A crown attorney pleaded guilty to four offences involving fraud and breach of trust, two of which related to the performance of his duties. He had a history of bipolar disorder and had been treated with medication for some seven years prior to the offences. The sentencing judge concluded that his behavior was not attributable to his mental illness and sentenced him to a total of two years less a day imprisonment.
120In varying the sentence, this court concluded that the sentencing judge misconstrued the evidence concerning the relationship between the offender’s mental illness and the crimes he had committed and failed to consider certain other evidence. Specifically, in finding the offender’s medication was always in the therapeutic range, the sentencing judge ignored the uncontested evidence of one of his physicians that his medications were not sufficient to prevent a manic episode. Second, the same physician’s opinion was that during the relevant time the offender was in an “uncontrolled state of hypomania” (at para. 30). In the circumstances, Blair J.A. substituted a blended sentence of twelve months less a day in custody plus a 12 month conditional sentence, to run consecutive with the term of incarceration.
121R. v. Dickson, 2007 BCCA 561, 228 C.C.C. (3d) 450, is another example. The appellant, a book-keeper, forged cheques for her personal benefit. She had undiagnosed and untreated bipolar disorder at the time of the offence. Her psychiatrist opined that there was a direct causal connection between her mental illness and the commission of the offences. In allowing an appeal from a sentence of twelve months’ imprisonment, and substituting a conditional sentence, Finch C.J.B.C. stated, at para. 70:
In my respectful opinion, a sentence of imprisonment is unfit in these circumstances. It cannot be necessary in the interests of general deterrence for serious theft, to incarcerate someone who is mentally ill when the offences were committed, whose mental illness was a cause of her committing the offences, who pleads guilty, who makes restitution, and who undertakes an appropriate course of medical treatment. To the extent that public opinion is relevant to the principle of general deterrence, I am satisfied that reasonable citizens informed of all the relevant circumstances in this case would consider that the provisions of the Criminal Code and the ends of justice are met by a conditional sentencing order.
122In contrast to these cases, in my view, the sentence here was fit and the trial judge made no error to warrant this court’s intervention. The trial judge took a balanced, insightful and fair approach to the appellant’s mental illness. She found it mitigated the sentence that he would otherwise receive, but that it did not result in such a reduced culpability to displace the need for a denunciatory and deterrent sentence. This balanced approach was entirely within her domain. In applying this approach, she understood the evidence and gave appropriate consideration to the relevant sentencing principles.
123Absent significantly reduced culpability, the circumstances required a denunciatory and deterrent sentence. As a refugee claim adjudicator, the appellant represented Canada. He held Ms. Kim’s future in his hands. He used his office and power to offer her a choice: “Have sex with me and stay in Canada, or don’t have sex with me and you will be sent back to Korea.” Knowing that she had been abused by men – her father in Korea and her husband in Canada – and knowing she had no status in Canada and feared returning to Korea, he exploited her vulnerability so that he could abuse her himself.
124The appellant’s plan was conceived at the hearing in mid-July, pursued on his visits to the restaurant where Ms. Kim worked, solidified with the invitation to coffee on the visit on September 22, and the trap was sprung at Starbucks on September 26.
125The appellant’s conduct at Starbucks demonstrates the extent of his planning. As the trial judge noted, he brought his draft decision with him and, like a salesman, dangled the bait in front of her, showing how she could help him change the “no” to a “yes”: she would be his girlfriend and they would “do things together on the side”. Even then, he was making no promises, except that they would meet on the day before he finalized his decision to have a “celebration”. Plainly, he was going to see whether she was prepared to submit to him before he considered changing his decision on her refugee claim.
126Equally planned was the appellant’s exploitation of Ms. Kim’s vulnerability and fear of deportation, not only to extort sex, but to procure her silence. The clear implication was, “if you tell anyone about this, I will be in trouble, but you will go back to Korea.”
127In doing these things, the appellant not only betrayed Ms. Kim, he betrayed his duty to his office and to his country.
D. CONCLUSION
128The appellant tried to obtain a sexual relationship in exchange for a favourable decision. He held the complainant’s future in his hands and breached the trust inherent in his position. The appropriate sentence for this conduct is a difficult matter. While his mental illness played some role in his actions, I cannot conclude that the trial judge erred in sentencing him to a term of imprisonment.
129For the foregoing reasons, I would dismiss the appeal from conviction. I would grant leave to appeal the sentence and dismiss the appeal.
“G.R. Strathy J.A.”
“I agree. E.E. Gillese J.A.”
130I have read the thorough reasons of Strathy J.A. I agree that Ellis’ conviction appeal should be dismissed, for the reasons given by my colleague. However, I do not agree with his proposed disposition of Ellis’ sentence appeal. In my opinion, a conditional sentence of 18 months on strict terms, including house arrest, would be fit and would be consistent with the fundamental purpose and principles of sentencing.
A. overview
131Ellis was convicted of breach of trust by a public officer, contrary to s. 122 of the Criminal Code. The trial judge accepted that judges can and have imposed a conditional sentence for breach of trust. Nonetheless, she rejected a conditional sentence and imposed a custodial sentence of 18 months. In her view, because of the seriousness of the offence, the principles of general deterrence and denunciation required a term of incarceration. Strathy J.A. has concluded that she made no error warranting this court’s intervention. I disagree. In my view, the following three considerations justify this court’s intervention and the imposition of a conditional sentence: the impact of Ellis’ mental illness; his rehabilitation; and the collateral consequences of his conviction.
132First, the impact of Ellis’ mental illness. The trial judge accepted that Ellis suffered from Bipolar II Disorder, which is characterized by depression and hypomanic behaviour. However, she minimized its impact by concluding that it may have affected his judgment only at the time of the offence on September 26, 2006. In my view, the medical and other evidence shows that Ellis’ mental illness impaired his judgment over the entire course of his dealings with Ms. Kim. Case law from this court and other appellate courts affirm that where, as in this case, mental illness contributes to the commission of an offence, vindicating general deterrence and denunciation becomes less important.
133Second, Ellis’ rehabilitation. The trial judge did not take into account Ellis’ rehabilitation. Up to and at the time of the incident, Ellis’ mental illness was undiagnosed and therefore untreated. Since the incident, it has been diagnosed and successfully treated. For the past seven years, he has been under the care of a psychiatrist and a psychotherapist, and taking medication for his illness. To now incarcerate him would be inconsistent with his rehabilitation, a fundamental principle of our sentencing regime.
134Third, the collateral consequences of Ellis’ conviction. These consequences have been severe: Ellis and his family have been publicly humiliated; his involvement in the life of the community – so central to his personal and professional life for so many years – has ended; his licence to practice law was suspended; and, of course, his position as an adjudicator with the Immigration and Refugee Board was terminated. In rejecting a conditional sentence, the trial judge did not give weight to these collateral consequences. Yet these consequences, coupled with a conditional sentence, sufficiently denounce and deter Ellis’ offending conduct.
B. background
135Strathy J.A. has thoroughly reviewed the facts giving rise to Ellis’ conviction. I need not repeat them here. Without question, Ellis committed a very serious breach of trust. I accept my colleague’s characterization of the offence: “In doing these things, the appellant not only betrayed Ms. Kim, he betrayed his duty to his office and to his country”.
136Ellis is now in his mid-50s. Apart from this incident, he has led an exemplary and unblemished professional life, devoted to public service. He served two terms as a member of Toronto City Council, did volunteer work with several charitable organizations, and then in 2000, accepted a position as an IRB adjudicator, where for six years he was one of the Board’s hardest workers and top producers.
137The numerous letters filed by the defence at the sentencing hearing – from community workers, colleagues, other practicing lawyers and family members – speak to Ellis’ integrity, fairness and dedication. He assisted people who were marginalized or less fortunate, he gave generously of his time, and he was highly regarded as a lawyer, politician and adjudicator.
138For example, one lawyer who knows Ellis wrote: “I have always been deeply impressed by Mr. Ellis’ integrity and dedication to public service. Mr. Ellis’ tireless efforts on behalf of his constituents when he was a City Councillor was exemplary”. An immigration lawyer who appeared before Ellis at the IRB said of him: “His decisions were respected; his impartiality and his competence were unquestioned”. Another immigration lawyer who appeared before him said:
In my role as counsel, Mr. Ellis was always fair-minded and reasonable to deal with and I can truly say that his reputation amongst my colleagues in the immigration/refugee bar was that of a professional, reasonable and fair Board Member who ensured that natural justice prevailed in his hearing room. I know that every client of mine who appeared before him was treated with respect, dignity and sensitivity and walked out of the hearing room knowing that they had been treated fairly by Mr. Ellis. This is much more than I can say for many of the other hundreds of Board Members I have appeared before over the years.
139A theme of many of the supporting letters was that Ellis’ offence was completely out of character – “inconsistent with the qualities of the member that determines so many of my cases”, said one refugee lawyer; “this was completely out of character for him as we knew him on the Board”, said another lawyer.
140At the end of the sentencing hearing, Ellis spoke of his remorse for what he had done. At para. 66 of her reasons, the trial judge noted:
At the conclusion of the sentencing hearing, Mr. Ellis spoke of the shame he feels for his conduct. He recognizes the harm that he has done and the pain he caused to Ms. Kim, his wife, his children and the community. He apologized to them.
141The trial judge also found that Ellis met three of the four criteria under s. 742.1 of the Criminal Code for the imposition of a conditional sentence: the offence under s. 122 of the Code does not have either a minimum term of imprisonment or a maximum term of 10 years or more; the appropriate sentence would be less than two years; and serving the sentence in the community would not endanger the safety of the community.
142The choice between incarceration and a conditional sentence turned on the fourth criterion: whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing. I disagree with the trial judge’s conclusion that it would not be.
C. discussion
143This court and other courts have said that in breach of trust cases, the two most important sentencing principles are general deterrence and denunciation. To put in context my opinion that neither calls for a jail term for Ellis, I make two points.
144First, a conditional sentence with appropriate conditions can provide ample deterrence and denunciation: see R. v. Proulx, 2000 SCC 5, [2001] 1 S.C.R. 61 at paras. 102-107.
145Second, as the Supreme Court of Canada and this court have said many times, sentencing is an “individualized process”; the sentence for Ellis must take proper account of his mental illness, his rehabilitation and the collateral consequences of his conviction. These considerations justify a conditional sentence for Ellis.
(1) Ellis’ Mental Illness
(a) The Medical Evidence
146Four medical reports were before the sentencing judge – three filed by the defence and one by the Crown.
147The main defence report was by Dr. Wood Hill, an experienced general and forensic psychiatrist, who at the time was a consultant psychiatrist at the Whitby Mental Health Centre, and had been treating Ellis for nearly four years.
148Dr. Hill appended to his report two other psychiatric reports, which he reviewed in giving his opinion: a report from Dr. Sam Ozersky, the Senior Psychiatric Consultant to the Mood Disorders Clinic at the University Health Network; and a report from Dr. Jonathan Rootenberg, a staff psychiatrist in the Law and Mental Health Program at the Centre for Addiction and Mental Health, and a faculty member in the Faculty of Medicine at the University of Toronto. Both Dr. Ozersky and Dr. Rootenberg independently examined and evaluated Ellis.
149In addition, Dr. Hill gave oral evidence at the sentencing hearing and was cross-examined by the Crown. I see no indication in the record that the Crown asked to examine either Dr. Ozersky or Dr. Rootenberg.
150The Crown filed the report of Dr. Sagar Parikh, a Professor of Psychiatry at the University of Toronto and Deputy Psychiatrist-in-Chief for the University Health Network. Although my colleague refers to Dr. Parikh’s report in his reasons, the trial judge discounted his opinion, appropriately in my judgment, because Dr. Parikh never met with Ellis and never spoke to any of the three psychiatrists who examined Ellis.
(b) The Nature of Ellis’ Mental Illness
151In considering Ellis’ mental illness, I will focus on the medical evidence filed by the defence as did the trial judge. She accepted this evidence and concluded that Ellis had shown on a balance of probabilities that he has a bipolar disorder, which may have affected his judgment at the time of the offence. However, to fairly assess the impact of Ellis’ mental illness on his culpability, it becomes important to examine more precisely what Drs. Hill, Ozersky and Rootenberg said. I will do so in this section and the following section of my reasons.
152In Dr. Ozersky’s opinion, Ellis suffers from Bipolar II Disorder as specified in the DSM-IV. Dr. Rootenberg generally concurred, calling Ellis’ mental illness a Bipolar Affective Disorder (formerly known as manic depressive illness). Dr. Hill agreed with the diagnoses and opinions of Dr. Ozersky and Dr. Rootenberg.
153Bipolar II Disorder or Bipolar Affective Disorder is characterized by episodes of depression and episodes of hypomania. According to Dr. Hill, a hypomanic episode is “defined as a distinct period during which there is an abnormally and persistently elevated, expansive or irritable mood that lasts at least four days that is clearly different from the person’s usual mood.”
(c) The Impact and Duration of Ellis’ Mental Illness
154The critical issues on which I disagree with the trial judge and my colleague concern the impact of Ellis’ mental illness on his behaviour and especially the duration of that impact.
155The relevant time frame to assess the impact of Ellis’ mental illness is approximately 10 weeks. Ms. Kim’s IRB hearing was on July 17, 2006; Ellis went to the Ninth Gate Restaurant on September 13, 2006 and then on September 22, 2006; the meeting at Starbucks took place on September 26, 2006.
156The trial judge accepted that Ellis’ mental illness “may have affected his judgment” but only “at the time of the offence”. She said:
Ellis’ conduct was not impulsive – it occurred over a period of time and was well planned. Mr. Ellis was otherwise functional at work during that period of time.
157Strathy J.A. has concluded that “[t]here was ample support for the conclusion that the appellant’s actions were well planned.” At para. 110 of his reasons, he writes:
From the day of the hearing to the day of the meeting at Starbucks, he pursued her. He went to the restaurant where she worked on four separate occasions in an eight week period. He escalated the level of engagement at each of his three meetings with her, after evaluating her vulnerability, her degree of concern and securing her confidence. On the day of the third meeting, at Starbucks, he called her twice to make the arrangements. Both times he used public pay phones, rather than his cell phone. The trial judge found that this was to avoid leaving an evidentiary trail.
158In these passages, the trial judge and my colleague make two important points about the impact of Ellis’ mental illness. Their first point is to draw a distinction between impulsive conduct and planned conduct; they suggest that the former may be characteristic of hypomania, but that the latter is not. Their second point flows from the first: because Ellis seemed to plan many of his interactions with Ms. Kim, he was not hypomanic much of the time he dealt with her.
159I disagree with both points. First, the medical evidence does not support the distinction drawn by the trial judge and my colleague. The behaviour of persons suffering from hypomania may be impulsive and erratic, or it may be productive and planned. That is evident from the recognized symptoms of the disease. Dr. Hill listed these symptoms of a hypomanic episode:
During this period of mood disturbance, three or more of the following symptoms will have persisted (four if the mood is only irritable) and will have been present to a significant degree:
(a) Inflated self-esteem or grandiosity;
(b) Decreased need for sleep (e.g., feels rested after only three hours of sleep);
(c) More talkative than usual or pressure to keep talking;
(d) Flight of ideas or subjective experience that thoughts are racing;
(e) Distractibility (e.g., attention too easily drawn to unimportant or irrelevant external stimuli);
(f) Increase in goal-directed activity (either socially, at work or school, or sexually) or psychomotor agitation;
(g) Excessive involvement in pleasurable activities that have a high potential for painful consequences (e.g., the person engages in unrestrained buying sprees, sexual indiscretions, or foolish business investments).
160Some of these symptoms may reflect conduct that is impulsive (for example, an unrestrained buying spree); other symptoms may reflect conduct that is seemingly well planned (for example, goal-directed activity at work). Indeed, Dr. Hill testified that persons suffering from hypomanic episodes are often highly functional and productive during these periods. Yet these individuals typically lack insight into their emotions, and may be hostile to any suggestion that they need medical help. According to Dr. Hill, poor judgment, an inability to reflect, and an inability to act in a sensible way are “absolutely” features of this mental illness.
161Second, Ellis was hypomanic in the months leading up to the offence in September 2006. He exhibited most, if not all, of the recognized symptoms of hypomania. At times, his behaviour was erratic, grandiose and impulsive. He bought 25 silk ties all at once. In August, he took his family on an unplanned trip to Europe that he could not afford. He had an affair. All of this behaviour was highly uncharacteristic.
162At times, however, Ellis’ behaviour was functional, productive and planned. He took on an enormous workload at the Board, and became one of its hardest workers and highest producers. And he orchestrated his meetings with Ms. Kim. This seemingly well planned behaviour is consistent with the actions of a person whose judgment is impaired by hypomania. Although a person who engages in this kind of behaviour is not necessarily hypomanic, Drs. Hill, Ozersky and Rootenberg were uniformly of the opinion that from the time he first met Ms. Kim to the time he committed the offence in September 2006, Ellis was suffering from hypomania, and that his hypomania impaired his judgment.
163Dr. Hill, the psychiatrist who knew Ellis best, was of the opinion that “for the bulk of 2006, and probably earlier, Mr. Ellis was not mentally well”. Dr. Hill elaborated:
In my opinion, Mr. Ellis was showing signs of mental illness consistent with the above-listed criteria for Bipolar II Disorder with Hypomanic Episodes prior to and at the time of the offence. The illness was such that it deleteriously affected his judgment. His behaviour and thinking around the time of the offences was not typical of his usual prior functioning.
Mr. Ellis reported that, for a considerable period leading up to the offences, he was subjectively anxious, worrying and ruminating about the fate of immigration applicants who appeared before him daily. He was evidencing sleep disturbance and experiencing nightmares in which violence with political backdrops were prominent.
Over the course of the spring and summer of 2006, Mr. Ellis became more irritable and erratic in his behaviour, and was showing severe fluctuations of mood. He developed an extramarital relationship, which had never occurred during his long relationship with his wife who he met while they were both in school. He became obsessed with helping others, even outside of his professional obligations as an IRB hearing officer.
His impulsivity and excessive energy caused him to engage in erratic and undisciplined behaviour. An example provided by Mrs. Ellis was his organizing and mandating a family trip to Europe in August 2006, which saw him radically changing the itinerary almost daily, being argumentative and profane with his family, and showing excessive energy and poor social judgment.
164Dr. Hill concluded: “I am of the opinion that Mr. Ellis was showing thinking, behaviour and mood fluctuations indicative of mental illness at the relevant time”. By “relevant time” Dr. Hill meant the entire period in which Ellis had contact with Ms. Kim. In his oral evidence at the sentencing hearing, Dr. Hill maintained his opinion that Ellis’ mental illness “played a part in his involvement in this offence”:
Q: And so to what extent, if any, can you tell us whether the bipolar disorder that you’ve diagnosed played a part in his involvement in this offence?
A: Well, from my perspective, I’m quite comfortable in saying that it did play a part. To repeat somewhat, this is behaviour that has been seen in different aspects of his life, variations of it with this more agitated behaviour, behaviour showing poor judgment, failure to reflect, and it’s behaviour that is out of keeping with the way he had usually been functioning in his role at the IRB and the – given there is the long history of this erratic behaviour, which I’m terming an illness, coming up on regular occasions, it’s certainly my opinion that it was certainly part and parcel of what was going on in his life at that time.
165Dr. Ozersky was of the same opinion: because of his bipolar disorder, Ellis was hypomanic during the time of his dealings with Ms. Kim. Dr. Ozersky put it this way in his report:
Conducting an affair can be an expression of hypomanic behavior, or it could be an expression of very normal human behavior. However, in the context of all the other behaviors that he exhibited in the 6 months before the offense, I believe this was an atypical expression of his underlying Bipolar Disorder.
I believe at the time of the index incident, the bipolar disorder impaired his judgement, made him impulsive, and he was grandiose enough to think he was the helpful saviour.
166Dr. Rootenberg gave essentially the same opinion. After outlining in detail Ellis’ “mood instability and erratic behaviour in the eight months leading up to the material time”, Dr. Rootenberg concluded that Ellis’ conduct “was markedly influenced by his mood instability and impulsivity, which impacted adversely on his judgment”.
167What is evident from all three psychiatric reports is that Ellis’ conduct toward Ms. Kim, described by the trial judge and my colleague as well planned, was as much a consequence of his hypomania as was his mood instability, his grandiosity and his impulsivity. His impaired judgment influenced his thinking and his behaviour, whether impulsive or planned, from at least the time that he first met Ms. Kim in July 2006 until he committed the offence in September 2006.
168The medical evidence does not stand alone. Other evidence of Ellis’ behaviour in the months leading up to the meeting at Starbucks shows that he was hypomanic throughout the period of his dealings with Ms. Kim. This evidence includes the evidence from lawyers who appeared before him at the Board and from his wife:
One immigration and refugee lawyer wrote: “in fact, in weeks leading to his final days at the Board, it appeared to me and the other lawyers in my office that Mr. Ellis was overly anxious and appeared to be under stress”.
Another lawyer said: “The pressure of standing alone in the face of systemic pressure to adopt the official “chair guidelines” became evident in the last few months of his time at the board. He appeared highly stressed and exhausted. The events under consideration are inconsistent with the qualities of the member that determined so many of my cases. There was never a hint of impropriety in any of those cases. He was genuinely concerned with the welfare of the claimants above any partisan or “political” consideration. This is a rare quality in my experience at the RPD.”
Yet another lawyer wrote: “Steve has always been a very high energy person. I have often wondered how he can manage to fit everything into his schedule. I recall bumping into Steve in the time period prior to the charges being laid against him and noting that he seemed frenzied and distracted. I was concerned about him. I wish, in retrospect, that I had said something or done something. Unfortunately, I did not”.
Ellis’ wife, Mrs. Neal-Ellis, said that from the fall of 2005 until the incident in September 2006, her husband was “running himself ragged…he basically was work obsessed…his activity level kept increasing”. She described his behaviour during this time as “frenetic” and his appearance as increasingly unkempt. In her letter submitted at the sentencing hearing, Mrs. Neal-Ellis said:
By the summer of 2006, Steve became even more irritable and shot-tempered at home. He was constantly wired, and seemed to drive himself for no apparent reason. He would often come home late either from work or from some public event. Once he was home, he was unable to fall asleep. Often he would get up in the middle of the night and either leave the house or stay up playing video games until he fell asleep out of sheer exhaustion.
During this time I noticed that Steve’s behaviour became more and more erratic. He constantly changed his plans. He wanted to travel excessively and argued with me if I contradicted him on anything. His driving became reckless. He insisted on texting messages or talking on his cell phone while driving regardless of who else was in the car. He received numerous traffic violations for speeding, for not stopping at stop signs, for improper parking and for not wearing his seat belt. He did not bother with grooming himself. His hair grew long and tangled, his suits were rumpled and dirty, and he always looked untidy and dishevelled.
In August, 2006, matters appeared to become critical. Despite being beyond our financial means, Steve insisted that we take a family trip to Europe, again at the last minute. While on the trip, Steve argued constantly with me and our daughter and used profane language, which was totally out character for him. He changed our itinerary several times without notice and without regard for my wishes or the wishes of the children. At one point, he announced that we were going to visit the United Nations offices in Geneva, even though this was significantly off our planned route. Steve drove the entire two weeks in Europe at a frenetic pace, claiming to be pushing us hard to see as much as we could while being indifferent the [sic] needs or wishes of his family.
169This evidence, taken together, shows, undeniably in my opinion, that Ellis was mentally ill, suffering from hypomania, in the period from July to September 2006. His mental illness impaired his judgment, and his impaired judgment contributed to his breach of trust.
170If there can be any doubt about these conclusions, that doubt is put to rest by the proposed fresh evidence, mainly a second report from Dr. Ozersky.
(d) The Proposed Fresh Evidence
171In this second opinion letter, dated April 23, 2009, Dr. Ozersky affirmed his earlier opinion that Ellis was in a hypomanic state when he met Ms. Kim at Starbucks on September 26, 2006, and, significantly, that Ellis was probably hypomanic for at least six months before the meeting at Starbucks. The following are the relevant portions of Dr. Ozersky’s opinion:
After reviewing the DVD and your examination of Steve Ellis, and reviewing collateral information, in your professional opinion was it substantially probable that Mr. Ellis was in a mentally disordered state which was a result of his psychiatric disorder and a hypomanic or manic episode at the time of his meeting with Ms. Kim at the Starbucks? I believe that after reviewing the video that he is clearly in a hypomanic state probably exacerbated by alcohol abuse and that he was hypomanic at the time of meeting Ms. Kim.
On the basis of your experience how long could such an episode last? On the basis of your evaluation of Steve Ellis and the collateral history you obtained was it more likely than not that he was having the same episode for a few weeks prior to the incident at Starbucks? On the basis of his history and the history provided by his wife, he was probably hypomanic for at least 6 months before the incident at Starbucks.
172Dr. Ozersky’s second report was available before the sentencing hearing and the Crown objected to its admissibility on appeal. Strathy J.A. agrees with the Crown’s objection and would refuse to admit the fresh evidence. I take a different view.
173The test for admitting fresh evidence on an appeal from conviction or sentence is the same, but the test tends to be applied less rigorously on sentence appeals: see R. v. Jarvis (2006), 214 OAC 189 at para. 16. Moreover, the overriding criterion remains the interests of justice, and, in my view, it is in the interests of justice to have Dr. Ozersky’s opinion before the court to ensure that Ellis receives a fit sentence: see R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487.
174Strathy J.A. would refuse to admit Dr. Ozersky’s second report for several reasons. He notes that when Dr. Ozersky gave his first report he had not watched the video of the Starbucks meeting and Ellis had not accurately told him the circumstances of his initial meeting with Ms. Kim, apparently saying that they met accidentally. My colleague then suggests that the defence made a tactical decision not to put Dr. Ozersky’s report in evidence, other than as a part of Dr. Hill’s report, or to call him as a witness at trial. Finally, my colleague says that he is not satisfied defence counsel was unaware of the existence of Dr. Ozersky’s second report or could not have become aware of it by exercising due diligence.
175Respectfully, I do not find my colleague’s reasons persuasive. There is no evidence at all that the defence made a tactical decision not to tender Dr. Ozersky’s report directly or have him testify. The defence treated his first report in the same way as it treated Dr. Rootenberg’s report; in effect, it was an appendix to Dr. Hill’s report. And there could be no suggestion Ellis misstated the circumstances of his meeting with Ms. Kim either to Dr. Rootenberg or to Dr. Hill. Indeed, Dr. Hill expressly testified that Ellis accurately recited the facts of his meeting with Ms. Kim.
176Equally important, nothing in the material suggests that Dr. Ozersky’s opinion about Ellis’ mental illness was influenced by the misstatement of how his first meeting with Ms. Kim came about. Indeed, when he gave his second opinion, Dr. Ozersky had watched the video and could be under no misapprehension about how Ellis met Ms. Kim. I might find the Crown’s objection to the admissibility of the fresh evidence more compelling if it had asked to examine Dr. Ozersky, either on his first or second opinion, or both, and the defence had refused to produce him. But the Crown made no such request.
177Finally, Ellis filed an affidavit in support of his fresh evidence application and gave a plausible reason for why Dr. Ozersky’s second report was not before the trial judge. The report was prepared for Ellis’ counsel at the time, but shortly after the report was delivered, Ellis changed counsel. Dr. Ozersky’s second report was not in the file materials transferred to his new counsel. Ellis was not cross-examined on his affidavit, and therefore his explanation for why Dr. Ozersky’s second report was not before the trial judge stands uncontradicted. Even if it could be said that with due diligence the second report could have been produced, lack of due diligence has never been a bar to admitting fresh evidence in criminal appeals.
178I would admit Dr. Ozersky’s second report for two reasons. First, it shows that the opinion Dr. Ozersky gave in his first report was not affected by Ellis’ misstatement of how he met Ms. Kim. Second, it reaffirms in unequivocal language the central point about Ellis’ hypomania that is demonstrated by the evidence at trial – it existed and impaired his judgment throughout his dealings with Ms. Kim.
(e) The Case Law
179On my assessment of the evidence, Ellis’ bipolar disorder – undiagnosed and untreated – manifested itself in hypomania from at least July to September 2006. In other words, he was hypomanic during all of his dealings with Ms. Kim – at the IRB, at the restaurant, and at Starbucks. Ellis’ hypomania impaired his judgment, and his impaired judgment contributed to his breach of trust. Therefore, Ellis’ mental illness should reduce his culpability or his moral blameworthiness. Indeed, I find it hard to conceive why Ellis would engage in such obviously self-destructive behaviour but for his mental illness.
180The trial judge imposed a jail term because in her view, incarceration was needed to denounce and deter Ellis’ conduct. However, as Gillese J.A. said in R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643 at para. 38, when an offender’s mental illness contributes to the commission of an offence, “deterrence and punishment assume less importance.”
181Yet, the trial judge wrote at para. 85 of her reasons:
I note, however, that Mr. Ellis’ conduct was not impulsive – it occurred over a period of time and was well planned. Mr. Ellis was otherwise functional at work during that period of time. Furthermore, while the hypomania may have affected Mr. Ellis’ judgment, he was, nonetheless, aware that what he was doing was wrong, and that he was placing both himself and Ms. Kim at significant risk.
182I disagree with the inferences drawn from this paragraph for two reasons. My first disagreement is factual. As I have already discussed, though some of Ellis’ conduct may have seemed well planned, his hypomania existed throughout his dealings with Ms. Kim. Thus, his mental illness impaired his judgment, not just on September 26, 2006, but at least from July 2006 onwards.
183My second disagreement is legal. Even though Ellis was aware of right from wrong – in other words, he could not be found not criminally responsible – his mental illness still contributed to his breach of trust. Because it did, for the purpose of sentencing, denunciation and deterrence become less important and rehabilitation becomes more important. Green J.A. made this point in R. v. Peters, 2000 NFCA 55, 194 Nfld & P.E.I.R. 184, a decision Gillese J.A. cites with approval in Batisse. Green J.A. wrote at paras. 18-19:
Deterrence and punishment assume less importance in cases of mentally ill offenders. … This decreased emphasis on punishment and deterrence in these circumstances is consistent with the proportionality principle in s. 718.1 of the Criminal Code.
Thus, the mental illness of an offender will often be considered a mitigating factor in sentencing even though it is not of the sort that would establish a verdict of not criminally responsible on account of mental disorder at the time of the commission of the offence. The focus in sentencing such offenders may properly therefore be placed on mechanisms that will promote rehabilitation and treatment, rather than on punishment…
184A case that is similar to this case is the sentencing decision of the British Columbia Court of Appeal in R. v. Dickson, 2007 BCCA 561, 228 C.C.C. (3d) 450. There, the appellant was a bookkeeper, and she defrauded her employer by forging numerous cheques. She pleaded guilty to theft and was sentenced to 12 months in jail. The British Columbia Court of Appeal allowed her appeal and substituted a conditional sentence. Like Ellis, Ms. Dickson suffered from a bipolar disorder that was not diagnosed when she committed the offence for which she was sentenced. Although Ellis did not plead guilty, Finch C.J.B.C.’s reasons otherwise apply to him. At para. 67 and 70, The Chief Justice wrote:
In my opinion, the appellant’s mental condition at the time of these offences is the most important of the many considerations in this case. The offences were committed when the appellant’s bipolar disorder was undiagnosed and untreated. Dr. Dryer drew a direct causal connection between the mental illness and the commission of the offences…
…a sentence of imprisonment is unfit in these circumstances. It cannot be necessary in the interests of general deterrence for serious theft, to incarcerate someone who is mentally ill when the offences were committed, whose mental illness was a cause of her committing the offences, who pleads guilty, who makes restitution, and who undertakes an appropriate course of medical treatment…
185In contrast to Batisse and Dickson stands the decision of this court in R. v. Davies(2005), 2005 CanLII 63757 (ON CA), 199 C.C.C. (3d) 389, which is relied on both by the trial judge and Strathy J.A. In that case, the accused, a Crown Attorney, pleaded guilty to two counts of “serious fraud” and two counts of “egregious breaches of trust”. Like Ellis, Davies suffered from a bipolar affective disorder, which caused hypomania and depression. Nonetheless, the trial judge rejected a conditional sentence and instead imposed a jail sentence of two years less a day. This court varied the sentence in part, imposing a jail sentence of one year less a day for the breaches of trust but a conditional sentence of one year for the fraud charges.
186The three features distinguishing Davies’ circumstances from Ellis’ are: first, Davies’ bipolar disorder was diagnosed and was being treated long before he committed the offences; second, Davies committed at least one major fraud when he was neither hypomanic nor depressed; and third, Davies committed numerous offences over a prolonged period of time. Even taking these features of Davies’ offence and his position as a Crown Attorney into account, this court still saw fit to convert part of his sentence into a conditional sentence.
(f) Conclusion on Ellis’ Mental Illness
187The evidence shows that Ellis’ mental illness impaired his judgment throughout his dealings with Ms. Kim, and therefore contributed to his breach of trust. The case law shows that where an offender’s mental illness contributes to the commission of an offence, the sentencing judge should give less weight to denunciation and general deterrence. In my opinion, in sentencing Ellis, the trial judge over-emphasized the need to give effect to these two sentencing principles and under-emphasized the principle of rehabilitation.
(2) Ellis’ Rehabilitation
188Because of Ellis’ mental illness, promoting his rehabilitation becomes a primary consideration. The trial judge did not advert to this consideration at all in her reasons for sentence.
189Ellis’ bipolar disorder was diagnosed after his breach of trust was discovered. Over seven years have now elapsed since Ellis and Ms. Kim met at Starbucks. For this entire period, Ellis has been under the care of a psychiatrist and a psychotherapist, and has been taking lithium and other medication for his bipolar disorder.
190According to Dr. Hill, a bipolar disorder “has a natural history of recurrence”. However, Dr. Hill went on to say (in his written report dated May 11, 2010) that “Mr. Ellis has benefited well from his current course of treatment for almost four years, and will continue to benefit from continuing treatment to which he is committed”.
191Dr. Hill also testified at the sentencing hearing that Ellis is now much more aware of how his illness affects his behaviour. In Dr. Hill’s view, Ellis has made great strides in managing his disorder.
192The report of his psychotherapist, Dr. Mark Smolkin, which was filed as fresh evidence, speaks to the effect of Ellis’ treatment and the possible effect of his incarceration. Dr. Smolkin focuses on the past three years, and therefore his report is truly “fresh” – it would not have been available at the sentencing hearing.
193Dr. Smolkin states that “[o]verall, in the last three years Mr. Ellis has been coping very well.” However, Dr. Smolkin raises concerns about the possible adverse impact of putting Ellis in jail.
Incarceration presumably is difficult and odious for anyone. For Mr. Ellis, it would pose particular challenges. As an ex-IRB adjudicator, Mr. Ellis will surely wind up in protective custody – with scant physical, interpersonal or intellectual stimulation. He has ADHD – Attention Deficit Disorder – which is essentially a condition of chronic under-stimulation. (Those with ADHD crave external stimulation as this compensates for their internal under-stimulation.). For this reason I believe that he would probably suffer more than the average inmate.
I am also concerned that incarceration could precipitate a severe depressive episode in this man, who is more vulnerable due to his underlying bipolar mood disorder.
194I conclude that promoting Ellis’ rehabilitation is an important reason for imposing a conditional sentence.
(3) Collateral Consequences
195When determining the appropriate sentence for an individual offender, a court may take into account the collateral consequences of the sentence or the underlying conviction. As long as the sentence imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender, collateral effects may figure in the imposition of a fit sentence. The Supreme Court of Canada recently discussed the significance of collateral consequences in R. v. Pham, 2013 SCC 15, 357 D.L.R. (4th) 1, a case that dealt with the impact of a sentence on the immigration status of the offender. At para. 11, Wagner J., writing for the court, described the relevance of collateral consequences in sentencing:
In light of these principles, the collateral consequences of a sentence are any consequences for the impact of the sentence on the particular offender. They may be taken into account in sentencing as personal circumstances of the offender. However, they are not, strictly speaking, aggravating or mitigating factors, since such factors are by definition related only to the gravity of the offence or to the degree of responsibility of the offender (s. 718.2(a) of the Criminal Code). Their relevance flows from the application of the principles of individualization and parity. The relevance of collateral consequences may also flow from the sentencing objective of assisting in rehabilitating offenders (s. 718(d) of the Criminal Code). Thus, when two possible sentences are both appropriate as regards the gravity of the offence and the responsibility of the offenders, the most suitable one may be the one that better contributes to the offender’s rehabilitation.
196Wagner J. also cited with approval the following passage from Alan Manson, The Law of Sentencing (Toronto: Irwin Law, 2001) at pp. 136-137, in which the author makes the point that collateral consequences can mitigate the need for denunciation, and implicitly for general deterrence.
As a result of the commission of an offence, the offender may suffer physical, emotional, social, or financial consequences. While not punishment in the true sense of pains or burdens imposed by the state after a finding of guilt, they are often considered in mitigation…
The mitigating effect of indirect consequences must be considered in relation both to future re-integration and to the nature of the offence. Burdens and hardships flowing from a conviction are relevant if they make the rehabilitative path harder to travel. Here, one can include loss of financial or social support. People lose jobs; families are disrupted; sources of assistance disappear. Notwithstanding a need for denunciation, indirect consequences which arise from stigmatization cannot be isolated from the sentencing matrix if they will have bearing on the offender’s ability to live productively in the community. The mitigation will depend on weighing these obstacles against the degree of denunciation appropriate to the offence.
197Here Ellis’ conviction has caused severe collateral consequences: public humiliation, loss of his involvement in community life, loss of his position as a public official, and loss of his ability to practice his chosen profession, law. Yet in sentencing Ellis, the trial judge did not give proper weight to these collateral consequences.
198I accept that Ellis’ offence made these consequences inevitable. Their inevitability makes their bearing on Ellis’ sentence less compelling than otherwise: see Manson at p. 137. Still, they are entitled to some weight. When considered alongside Ellis’ reduced culpability because of his mental illness, these collateral consequences of Ellis’ conviction support the appropriateness of a conditional sentence.
199In R. v. Bunn, 2000 SCC 9, [2000] 1 S.C.R. 183, the Supreme Court of Canada upheld a conditional sentence because it, together with the collateral effects of the conviction, provided sufficient deterrence and denunciation. In that case, a lawyer was convicted of six counts of breach of trust for diverting clients’ money from his trust account to his general account. He was sentenced to two years in jail. When the conversions were discovered, his right to practice law was suspended; he was later disbarred.
200After Bunn’s trial, but before his appeal, Parliament enacted the conditional sentencing regime. The Manitoba Court of Appeal allowed Bunn’s sentence appeal and substituted a conditional sentence of two years less a day. This sentence was upheld by the majority of the Supreme Court of Canada. Lamer C.J.C. wrote at para. 23:
Turning to a consideration of the principles of sentencing, the court reasonably concluded that the ruin and humiliation that Mr. Bunn had brought down upon himself and his family, together with the loss of his professional status, could provide sufficient denunciation and deterrence when coupled with a conditional sentence of two years less a day with house arrest…
The Supreme Court thus upheld a conditional sentence in part because of the collateral consequences of Bunn’s convictions for breach of trust, even if those consequences were an inevitable result of his offences.
201Similarly, I conclude that the collateral consequences of Ellis’ conviction for breach of trust, coupled with a conditional sentence, would provide sufficient denunciation and deterrence.
D. conclusion
202I would dismiss Ellis’ conviction appeal. No sentencing objective would be achieved by incarcerating Ellis that could not also be achieved by a conditional sentence. Moreover, incarceration would undermine Ellis’ rehabilitation. I would therefore grant leave to appeal his sentence, allow his sentence appeal, and impose a conditional sentence on strict terms, including house arrest. I assume counsel will be able to agree on those terms.
Released: December 9, 2013 (“JL”) “John Laskin J.A.”
Footnotes
- The appellant was charged under both s. 122 of the Code and with knowingly agreeing to accept a bribe or other benefit, contrary to s. 129(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). The indictment charged the appellant with “suggesting to Ji Hye Kim, a refugee claimant, that he … would approve her refugee application if Kim would engage in intimate relations with [him]”. Following his conviction on both counts, the IRPA charge was stayed, pursuant to Kienapple v. R., 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.
- The defence position is that there is an error in the transcription and that Mr. Ellis said "people's minds they do funny things".
- The appellant abandoned his ground of appeal based on self-induced intoxication. It had not been raised at trial and there was no evidence concerning the amount of alcohol he had consumed at the wine-tasting before the Starbucks meeting on September 26, 2006.
- The British Columbia Court of Appeal varied the conditions of the appellant’s probation, but refused to impose a conditional sentence, as he had requested.
