Court Information

Ontario Court of Justice

Date: December 7, 2018

Court File No.: Ottawa 18-DV8593

Parties

Between:

Her Majesty the Queen

— And —

Jamil Ghaddar

Before the Court

Justice: Heather Perkins-McVey

Decision Released: December 7, 2018

Counsel:

• Ms. Stacey Siopsis, counsel for the Crown
• Mr. Martin Reesink, for the Defendant, Jamil Ghaddar

Introduction

1Mr. Ghaddar pled guilty part way through the trial having heard the evidence of the Complainant, Ms. Saleh, and having listened to the tape recording she had made that were entered into evidence. The matter was adjourned for sentencing and to allow Mr. Ghaddar to complete the New Directions Program.

Circumstances of the Accused

2Mr. Ghaddar was born on […], 1989. He is a Permanent Resident of Canada. He and the Complainant divorced and he is now married to Sally Chams and they have an infant daughter and another child on the way. Ms. Chams is currently here as a visitor to Canada and is of course hoping to have her husband sponsor her to remain in Canada. Ms. Chams' current visa expires on December 20, 2018.

3Counsel provided an opinion letter from Sana Abu Barham of Compass Immigration Services and from lawyer Julie Taub, regarding the effect of a conviction for the offences before the Court on the accused ability to sponsor his wife. Ms. Taub opines that under s. 133 of the Immigration and Refugee Protection Act ("IRPA") which sets out the requirements to be a sponsor, that if the Accused obtains a criminal record that he will be denied the right to sponsor his wife pursuant to s. 133(1)(c)(ii) of the IRPA. Ms. Taub further explains that Mr. Ghaddar will only be eligible to sponsor his wife if he obtains a criminal record suspension or five years has elapsed since the completion of the sentence imposed.

4In addition to the collateral consequence set out in this opinion letter, Mr. Ghaddar sets out in an affidavit that he owns an incorporated general contracting company which often does work in federal government buildings. He indicates that he is aware he may be denied entry into those buildings if he fails the security checks due to a criminal record.

5Mr. Ghaddar attended and completed the New Directions Program. The report shows that he gained personal insight into his behaviours and overall it is a positive report. Mr. Ghaddar also provided a letter of apology to the victim, Ms. Saleh, in which he expresses remorse and apologizes for hurting her and for making threats against she and her family. In my view, this shows his attempt to make reparation to the victim. It is noted that the victim declined to provide a victim impact statement. Although the Accused pled guilty to assault causing bodily harm, the injuries were bruises and a scratch and there were no long lasting effects from these injuries. These injuries would place this case at the lower end of the scale of cases involving bodily harm.

6The Accused has the support of friends and family as shown in the character letters filed as Exhibit No. 2. In addition to those letters, counsel have provided confirmation that Mr. Ghaddar has completed fifty-three hours of community service and has made a charitable donation in the amount of $100.00 as a way of making reparation to the greater community.

Position of Crown

7The Crown is seeking a 90 day conditional jail sentence followed by a one year period of probation with conditions. In addition, they are seeking the ancillary orders applicable in this case which are s. 110 Weapons prohibition for 10 years and that a sample of his blood taken for the DNA data bank. The Crown argues that although the physical injuries may not have been long lasting, that the psychological effect of the domestic violence occasioned upon her, may have much greater impact. Ms. Siopsis argues that that a discharge would not be appropriate given that these offences occurred in a domestic context which is statutorily aggravating and as such any sentence imposed must reflect general denunciation and general deterrence of such conduct and to a lesser extent specific deterrence. Further, that these offences occurred over a period of time.

Position of Defence

8The Defence counters that in light of the many mitigating factors, and the fact that a conviction will have an adverse impact on Mr. Ghaddar's ability to sponsor his pregnant spouse and given the effect on his ability to carry on his business in government buildings, that a conditional discharge would be the appropriate disposition.

Sentencing Objectives

9Before turning to my analysis regarding what I view as the appropriate sentence in this case, I propose to briefly address the relevant sentencing principles and objectives and the law surrounding conditional discharges.

10The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions.

11Just sanctions must reflect one or more of the traditional sentencing objectives: denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation to victims and the community, and promoting a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.

12How much emphasis a court places on each of these objectives will vary according to the nature of the crime and the circumstances of the offender. Section 718.2(a) of the Criminal Code provides that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.

13The case-specific nature of the sentencing inquiry is reflected in the proportionality requirement, described as the fundamental principle of sentencing in 718.1 of the Criminal Code.

14A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

15Sentencing is an individualized process and ranges are guidelines rather than hard and fast rules. As stated by Wagner, J. in the decision of R v. Lacasse, 2015 SCC 64 at para. 60:

There will always be a situation that calls for a sentence outside a particular range: although parity in sentencing is itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that on its face, falls outside particular range, and that may never be imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case.

16As explained by Lebel, J. in R v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433 at para. 86: "The codification of the principle of restraint must be held to apply to offences of any gravity since any other construction would deprive s. 718.2(e) of much of its remedial power given the focus on reducing over reliance on incarceration.

17Restraint is also a principle in its own right which must be engaged when determining the appropriate sentence. That principle is reflected in both ss. 718.2(d) and (e) of the Criminal Code.

18The imposition of non-custodial sentences, the appropriateness of probation orders and the principle of restraint are dealt with in the Supreme Court Canada's decision of R v. Knott, [2012] S.C.J. No. 42 at paras. 1, 43 & 47, where Justice Fish states:

[1] Trial judges must retain as much flexibility as the Criminal Code permits in crafting individualized sentences that respect the principles and purposes of sentencing set out by Parliament in the Code.

[43] The sentencing objectives set out by Parliament in ss. 718 to 718.2 of the Criminal Code are best achieved by preserving – not curtailing – a sentencing court's arsenal of non-custodial sentencing options. Probation orders, where available and appropriate, serve that purpose well: They afford sentencing judges the flexibility to opt for shorter prison terms followed by community supervision, rather than the longer prison terms that they would have otherwise necessarily impose to achieve the same ends.

[47] I take care not to be understood to have expressed here a decided view on sentencing issues that are not now but may one day confront the Court. Subject to that reservation, I think it fair to say that the purpose and principles of sentencing set out in the Criminal Code are meant to take into account the correctional imperative of sentence individualization. Consistent with this approach and subject to the conditions set out in s. 731(1)(b) of the Code, questions related to the fitness of probation orders in particular cases – as opposed to their availability in principle – are best left to be dealt with by the courts on a case-by-case basis as a matter of fitness.

19A conditional discharge is an available sentencing option in cases where there is no minimum sentence, and the maximum sentence is less than fourteen years, and where the court determines that it is in the best interests of the accused, and that it is not contrary to the public interest. These sections of the Criminal Code have been judicially considered in the case of R v. Sanchez-Pino, [1973] O.J. No. 1903, at para. 17, where Justice John Arnup, speaking for the Ontario Court of Appeal, states:

The trial Judge in this case was right in saying that the guide-lines are meagre. The section does not apply to corporations, nor to offences for which a minimum sentence is prescribed, nor to offences punishable, in the very proceedings, by imprisonment for 14 years or for life or by death. The granting of some form of discharge must be "in the best interests of the accused". I take this to mean that deterrence of the offender himself is not a relevant consideration, in the circumstances, except to the extent required by conditions in a probation order. Nor is his rehabilitation through correctional or treatment centres required, except to the same extent. Normally he will be a person of good character, or at least of such character that the entry of a conviction against him may have significant repercussions. It must not be "contrary to the public interest" to grant some form of discharge. One element thereby brought in will be the necessity or otherwise of a sentence which will be a deterrent to others who may be minded to commit a like offence – a standard part of the criteria for sentencing.

20The prevailing case law in Canada over the years makes clear that once the pre-requisites of the section have been meet, discharges may be considered by the court where the factors of the offence itself and the personal history of the accused justify that consideration, despite the seriousness of the fact situation (See R v. R.E.W., [2006] O.J. No. 265, Ontario Court of Appeal, per Rosenberg, J.)

21A review of cases from across the country make it clear that discharges are both available and have been granted to accused who have been found guilty of offences such as Assault, Assault with a Weapon and Assault Causing Bodily Harm. I note the following examples:

• Under s. 267 (Assault with a weapon – See R v. Snobelen, [2008] O.J. No. 6021);
• Under s. 249 (Dangerous Driving – See R v. Poitras, 2005 ABPC 334, [2005] A.J. No. 1592);
• Under s. 267(1)(a) and s. 249 – See R v. Angelov, [2013] O.J. No. 1101; and
• Under s. 267 (Assault with a Weapon – See R v. McKinney, [2010] A.J. No. 560)

22In R v. Hayes, [1999] O.J. No. 938, Hill, J., at para. 32, helpfully summarized a number of principles that have emerged from the case law surrounding conditional discharges. He noted:

Discharges are not restricted to trivial matters: Regina v. Vincente (1975), 18 Crim. L.Q. 292 (Ont. C.A.). Where an offender has acted entirely out of character, perhaps in the context of unusual pressure or stress, a discharge may be a fit sanction: Regina v. Taylor (1975), 24 C.C.C. (2d) 551 (Ont. C.A.) at 552 per Arnup J.A. Where a criminal record will have a tendency to interfere with employment, a discharge should be given serious consideration: Regina v. Myers (1978), 37 C.C.C. (2d) 182 (Ont. C.A.) at 184-5 per Martin J.A.; Regina v. Culley (1977), 36 C.C.C. (2d) 433 (Ont. C.A.) at 435 per Martin J.A. A suspended sentence is not necessarily a greater deterrent to others than a conditional discharge: Regina v. Cheung and Chow (1976), 19 Crim. L.Q. 281 (Ont. C.A.). While a discharge is only rarely appropriate in offences involving violence causing injuries, such a sentence is not universally unavailable in such circumstances: Regina v. Wood (1975), 24 C.C.C. (2d) 79 (Ont. C.A.) at 80 per Jessup J.A.

23On this latter point, the Ontario Court of Appeal in the decision of R v. Huh, 2015 ONCA 356, re-affirmed that in cases of violence resulting in injury, general deterrence militates in almost every case against the imposition of a conditional discharge. It is noted that facts in Huh involved an unprovoked attack on a stranger. That victim suffered significant injuries with a lasting effect.

24While not common however, there have been a number of cases where discharges have been given in crimes of violence where injury resulted. See for example:

• R v. Dunn, [1994] O.J. 279 (Ont. C.A);
• R v. Carroll, [1995] B.C.J. 365 (BCCA.);
• R v. Burke, [1996] N.J. 179 (Nfld C.A);
• R v. Jimenez, [1999] O.J. No. 1847 (ONSC);
• R v. Sweeney, [2001] O.J. 1899 (OCJ);
• R v. Tone, [2003] BCSC 1688;
• R v. Bertuzzi, [2004] BCPC 0472;
• R v. Murphy, [2007] O.J. No. 327 (ONSC);
• R v. Delmastro, 2007 ONCJ 676;
• R v. McGee, 2011 ONSC 1195;
• R v. Sowden, [2011] O.J. No. 2130 (OCJ);
• R v. Syan, [2013] O.J. No. 6294 (OCJ);
• R v. Charlton, 2015 BCSC 1052;
• R v. Angelov, [2013] O.J. No. 1101 (OCJ); and
• R v. McKinney, [2010] A.J. No. 560

25In R v. Rodrigues, [2008] O.J. No. 2125 (SCJ), Spies, J, reviewed a number of cases in which conditional discharges had been granted for violent offences, despite the injuries caused. She concluded at para. 43:

…What is clear from the cases that I have reviewed, where conditional discharges have been granted, is that there has been some evidence before the court that the entry of a conviction would result in particularly harsh repercussions to the offender that are more severe than what would result in the ordinary case. In some cases, the adverse effect of entering a conviction alone is more severe than what would be expected by way of a just sentence. That is a common thread running through all of these cases. Although the granting of a conditional discharge is obviously not limited to professional athletes and police officers there should be some evidence before the court that the impact of a criminal conviction on the offender would be unusually harsh: for example will prevent the offender from continuing to earn a living in his chosen professions. Where the offence can be considered trivial, this factor may be less important. As the seriousness of the offence increases, this factor becomes more significant.

26In the case at bar, we know that a criminal record will prevent the Accused from sponsoring his pregnant wife and decrease his ability to take on government contracts which seemingly form a large part of his business.

Discharges in the Domestic Sphere

27There are also a number of cases where conditional or absolute discharges have been given in the domestic sphere. In R v. Barilko, 2014 ONSC 1145, the accused was found guilty after trial of assaulting his ex-partner in the presence of their young son. The couple had been separated, and the complainant arrived by car at the accused's house to pick up their son following the son's visit with his father. The complainant arrived at the home early, honked her horn, then told the accused when he brought their son home that contrary to his expectations, their son would not be spending Christmas overnight at the accused's house.

28The accused got angry and slammed the car door. He punched the window with his fist. A verbal argument ensued, which culminated in the accused spitting at the complainant, with the spittle striking the sleeve of her jacket. The trial judge found this to be an assault.

29The accused had a prior criminal record, including a 2002 domestic-related conviction and an uttering threats conviction from 2010 involving the same complainant. Still, following trial, the trial court imposed an absolute discharge. The Crown appealed the sentence.

30Hill, J. dismissed the appeal. In so doing, Hill, J. referenced, among other things, the accused's submissions that he complied with his bail requirements, now exercises regular access with his son without incident, and diligently fulfills his child support obligations. Indeed, by the time the appeal was heard, it had been two years since the assault.

31Hill, J. also provided some helpful insight into sentencing in domestic scenarios: He stated at paras. 27 and 28 quoting the OCA: "Violence against women remains a systemic social problem. The courts have long said that general deterrence and denunciation are paramount in sentencing offenders for such criminality. As a result, custodial dispositions are commonly and quite properly meted out to underline the message of intolerance for such behaviour. Indeed, they should be "normal" especially where "significant bodily harm has been inflicted": R v. Inwood, 48 C.C.C. (3d) 173 (Ont. C.A.), at p. 181."

32Further at paras. 36 and 37, Hill, J. also cited other factors that the sentencing judge considered, including that the probation order from the 2010 conviction was already served, that the judicial interim release order expired without incident, that the Crown did not seek a custodial disposition, that the accused had already served six days of pre-sentence custody, and that the outstanding criminal charge had negatively impacted the accused's access to his son.

33While Hill, J. did express some concern that the accused did not appear before the sentencing court as a first offender and that the record raised concerns in particular as to specific deterrence and public protection, he also commented that the sentencing court was entitled to consider that the accused was provoked, his conduct was not premeditated, and, while it happened in the presence of the couple's son, was a minor assault.

34Justice Hill indicated that despite these factors in these cases, a discharge is a legally available sentencing disposition in appropriate circumstances. Further that the cases filed by the Crown before the trial judge in the sentencing hearing in this case exhibited facts which were clearly more serious in terms of the degree of violence and/or the duration of the offender's assaultive actions. Justice Hill noted It is important to recognize this distinction: R v. Mullin, 56 C.C.C. (3d) 476 (P.E.I. C.A.), at p. 490. There is no rule that "in every instance of domestic violence a custodial term must be imposed": Inwood, at p. 181; Mullin, at p. 488. Indeed, there are authorities in the domestic assault context recognizing that a discharge may well fall within the range of a fit sentence depending on the totality of case-specific circumstances: Mullin; R v. Carson, 185 C.C.C. (3d) 541 (Ont. C.A.) (leave to appeal refused, [2004] S.C.C. No. 260).

35Hill, J. upheld the decision on sentence, deferring to the sentencing judge's discretion.

R v. Vicente, 2018 ONCJ 716

36In R v. Vicente, 2018 ONCJ 716, the accused pled guilty to assault causing bodily harm and simple assault in two separate domestic incidents that happened six years apart, and both of which involved the same victim, the accused's wife. The Crown sought a conditional sentence of one year, plus two years' probation. The defence asked for a conditional discharge.

37The facts are as follows. On November 1, 2011, following a verbal argument that continued to intensify, the accused, in frustration, kicked the complainant's arm, causing it to break. The complainant was treated in hospital and was placed in a cast from the wrist all the way to the shoulder; however, she did not report the incident to the police at the time.

38Six years later, on November 9, 2017, the complainant was in bed when she was awoken by the accused, who was yelling at her: "Who's Greg?" Apparently, the complainant had uttered this name when she was sleeping. The accused threatened her, shouting: "You better tell me, I will kill you, you will die", pressing his fist against her temple and pushing her head downward into the pillow. His screaming was so loud it woke the children.

39In sentencing the accused, Harris, J. began by acknowledging the Court of Appeal for Ontario's direction in R v. Wood – namely, that in cases of violence resulting in injury, the requirement of general deterrence to the public militates, in almost every case, against the granting of a discharge. Still, as Harris, J. also pointed out, even if this was true "in almost every case"; it was not true in every case. His Honour then cited, through footnotes, over a dozen cases, some which counsel had presented to the Court, and others which His Honour had located, where discharges were granted where bodily harm had ensued.

40As always, Harris, J. explained, a sentencing judge had to consider the purposes and principles of sentencing, remembering that imposing sentence is not an exact science, but a highly individualized exercise. After examining these principles more generally, Harris, J. looked at the specific mitigating and aggravating factors in the accused's case.

41Rather unusually, the Victim Impact Statement described the accused as a good father. Similarly, the accused had letters of support from counsellors and friends, and also receipts showing he attended counseling. The character references were written by people who knew the accused well. The accused had also taken steps to address the behaviour that may have contributed to his commission of the offences. He was in his late thirties, and had no criminal record. He had freely given much of his time to the community. He had pleaded guilty. Moreover, he confessed his wrongdoing to many of the persons he was closest to. The charges also meant his access to his children had been limited.

42Harris, J. also pointed out that there was a very real possibility that a conviction would adversely impact his work. And, as the sole source of income in the family, this would affect his wife and children as much as it would him.

43In imposing a conditional discharge, Harris, J. re-iterated the long line of authority that a suspended sentence was not necessarily a greater deterrent than a conditional discharge.

44Harris, J. granted the accused a conditional discharge with probation to run for three years. The terms of probation included that the accused had to complete the Partner Assault Response Program ("PARS") and any other programming his probation officer directed, as well as one hundred hours of community service. The requisite ancillary orders relating to weapons and DNA, given it was an assault bodily harm, were also made.

45It is noted that Mr. Ghaddar has already completed the New Directions or PARS program and has done community service hours as well as making a charitable donation and provided an apology to the victim in this matter.

Sentence

46Turning then to my analysis with respect to the appropriate sentence.

Aggravating Factors

47These are offences of domestic violence and the victim did suffer injuries amounting to bodily harm although they did not have a lasting effect and are on the lower end of the scale of such types of injuries. It is acknowledged that the victim may have more lasting psychological harm.

48Offences of Domestic Violence are statutorily aggravating under ss. 718 of the Criminal Code.

49These domestic offences occurred over a period of time when the Accused and the victim were married.

Mitigating Factors

50Mr. Ghaddar is a first offender, who has never been in trouble before. By all accounts, this behavior is out of character and his current spouse has indicated in the Pre-Sentence Report that they have a happy marriage and that the Accused does not engage in abusive or violent behaviour. The Accused otherwise lives a pro social lifestyle. All of the character letters attest to his otherwise good character. The report from New Directions suggests that the Accused has insight into his actions and that he learned from the program.

51The Accused has his own general contracting business and employs others. He hopes to sponsor his wife to be able to remain in Canada.

52The Accused has made reparation to the victim through his heartfelt apology to the victim in court and made reparation to the community by completing fifty-three community service hours and making a charitable donation of $100.00.

53The Pre-Sentence Report is positive and it appears these actions were out of character and that once this matter is completed, it is unlikely that he will ever be back before the court again.

54There are significant collateral consequences for Mr. Ghaddar should he receive a criminal record. He will be unable to sponsor his pregnant wife and it would be a real family hardship if Ms. Chams and her young daughter had to leave the country, if the Accused is unable to sponsor her. By all accounts, the Accused's family is very important to him. There is a professional opinion that a criminal record will prevent this sponsorship and further a record may limit his business opportunities.

55Mr. Ghaddar entered a plea of guilt which albeit mid trial has saved the court time and resources. The plea of guilt, CSO and letter of apology are indicative of remorse, and I find the accused is truly remorseful for his actions.

56The Accused has taken steps to address any issues that led to the incident through PARS counselling.

57The Probation office sees that Mr. Ghaddar is at low risk to re-offend and does not suggest that probation is required to assist in rehabilitation.

58Given the mitigating factors in this case, there is no dispute that a conditional discharge would be in Mr. Ghaddar best interest. He is a person of good character, without a previous conviction, it is not necessary to enter a conviction against him in order to deter him from further offences or to rehabilitate him, and the entry of a conviction may have significant adverse repercussions. In fact, he has already experienced a taste of those repercussions learning that he will be unable to sponsor his wife to remain in Canada. I find he has been specifically deterred having been charged, attended counselling, done CSO, made a charitable donation and the court process. A review of R v. Fallofield, [1973] B.C.J. No. 559 at para. 21 (B.C.C.A.), suggest these are all relevant considerations.

59The more difficult issue is whether a conditional discharge would be contrary to the public interest. As already noted, in cases where there is assault, a conditional discharge will rarely be an appropriate disposition. In such cases, denunciation and general deterrence has to be given an even greater consideration, and that will, in most cases militate against the imposition of a discharge. The Crown argues that a criminal record must be registered to address the principle of general deterrence.

60The real question before me is whether this is one of those cases where a discharge is appropriate, given the Accused rehabilitative efforts and despite the injuries suffered by the Complainant.

Conclusion and Analysis

61To answer this question, I begin by considering the recent decision of R v. Huh, supra. In my view, the present case is distinguishable from this decision. Further, the Crown position in the present case supports the view that Mr. Ghaddar's case stands on different ground than that of Mr. Huh's. In Mr. Ghaddar's, the Crown agrees that a real jail sentence is not required and acknowledges the many mitigating factors. Also, the Crown elected summarily. In Mr. Huh's case, the Crown proceeded by indictment on the charge of assault causing bodily harm.

62In the Huh case, the Court of Appeal noted that the assault by the accused was "extraordinarily violent". That can be contrasted to Mr. Ghaddar's case, where the assault was limited to kicks to the legs and a scratch. Mr. Huh also presented as a multi-substance abuser in denial of his need for rehabilitation this is not the case for Mr. Ghaddar. Moreover, the Court of Appeal pointed out that Mr. Huh's pre-sentence report was "not especially positive" and that it noted that he had shown "no insight into his behaviour". Mr. Ghaddar has a positive PSR and has taken steps toward rehabilitation and making reparation in the community. He has shown insight into his behavior and provided an apology showing that to the victim.

63There are significant collateral consequences to the Accused and his wife and to his employment should there be a registration of this conviction.

64In light of all of the factors that I have outlined, and considering the applicable law, I find that this is one of those uncommon circumstances in which a discharge is appropriate. Further, in this jurisdiction it is not uncommon for an accused to obtain a discharge following pleas to domestic violence offences provided they complete New Directions and take responsibility for their actions. I acknowledge the EAP Program is usually available to offenders who plead guilty early in the proceedings. In my view, any reasonable member of the public knowing the full details of this case and Mr. Ghaddar's efforts to make reparation would agree that a conditional discharge would be appropriate.

65In my view, this is a fit and proportionate sentence having regard to the gravity of the offence and the degree of blameworthiness of this offender. Denunciation and deterrence can be met through such a sentence, while giving voice to the sentencing principle of rehabilitation.

66Mr. Ghaddar, you will receive a conditional discharge, and be placed on probation for a period for 18 months. During that time, you will be under the following terms of probation which I will read to you.

Released: December 7, 2018

Signed: Justice Heather Perkins-McVey