R. v. M.C., 2024 ONCJ 92

ONTARIO COURT OF JUSTICE

CITATION: R. v. M.C., 2024 ONCJ 92

DATE: February 14, 2024

COURT FILE No.: 21-381300572; 21-81300026

BETWEEN:

HIS MAJESTY THE KING

— AND —

M.C.

Before Justice Angela L. McLeod

Guilty plea July 19, 2023. Sentencing January 31, 2024.

LINDSAY WEIS counsel for the Crown

STEPHANIE DI GIUSEPPE counsel for the Applicant

McLeod J.:

OVERVIEW

1Mr. C¹. plead guilty to failure to stop after an accident resulting in bodily harm, contrary to section 320.16(2) of the Criminal Code.

2An agreed statement of fact was filed as Exhibit #1. Those facts are as follows:

On August 7th, 2021, at approximately 1:15 am on Denney Drive in the Township of Essa, David Burman was walking alongside the roadway with his cousin, William Burman. They were walking from David’s residence and were on the shoulder of the southbound Lane. They were walking to meet with William’s girlfriend, Jayme Duggan. Jayme had been driving northbound on Denney Drive towards David’s residence, and she pulled over facing her vehicle northbound in the southbound lane when she saw William and David walking. Jayme’s vehicle was obstructing some portion of the southbound lane.

Shortly thereafter, M.C. was driving southbound on Denney Drive in a silver-coloured Mazda sedan. Jayme Duggan’s vehicle was still stopped facing northbound in the southbound lane, with her headlights on. To avoid Ms. Duggan’s vehicle, Mr. C. swerved over to the shoulder, west of the stopped vehicle. There, he struck David Burman.

M.C. had been coming from a small gathering at his friend’s parents’ home, located in a subdivision just north of Denney Drive, and had at least two alcoholic beverages over the course of four to five hours. When he left, his friends did not observe him slurring his words or appearing obviously drunk. He did not finish his last drink.

The roadway at the site of the collision was paved and dry. The weather conditions were clear. The posted speed limit is 60 km/h and the road is a severely dark rural road with limited and poor illumination.

After he struck David Burman, Mr. C. stopped his car a short distance away from the collision, exited his car and yelled “why are you pulled over in the middle of the road?” He had several people yelling to him in response.

Mr. C. then returned to his vehicle and fled the scene continuing southbound on Denney Drive. When Mr. C.’s vehicle struck Mr. Burman, the driver’s side mirror from his vehicle was left behind.

The Nottawasaga OPP, and the Georgian Ambulance were dispatched to the scene. David Burman was first transported to Stevenson Memorial Hospital, and then subsequently to Toronto Western Hospital. David Burman suffered a laceration to the head, multicompartmental hemorrhages over the left cerebral hemisphere (one of which was potentially life threatening), a basilar skull fracture and a fracture in his leg-the left tibia, and soft tissue damage. He was released from hospital on August 9th, 2021.

At some point shortly after the collision, Mr. C. telephoned one of his friends who was at the party and advised him that he had just hit a person, that there were four people present at the scene of the accident, and that he had left the scene. This information was relayed to the Nottawasaga OPP in the afternoon of August 8th, 2021. As a result of this information, the police attended the residential address of Mr. C., located in Tottenham, where they observed a silver-coloured Mazda sedan that was missing the driver’s side mirror.

On August 10, 2021, counsel for Mr. C. contacted the Officer-in-Charge, P.C. Austin Lascelles, by email and by phone and advised that Mr. C. would surrender himself to police. At that time, the OPP were investigating the accident and had not yet decided whether they would charge the Mazda driver, and the surrender was delayed for that reason. Counsel for Mr. C. and P.C. Lascelles communicated intermittently over the next few months regarding Mr. C.’s surrender. On October 30, 2021, P.C. Lascelles advised counsel for Mr. C. via email that the investigation was complete and that the police had determined that they would lay charges in this case. The parties mutually agreed upon a surrender date of November 7, 2021. On November 7th, 2021, M.C. turned himself into the Nottawasaga detachment and at 10 am, where police placed him under arrest.

3The finding of guilt was entered on July 19, 2023. Sentencing was adjourned for the authoring of an Impact of Race and Culture Assessment report (IRCA hereafter), as well as other materials.

4The Crown elected to proceed by Indictment. As such, the offender is liable to a minimum sentence of $1000, for a first offence, imprisonment for 30 days for a second offence and imprisonment for 120 days for each subsequent offence.

POSITION OF THE PARTIES

5After reviewing the IRCA report, the Crown altered their position and ultimately joined the defence in submitting that the appropriate sentence is a 270-day Conditional Sentence Order followed by a 12-month term of probation and a driving prohibition for 6 months.

SENTENCE IMPOSED

6At the time of the sentencing hearing, counsel advised that Mr. C. had taken a leave of absence from his employment, concerned that he might go into custody. His employment opportunities within his company had and would be further affected.

7I accepted and imposed the joint submission, undertaking to provide written reasons to supplement the oral reasons given on record.

ANALYSIS

A. AGGRAVATING AND MITIGATING FACTORS

8I find as mitigating factors on sentence, the following:

(1) The plea of guilt.

(2) The lack of criminal convictions.

(3) The expression of remorse, which I find to be genuine.

(4) The work history and prosocial activities of Mr. C.

(5) Family and community support (See Exhibit #4).

(6) The accident was not because of impaired or dangerous driving.

(7) Mr. C. turned himself into the police and was cooperative.

9While not mitigating, it is a unique factor in this case that when Mr. C. left the scene of the accident, he knew that there were other people present who could help Mr. Burman immediately. It is important to underscore that there are two primary reasons for criminalizing the act of failing to remain at the scene of an accident: 1) to ensure that the accident can be investigated, and 2) to ensure that aid or comfort can re rendered to any victims as soon as possible (R. v. Armitage, 2023 ONCJ 182 at paras. 21 and 23).

10I find as aggravating factors on sentence, the following:

(1) Mr. C. did not call for emergency responders to assist Mr. Burman.

(2) Mr. C.’s MTO record, although dated.

B. VICTIM IMPACT

11It is important to underscore that Mr. C. is not being sentenced for the accident itself and has not admitted any responsibility in that regard. He is being sentenced for failing to stop at the accident, knowing or being reckless as to whether the person injured suffered bodily harm.

12Mr. Burman’s victim impact statement was filed as Exhibit #2. His comments underscored the impact of the injuries that he received and the healing process that he has undergone. Again, Mr. C. is not being sentenced for causing the accident.

C. CIRCUMSTANCES OF THE OFFENDER

13Mr. C. is a first-time offender. His only interaction with the justice system was in 2015, when he failed to stop before entering an intersection. The Crown filed as Exhibit #3, the MTO records relating to this Highway Traffic Act conviction.

14An assessment of the moral culpability of an offender should be analyzed within a social context. As the court stated in R. v. Morris, 2021 ONCA 680, at para. 106:

106In summary, social context evidence, which helps explain how the offender came to commit the offence, or which allows for a more informed and accurate assessment of the offender’s background, character and potential when choosing from among available sanctions, is relevant and admissible on sentencing.

15Mr. C. is Filipino. Morris, supra, was specifically addressing anti-Black racism and its impact on offenders like Mr. Morris in the sentencing process. The court noted at para, 123 that:

123Although we would not equate Black offenders with Indigenous offenders, for the purposes of s. 718.2(e), the Gladue/Ipeelee jurisprudence can inform the sentencing of Black offenders in several respects: see Borde, at para. 30. Just as with the discrimination suffered by Indigenous offenders, courts should take judicial notice of the existence of anti-Black racism in Canada and its potential impact on individual offenders. Courts should admit evidence on sentencing directed at the existence of anti-Black racism in the offender’s community, and the impact of that racism on the offender’s background and circumstances.

16I find that this court can and should consider the existence of anti-Asian racism in Canada and the impact upon Mr. C. in analyzing his moral culpability for the purpose of sentencing. This is particularly so during the COVID-19 pandemic.

17I am assisted by the IRCA report² filed as Exhibit #4. Dr. Roland Coloma³ authored the report “in order to provide evidence and analysis of research related to the experiences of Filipino Canadians and the impact of racism on their life trajectories in Canada and in the province of Ontario, especially in rural areas.”

18The offence was committed during the COVID-19 pandemic, a time when anti-Asian racism was uniquely problematic.

19The IRCA report is twenty-seven pages long and attached hereto as Appendix ‘A.’

20A brief summary follows:

(1) Mr. C.’s parents grew up poor in the Philippines. Their house had dirt floors with no running water or electricity. They wanted a better life and future for themselves and their children.

(2) Mr. C.’s mother emigrated to Canada in 1990 through the Foreign Domestic Movement Program. She worked for 2 years as a nanny and then sponsored her husband. He struggled to find gainful employment. He worked ‘survival jobs,’ in a fast-food restaurant and then in retail.

(3) Mr. C. and his older brother were born in Toronto. In the 1990’s the family lived in the Jane and Finch neighbourhood. When Mr. C. was six years old, the family moved to Alliston.

(4) Toronto is a cosmopolitan city with cultural diversity from around the world. Alliston is a rural farming community that was 96.6% white when the family relocated.

(5) Mr. C. was one of ten racialized students in his high school of about 400 students.

(6) Mr. C. was subjected to racism, both overtly and indirectly. He was repeatedly bullied and made fun of due to his physical and cultural markers of difference. He was often mistaken for Chinese. He was taunted by classmates who made slanted-eye gestures and who chanted “ching chong, ching chong.” They mocked the food that his mother packed for his lunch and joke that he and his family ate cats and dogs.

(7) Mr. C. dealt with a lot of ignorant racism and did not feel 100% included. He feels that racism “defined a lot of whom I am.”

(8) Mr. C. has twice been selected for random checks at the Canada-US border and noticed that the people chosen at border check points were mostly racialized minorities.

(9) Mr. C. is the first member of his family to complete a university degree. He graduated in 2019 with a Bachelor of Commerce in Marketing degree from Humber College and is a Personal Banker working for a bank. His brother works at a factory as does his mother. His father is a truck driver.

(10) Mr. C.’s father put tremendous pressure on him to do well in school, especially given the immeasurable sacrifices they made to move to Canada. When he did not make the Honor Roll when graduating from high school, his father walked out of the ceremony and commented “why did you do this to me? You shamed me.” In his father’s eyes, Mr. C. humiliated and disappointed him and his family by not excelling in school.

(11) Dr. Coloma wrote:

For Filipino immigrants and their Canadian-born children, these family expectations and obligations are embedded within particular cultural values and beliefs. The Filipino concepts of utang na loob or debt of gratitude, obligation, and reciprocity as well as hiya or shame are particularly important here. Utang na loob is considered “a special type of reciprocity which stems from a good or favor received, or a service rendered, and which allows no quantification in terms of payment, nor termination” (Quisumbing, 1976, p. 260). This concept is quite different from utang, which is “a simple debt of contractual nature, where terms of payment are specified and exact, and the obligation is terminated upon payment with no emotions involved” (p. 260). It must be stressed that “failure to observe the norms of utang na loob is identified with disloyalty, lack of consideration, and negligence” (p. 263). Hence, a Filipino child’s debt of gratitude, obligation, and reciprocity to one’s parents is permanent and can never be adequately or completely repaid. One owes one’s very life and existence to the care and loving solicitude of one’s parents, to whom deep and lifetime loyalty is rightfully due. (Quisumbing, 1976, p. 263)

(12) Dr. Coloma addressed the unique racism that Asian Canadians faced during the COVID-19 pandemic. He wrote:

Asian Canadians, including Filipino Canadians, have faced a dangerous double threat since the pandemic period: the COVID-19 virus that caused illness or death; and the virus of racism that depicted Asians (or anyone who looked like Asian) as the source and transmitters of the disease. Starting in 2020, there has been a dramatic increase of more visible anti-Asian racism and violence in the country. According to the Government of Canada (n.d.),

anti-Asian racism refers to historical and ongoing discrimination, negative stereotyping, and injustice experienced by peoples of Asian origin, based on others’ assumptions about their ethnicity and nationality. Peoples of Asian origin are subjected to specific overt and subtle racist tropes and stereotypes at individual and systemic levels, which lead to their ongoing social, economic, political, and cultural marginalization, disadvantage, and unequal treatment…. While all may experience being “otherized,” specific experiences of anti-Asian racism vary. Some are constantly being perceived to be a threat, some face gendered exotification and violence, some are more likely to be subjected to online hate and racist portrayals in the media.

(13) Mr. C.’s parents both tested positive for COVID and were hospitalized. His mother was in a coma and ventilated in a hospital for a month. Mr. C. observed that his parents were not treated well by the medical staff, who were dismissive and abrupt. He believes that this was fueled by racism.

(14) During the pandemic, Mr. C. noticed how bank customers avoided him, or would not look at him. Some were very hostile and very rude. He became closed off and guarded during this period and was wary of approaching anyone publicly due to uncertainty of their reactions and behaviours.

21I accept Dr. Coloma’s report and have relied upon it to determine that Mr. C.’s decision to the leave the scene of the accident was influenced by:

(1) His reasonable fear based on the circumstances at the scene with multiple parties present.

(2) A recent racial profiling incident and his past subjection to racism in his community and work environment.

(3) Cultural and familial pressure to succeed.

22Ultimately, in his unique circumstances, I find that Mr. C.’s moral culpability is lessened.

D. SENTENCING PRINCIPLES

23The fundamental purpose of sentencing set out in s. 718 of the Criminal Code is to protect society and to contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful, and safe society by imposing sanctions that have one or more of the following objectives:

(a) denouncing unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct.

(b) deterring the offender and others from committing crimes.

(c) separating offenders from society where necessary.

(d) assisting in the rehabilitation of the offender.

(e) providing reparations for harm done to the victim or to the community.

(f) promoting a sense of responsibility in the offender, and acknowledging the harm done to victims and the community.

24The fundamental principle in sentencing, as set out in s. 718.1, is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

25I must also consider the sentencing principles of restraint, rehabilitation, denunciation, general and specific deterrence. The latter three are paramount.

26Additionally, I remind myself that Mr. C. is a youthful, first-time offender.

E. CONDITIONAL SENTENCE ORDER – LAW AND GENERAL PRINCIPLES

27Section 742.1 of the Criminal Code sets out the considerations for a CSO. In summary, there are four criteria to be met:

(a) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment.

(b) the court must impose a term of imprisonment of less than two years.

(c) the safety of the community would not be endangered by the offender serving the sentence in the community; and,

(d) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

28The first three criteria establish whether a CSO is available; the last whether it is appropriate.

29A conditional sentence can serve the sentencing principles of deterrence and denunciation. In R. v. Proulx, 2000 SCC 5, the court held:

22 The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence. It is this punitive aspect that distinguishes the conditional sentence from probation, and it is to this issue that I now turn.

30Furthermore, the court held that a CSO is both a punishment and can be as harsh as incarceration:

41 This is not to say that the conditional sentence is a lenient punishment or that it does not provide significant denunciation and deterrence, or that a conditional sentence can never be as harsh as incarceration. As this Court stated in Gladue, supra, at para. 72,

in our view a sentence focused on restorative justice is not necessarily a "lighter" punishment. Some proponents of restorative justice argue that when it is combined with probationary conditions it may in some circumstances impose a greater burden on the offender than a custodial sentence.

A conditional sentence may be as onerous as, or perhaps even more onerous than, a jail term, particularly in circumstances where the offender is forced to take responsibility for his or her actions and make reparations to both the victim and the community, all the while living in the community under tight controls.

42 Moreover, the conditional sentence is not subject to reduction through parole. This would seem to follow from s. 112(1) of the Corrections and Conditional Release Act, S.C. 1992, c. 20, which gives the provincial parole board jurisdiction in respect of the parole of offenders "serving sentences of imprisonment in provincial correctional facilities" (R. v. W. (J.)(1997), 1997 CanLII 3294 (ON CA), 115 C.C.C. (3d) 18 (Ont. C.A.) at p. 33).

F. CASELAW

31The parties each referred to a number of cases. I will not refer to each specifically, but rather highlight the guiding principles:

(1) The range is between 4 months and 12 months custody where a death or serious injury occurs (R. v. King, 1989, 14 M.V.R. (2d)); the range is between 3 months and 6 months custody, where there are no underlying driving offences (R. v. De Freitas [2014] O.J. No. 6754); the range is between 3 and 12 months custody (R. v. Forrestall [2021] O.J. No. 1133);

(2) Sentences arising out of the same incident should be served consecutively (King, supra).

(3) Failing to remain is a “reprehensible act and deserves severe punishment.” (King, supra).

(4) Failing to remain “has been treated as an extremely serious crime requiring emphasis of general deterrence. Our Court of Appeal has routinely cited the cases of R. v. Gummer and R. v. Ramdass, [1982] O.J. No 177 (Ont. C.A.), for the proposition that failing to remain is a grave and serious crime.” (R. v. Porter, 2017 ONSC 6582).

(5) A conditional sentence order can meet the sentencing principles at play in a fail to remain offence (see R. v. Oliveira [2016] O.J. No. 140 (ONSC) and R. v. Soos [2021] B.C.J. No. 2624 for a good summary of the cases).

(6) Cases such as these are challenging. While there may be a natural inclination to tie the horrific result of the accident to [the defendant’s] conduct post-accident, it would be an error to do so. The issue of causation of injuries or death is not an included element of the offence. [The defendant] faces no criminal sanction based on […] driving pattern, use of alcohol or drugs, or even a lack of proper attention to driving. [The defendant’s] criminal liability arose after the accident occurred when [they] failed to remain at the scene to render assistance and provide [their] contact information (Soos, supra).

(7) In cases of this nature, it is clear that the primary factors to be punctuated on sentence are denunciation and deterrence. As noted in R. v. Wieczorek, 2010 ONCJ 582, [2010] O.J. No. 5260 at paragraph 64:

The duty imposed [by what was then] s. 252 is not an onerous one - a person involved in an accident must remain at the scene, identify him or herself and give assistance to any injured party. This allows for any criminal investigation to occur without delay, resolves issues of civil or criminal liability. Just as importantly, there is a simple duty as a human being to show care and respect for those who may have been injured or killed - to remain until authorities determine what has happened. (Soos, supra)

32Ms. Di Giuseppe summarized several cases for consideration when analyzing the sentencing principle of parity. They are:

• R v Armitage, 2021 ONCJ 121. Sentence: 2 years less a day CSO (entirely house arrest), 18 months’ probation

• The accused’s sedan drifted off the road and struck the victim, throwing him off his bicycle. The accident was fatal.

• The accused drove away and a witness followed and stopped him. He acknowledged that he hit the victim and said he would turn around, then instead drove 150 km home.

• The police found his damaged car in his driveway and arrested him.

• R v Coates, 2023 ONSC 3392. Sentence: 18-month CSO, 30-month driving prohibition

• The accused, an off-duty police officer, struck a motorcyclist while driving. The motorcyclist was thrown from his motorcycle off the road, with his left leg shattered below the knee. He laid alone in a ditch but managed to reach his cell phone and call 911. It took emergency responders half an hour to arrive. His leg had to be amputated below the knee.

• The accused drove for 3.8 km down the road, and then made a series of calls to his wife and parents.

• R v Forrestall, 2021 ONCJ 121. Sentence: 12-month CSO, 3-year driving prohibition, DNA order

• The accused struck a cyclist while driving with the sun in her eyes. She lied for the next several days to her mom, her insurance company, and the police about the cause of the damage to her vehicle. The cyclist’s injuries were fatal and he was left alone on the road to die.

• R v Filiault, 2022 ONCJ 541. Sentence: 12-month CSO (house arrest) – 8 months for FTR, 4 months for obstruct, 12 months’ probation

• The accused attempted to swerve, but the front passenger side of his vehicle hit an 8-year-old autistic child. It was dark outside and the child had been running in the street, seemingly playing chicken with moving vehicles.

• A bystander stopped, administered CPR, and called 911, but the accused did not. The child died of his injuries.

• The accused drove to his girlfriend’s workplace, distraught, and told her he hit something. He disposed of and replaced damaged parts of his vehicle. He signed paperwork for the replacement parts with a different name. He hid the vehicle before it was repaired. He was charged with Obstruct Justice for these actions and pleaded guilty to both FTR and Obstruct.

• R v Soos, 2021 BCPC 287. Sentence: 6-month CSO, 60 hours of community service, $1000 fine plus 15% VFS, DNA order

• The accused was driving her vehicle towards the setting sun when she struck a pedestrian crossing the street where there was no traffic light or crosswalk. She drove home, distraught, and told her uncle what happened. The victim eventually succumbed to his injuries in the hospital. The accused attended the police station with her uncle and lawyer the next day.

• The accident was not attributable to the accused’s driving.

•R v Oliveira, 2016 ONSC 120. Sentence: 6-month sentence, reduced to 90-day intermittent after crediting for pre-trial custody and strict bail

• The accused struck a cyclist, who sustained fatal injuries and was pronounced dead at the scene. The accused continued to work and completed his day as if nothing happened at all Following extensive media coverage, he turned himself in, 40 hours after the accident, just before the police would have questioned him about the status of his vehicle.

• Similar offences received 5-6-month sentences

CONCLUSION

33In all the circumstances, balancing the various sentencing principles, considering the mitigating and aggravating factors, as noted above, I accepted and imposed the joint submission presented to the court, having found that the principles of denunciation and deterrence would be met by the imposition of a conditional sentence.

34A custodial sentence of 270 days, followed by a term of probation for 12 months and a driving prohibition for 6 months was imposed. There were no other ancillary orders sought.

35As this court noted in R. v. Robertson, 2022 ONCJ 289 at para. 45:

Driving is a privilege, not a right. It is a privilege granted to those who are licensed, insured and who follow the rules of the road. In this instance, failing to remain at the scene of this tragic accident was not only a failure to uphold the terms of that privilege, but it was also an abjuration of the responsibilities of a dutiful driver and a compassionate human being.

Signed: Justice Angela L. McLeod

Appendix A

December 5, 2023

To: Ms. Stephanie DiGuiseppe Henein Hutchison Robitaille LLP 235 King Street East

Toronto, Ontario M5A 1J9 Canada

Impact of Race and Culture Assessment

Re: M.C.

1. Introduction

I have been asked by counsel for Mr. M.C. to write an Impact of Race and Culture Assessment in order to provide evidence and analysis of research related to the experiences of Filipino Canadians and the impact of racism on their life trajectories in Canada and in the province of Ontario, especially in rural areas. The central objective of this assessment is to support and enhance the Court's understanding of how Mr. C's experiences as a Canadian-born child of poor immigrants from the Philippines may have influenced his behaviours and perspectives. This report is not intended to excuse Mr. C's actions. Rather, it intends to assist the Court in discerning the conditions under which many Filipino Canadians reside, receive education and employment, and suffer from various forms of prejudice and discrimination. The research components of the report address race and immigration, demographic and geographical contexts, stereotypes of Filipino and Asian Canadians, and anti-Asian racism during the COVID-19 pandemic. I also had the opportunity to interview Mr. C's, and included salient aspects of his personal and family experiences as separate sections or integrated within certain research components. I highlighted racialized experiences living in a predominantly white rural community, cultural obligations that children of immigrants bear to succeed in Canada, and encounters with law enforcement. When reading the research components in combination with Mr. C's life and family experiences, this report may also assist the Court in developing a fuller and nuanced understanding of the social conditions and broader contexts that may have contributed to his actions in the offence for which he is being sentenced. I have been apprised by counsel for Mr. C's of the underlying facts related to his case. I have considered these facts in order to focus my social and contextual analysis.

2. Note about the Assessor

Roland Sintos Coloma BA, MA (U California, Riverside), MA, PhD (Ohio State U) is a Professor of Teacher Education in the College of Education at Wayne State University in Detroit, Michigan, USA. From 2008 to 2014, he was an Assistant Professor and then Associate Professor in the Department of Social Justice Education at the University of Toronto. He developed the first courses on Asian Canadian Studies at U of T, teaching "Asian Canadian History" to undergraduates and "Theorizing Asian Canada" to graduate students. He is internationally recognized as a leading scholar of Filipino diaspora, culture, and education in North America.

His research examines the cultural politics of difference with a focus on race, class, gender, and sexuality from historical, intersectional, and transnational perspectives. Coloma is the lead editor of the groundbreaking book Filipinos in Canada: Disturbing Invisibility (2012, University of Toronto Press). His other book Asian Canadian Studies Reader (2017, University of Toronto Press) won the 2019 Best Edited Collection in Canadian Studies Prize from the Canadian Studies Network / Réseau d'etudes canadiennes. He has garnered a total of over $2.5 million in external funding, including two grants from Canada's Social Sciences and Humanities Research Council for a research conference on Filipino Canadians and for a research development initiative on Asian Canadians. In 2012 he co-founded the Asian Canadian Educators Network to address the educational concerns of Asian Canadians and to support equitable and inclusive schooling. In 2018 he also received a Distinguished Service to Education and Community Award from the National Ethnic Press and Media Council of Canada.

3. Report Preparation

In preparing this report, I have reviewed the following documentation:

• Agreed Statement of Fact - Ontario Court of Justice (Central East Region) Between Her Majesty The Queen and M.C.

In preparing this report, I have also conducted and analyzed the interviews of the following individual:

• Mr. C., the subject, October 12, 2023 and November 29, 2023

4. Current Offence

Mr. C. is currently before the Court awaiting sentencing for failing to remain at the scene of an accident which caused bodily harm.

5. Racism and the Persistent View of Filipinos as Servants in Canada

For many Canadians, especially those in Ontario, their first encounters with Filipinos are generally through their employment as caregivers, nannies, or domestic workers. Since the 1980s, many Filipinos have migrated to Canada as contract workers through the federal. government's Foreign Domestic Movement Program and subsequently the Live-In Caregiver Program. Through these programs, Filipino migrants - who are generally women in their prime years from 21 to 45 years old - work as domestics and caregivers for two years, and then become eligible to apply for permanent residency and to sponsor their spouse and/or children to come to Canada. While these programs may seem like viable and desirable pathways for immigration, employment, and citizenship to Canada, numerous studies have documented the rampant abuse, exploitation, and violence that Filipino workers have undergone and endured inside Canadian homes (Coloma et al., 2012; Pratt, 2012; Tungohan, 2023). As racialized female migrants from a Third World country, they are deemed as low-skilled labourers who ought to be grateful for such global employment opportunities in a First World country like Canada (Bonifacio, 2013; Velasco, 2002).

Regarded as "transient servants" (Walia, 2010), Filipinos persistently experience a gendered racism that renders them as second-class citizens in the Canadian society. Their subordinate status as servants and second-class citizens certainly impacts their social position in Canadian homes, schools, workplaces, and criminal justice system. Although they work inside the home, they are treated and seen as "not one of the family" (Bakan & Stasiulis, 1997). In Canada, Filipino women are frequently stereotyped as caregivers and nannies, while Filipino men and children are often construed as having a spouse or mother who works as a domestic. Consequently, how can Canadians, especially those from dominant groups, treat Filipinos as equals when they are generally perceived as low-skilled household help? How can Filipinos be considered as equals when many view them as docile and subservient labourers? Are Filipinos truly our equal when we have hired them as caregivers? Or when they have raised us as our nannies? Do we genuinely consider them as our equal when they come from a family of servants? Such unequal power relations define the racism that Filipinos directly and indirectly face in Canada (England & Stiell, 1997; Este, Lorenzetti, & Sato, 2018).

Research indicates that the racist construction of Filipinos as servants emerges and is reinforced inside Canadian homes, as they take care of children, attend to elderly parents, and perform daily household work and routines (Coloma et al., 2012; Pratt, 2012; Stasiulis & Bakan, 2005). Filipinos as servants are also visibly present in parks, schools, senior centers, malls, grocery stores, and public buses and subways: their brown bodies in stark contrast to the generally white child or older adult in their care. Having a Filipino nanny or caregiver becomes a frequent topic of conversations at work and in other social settings. Many Canadians actively seek out Filipino caregivers not only to foster work-life balance and family welfare, but also to advance personal social mobility and national economic prosperity. With the ongoing shortage of caregivers, many Canadians have clamored for policies and legislations that recruit more migrant workers from skilled and English-speaking countries, like the Philippines (Canadian Centre for Caregiving Excellence, 2022; Tungohan, 2023). The private need for personal support at home has led to public demands to the government due to the persistent caregiving crisis across the country. Hence, through Filipino caregivers, the private and public spheres of Canadian society intertwine. Buttressed by laws and regulations passed by federal and provincial governments, the pervasive treatment and perception of Filipinos as servants have thereby become naturalized and embedded in Canadian structures and ways of life and wellbeing. The normalization of such prejudiced perceptions and discriminatory treatments of a particular group ends up becoming the "everyday racism" faced by Filipino immigrants and Filipino Canadians (Essed, 1991; also Bonilla-Silva, 2021; Este, Lorenzetti, & Sato, 2018).

Filipinos have a much longer history in Canada that precedes the Foreign Domestic Movement Program in the 1980s and the Live-In Caregiver Program in the 1990s (Chen, 1998; Cusipag & Buenafe, 1993; Laquian & Laquian, 2008). In fact, historical records have documented the arrival of young seaman Benson Flores in Bowen Island, British Columbia in 1846. Other scholars have also highlighted the importance of expanding research on Filipino Canadians geographically beyond the metro areas and to other aspects of Filipino Canadian identities, such as sexuality and religion (Bonifacio, 2013; Diaz, Largo, & Pino, 2017; Marshall, 2018). However, for this assessment report, most relevant is the arrival and employment of Filipinas in Canada as caregivers because the federal government's Foreign Domestic Movement Program enabled the immigration of Mr. Cacho's mother and has shaped his family's trajectory in this country.

6. Demographic and Geographical Contexts

A recent Statistics Canada (2023b) report on Filipino Canadians highlights that they are "among the hardest working people in Canada." In 2022, they had one of the highest labour force participation rates among all Canadians, with 78.6% of Filipino Canadians, aged 15 years and older, working or actively looking for employment, a figure considerably higher than the national average of 65.4%. They also had an unemployment rate of 4.3%, which was a full point lower than the national average of 5.3%. Filipino Canadians mostly work in the following job sectors: sales and service; health care; business, finance and administration; and the trades.

According to the latest census from Statistics Canada (2021a), Filipino Canadians are one of the fastest growing racialized or visible minority groups in the country. From 2016 to 2021, there was a 22.7% increase from 780,125 to 957,355 people of Filipino descent in Canada. Prior to that, from 2011 to 2016, there was a 17.7% increase from 662,600 to 780,125 people of Filipino descent. It is projected that there will be 1.9 to 2.1 million Filipino Canadians by 2031, doubling their population. Currently constituting 2.64% of the total population, Filipino Canadians are the fourth largest racialized minority group in Canada, behind those who identify as South Asian, Chinese, or Black (Statistics Canada, 2021c). From 1982 to 1991, over 30,000 Filipinos immigrated to Canada through the Foreign Domestic Movement Program (Barber, 2006). From 1993 to 2009, 26.3% of immigrants from the Philippines arrived through the Live-In Caregiver Program in Canada (Kelly, 2014). In 2021, the Philippines was the second largest source country for immigration to Canada, following India and followed by China (Statistics Canada, 2021c).

While the majority (73.9%) of Filipinos in Canada were born in the Philippines, there is a growing second- and third-generation group of Filipinos (24.7%) who were born in Canada.

The majority of Filipino Canadians live in large urban areas with many opportunities for employment and cultural engagement with co-ethnic communities. Among the various provinces and territories, Ontario has the largest population of Filipino Canadians, where 363,655 or 38.0% of all Filipinos in Canada reside (Statistics Canada, 2021b). Among the metropolitan areas, the Toronto metro area has the largest population of Filipino Canadians, where 272,475 or 28.5% of all Filipinos in Canada reside. In 2021, the city of Toronto had 2.79 million residents, with slightly more than half (51.2%) were racialized minorities (Catalis, n.d.). The city's main industries are finance, media and entertainment, technology, tourism, and real estate and construction (City of Toronto, n.d.). In 2021, the city's median household income was $84,000. The average home value was over $1.1 million, compared to $965,554 in 2001, which was a 22% increase over a 20-year period. With such an expensive housing price market, only about half (51;9%) of Toronto's residents own their homes.

Research indicates that some Filipino Canadians navigate the competitive labour and housing markets of metropolitan areas like Toronto by being personally flexible, geographically mobile, and moving outside of urban areas (Darden & Kamel, 2004/2005; Thomas, 2013). In fact, studies show that Toronto has become increasingly highly segregated by race and socio-economic class since the 1970s (Bauder & Sharpe, 2002; Hulchanski, 2007). About 100 kilometers northwest of downtown Toronto is the rural town of New Tecumseth, which includes the communities of Alliston and Tottenham, located in the southern part of Simcoe County. In 2021, New Tecumseth had 43,948 residents, 16.2% of whom were racialized minorities (Catalis, n.d.). There were 450 Filipino Canadians or 1.0% of the town's total population. The town's main industries are agriculture, manufacturing, construction, and retail (New Tecumseth, n.d.). In 2021, the town's median household income was $104,000, which was $20,000 more than the household income in Toronto. Yet the average housing price was $803,000, which was about $375,000 less than the housing price in Toronto. The town's housing price almost doubled from 2016 to 2021, and increased by 300% over a 20-year period. In 2021, about eight out of 10 residents (83.9%) owned their homes in New Tecumseth, perhaps the majority of them purchasing their homes prior to the tremendous price increase.

7. C. Family and Living in Rural Ontario

In my interview with Mr. C., he talked about his parents growing up poor in the Philippines. Their house had dirt floors with no running water or electricity, and they wanted a better life and future for themselves and their children. Mr. C's mother was a high school graduate in her early 20s when she arrived in Canada in 1990 to work through the federal government's Foreign Domestic Movement Program. After completing two years of service as a nanny in Toronto, she became eligible to sponsor her husband for immigration. Mr. C's father was in his late 20s when he came to Canada. With a third-grade schooling and rudimentary English proficiency, he struggled adjusting and finding gainful employment due to what others saw as his limitations based on his racialized, immigrant, educational, and linguistic background. He worked in "survival jobs" (Coloma & Pino, 2016; Allard, 2022), initially in food services at a fast-food restaurant and then as a sales associate at a retail store.

Both of their children were born in Toronto: Mr. C. was born in 1997, and his older brother was born four years earlier. If his parents were first-generation Filipino immigrants to Canada, then Mr. C. and his brother represented second generation Filipino Canadians who were born in this country.

In the 1990s, the C. family lived in the Jane and Finch neighbourhood of Toronto. Then they moved to Alliston, Ontario (which is part of the amalgamated town of New Tecumseth) in the early 2000s when Mr. C. was six years old. The Jane and Finch area was deemed as "Canada's toughest neighbourhood" by The Globe and Mail newspaper, where "guns are abundant and gang turf determines who can go where" (Friessen, 2007, A1). With a high concentration of public housing units, this area was, and continues to be, largely populated by immigrant, refugee, and racialized minority families from poor and working-class background (Shields, et al., 2011). Mr. C.'s parents decided to leave the Jane and Finch neighbourhood not only to escape from the high crime rates and gang activities, but also to secure better housing, employment options, and educational opportunities for themselves and their children. For the past 20-plus years, his mother has been working as a general parts associate in a factory, and his father has been employed as a truck driver in a different factory. Through their diligence and savings, Mr. C.'s parents were able to purchase a home in Alliston/ New Tecumseth, located about 38 kilometers north of Bolton where their jobs are.

Whereas Toronto is a cosmopolitan city with rich cultural diversity from around the world, the town of New Tecumseth is a rural farming community that was 96.6% white when the C. family moved there in the early 2000s (Statistics Canada, 2001). Mr. C. recalled that his Filipino family and a Black family were the only racialized minorities in his neighbourhood. He was also one of ten racialized students in his entire high school o( about 400 students. As one of the very few racialized boys in his neighbourhood and school, he stood out, but not always in positive and affirming ways.

Growing up in rural Ontario, Mr. C. became a visible target of racism both overtly and indirectly. In my interviews with him, he shared that even at a young age, he was repeatedly bullied and made fun of due to his physical and cultural markers of difference. He was often mistaken for Chinese since his peers thought Asians were only Chinese and they could not distinguish among the diverse Asian ethnicities. His classmates taunted him by making slanted-eye gestures and chanting “ching chong, ching chong.” They mocked the food that his mother packed for his school lunch, and joked that he and his family ate cats and dogs. Mr. C. and his brother became "really close" to their Black neighbours due to similarities in age and shared experiences as racialized boys. In his teens, he primarily dated racialized or mixed-race girls because they "grew up in this town as non-white" and understood the double-edged sword of inclusion and exclusion. He was "pushed to the side" when approaching white girls for potential dates. Moreover, he heard "racial slurs thrown around," some pointedly directed at him, while others normalized these statements as just the way things were in the area.

By some accounts, Mr. C.'s immigrant parents achieved the "Canadian dream" (Tungohan, 2023) of having regular jobs, owning a home, and raising a family- in short, attaining a good life through sacrifice, risk taking, and hard work. However, the Canadian dream also came at a high price. Mr. C. confessed that he dealt with "a lot of ignorant racism" and "did not feel 100% included" in Canada. In fact, racism has "defined a lot of w om I am," he added. He has shared and talked about his experiences of racism with his older brother, but it is a topic that he cannot discuss fully with his parents, especially his father. To be clear, Mr. C. has come to understand that his father is not denying the violence of racism in Canada. In fact, his father has mentioned facing tremendous racism and adversity, such as people looking down on him as a racialized, immigrant, and uneducated man. He also prepares his family when driving and crossing the Canada-US bord r since they had been selected twice for random checks. They noticed that the people chosen at border check points were mostly racialized minorities. Mr. C. realizes that his father's reticence to elaborate on his experiences and perspectives on racism in Canada is not an outright denial of its reality and impact. But rather, it is an unfortunate tacit acceptance that racism is what one lives with in Canada, especially if one is racialized and perceived as a subordinate in this country.

8. Race, Immigration, and Second Generation Canadians

While research and census data reveal that children of immigrant parents, or the second generation Canadians, tend to have higher educational and labour market outcomes compared to children of Canadian-born parents, it is important to disaggregate data and take an intersectional perspective in order to better understand the lived realities and trajectories of particular immigrant and racialized minority groups, such as Filipino Canadians.

Research indicates that children of immigrant parents, or the second generation Canadians, generally attain higher educational outcomes compared to children of Canadian-born parents (Childs, Finnie, & Mueller, 2017). Using data from the 2006 and 2016 Census, a Statistics Canada report reveals that children of immigrant backgrounds were more likely to have a high school diploma and a university degree, compared to children of Canadian-born parents (Turcotte, 2019). In a cohort of children aged 9 to 13 in 2006, 96% of children with immigrant background completed their high school diploma by 2016, compared to 91% of children of ·Canadian-born parents. Subsequently, in a cohort of youth aged 13 to 17 in 2006, 43% of youth with immigrant parents completed a university degree (bachelor level or higher) ten years later, compared to 29% of their peers with parents born in Canada. Studies confirm that children from middle- and higher-income families are far more likely to enroll in and complete post-secondary education, compared to their peers from poor and lower-income backgrounds (Abada & Lin, 2011). The parents' level of education is considered one of the most significant and consistent factors associated with the educational outcome of their children (Abada & Lin, 2011; Sato & Este, 2017). Based on 2006 and 2016 Census Data, Statistics Canada indicates that 12% of youth, whose parents did not have a high school diploma or postsecondary credential, completed a bachelor degree or higher (Turcotte, 2019). On the other hand, 63% of youth who had at least on parent with a university degree completed a bachelor degree or higher.

Children of immigrant parents tend to do better in school due to "a combination of factors related to the values, expectations and behaviours of parents that explains the education outcome of their children" (Turcotte, 2019, p. 12). Parents with a higher level of education engage in activities with "positive education outcomes and associated with the 'cultural capital' passed on by the family, such as reading and communicating with the children, participating in cultural activities, buying books for the household, encouraging new knowledge learning, etc." (ibid.). They generally also have greater expectations and aspirations for their children's education. For example, regardless of their income level, they save more money for their children's education (Frenette, 2017). When parents emphasize the significance and value of education, their "children internalize this message and develop high educational aspirations and expectations themselves" (Turcotte, 2019, p. 12). Their children then come to consider educational success as normal, and attending and completing university which leads to having a professional career as expected in their life (Feliciano & Lanuza, 2017; Lee & Zhou, 2015; Mendoza, 2012).

Although the parents' level of education is considered a top factor associated with educational outcomes, research also notes gaps in educational outcomes based on gender, socio-economic status, and residential stability that can have an impact on education pathways. For example, data from Statistics Canada show that young men are less likely than young women to graduate from university (Turcotte, 2019). In particular, 32% of young men with immigrant parents from Southeast Asia completed a university degree, compared to 51% of young women with parents from the same region. Moreover, youth from lower income families are less likely to graduate from university, compared those who belong to higher income families. It needs to be noted that the median family income of children with an immigrant background tends to be lower than that of children with Canadian-born parents (Abada & Lin 2011; Chen & Hou, 2019). In 2006, children with immigrant parents from Southeast Asia had a median family income of $63,170, compared to children with Canadian-born parents who had a median family income of $68,740 (Turcotte, 2019). Furthermore, residential ownership and stability offer insights into a family's economic capital that could contribute to children's educational outcome and success. In 2006, 79% of children with immigrant parents from Southeast Asia lived in residences owned by their parents, compared to 84% of children with Canadian-born parents (Turcotte, 2019). However, 54% of children with immigrant parents from Southeast Asia experienced residential stability, compared to 70% of children with Canadian-born parents. Studies show that residential instability could be associated with moving locations and changing schools, which could lead to less favourable education outcomes for children (Haelermans & De Witte, 2015; Gasper et al. 2012).

While studies demonstrate that children of immigrant parents tend to have higher educational outcomes compared to children of Canadian-born parents, disaggregating research and census data and examining information through an intersectional lens are needed to better understand the experiences and pathways of specific immigrant and racialized minority groups, such as Southeast Asian Canadians and in particular Filipino Canadians. Hence, it is very important to employ an intersectional framework in our understanding of the relationship between race, immigration, and education (Collins, 2019; Crenshaw, 2014). For instance, when accounting for gender, socio-economic status, and residential stability, male children with parents from Southeast Asia in low-income households that experience residential instability are less likely to complete a university degree compared to their peers. There is general agreement that "in today's society and economy, earning a high school diploma is practically considered a minimum qualification and does not guarantee successful integration in the labour market" (Turcotte, 2019, p. 8). However, having a university degree is the educational level "where the human, economic, and cultural capital variables have the greatest impact" (p. 18).

"In theory," according to a Statistics Canada report, "the labour market outcomes of youth with an immigrant background are expected to be better than those" of youth with parents born in Canada (Turcotte, 2019, p. 23; also Hou & Chen, 2019). Data from the 2016 census reveals that the employment rate of adults (aged 30 to 34) with an immigrant background (83.3%) was somewhat higher compared to those with parents born in Canada (81.8%). Individuals with parents from Southeast Asia even had a slightly higher employment rate (85.0%). In terms of annual median employment earnings, adults with an immigrant background tend to earn more than those with Canadian-born parents. For example, adults with parents born in Canada had a median annual income of $43,470 in 2016. Those with an immigrant background earned $3,100 more annually, and those with parents from Southeast Asia earned $2,660 more annually.

Yet this same report also reveals that "the picture was different for male university graduates and who worked full-time, full year" (Turcotte, 2019, p. 29). For example, in 2016, university­ educated men who worked full-time and whose immigrant parents came from Southeast Asia earned $6,160 less than their counterparts with non-immigrant parents. In other words, male youth with immigrant parents from Southeast Asia had "a lesser return on investment in their formal education" (p. 31). The report points to "limited social networks, lack of ties within recognized businesses, and discrimination" as possible reasons to explain these gaps in annual earnings for male university graduates with an immigrant background (p. 30).

9. Filipino Canadians are Not "Model Minorities"

Asians in Canada are often stereotyped as "model minorities" with higher educational, employment, and earning attainments compared to other racialized minority groups (Coloma & Pon, 2017; Ty, 2017). In fact, a controversial Maclean article in 2010 reported that Canada's elite universities were "too Asian" (Coloma, 2013; Gilmour et al., 2012). According to this article, Asian international and Asian American students were "over-represented" in these campuses, and the admission criteria and campus climate in these higher education institutions were too focused on academic rigor, at the expense of social development preferred by white students. Although the popular film Crazy Rich Asians offered a much-needed diverse representation in popular culture and mainstream global cinema, it also perpetuated problematic misconceptions of Asians in terms of wealth as well as gender and family roles (Wong, 2022).

According to another recent Statistics Canada report, "racialized [minority] groups in Canada tend to be highly educated" (Statistics Canada, 2023a, p. 3). Based on the latest 2021 census data, racialized or visible minorities consisted of 27.3% of the population aged 25 to 64, but were nearly 40% of people in that age group with a university degree (bachelor level or higher). Many Asian ethnic groups, including Filipinos, had higher educational attainments above the national average of 32.9% of the population with a university degree. However, it must be noted that second generation Filipino Canadians, or individuals born in Canada with Filipino immigrant parents, had a lower rate of university completion at 29.9%. Hence, it is critical to have disaggregated data and an intersectional perspective to document and analyze which groups are suffering the challenges of lower educational and labour market outcomes in Canada.

This same report reveals that "despite having similarly high levels of education to many other Asian groups, Filipino people were underrepresented in occupations requiring a bachelor's degree or higher to a greater extent than any other racialized group" (Statistics Canada, 2023a, p. 7). Their underrepresentation was due to three key factors: the majority of Filipinos with university degrees completed their studies outside Canada; many Filipino immigrants faced difficulties obtaining degree recognition; and Filipino immigrants with foreign degrees were considered overqualified in selected professions. Hence, many immigrants from the Philippines experience what researchers refer to as "deprofessionalization" whereby their educational attainment and previous employment status in the Philippines receive a downgrade in Canada (Kelly, Astorga-Garcia, & Esguerra, 2010). This report also emphasizes that the overqualification and job mismatch for many Filipinos were related to the recruitment and migration of Filipino women to the caregiver programs in Canada. ''Nearly half of Filipino women with foreign registered nursing degrees who immigrated as caregivers worked as nurse aides, orderlies or patient service associates (35.8%) or in sales and service occupations (12.6%)" (Statistics Canada, 2023a, p. 7). The job mismatch of many Filipino immigrants had resulted to negative educational and labour market consequences for their children. For instance, only 18.9% of children of Filipino caregiver parents attended university in the 2020-21 academic year, in comparison to 36.4% of those with parents who immigrated to Canada through other programs (ibid.).

An increasing number of research studies has empirically documented and examined the lived realities and challenges experienced by children of Filipino immigrants in Canada (Abella, 2023; Farrales, 2017; Pratt, 2003; Sato & Este, 2017; Ticar, 2015). A research project on Filipino Youth Transitions in Canada with cases studies in Ontario (Toronto and Hamilton), British Columbia (Vancouver), and Manitoba (Winnipeg) provides two important contributions to the extant research literature (Kelly, 2014). It highlights a glaring exception to the Canadian literature on intergenerational social mobility in immigrant families, and offers qualitative data to understand the social dynamics that are not fully captured in the largely quantitative studies on Filipino Canadian educational and labour market outcomes. "While Filipino immigrants have high levels of education and very high levels of employment, they have tended to enter low-paying and low­ status segments of the labour force, and they are heavily concentrated in certain types of work (especially health care, hospitality and manufacturing)" (p. 11). Their children, or second generation Filipino Canadians, also have high participation rates in the labour market and have one of the lowest unemployment rates. However, their university graduation rate is "substantially below" compared to other racialized minority groups in the same age cohort, aged 25 to 29 in 2011 (p. 14). In particular, only 13.2% of second generation Filipino Canadian men had a university degree, a figure far below the national average and the lowest among all racialized minority groups (see also, Collymore, 2012; Sato, 2017). In other words, analysis of national surveys demonstrates "downward educational attainment across generations" within the Filipino Canadian community (Kelly, 2014, p. 18).

Findings from the qualitative component of the research project on Filipino Canadian youth address three central themes: family resources of time and money; the role of networks, information and mentors; and the importance of self-esteem, aspiration, and role models (Kelly, 2014). This study builds upon previous research on the educational and employment outcomes of children of immigrants in Canada. For example, a study drawing from a 2002 Ethnic Diversity Survey points out that Filipinos did not attain intergenerational upward mobility in education compared to most racialized minority groups in Canada (Abada, Hou, & Ram, 2009). A different study from the same 2002 Ethnic Diversity Survey concludes that for children from immigrant families, the father's education level was a key factor associated with the educational outcome of boys, and the mother's education had a similar impact on girls (Abada & Tenkorang, 2009).

Research from the Toronto District School Board and the Vancouver School Board highlights that Tagalog-speaking students had lower high school graduation rates in comparison to many racialized minority groups (Farrales & Pratt, 2012).

When examining the second generation cohorts of various racialized minority communities in Canada, four categorical patterns have been identified (Chen & Hou, 2019):

• high educational mobility and attainment, and decent labor market outcomes – for second generation Chinese, South Asian, Korean, and Japanese Canadians

• good educational mobility and attainment, low employment, and below-average earnings – for second generation West Asians or Arabs and Southeast Asians

• moderate educational mobility and attainment, low-skill occupations, and low earnings – for second generation Blacks and Latin Americans

• little educational mobility and low earnings - for second generation Filipinos, especially men

Based on the 2016 census data, "second generation Filipino men were the only group that experienced little intergenerational improvement in educational attainment" (Chen & Hou, 2019, p. 10). Filipino Canadians had about the same share of workers in high-skills occupations as all second generation Canadians. However, they had a smaller share in this area, compared to other second generation Asian Canadian groups, including those of Chinese, Korean, South Asian, Japanese, and other Southeast Asian backgrounds. Filipino Canadians also had lower average annual earnings ($54,600 for men and $48,100 for women) compared to all second generation Canadians ($65,700 for men and $48,200 for women). In other words, Filipino Canadian men earned $11,100 less than their second generation male counterparts. They also had lower average annual earnings compared to many second generation Asian Canadian groups, including those of Korean, South Asian, Chinese, and Japanese backgrounds.

In the Canada’s Colour Coded Labour Market report (Block & Galabuzi, 2011), census data shows that Filipino Canadians earned less compared to non-racialized Canadians and other racialized minority groups. For example, based on data from the 2006 census, Filipino Canadian men earned on average $33,141 in comparison to $45,327 for non-racialized men and $35,329 for all racialized minority men. This pattern was consistent with data for 2000 when Filipino Canadian men earned on average $28,542 in comparison to $36,353 for non-racialized men and $30,451 for all racialized minority men. Put differently, Filipino Canadian men earned between 73 and 78 cents to a white man's dollar. This report also shows that Filipino Canadians had lower incomes compared to many other Asian Canadian groups, including those of Japanese, Chinese, South Asian, and other Southeast Asian backgrounds. Based on various research and census data encompassing over 20 years, Filipino Canadians certainly do not fit the "model minority" stereotype of high educational attainment, high-status occupation, and high income ascribed to many Asian Canadians by popular culture, media, and the general public.

10. Living Up to Immigrant Expectations

Mr. C. is a second generation Filipino Canadian who was the first in his family to complete a university degree. He graduated in 2019 with a Bachelor of Commerce in Marketing degree from Humber College in Etobicoke, and is a Personal Banker at [a bank] Bank in Ontario. His mother finished high school in the Philippines, worked as a caregiver when she immigrated to Toronto, and is now employed at a factory. His father had a third-grade education in the Philippines, and when he arrived in Canada, he initially worked at a fast-food restaurant and is now a truck driver for another factory. His older brother completed a postsecondary diploma at George Brown College, and currently also works at a factory. Employed in two different industries, his parents and brother are in the manufacturing sector, while Mr. C. is in financial services.

As poor immigrants from a Third World country, Mr. C.'s parents ingrained in him the importance of education and having a professional career. They made immeasurable sacrifices to move to Canada and toiled hard to provide for their children. Consequently his father put tremendous pressure on him to do well in school. Mr. C. was in the Honor Roll until his senior year in high school when his academic grades slipped due to a failed relationship. He recalled his father leaving the high school graduation ceremony when he was not recognized as part of the Honor Roll. When he asked his father why he left, his response was "Why did you do this to me? You shamed me." In his father's eyes, Mr. C. humiliated and disappointed him and his family by not excelling in school.

Researchers suggest that "in general, immigrant parents have higher expectations and aspiration for their children than parents born in this country and do everything they can to pass this ambition onto them. This intergenerational transmission of objectives is thought to be easier since the children of immigrants often have a stronger obligation toward their family than children of non-immigrant parents" (Turcotte, 2019, p 19).

For Filipino immigrants and their Canadian-born children, these family expectations and obligations are embedded within particular cultural values and beliefs. The Filipino concepts of utang na loob or debt of gratitude, obligation, and reciprocity as well as hiya or shame are particularly important here. Uta, ng na loob is considered "a special type of reciprocity which stems from a good or favor received, or a service rendered, and which allows no quantification in terms of payment, nor termination" (Quisumbing, 1976, p. 260). This concept is quite different from utang, which is "a simple debt of contractual nature, where terms of payment are specified and exact, and the obligation is terminated upon payment with no emotions involved" (p. 260). It must be stressed that "failure to observe the norms of utang na loob is identified with disloyalty, lack of consideration, and negligence" (p. 263). Hence, a Filipino child's debt of gratitude, obligation, and reciprocity to one's parents is permanent and can never be adequately or completely repaid. One owes one's very life and existence to the care and loving solicitude of one's parents, to whom deep and lifetime loyalty is rightfully due. (Quisumbing, 1976, p. 263)

There are a couple of ways of understanding hiya. It can be construed as shame, embarrassment, or sense of propriety: "something that happens to a person, something a person undergoes or suffers ... such as when one commits a faux pas and becomes embarrassed in front of others" (Lasquety-Reyes, 2016, p. 66). It can also be viewed as "a virtue of a person that controls individual wants for the welfare of the other person" (p. 77). Hence, hiya can be something that one internalizes or that one does for/to another person. For many Filipinos, the worst thing one can say about a person is that he or she is walang hiya, without shame, which is the same as to say that the person is walang utang na loob, without any sense of indebtedness. (Rafael, 1993, p. 127)

As evident in the quote above, the Filipino values of utang na loob and hiya are intricately intertwined. In both direct and indirect ways, Filipino immigrants instill these cultural values to their Canadian-born children. "Through these socialization processes, children with an immigrant background are thought to assimilate the values transmitted by their parents and immigrant community members during childhood, which guides their academic choices and behaviours" as well as their professional aspirations and careers (Turcotte, 2019, p. 20).

In my interview with him, Mr. C. emphasized that he did not want to disappoint his parents. He was very cognizant of their sacrifices and bard work as well as the racial discrimination and treatment that they have experienced and suffered from. Since his older brother did not meet his full potential in school and career, he felt more pressure to meet his parents' expectations and do well in college. After high school, he attended college and lived with a family friend in Scarborough. At Humber College, he encountered a more diverse student body, and became friends with classmates from Colombian, Trinidadian, Bengali, and Polish backgrounds. Throughout high school and college, he worked at a fast-food restaurant and then in marketing sales. When his older brother applied for a position at [a bank], he joined him and was hired as a bank teller. Ultimately, he wanted to be self-sufficient and no longer rely on his parents financially.

Mr. C. has proven himself to be a loyal, industrious, and reliable employee who has been at [a bank] since 2019 when he was 21 years old. He has been promoted from entry-level positions as a Customer Experience Associate and a Personal Banking Associate, to next-level positions as a Financial Advisor and recently a Personal Banker. He also took advantage of moving to a larger [bank]branch which enabled him to gain new skills and more challenging scope of work. The branch manager has valued him as a dependable go-getter, so she has given him additional duties including opening or closing the bank. His promising career advancement in the past four years in the financial services sector is a clear testament to not only his outstanding job performance and dedication, but also his warn{ collegiality and service orientation. He stated that he has excellent relationship with his co-workers and managers, and took pride in serving the needs of his customers. He hopes to continue working at [a bank], so that his parents won't have to worry about his overall wellbeing and future.

Mr. C. embraces his identity as a Filipino Canadian – as both Filipino and Canadian – who respects his parents' Filipino values, language, and traditions and who has been socialized into mainstream Canadian custom and ways of life. He has lived in rural (Alliston and Tottenham), urban (Jane and Finch neighbourhood in Toronto), and suburban (Scarborough) areas of Ontario. He grew up and went to school in a predominantly white town in New Tecumseth, has cultivated a diverse group of friends from various racial/ethnic backgrounds, and works at a bank with a largely Italian immigrant and Italian American clientele. He listens to both hip hop and country music, and can easily switch between talking using "regular" English and speaking with a more "country" inflection. He enjoys playing basketball as a point guard, and volunteers as a basketball coach for Special Olympics working with children and adults with disabilities." In many ways, he represents Canada's multicultural society and what the nation aspires for its citizens. He embodies what his immigrant parents have yearned for their Canadian dream.

11. Encounters with Law Enforcement

Only a few academic publications on the police and the criminal justice system focus on Asian immigrants and Asian Canadians. Based on my review of the extant scholarly literature; there is none specific to Filipino Canadians. While there does not seem to be any research solely on Filipino Canadians, their encounters with the Canadian law enforcement have been included in other research. For example, one study indicates that "Filipino men in British Columbia are routinely stopped by police and asked for their identification based on a 'negative stigma' that unfairly associates them with gang activity and the illegal drug trade" (Mosher & Mahon-Haft, 2010, p. 261).

Admittedly there is a sizable body of scholarly work that examines the intersection of race, police, and criminal justice in Canada, but it primarily addresses the impact on Black and Indigenous communities (e.g., Chan & Mirchandani, 2001; Maynard, 2017; Monchalin, 2016). However, the limited scholarly work on Asian Canadians or Filipino Canadians related to law enforcement should not be understood as no crimes have been committed against or by Asian and Filipino Canadians. It should also not be construed that Asian and Filipino Canadians have not had difficult encounters with the police or the criminal justice system. Research on Filipino Canadians related to police and criminal justice is a critical gap that needs to be addressed in future studies.

A master's project in Public Administration accounts for the challenges of recruiting and retaining police cadets from the four largest racialized or visible minority communities in Canada – South Asian, Chinese, Black, and Filipino communities (Rigaux, 2018). One of its key findings states that "attracting larger number of culturally diversified groups, including visible minorities, into policing was still hindered by issues related to racism" (p. 4). For instance, visible minority police officers continued to experience racism within their organizations and this racism potentially existed from the most junior probationary member right up to senior levels of leadership. It existed because of a police culture that formed from police values and attitudes and it pervaded many organizations at different levels and created a pressure to conform. (p. 16)

A number of research studies have examined the perceptions of racialized minorities towards the police in Canada. In these studies, Filipinos were included as part of the visible minority group as an independent variable. Using Statistics Canada's 2005 General Social Survey (Victimization), one study maintains that "race structures citizen views of the police" (Cao, 2011, p. 14). While it recognizes that "multiculturalism policies have diminished the more visible legal and socially approved forms of racial mistreatment," it nonetheless challenges the persistent "myth that everyone is treated equally in Canada" (p. 16). Racialized minorities rated the following areas related to perceptions of police lower than white respondents: "being approachable and easy to talk to," "supplying information to reduce crime," and "treating people fairly." Using data from the 2014 General Social Survey (Victimization), a follow-up study several years later finds consistency in racialized minorities' views of the police (Simpson, 2016). Racialized minorities rated the same three areas lower compared to their white counterparts. The 2014 survey also provided additional findings: "visible minorities were twice as likely to feel discriminated against when dealing with the police (13% versus 7% for non­visible minorities) and three times more likely to experience discrimination when crossing the border into Canada" (p. 6).

Disaggregating data by racial/ethnic groups is important in order to determine similarities or differences across various communities. For example, research on Chinese immigrants' perceptions of the police in Toronto confirms the findings delineated in the national surveys (Chu & Huey-Long Song, 2008). The authors state that respondents who had interacted with the police previously expressed less satisfaction with the police. They delineate a variety of factors that contributed to Chinese immigrants' dissatisfaction with the police, including language and cultural barriers, contacts with immigration authorities in Canada, and family and friends who had conveyed their experiences with the police and criminal justice in Canada. In a study on South Asian perceptions of the police in Canada, the authors find that racialized minorities who hold negative views of the police are less likely to call the police for help and are more likely to disengage from authority and disobey the law (Jung, Greene, & Sprott, 2018, p. 16).

In my interview with Mr. C., he shared two personal incidents that have impacted his perceptions of law enforcement. First, when he was a teenager, his family had been stopped twice for further inspection when they drove and crossed the Canada-US border in the Windsor­Detroit area. Although these were supposedly random checks, he noted that the majority who were stopped were racialized minorities. The border service officers never gave reasons why his family was stopped. They searched. through their bags, threw out food and water bottles, and left their personal effects strewn all over the place. They were also aggressive in the manner they prodded and asked questions to his family. These incidents prompted his father to prepare him and the rest of the family for future trips across the border by informing them that he would be the one answering questions if they were stopped again. If Mr. C. were asked by the border authority, his father told him to remain calm and answer briefly and factually.

Second, Mr. C. was stopped in Georgia, USA in 2018 when he and his then-girlfriend were driving from Florida back to Ontario. He was driving her SUV with the backseat and trunk full of suitcases and boxes. He initially noticed a state trooper in his blind spot who was following him along the freeway. At that point, he told himself, "Keep your head straight. Don't do anything stupid." Based on the news and videos he had seen, Mr. C. was keenly aware of the ways racialized minorities, especially racialized men, had been negatively mistreated by the police. A couple of minutes later, the state trooper changed lanes, turned his lights on, and pulled him over. Stopping the vehicle, Mr.. turned off the music, opened the window, and put his hands on the steering wheel. After the state trooper approached him and asked for his driver's license and car registration, he ordered Mr. C. to step out of the SUV and to stand and put his hands on the hood of the vehicle. Mr. C. did not understand why he was pulled over and why he was ordered to get out of the vehicle. He thought that the state trooper may have stereotyped him, a brown man, as a drug mule who was trafficking illegal substances in a packed SUV with an Ontario license plate. The state trooper asked Mr. C. "Do you have any weapons on you?" and patted his body. He also asked, "What are you doing here driving through Georgia?" Mr. C. explained that they were in Florida for a competition and were driving on their way home to Canada. Then the state trooper told him to stay there, and walked to the passenger side to ask his girlfriend who corroborated the answer. Upon his return, he told Mr. C., "The reason why I pulled you over was you were following the car in front of you too closely."

Mr. C. confessed that "if I made one wrong move, I would have been dead." Scared and traumatized, he feared for his life. To this day, he still vividly remembered what took place, and believed that race played a significant role in the incident. When he was 17 years old, he had been pulled over by the police for a rolling stop in his neighbourhood. His brother was also stopped by the police. However, in both instances, he and his brother stayed in the car and were never ordered to get out. He had seen news coverage of racialized men's encounters with the police ending in tragic ways, especially when they were ordered to exit their vehicles (DeGue, Fowler, & Calkins, 2016). Mr. C. was afraid that he was going to end up dead.

12. Anti-Asian Racism during the COVID-19 Pandemic

The COVID-19 pandemic has tragically impacted many families and communities in Canada and other countries around the world. As of December 1, 2023, over 56,000 individuals had died, and over 4.8 million individuals had confirmed cases of COVID-19 in Canada (Government of Canada, n.d.). On March 17, 2020, the Premier of Ontario ordered a state of emergency which began the first lockdown and restrictions in the province due to the COVID-19 pandemic. A year later, in March 2021; the provincial Chief Medical Officer of Health declared that Ontario was undergoing a third wave of the virus. The following month, the government ordered a second shutdown across the province. By Summer 2021, the province was experiencing a fourth wave of the virus, which was largely affecting unvaccinated individuals.

Asian Canadians, including Filipino Canadians, have faced a dangerous double threat since the pandemic period: the COVID-19 virus that caused illness or death; and the virus of racism that depicted Asians (or anyone who looked like Asian) as the source and transmitters of the disease. Starting in 2020, there has been a dramatic increase of more visible anti-Asian racism and violence in the country. According to the Government of Canada (n.d.),

anti-Asian racism refers to historical and ongoing discrimination, negative stereotyping, and injustice experienced by peoples of Asian origin, based on others' assumptions about . their ethnicity and nationality. Peoples of Asian origin are subjected to specific overt and subtle racist tropes and stereotypes at individual and systemic levels, which lead to their ongoing social, economic, political and cultural marginalization, disadvantage and unequal treatment … While all may experience being "otherized," specific experiences of anti-Asian racism vary. Some are constantly being perceived to be a threat, some face gendered exotification and violence, some are more likely to be subjected to online hate and racist portrayals in the media.

Scholars have noted that anti-Asian racism was not necessarily a new phenomenon in Canada (Coloma & Pon, 2017; Este, Lorenzetti, & Sato, 2018; Hall & Hwang, 2001). They cite anti­Asian exclusionary laws, mob riots, and media portrayals in the late 1800s and early 1900s, the forced relocation and incarceration of Japanese Canadians during the Second World War, to the scapegoating of Asians during public health crises (e.g., SARS), economic downturns, and real estate property bubbles, as historical and more recent examples of the ways anti-Asian racism and xenophobia have negatively targeted immigrants and citizens of Asian descent.

Since the start of the pandemic, police departments in major Canadian cities have reported exponential increases in anti-Asian violence. According to Statistics Canada, the East and Southeast Asian communities experienced a 301% increase in police-r ported hate crimes in 2020 (Wang & Moreau, 2022). The Toronto Police Service (2021) disclosed that East and Southeast Asian communities were "the most victimized group in the ethnic or national origin category" (p. 22). The Vancouver Police Department (2020) revealed that anti-Asian hate crimes escalated by 878% from 2019 to 2020. In light of the escalating rise in anti-Asian racism, Prime Minister Justin Trudeau declared that "Hate, violence and discrimination have no place in Canada. To Asian Canadians across the country, know we all stand with you. We will not let hate divide us" (Beattie, 2020).

Knowing that many Asian immigrants and Asian Canadians were not comfortable reporting racist incidents to the police, Asian Canadian advocates were certain that the figures provided by the police departments were lower than actual occurrences of anti-Asian racism. Hence, they established online mechanisms for reporting biased incidents that they experienced or saw. Based on data collected by the Chinese Canadian National Council for Social Justice (n.d.), which collaborated with online reporting platforms and other community groups, in 2020 there was a total of 643 cases of anti-Asian racist attacks reported. In 2021, 943 cases were reported an increase of 47% from the previous year: Victims disclosed being verbally harassed, physically assaulted, coughed at or spat on, or denied service, and their properties vandalized or robbed. = Women and elderlies were disproportionately attacked and harassed. These incidents took place in public spaces (parks, streets, sidewalks), businesses (groceries, restaurants), public transport, workplaces, and online classrooms.

A recent community report based on intergenerational conversations on anti-Asian racism in Canada during the pandemic reveals the following findings (Sakamoto et al., 2023, pp. 17-18):

• Participants experienced not just violent physical attacks, but verbal abuse and vitriol.

• Many felt like they were strangers in their own country, especially for those who have been living in Canada for many years.

• Participants shared their emotions in response to anti-Asian racism, including feelings of fear, anger (rage), frustration, confusion, and sadness.

• Such a hostile environment has resulted in a psychological and emotional toll on participants and their families.

• It is difficult to report anti-Asian racism to authorities due to structural discrimination and unfair treatment.

In my interview with Mr. C., he talked about how he and his family were impacted by the COVID-19 pandemic. Both his parents tested positive for the virus and were hospitalized. His father was confined for about a week, and was still frail when he was discharged to go home. His mother was in a coma and ventilated in a hospital in Alliston for a month. Although Mr. C. and his brother were no longer living with their parents, they stayed with their father to take care of him, and waited anxiously for their mother's critical condition to get better. Both parents eventually recovered fully. However, Mr. C. was concerned that his parents, especially his mother who was in the hospital longer, were not treated well by the medical staff. He saw how dismissive and abrupt the staff were in their interactions with his mother. Her medical concerns were "not taken at face value" compared to "someone Caucasian or someone without an accent." Hence, anti-Asian racism could also take form in differential treatment of Asian immigrant patients as they sought medical care during the pandemic.

Moreover, as the only employee of Asian or Filipino descent at his bank branch during the pandemic, Mr. C. noticed how bank customers avoided him or; after he greeted them, would not even look at him. He described some who communicated with him as "very hostile" and "very rude." Living and working in a predominantly white and rural community, he was aware of the area being "more prone to having negative ideas or emotions towards Asians because of what they heard online and not having a history of being open to other cultures." He disclosed that the "pandemic definitely heightened feelings of negativity towards me as an Asian." As a result, he became closed off and guarded during this period, and was wary of approaching anyone publicly due to uncertainty of their reactions and behaviours.

13. Assessor Opinion

Mr. C. is a Canadian-born son of poor immigrants from the Philippines who yearned for a better life and future for themselves and their children. As a family, they have endured racism and made tremendous sacrifices to achieve their "Canadian dream." Even at a young age, he has felt and internalized the parental demand and cultural obligation to excel in school and college and to pursue a professional occupation. Having an older brother who has not reached his full potential, he carries additional pressure and responsibility to be successful and represent his family well. Although national statistics indicate that second generation Filipino Canadians tend to have downward educational attainment and low occupational earnings, he has bucked the general pattern by completing a university degree and attaining a promising career.

Mr. C.'s racialized background and experiences have shaped how he perceives his place in society and how others view and treat him. Growing up as a minority in a predominantly white and rural community means living in a perpetual state of marginalization and learning how to handle the uncertainties of the double-edged sword of inclusion and exclusion. Throughout his life, he has dealt with racism and stereotypes. In school, he was bullied for his physical and cultural difference. As the only Filipino Canadian at work, he is compelled to strive and prove himself as capable, efficient, and worthy of advancement. Personal incidents with law enforcement have caused trauma, distrust, and fear towards the police. During the COVID-19 pandemic, he and his family were treated negatively due to their racial/ethnic background, which made him very cautious of approaching and interacting with anyone in public.

Nonetheless, Mr. C.'s natural inclination is to help people. Although he no longer lives with his parents, he regularly checks on them, and took care of them when they became seriously ill from contracting the coronavirus. He enjoys serving customers at work, ensuring their needs are met. He also volunteers as a basketball coach for Special Olympics working with youth and adults with disabilities.

The Court may wish to consider the broader cultural contexts and social conditions that have. shaped Mr. C.'s life and perspectives. His behaviour and decision on the date of August 7, 2021 should be situated within these dynamics and contexts, which provide a fuller and nuanced picture of the ways historical and contemporary Canadian racial dynamics have impacted him. Considering Mr. C.’s diligence, perseverance, and volunteer work, juxtaposed with challenging obstacles that he and his family had overcome, it is a reasonable expectation that he will respond well to counselling and community service.

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Footnotes

1. 1The defendant is herein referred to as Mr. C. or M.C. by order of this court to protect the privacy of his family given the sensitive and personal information contained within the IRCA report. The exhibits in this matter have been sealed in order to further that goal.
2. 2An edited version of the IRCA report is attached to this decision as ‘Appendix A’. It has been edited by this court to protect the privacy of M.C.’s family. The original IRCA report, marked as exhibit #4, along with all other exhibits, has been sealed subject to an order of this Court.
3. 3Roland Sintos Coloma BA, MA (U California, Riverside), MA, PhD (Ohio State U) is a Professor of Teacher Education in the College of Education at Wayne State University in Detroit, Michigan, USA. From 2008 to 2014, he was an Assistant Professor and then Associate Professor in the Department of Social Justice Education at the University of Toronto. He developed the first courses on Asian Canadian Studies at U of T, teaching “Asian Canadian History” to undergraduates and “Theorizing Asian Canada” to graduate students. He is internationally recognized as a leading scholar of Filipino diaspora, culture, and education in North America. His research examines the cultural politics of difference with a focus on race, class, gender, and sexuality from historical, intersectional, and transnational perspectives. Coloma is the lead editor of the ground-breaking book Filipinos in Canada: Disturbing Invisibility (2012, University of Toronto Press). His other book Asian Canadian Studies Reader (2017, University of Toronto Press) won the 2019 Best Edited Collection in Canadian Studies Prize from the Canadian Studies Network / Réseau d’études canadiennes. He has garnered a total of over $2.5 million in external funding, including two grants from Canada’s Social Sciences and Humanities Research Council for a research conference on Filipino Canadians and for a research development initiative on Asian Canadians. In 2012 he co-founded the Asian Canadian Educators Network to address the educational concerns of Asian Canadians and to support equitable and inclusive schooling. In 2018 he also received a Distinguished Service to Education and Community Award from the National Ethnic Press and Media Council of Canada.