Court of Appeal for Ontario

Date: 2019-11-25 Docket: C65349

Judges: Feldman, Gillese and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

Yen (Alec) Chang Appellant

Counsel

David Butt and David M. Reeve, for the appellant

Katie Doherty, for the respondent

Heard: November 19, 2019

Appeal Information

On appeal from the conviction entered on January 29, 2018, and the sentence imposed on May 9, 2018, by Justice John McInnes of the Ontario Court of Justice.

Reasons for Decision

The Conviction Appeal

[1] The appellant was convicted of two counts arising from his attempt to purchase sexual services from a young person. The offences came to light through Project Raphael, an undercover York Regional police investigation aimed at combatting juvenile prostitution by means of a sting operation. He was sentenced to eight months in jail, two years of probation, and a series of orders. He appeals against conviction and seeks leave to appeal against sentence.

[2] The court announced at the close of oral argument that the appeal against conviction would be dismissed, leave to appeal sentence would be granted, the sentence appeal allowed and the sentence reduced to six months less one day, with reasons to follow. These are the reasons.

[3] At trial, the appellant argued that the police had breached ss. 8 and 9 of the Charter of Rights and Freedoms by arresting him without grounds and conducting a search incident to arrest. He applied to have the evidence arising out of the arrest excluded under s. 24(2). The appellant conceded that the arresting officers had the necessary subjective belief to arrest him. The issue was whether their subjective belief was objectively reasonable. The trial judge found that it was.

[4] On appeal, the appellant submits that, in reaching this determination, the trial judge failed to consider exculpatory factors that pointed away from the appellant as the person communicating with the undercover agent who was posing as the underage girl. He points to two such factors. First, in the communications between the undercover agent and the target, the "girl" told the target to attend at a particular McDonald's restaurant. The appellant was told to purchase a "Happy Meal" when he arrived. However, the appellant bought a drink when he arrived, not a Happy Meal. Second, the appellant left the McDonald's before the "girl" had arrived.

[5] We do not accept this submission. The trial judge applied the correct legal test and principles and considered the evidence. We see no basis to interfere with his conclusion that the arresting officers' subjective belief that there were grounds to arrest was objectively reasonable.

[6] While the undercover agent originally told the target to purchase a Happy Meal, the target responded that he had purchased a drink, not a Happy Meal. The information that was communicated to the arresting officers on the scene at the McDonald's was that the target had purchased a drink. The appellant in fact had purchased a drink while he was inside the McDonald's. Thus, the fact he bought a drink rather than a Happy Meal is not exculpatory evidence.

[7] The fact that the appellant walked out of the McDonald's before the "girl" arrived does not undermine the probative value of the evidence before the trial judge. The appellant attended at the McDonald's, as directed by the "girl" he was there to have sex with, either inside the washroom (which the "girl" said she did not want) or in his car; he arrived at the specific McDonald's where the "meet" had been set, at the time the police expected the target to arrive; he was driving a car, as anticipated; he was observed on his cellphone as he approached the McDonald's (the target had been corresponding through text messages with the undercover agent); and he exited the McDonald's after buying a drink there, just as the target indicated he had done, by way of a text communication to the undercover agent.

[8] The appellant also submits that he was convicted under an unconstitutional presumption of law which relieved the Crown of the burden of proving his guilt beyond a reasonable doubt. The presumption provision had been struck as unconstitutional before the trial and played no part in the proceedings.

[9] At trial, the appellant conceded his substantive guilt on the charges, if the evidence were admitted. This includes his belief that the person he was corresponding with was under the age of 16. The text messages made it abundantly clear that the person with whom he was communicating was 15 years of age. In the face of this clear messaging, he persisted, actively communicating with her and arranging to meet up with her for sex.

The Sentence Appeal

[10] The appellant submits that the sentencing judge erred in principle by failing to consider the serious immigration consequences to the appellant of imposing a sentence of over six months' imprisonment.

[11] There was a very brief exchange during sentencing submissions which touched on the fact that a sentence of over six months' imprisonment might result in the appellant losing his appeal rights and being deported. However, that matter was not pursued. The focus of the submissions on the appellant's status related to the potential effects on his citizenship.

[12] When the reasons for sentence were delivered some weeks later, imposing an eight month sentence followed by probation, there was no mention of the potential immigration consequences to the appellant. We are satisfied that through inadvertence, this relevant factor was not considered. In the circumstances, appellate intervention is warranted: R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 24.

[13] Because the appellant is a permanent resident and a prison sentence of longer than six months was imposed, on the fresh evidence, if he is found inadmissible to Canada on the grounds of serious criminality, he will have no right of appeal to the Immigration Appeal Division (IAD) and, almost certainly, be deported: Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 36(1)(a), 64. If deported, the appellant will be returned to Taiwan, where he has no connection and has not lived since he was a very young child. He has lived in Canada for virtually his whole life. His family, employment and support systems are here in Canada.

[14] Reducing the sentence from eight months to six months less a day will preserve the appellant's right to appeal to the IAD for consideration of the humanitarian and compassionate grounds of his case. It will not render the sentence demonstrably unfit, having regard to all the circumstances of the offence and this youthful first offender.

Disposition

[15] The appeal against conviction is dismissed. Leave to appeal sentence is granted and the sentence appeal is allowed. A prison sentence of six months less a day is substituted for the eight-month jail sentence; all other conditions and orders in the sentence imposed remain unchanged. The victim fine surcharge order is set aside.

"K. Feldman J.A."

"E.E. Gillese J.A."

"B.W. Miller J.A."