Court File and Parties
Date: October 18, 2018
Court File No.: Toronto 18 – 75003604
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Khalil Rashid
Before: Justice Paul H. Reinhardt
Sentencing Hearing conducted on: 10, 12, 16 and 18 October 2018
Reasons for Sentence released on: 18 October 2018
Counsel:
- Sandra Duffy & Vivian Gallegos for the Crown
- Jordan Weisz & Dan Paton for the accused
REINHARDT J.:
[1] Guilty Plea and Charges
[1] Khalil Rashid pleaded guilty on 10 October 2018, in 503 Court, in the College Park Courthouse that, on or about the 22nd day of July in the year 2018, at the City of Toronto, in the Toronto Region, he did:
(1) Attempt to break and enter a dwelling house situated at 1184 Gerrard Street East, Toronto, with intent to commit an indictable offence therein, contrary to Section 463, clause (a) of the Criminal Code of Canada; and further,
(2) Steal tools of a value not exceeding five thousand dollars, the property of Brian Chow, contrary to Section 334, clause (b) (ii) of the Criminal Code of Canada.
[2] The Crown elected on the first count to proceed by indictment, and on the second, by summary conviction.
[3] I have concluded that Mr. Rashid should be sentenced as follows:
(a) Attempt Break and Enter – He will be sentenced to time served plus one day in gaol. He has been in custody since his arrest for 89 days of pre-sentence detention, credited at a rate of 1.5 to 1, for a equivalency of 134 days in gaol, and in addition, a further day in gaol, for a total equivalent carceral sentence of 135 days;
(b) Theft Under – He will be sentenced to 15 days in gaol, concurrent to his sentence for the attempt B & E, above;
[4] I am also placing him on a three-year probation order for Count 1, and a concurrent three-year probation on Count 2
[5] These are my reasons.
The Position of the Parties
[6] The Crown is seeking a global sentence of twelve months in gaol, less pre-sentence detention credited at an enhanced 1.5 to 1 basis, followed by three-years-probation.
[7] The accused has spent 89 real days in pre-sentence detention, so calculated on a 1.5 to 1, ratio, he has to his credit the equivalence of 134 days in gaol.
[8] The Crown is submitting that a global sentence of 12 months would meet the ends of justice, including the principles of general and specific deterrence.
[9] The Crown is also submitting, pursuant to the reason in R. v. Faulds, [1994] O.J. No 2145, and R. v. F. L., 2018 ONCA 83, [2018] O.J. No. 482, that Mr. Rashid should receive less credit for his guilty plea because of the strength of the Crown's case.
[10] The defence is asking for time served, followed by a two-year-probation.
[11] The defence submits that the sentence the Crown is seeking is grossly disproportionate to the facts on sentencing including his client's recorded actions on the property and his personal antecedents.
[12] The defence is submitting that, because of Mr. Rashid's difficult personal life history as a Kurdish Convention refugee, this court should fashion a sentence, consistent with the sentencing provisions in Part XXIII of the Criminal Code, which would not increase the likelihood of Mr. Rashid's removal from Canada, pursuant to the provisions of the Immigration and Refugee Protection Act (S.C. 2001, c. 27).
[13] The defence resists the Crown's characterization of his client's plea before this court as reflective of the cases such as Faulds and F. L. which reduce the pleas in those cases to "simply a recognition of the inevitable", and therefore worth very little in mitigation as a sign of remorse.
[14] The defence submits that his client's plea is a clear reflection of remorse and that the governing authority to look at would be R. v. Santos, [1993] O.J. No. 2539, where the Ontario Court of Appeal characterized the test for the plea on review in that case as whether or not it was an honest response by an offender who admits wrongdoing and does not pretend that the facts are different from what they are shown to be.
Summary of Proceedings
[15] In this proceeding the Crown read in the admitted facts and I received in evidence three exhibits:
(1) The Record of the accused;
(2) The Victim Impact Statement of Brian Chow;
(3) CCTV Video footage from a security camera installed at the rear of 1194 Gerrard Street East;
SUMMARY OF THE EVIDENCE
The Offences
[16] In his plea, Mr. Rashid admitted to climbing a fence which separated the rooming house next door to the residence at 1184 Gerrard Street East, and attempting to enter the back sliding door at the rear of the property.
[17] Mr. Rashid admitted to then walking to a garden shed at the rear of the property where he removed two power tools with their carrying cases, and left the property by returning with the tools to the rooming house next door.
[18] The police responded to a 911 call from the owner, Mr. Chow, which reached them at 5:41 PM, and arrived at the next door rooming house where Mr. Rashid was arrested at 5:55 PM.
[19] The stolen property was estimated to have a value of $300 to $400 and all property was recovered.
The Chow CCTV Video (Exhibit 3)
[20] Exhibit 3 is a CCTV video clip lasting 3.04 minutes, which was placed before the court on consent.
[21] The video clip records Mr. Rashid's movements in climbing over the approximately six-foot-tall side fence, and walking to the back doors and then to the back of the property where he removes two power tools and throws them over the fence and then climbs back over the fence to the rooming house situate to the east of the Chow residence.
[22] The CCTV camera, which recorded this short sequence covers Mr. Rashid's entire time in the backyard and on the Chow residence at 1184 Gerrard Street East in Toronto, was located inside the back room portion of the house and faces almost directly towards the back fence of the property.
[23] The CCTV camera view is through the double glass sliding doors which appear to span the entire ground floor back wall of the house and to the right, clearly shows the side yard fence separating the Chow residence from the rooming house next door, as well as the unlocked garden shed at the very back of the property, in which tools and building equipment were being stored at the time of the occurrence which forms the subject matter of these proceedings.
[24] The back yard, immediately beyond the small steps and landing that give access to the sliding doors, has two large garbage disposal bins and beyond this area is covered with a large pile of construction debris, which suggests that the Chow residence is under renovation at the time of the offences.
[25] Mr. Rashid can be seen to first look over, and then climb over the side yard fence separating the rooming house from the Chow property. On the "rooming house" side of the fence, there is a flat rectangular structure, which holds the garbage cans serving the rooming house, right on the property line separating the two municipal addresses.
[26] Mr. Rashid can be seen to first, at the beginning of the video footage, to use this structure to gain access to the Chow property, and later, to leave the property, at the end of the footage.
[27] Mr. Rashid appears to throw the two power tools over the fence, and then use the rooming house structure to leave the property.
The Victim Statement (Exhibit 2)
[28] Exhibit 2 in this proceeding was a typed victim impact statement prepared by the owner of 1184 Gerrard Street East, Brian Chow, on his phone, and e-mailed to the Toronto Police Services.
[29] The statement was printed and placed into evidence, on consent.
[30] It was not a "Victim Impact Statement" as described in section 722, using Form 34.2 in Part XXVIII of the Criminal Code, but complies with subsection 722 (9) as "any other evidence concerning any victim".
[31] For the purposes of this proceeding, it served a similar function as a Victim Impact Statement.
[32] In his statement, Mr. Chow states that due to Mr. Rashid's actions of 22 July 2018, he and his family have lost something that cannot be measured in dollars and cents, they have lost their sense of safety in their own home.
[33] Mr. Chow states that although there was no damage to his buildings, and all the stolen items were recovered, he has had to incur numerous expenses, to increase the security protection of his home.
[34] Mr. Chow also describes, as a result of the events of 22 July 2018, what he considers a new household nightly routine, which reflects this loss of a sense of safety.
[35] Mr. Chow states that, because of these events his family's approach to life in their neighbourhood has also changed, with more nights staying at home, and their phones readily at hand to warn them of possible notification of security breaches.
[36] Mr. Chow states that since the offence date, he and his family are:
always thinking of the possibility of another theft; increasingly angry at what seems to be the general community as a whole.
[37] To summarise, in his statement, Mr. Chow states:
In time we hope the memory and anger fades of this needless crime; however in this very moment as we write this on my phone, ever so aware of notification popping up on my phone, we can safely say that our routine, mind set and approach to life has definitely changed.
Khalil Rashid
[38] Defence Counsel summarized his client's personal history and circumstances leading up to the day of the offence.
[39] Counsel submitted that Mr. Rashid has resided for the last four years in a rooming house at 1323 Gerrard Street East less than 400 meters from 1184 Gerrard Street East, just east of Greenwood Park, a few blocks from where the offences took place.
[40] Counsel submitted that this area in which Mr. Rashid resides is known as "little India" and is made up of single family dwellings, rooming houses as well as many store-front businesses.
[41] Counsel submitted and Crown counsel does not dispute, in this hearing, the accused's tragic personal history.
[42] Mr. Rashid is of Kurdish ancestry, born in Mosul, Iraq, in 1966.
[43] In roughly early 1980, Mr. Rashid was conscripted to fight on behalf of the government of Iraq, in the Iraq–Iran War, which ravaged the region during much of the 1980's and thus being separated from his own mother, father and younger siblings.
[44] Mr. Rashid was stationed in the border region of the two warring countries, and in 1984, while only 18-years-old, he deserted and fled from Iraq to Iran in 1984.
[45] Counsel submitted that while in Iran, Mr. Rashid attempted to settle in Tehran, where he met and married an Iranian citizen and he and his wife had two children.
[46] Counsel submitted that Mr. Rashid was not permitted to settle permanently in Iran, and as a result, was ordered to leave Iran in 1989, and again separated from his new family, his wife and children, who remained in Iran.
[47] Counsel submitted that Mr. Rashid lived for the next four years, on his own, as a stateless refugee in Pakistan.
[48] Counsel submitted that Mr. Rashid, while in a Pakistan refugee camp, was able to apply and be accepted as a Convention refugee, and also accepted in a Canadian refugee re-settlement program, through the United Nations High Commissioner on Refugees ("UNHCR").
[49] Counsel submitted that Mr. Rashid came to Canada in 1993, obtaining his status as a landed immigrant shortly thereafter and has resided in Canada on his own since that time up until the present.
[50] Counsel submits that, following his resettlement here in Canada, Mr. Rashid has suffered from a number of conditions due to his previous life as a refugee, including anxiety, panic attacks, and post-traumatic stress syndrome.
[51] Counsel submits that, as a result, Mr. Rashid has had a difficult time adjusting to life in Canada, has compiled a considerable criminal record, spanning a duration of over 20 years and recently become addicted to street drugs, including crack cocaine.
[52] It is again, common ground between the parties, that when Mr. Rashid initially arrived in Canada, under the auspices of the UNHCR Convention Refugee re-settlement program, he became a permanent resident, but lost that status in 2006, because of his criminal record in Canada.
[53] The parties agree that because of the provisions of Section 115 of the Immigration and Refugee Protection Act (S.C. 2001, c. 27), he is, as a Convention Refugee, in a protected class of individual, not deportable at this time, regardless of the findings of this court as the appropriate sentence.
Criminal Record (Exhibit 1)
[54] Exhibit 1, in this proceeding is Mr. Rashid's Criminal Record, which begins in London, Ontario, in 1996, with a conviction for Break and Enter and Intent to Commit an Indictable Offence, in which he received concurrent 3 month gaol sentences and probation for three years.
[55] Mr. Rashid's Criminal Record discloses a second London, Ontario conviction for the related offence of Break and Enter with Intent, in 2002, for which Mr. Rashid was given credit for 191 days of pre-sentence custody, and a further sentence of three months gaol and probation for three years.
[56] All told, Mr. Rashid's record also includes over thirty additional entries from 1996 to the present, including six trespassing-at-night convictions, contrary to Section 177 of the Code, and numerous other relatively minor offences, including public mischief, mischief under, failure to comply recognizance and probation orders, and other minor anti-social delicts.
[57] Mr. Rashid's record is clearly an aggravating factor in this case.
LEGAL FRAMEWORK
Criminal Code Sentencing Principles
[58] In 1996 the Parliament of Canada added a sentencing "chapeau" to Part XXIII of the Criminal Code. It included the codification of the mandated purpose in sentencing as well as the principles to assist in the interpretation and application of this purpose. It reflected Parliament's recognition that trial judges should consider restorative principles and the need to fashion sentences that respond to the individual circumstances and needs of the offender. The sentencing amendments to the Code reflected the existing case law going back many years, in which trial judges and appeal courts throughout Canada, with the assistance of counsel, attempted to fashion appropriate sentences.
[59] In effect, Parliament was confirming that trial and appellate courts, in weighing the various principles that go into the sentencing process, should use restraint, while protecting society, when considering the appropriateness of using incarceration as a sanction.
The Legislative Framework, The Criminal Code, Part XXIII, SENTENCING
Section 718 – Fundamental Purpose of Sentencing
The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
Section 718.1 – Proportionality
A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
Section 718.2 – Sentencing Principles
A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,
(ii) evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner or child, or
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim shall be deemed to be aggravating circumstances,
(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or
(v) evidence that the offence was a terrorism offence;
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
Section 718.3 – Discretion in Sentencing
(1) Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence.
(2) Where an enactment prescribes a punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence, but no punishment is a minimum punishment unless it is declared to be a minimum punishment.
[60] In addition to this framework, the two counts before this court to which Mr. Rashid pleaded guilty, Attempt B & E, and Theft Under, based on the Crown elections, are punishable by maximum terms of imprisonment of 14-years and 6-months, respectively:
Punishment for Theft
Section 334 – Except where otherwise provided by law, everyone who commits theft
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, where the property stolen is a testamentary instrument or the value of what is stolen exceeds five thousand dollars; or
(b) is guilty
(i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or
(ii) of an offence punishable on summary conviction,
where the value of what is stolen does not exceed five thousand dollars.
Punishment for Breaking and Entering
Section 348 – Breaking and entering with intent, committing offence or breaking out
(1) Every one who
(a) breaks and enters a place with intent to commit an indictable offence therein,
(b) breaks and enters a place and commits an indictable offence therein, or
(c) breaks out of a place after
(i) committing an indictable offence therein, or
(ii) entering the place with intent to commit an indictable offence therein,
is guilty
(d) if the offence is committed in relation to a dwelling-house, of an indictable offence and liable to imprisonment for life, and
(e) if the offence is committed in relation to a place other than a dwelling-house, of an indictable offence and liable to imprisonment for a term not exceeding ten years or of an offence punishable on summary conviction.
Punishment for Attempts, Accessories
Section 463 – Except where otherwise expressly provided by law, the following provisions apply in respect of persons who attempt to commit or are accessories after the fact to the commission of offences:
(a) every one who attempts to commit or is an accessory after the fact to the commission of an indictable offence for which, on conviction, an accused is liable to be sentenced to imprisonment for life is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years;
(b) every one who attempts to commit or is an accessory after the fact to the commission of an indictable offence for which, on conviction, an accused is liable to imprisonment for fourteen years or less is guilty of an indictable offence and liable to imprisonment for a term that is one-half of the longest term to which a person who is guilty of that offence is liable;
(c) every one who attempts to commit or is an accessory after the fact to the commission of an offence punishable on summary conviction is guilty of an offence punishable on summary conviction; and
(d) every one who attempts to commit or is an accessory after the fact to the commission of an offence for which the offender may be prosecuted by indictment or for which he is punishable on summary conviction
(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding a term that is one-half of the longest term to which a person who is guilty of that offence is liable, or
(ii) is guilty of an offence punishable on summary conviction.
Punishment in Summary Conviction Proceedings
General Penalty
Section 787 (1) – Unless otherwise provided by law, everyone who is convicted of an offence punishable on summary conviction is liable to a fine of not more than five thousand dollars or to a term of imprisonment not exceeding six months or to both.
Case Law
Weighing the Evidence in a Sentencing Hearing
[61] The Crown submits R. v. Faulds, [1994] O.J. No 2145, provides guidance on the mitigation that should result from a guilty plea in circumstances of a strong Crown case. The Crown specifically relies on the following portion of the Ontario Court of Appeal's ruling, at paragraph 14:
14 The effect of a guilty plea in settling the appropriate sentence will vary with the circumstances of each case. In some cases, a guilty plea is a demonstration of remorse and a positive first step towards rehabilitation. In other cases, a guilty plea is simply a recognition of the inevitable. That is this case. Even where the plea is not a manifestation of genuine remorse, it may still save valuable judicial resources and provide a degree of finality from the perspective of the victims which would not exist without the plea. Those features are present in this case and should be taken into consideration in assessing the appropriate sentence.
[62] The Crown also relies on the reasoning in R. v. F. L., 2018 ONCA 83, [2018] O.J. No. 482, at paragraph 22, 23 and 24:
22 A plea of guilt does not entitle an offender to a set standard of mitigation. The amount of credit a guilty plea attracts will vary in each case. In R. v. Faulds (1994), 20 O.R. (3d) 13 (C.A.), at para. 14, this court held that "[t]he effect of a guilty plea in setting the appropriate sentence will vary with the circumstances of each case. In some cases, a guilty plea is a demonstration of remorse and a positive first step towards rehabilitation. In other cases, a guilty plea is simply a recognition of the inevitable"; see also R. v. Carreira, 2015 ONCA 639, 337 O.A.C. 396, at para. 15.
23 In my view, this case falls within the latter category. The appellant had no defence to the charges against him. The Crown's case included DNA evidence that conclusively established that the appellant had conceived a child with E.B. when she was just 12 years of age. Unlike the accused in Faulds, the appellant chose to test the Crown's evidence relating to the more aggravating aspects of his case. As a result, E.B. was made to relive the assaults in her testimony and to under-go cross-examination designed to impugn her credibility. The guilty plea, therefore, did not con-serve judicial resources or provide a degree of finality to the complainant. Any mitigating effect of the guilty plea was further reduced by the appellant's refusal to accept responsibility for all but one of the sexual assaults that the trial judge found he committed. To make matters worse, the appellant attempted to minimize his responsibility for the one admitted incident by testifying that E.B. had effectively "come on to him".
24 In these circumstances, the sentencing judge reasonably concluded that the appellant's guilty plea did not deserve any weight as a mitigating factor. I would not give effect to this ground of appeal.
"Inadmissibility" under the Immigration and Refugee Protection Act
Immigration and Refugee Protection Act (S.C. 2001, c. 27)
DIVISION 4 – Inadmissibility
Rules of Interpretation
Section 33 – The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur.
Security
Section 34 (1) – A permanent resident or a foreign national is inadmissible on security grounds for
(a) engaging in an act of espionage that is against Canada or that is contrary to Canada's interests;
(b) engaging in or instigating the subversion by force of any government;
(b.1) engaging in an act of subversion against a democratic government, institution or process as they are understood in Canada;
(c) engaging in terrorism;
(d) being a danger to the security of Canada;
(e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or
(f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b), (b.1) or (c).
Human or International Rights Violations
Section 35 (1) – A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for
(a) committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act;
(b) being a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act;
(c) being a person, other than a permanent resident, whose entry into or stay in Canada is restricted pursuant to a decision, resolution or measure of an international organization of states or association of states, of which Canada is a member, that imposes sanctions on a country against which Canada has imposed or has agreed to impose sanctions in concert with that organization or association;
(d) being a person, other than a permanent resident, who is currently the subject of an order or regulation made under section 4 of the Special Economic Measures Act on the grounds that any of the circumstances described in paragraph 4(1.1)(c) or (d) of that Act has occurred; or
(e) being a person, other than a permanent resident, who is currently the subject of an order or regulation made under section 4 of the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law).
Clarification
(2) For greater certainty, despite section 33, a person who ceases being the subject of an order or regulation referred to in paragraph (1)(d) or (e) is no longer inadmissible under that paragraph.
Serious Criminality
Section 36 (1) – A permanent resident or a foreign national is inadmissible on grounds of serious criminality for
(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;
(b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or
(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.
Application
(3) The following provisions govern subsections (1) and (2):
(a) an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily;
(b) inadmissibility under subsections (1) and (2) may not be based on a conviction in respect of which a record suspension has been ordered and has not been revoked or ceased to have effect under the Criminal Records Act, or in respect of which there has been a final determination of an acquittal;
(c) the matters referred to in paragraphs (1)(b) and (c) and (2)(b) and (c) do not constitute inadmissibility in respect of a permanent resident or foreign national who, after the prescribed period, satisfies the Minister that they have been rehabilitated or who is a member of a prescribed class that is deemed to have been rehabilitated;
(d) a determination of whether a permanent resident has committed an act described in paragraph (1)(c) must be based on a balance of probabilities; and
(e) inadmissibility under subsections (1) and (2) may not be based on an offence
(i) designated as a contravention under the Contraventions Act,
(ii) for which the permanent resident or foreign national is found guilty under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or
(iii) for which the permanent resident or foreign national received a youth sentence under the Youth Criminal Justice Act.
DIVISION 7 – Right of Appeal
Competent Jurisdiction
Section 62 – The Immigration Appeal Division is the competent Division of the Board with respect to appeals under this Division.
Right to Appeal — Visa and Removal Order
(2) A foreign national who holds a permanent resident visa may appeal to the Immigration Appeal Division against a decision to make a removal order against them made under subsection 44(2) or made at an admissibility hearing.
Right to Appeal Removal Order
(3) A permanent resident or a protected person may appeal to the Immigration Appeal Division against a decision to make a removal order against them made under subsection 44(2) or made at an admissibility hearing.
Appeal for Inadmissibility
Section 64 (1) – No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.
Serious Criminality
(2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least six months or that is described in paragraph 36(1) (b) or (c).
Principle of Non-refoulement
Protection
Section 115 (1) – A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment.
Exceptions
(2) Subsection (1) does not apply in the case of a person
(a) who is inadmissible on grounds of serious criminality and who constitutes, in the opinion of the Minister, a danger to the public in Canada; or
(b) who is inadmissible on grounds of security, violating human or international rights or organized criminality if, in the opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada.
Removal of Refugee
(3) A person, after a determination under paragraph 101(1)(e) that the person's claim is ineligible, is to be sent to the country from which the person came to Canada, but may be sent to another country if that country is designated under subsection 102(1) or if the country from which the person came to Canada has rejected their claim for refugee protection.
Regulations
Section 116 – The regulations may provide for any matter relating to the application of this Division, and may include provisions respecting procedures to be followed with respect to applications for protection and decisions made under section 115, including the establishment of factors to determine whether a hearing is required.
Case Law on the Consideration of "Collateral Consequences" on Sentencing
[63] Both the Crown and the defence counsel in this proceeding have submitted that I should be guided by the decision in the Supreme Court of Canada in R. v. Pham, [2013] S.C.J. No. 15.
[64] In the leading case of R. v. Pham, [2013] S.C.J. No. 15, the accused, a non-citizen, was convicted of two drug-related offences. In light of a joint submission by the Crown and defence counsel, the sentencing judge imposed a sentence of two years' imprisonment. Under the Immigration and Refugee Protection Act, a non-citizen sentenced to a term of imprisonment of at least two years loses the right to appeal a removal order against him or her. At trial, neither party had raised the issue of the collateral consequences of a two-year sentence on the accused's immigration status before the sentencing judge. The majority of the Quebec Court of Appeal dismissed the appeal and refused to vary the sentence.
[65] At the Supreme Court of Canada, Justice Wagner, speaking for the majority, set aside the decision of the Quebec Court of Appeal, and concluded it was appropriate to grant the variation of the sentence from two years to two years less a day, as a result of the consideration of the collateral consequences to the accused as a result of the provisions of the Immigration and Refugee Protection Act.
[66] In explaining the rationale for this result, Justice Wagner stated as follows:
6 Proportionality is a fundamental principle of sentencing. Section 718.1 of the Criminal Code, R.S.C. 1985, c. C-46, provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
7 LeBel J. explained proportionality as follows in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37:
Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system... . Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.
8 In addition to proportionality, the principle of parity and the correctional imperative of sentence individualization also inform the sentencing process. This Court has repeatedly emphasized the value of individualization in sentencing: Ipeelee, at para. 39; R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, at para. 21; R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 92. Consequently, in determining what a fit sentence is, the sentencing judge should take into account any relevant aggravating or mitigating circumstances (s. 718.2 (a) of the Criminal Code), as well as objective and subjective factors related to the offender's personal circumstances.
9 As a corollary to sentence individualization, the parity principle requires that a sentence be similar to those imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2 (b) of the Criminal Code). In other words, "if the personal circumstances of the offender are different, different sentences will be justified" (C. C. Ruby, G. J. Chan and N. R. Hasan, Sentencing (8th ed. 2012), at s.2.41).
10 Ultimately, the sentence that is imposed must be consistent with the fundamental purpose of sentencing, which is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. The sentence must have one or more of the objectives of denunciation, general and specific deterrence, separation of offenders from society [page745] if need be, rehabilitation, reparations to victims for harm done to them, promotion of a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community (s. 718 of the Criminal Code).
11 In light of these principles, the collateral consequences of a sentence are any consequences for the impact of the sentence on the particular offender. They may be taken into account in sentencing as personal circumstances of the offender. However, they are not, strictly speaking, aggravating or mitigating factors, since such factors are by definition related only to the gravity of the offence or to the degree of responsibility of the offender (s. 718.2 (a) of the Criminal Code). Their relevance flows from the application of the principles of individualization and parity. The relevance of collateral consequences may also flow from the sentencing objective of assisting in rehabilitating offenders (s. 718 (d) of the Criminal Code). Thus, when two possible sentences are both appropriate as regards the gravity of the offence and the responsibility of the offenders, the most suitable one may be the one that better contributes to the offender's rehabilitation. (Emphasis added)
12 However, the weight to be given to collateral consequences varies from case to case and should be determined having regard to the type and seriousness of the offence. Professor Manson explains this as follows:
As a result of the commission of an offence, the offender may suffer physical, emotional, social, or financial consequences. While not punishment in the true sense of pains or burdens imposed by the state after a finding of guilt, they are often considered in mitigation... .
The mitigating effect of indirect consequences must be considered in relation both to future re-integration and to the nature of the offence. Burdens and hardships flowing from a conviction are relevant if they make the rehabilitative path harder to travel. Here, one can include loss of financial or social support. People lose jobs; families are disrupted; sources of assistance disappear. Notwithstanding a need for denunciation, indirect consequences which arise from stigmatization cannot be isolated from the sentencing matrix if they will have bearing on the offender's ability to live productively in the community. The mitigation will depend on weighing these obstacles against the degree of denunciation appropriate to the offence. [Emphasis added.]
(The Law of Sentencing (2001), at pp. 136-37)
13 Therefore, collateral consequences related to immigration may be relevant in tailoring the sentence, but their significance depends on and has to be determined in accordance with the facts of the particular case.
14 The general rule continues to be that a sentence must be fit having regard to the particular crime and the particular offender. In other words, a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.
[67] Justice Wagner, in his decision, goes on to explain that, the sentencing judge's latitude in considering collateral consequences when fashioning an appropriate sentence can only go so far.
[68] He emphasizes that the sentencing judge's respect for collateral immigration consequences, and "flexibility" in sentencing cannot result in "inappropriate or artificial" sentences that attempt to avoid collateral consequences which may properly flow from a statutory scheme or other competent legislative purpose:
15 The flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament's will.
16 These consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation. Moreover, it must not lead to a separate sentencing scheme with a de facto if not a de jure special range of sentencing options where deportation is a risk.
[69] The reasoning in R. v. Pham was most recently applied by the Supreme Court of Canada in R. v. Suter, 2018 SCC 34, [2018] S.C.J. No. 34, by Justice Michael Moldaver, speaking for the majority of the court, where the accused had, prior to sentencing, already suffered from quite different, factually, "collateral consequences." The issue on appeal to the Supreme Court of Canada was whether trial judges could consider those collateral consequences in arriving at a fit sentence.
[70] In R. v. Suter the accused pleaded guilty at trial to the offence of refusing to provide a breath sample after causing a driving accident resulting in a death, contrary to s. 255(3.2) of the Criminal Code. The accused had driven his vehicle into a restaurant patio, killing a two-year-old child. Sometime after being charged, but before sentence, the accused had been abducted by vigilantes who cut off his thumb with pruning shears because of his role in causing the child's death. The trial judge imposed a four-month sentence of imprisonment coupled with a thirty-month driving prohibition. He found that the accident was caused by a non-impaired driving error, and that his refusal to provide a sample was a result of bad legal advice. The Court of Appeal allowed the Crown appeal and increased the custodial sentence to 26 months. The Court of Appeal concluded that the "vigilante violence" suffered by the accused need not be considered as a "collateral consequence" to be weighed in fashioning an appropriate sentence. In the Supreme Court of Canada, Justice Moldaver allowed the appeal and reduced the custodial sentence to one of "time-served" while opining that a fit carceral sentence, initially would have been in the range of fifteen to eighteen months.
[71] Justice Moldaver concluded that the "vigilante violence" and the resulting loss of his thumb was indeed a "collateral consequence" to be weighed in fashioning an appropriate sentence.
[72] Justice Moldaver stated, beginning at paragraph 46 of his ruling:
45 The sentencing judge found, correctly in my view, that the vigilante violence experienced by Mr. Suter could be considered -- to a limited extent -- when crafting an appropriate sentence. With respect, the Court of Appeal erred in concluding otherwise. This error also contributed to the 26-month custodial sentence it imposed.
46 As I have observed, sentencing is a highly individualized process: see Lacasse, at para. 54; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 82; Nasogaluak, at para. 43. In R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, this Court stated that a sentencing judge must have "sufficient manoeuvrability to tailor sentences to the circumstances of the particular offence and the particular offender" (para. 38). Tailoring sentences to the circumstances of the offence and the offender may require the sentencing judge to look at collateral consequences. Examining collateral consequences enables a sentencing judge to craft a proportionate sentence in a given case by taking into account all the relevant circumstances related to the offence and the offender.
47 There is no rigid formula for taking collateral consequences into account. They may flow from the length of sentence, or from the conviction itself: see R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 11; R. v. Bunn (1997), 118 Man. R. (2d) 300 (C.A.), at para. 23; R. v. Bunn, 2000 SCC 9, [2000] 1 S.C.R. 183 ("Bunn (SCC)"), at para. 23; Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289. In his text The Law of Sentencing (2001), Professor Allan Manson notes that they may also flow from the very act of committing the offence:
As a result of the commission of an offence, the offender may suffer physical, emotional, social, or financial consequences. While not punishment in the true sense of pains or burdens imposed by the state after a finding of guilt, they are often considered in mitigation. [Emphasis added; p. 136.]
I agree with Professor Manson's observation, much as it constitutes an incremental extension of this Court's characterization of collateral consequences in Pham. In my view, a collateral consequence includes any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender.
48 Though collateral consequences are not necessarily "aggravating" or "mitigating" factors under s. 718.2 (a) of the Criminal Code -- as they do not relate to the gravity of the offence or the level of responsibility of the offender -- they nevertheless speak to the "personal circumstances of the offender" (Pham, at para. 11). The relevance of collateral consequences stems, in part, from the application of the sentencing principles of individualization and parity: ibid.; s. 718.2(b) of the Criminal Code.2 The question is not whether collateral consequences diminish the offender's moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances. Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer "like" the others, rendering a given sentence unfit.3
49 Collateral consequences do not need to be foreseeable, nor must they flow naturally from the conviction, sentence, or commission of the offence. In fact, "[w]here the consequence is so directly linked to the nature of an offence as to be almost inevitable, its role as a mitigating factor is greatly diminished" (Manson, at p. 137). Nevertheless, in order to be considered at sentencing, collateral consequences must relate to the offence and the circumstances of the offender.
ANALYSIS
[73] In my view, it is the law of Canada, as set out in R. v. Ipeelee, 2012 SCC 13, [2012] S.C.J. No. 13, R. v. Pham, [2013] S.C.J. No. 15, and R. v. Suter, 2018 SCC 34, [2018] S.C.J. No. 34, that trial judges may consider the impact of "collateral consequences" among other sentencing principles, when arriving at an appropriate sentence.
[74] In light of the reasoning by the Supreme Court of Canada in Ipeelee, Pham and Suter, what is the appropriate sentence for Mr. Rashid in the case before this court.
[75] In my view, the case law on sentencing, generally, requires the sentencing judge, in arriving at a fit sentence for a particular offence and a particular offender, to weigh the sentencing principles such as specific and general deterrence as found in Part XXIII of the Code, while also considering the collateral consequences of that sentence, which includes whether or not a particular sentence would have the effect of making an individual such as Mr. Rashid subject to deportation under the Immigration and Refugee Protection Act (S.C. 2001, c. 27).
[76] In making this assessment, the case law makes clear that, in carrying out this task, the sentencing judge must not let these consequences dominate the exercise in such a way as to result in an unfit sentence.
[77] I will now look at the facts in the case at bar.
The Fashioning of a Fit Sentence for Mr. Rashid – Reviewing the Facts
The Offences – The Video Evidence
[78] From watching the video, and considering the admitted facts in this sentencing hearing, the facts do not suggest any significant planning or deliberation on the part of the accused.
[79] Mr. Rashid was visiting a rooming house next door to the dwelling house he has admitted to having attempted to enter unlawfully, the Chow residence at 1184 Gerrard Street East.
[80] Mr. Rashid is observed to make a very tentative attempt to open the sliding screen door and sliding back door to the Chow residence.
[81] After reviewing the video, I accept the defence submission that it is evident from the video that Mr. Rashid was not pursuing in any kind of determined fashion an entry into the residence.
[82] On testing the screen and door and discovering they were locked, Mr. Rashid can be seen to turn away and walk towards the rear of the property where he next enters an unlocked garden shed and takes from the shed two power tools in their carrying cases; a power drill and power saw.
[83] The video shows Mr. Rashid throw these two items over the fence separating the adjoining rooming house from the dwelling house and climbed back over the fence.
[84] Unlike many of the examples and sentencing cases for these types of offences, that arise in these courts, in this case:
(1) Mr. Rashid does not flee the neighbourhood, and secure or dispose of the stolen property immediately;
(2) His recorded actions throughout are tentative;
(3) His attempt to break-in is extremely brief;
(4) He does not break a door fixture or window, or damage the dwelling house in any way;
(5) He has no tools to assist him in his criminal purpose;
(6) He does not persist in trying to find a way into the residence, and he is easily discouraged in his pursuit of his criminal purpose;
[85] Moreover, because he remains close by, and because of the Chow family security system, which allowed for a very prompt police response, the stolen items are quickly recovered.
[86] Thus, on the evidence, I conclude that these facts, for both offences, on what this particular offender did, are on the very low end of the spectrum seen in these courts.
The Victim Statement and s. 722
[87] Mr. Brian Chow is the resident owner of the residence at 1184 Gerrard Street East.
[88] Although his statement does not comply with express provisions of s. 722 (4) or address all the issues set out in Form 34.2 in Part XXVIII (FORMS), I am going to consider it as a Victim Impact Statement under s. 722.
[89] I was not asked by the parties to conduct a Gardiner hearing in which the Crown would be required to prove an aggravating fact on sentencing to the criminal standard, I have read and considered his statement and believe I understand what he is trying to say.
The Realistic Risk of Danger to the Homeowner and his Family
[90] The Crown submits that the trauma to the homeowner and family should weigh heavily against any reduction in the sentence that would otherwise be appropriate.
[91] Mr. Chow's statement, Exhibit 2, is tendered in support of that submission.
[92] With respect, I must disagree.
[93] In evaluating the admitted facts, and the surveillance video, I am not satisfied that the Crown has proven a realistic risk of personal danger to the homeowners, such as to outweigh the many mitigating factors which are found on the evidence before this court.
[94] In my view, Mr. Chow has very good reasons to be startled and upset by Mr. Rashid's trespass on his property and attempt to enter the residence and steal personal belongings.
[95] However, after reviewing the evidence, including the video footage, I would have to say that Mr. Chow seems, in his after-the-fact e-mail which he sent to the investigating officers, to be trying to convince himself, as well as the police, of the magnitude of the impact these events had on him and his family, without sufficient objective support from the events themselves.
The Potential "Collateral Consequences" to Mr. Rashid Pursuant to the Provisions in the Immigration and Refugee Protection Act (S.C. 2001, c. 27)
Section 36(1) – Serious Criminality
A permanent resident or a foreign national is inadmissible on grounds of serious criminality for
(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;
Section 64 – Appeal for Inadmissibility
(1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.
Serious Criminality
(2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least six months or that is described in paragraph 36(1) (b) or (c).
[96] The accused in this proceeding has elected to plead guilty to two counts before this court:
(1) Attempt B & E, contrary to Section 463, clause (a) of the Code;
(2) Theft Under, contrary to Section 334, clause (b) (ii) of the Code;
[97] The Crown has elected to proceed by indictment on the first count, and by summary conviction on the second count.
[98] The first count, attempt B & E, carries with it a maximum penalty of 14 years in gaol.
[99] The second count, theft under, carries a maximum penalty of six months.
[100] By virtue of the plea to the first count, Mr. Rashid, in my view, and with the concurrence of the submissions of both counsel, by virtue of his plea, alone, is classified as inadmissible for having been convicted of an offence of "serious criminality" pursuant to section 36 (1) (a) of the Immigration and Refugee Protection Act.
[101] In my view, if a hearing was held under the provisions of the Act, and a removal order were to be made, he would not have a right to appeal under the Act.
[102] However, this possibility is rendered nugatory by the fact that Mr. Rashid has been subject to a removal order under the Act since 2006 for having committed offences defined as "serious criminality" under section 64 (2) of the Act.
[103] But this did not result in his actual removal from Canada, because he is shielded by Section 115 of the Act, which provides:
115 (1) A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment.
(2) Subsection (1) does not apply in the case of a person
(a) who is inadmissible on grounds of serious criminality and who constitutes, in the opinion of the Minister, a danger to the public in Canada; or
(b) who is inadmissible on grounds of security, violating human or international rights or organized criminality if, in the opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada.
[104] So, after a careful review of the legislation, at the end of this hearing, counsel and I are of the view that, since the Minister has not found him to be a "danger to the public" as required by section 115 (2) (a), above, he is not currently in jeopardy of being removed from Canada, and will not be in jeopardy of being removed simply as a result of his plea in this proceeding, and the sentence which this court renders today.
[105] Thus, to say this in the language of the case law regarding "collateral consequences" in my view, at least for the purposes of this sentencing hearing, nothing this court can order by way of an appropriate disposition, will have the effect of changing his current status as a protected Convention Refugee under the laws of Canada.
[106] In my view, it is my duty to sentence Mr. Rashid in this hearing to the appropriate sentence, according the sentencing provisions of the Criminal Code.
[107] In my view, I am led by those provisions to conclude that a global sentence as set out in my initial introduction to these reasons is sufficient to meet the principles set out in Part XXIII.
Weighing the Principles as Set out in Part XXIII
[108] In my view, both the criminal acts themselves, and Mr. Rashid's tragic personal history and current circumstances, are very mitigating.
[109] The property appeared to be unoccupied, and the attempt to gain entry was really just a minimal threshold to make out the offence.
[110] All property was recovered.
[111] The most aggravating feature in this hearing is his over 20 years of criminal record while living as a refugee in the country.
[112] Ironically, perhaps, in my view, this record has really served to reinforce defence counsel's submission regarding the extraordinarily difficult set of personal tragedies that the accused has encountered in his life.
[113] In my view, I find this as a reason to take the restorative approach which Parliament has enumerated in section 718.2 (d) and (e) of the Code.
[114] Mr. Rashid quietly cried while in the prisoner's box during part of this proceeding, on Friday, 12 October, when we were unable to complete the hearing because of the lateness of the hour.
[115] I have observed him carefully in court and he is always courteous and I have concluded on all the evidence that Mr. Rashid's plea is a true and sincere sign of remorse.
[116] This is also very mitigating, in my view.
[117] Although the offence of Attempt B & E is very serious, and attracts a maximum sentence of 14 years, it was a very short set of actions, and did not result in any actual harm to the occupiers.
[118] In the result, Mr. Rashid, on Count 1 will be given credit for his time served in pre-sentence custody, 89 days, calculated at the rate of 1.5 to 1, or the equivalent of 134 days or just over four and one-half months, plus one day in gaol and placed on probation for three years.
[119] On Count 2, he will be given a sentence of 15 days, concurrent, followed by a concurrent three year probation.
[120] The terms of the probation order will be:
(1) Report forthwith and thereafter as required;
(2) Not to attend or be within 100 meters of the address of 1184 Gerrard Street East in Toronto, unless travelling by TTC;
(3) To have no contact directly or indirectly with Brian Chow or his family residing at 1184 Gerrard Street East in Toronto;
(4) Take counselling as directed for:
a. Addiction to Crack Cocaine;
b. Anxiety, panic disorders and post-traumatic stress disorder due to his loss of family contact;
c. Or such other counselling as directed by and in the discretion of the probation officer, that may be deemed appropriate.
Released: 18 October 2018
Signed: Justice Paul H. Reinhardt