COURT FILE NO.: CR-22-90 DATE: 20230901

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Julia De Vuono and Theo Sarantis, [1] for the Crown

- and -

SUKHMANPREET SINGH Ayesha Abbasi, for the Defendant

Defendant

HEARD: July 31, 2023

REASONS FOR SENTENCE

DURNO J.

[1] On August 22, 2021, 17-year-old N.G. called 9-1-1 saying she was being held captive in the basement of 302 Lagerfeld Drive, had been there for a day and had been beaten and choked. Police arrived and found her in the basement. Four men including Sukhmanpreet Singh were arrested and charged with various offences.

The Offence

[2] Sukhmanpreet Singh pled guilty to assault causing bodily harm between August 19 and 21, 2021. He appeared for sentencing on July 31, 2023. On that date I imposed the sentence of time served of 6 months less 1 day and 12 months probation with reasons to follow. [2] These are the reasons.

The Agreed Statement of Facts

[3] N.G. met Harkuwar Singh on Snapchat. They began to chat and she met with him to smoke marijuana. Two days later, they met again and he introduced her to Amritpaul Singh. The men raised the idea of her working in the sex trade as a way of making money. She agreed.

[4] One day, while working under their control N.G. was driven to their house by a friend. Sukhmanpreet Singh took a picture of the car’s license plate and showed it to Harkuwar Singh. He hit N.G. Sukhmanpreet Singh held him back while he was hitting her. They both apologized to her afterwards.

[5] On August 19 or 20, 2021, Amritpaul Singh, Harkuwar Singh and Sukhmanpreet Singh accused N.G. of stealing 16 pounds of marijuana from the residence. She denied stealing the marijuana or knowing there was any marijuana in the basement. N.G. told them that the day it went missing she had gone to a friend’s house.

[6] The next day, they texted her in the morning asking if she wanted to hang out and to send them her location. She did. Sukhmanpreet Singh, Amritpaul Singh and one or two other males picked her up. As soon as she was in the car, Amritpal Singh slapped her, asking where the weed was located. She was taken to the residence where they told her to go to the basement. Once there Sukhmanpreet Singh and Amritpal Singh slapped her repeatedly.

[7] Eventually, Harkuwar Singh came to the basement and joined the beating. Harkuwar Singh and Amritpal Singh hit N.G. in the head with their shoes. Amritpal Singh also hit her in her thighs, shoulder, back and arms with a metal pipe, threatened to burn her with a torch by holding it close to her and slapped her repeatedly.

[8] After the beating, she was left in the basement for 30 to 40 minutes. N.G. was then told to go to the garage where they were washing a car. Once there she was sprayed with a hose while fully clothed. Later that evening Amritpal Singh recorded a video of N.G. being questioned about the missing marijuana by two men who were off camera.

[9] Before sunrise on August 21, 2021, N.G. was brought to the garage where Amritpal Singh, Harkuwar Singh, Sukhmanpreet Singh and Adarshpal Singh were waiting. Another male who said he was from British Columbia was present and told her he wanted his weed back. N.G. denied taking it. She was punched with a closed fist in the stomach and on the right side of her face by the man from B.C. During this time Sukhmanpreet Singh and Amritpal Sing kept telling N.G. they were going to kill her. All of the men except Adarshpal Singh hit N.G.

[10] N.G. was then taken to the basement where Amritpal Singh grabbed her arm, slapped her face, stuffed a cloth into her mouth and hit her on the side of the head, causing deafness in her left ear. Harkuwar Singh grabbed her head and slammed it off the concrete floor. The man from B.C. put a torch to her chin and lit it. N.G. was able to smell her burned hairs.

[11] Eventually, N.G. made up a story that a friend forced her to steal the marijuana. They then beat the “hell out of” her before leaving her in the basement.

[12] When the men left N.G. noticed that Amritpal Singh had left his cell phone in the basement. She used it to call 9-1-1. Amritpal Singh realized he had left his phone, went back to the basement, saw N.G. on the phone and hit her on the side of the face.

[13] After the police found N.G. and she was taken to hospital with the following injuries: a perforated eardrum, black swollen eyes, a fat cut lip, burn marks to her chin and bruises throughout her body.

[14] When the facts were read in on the guilty plea, counsel were asked which injuries were being relied upon as “bodily harm.” Counsel were to consider that issue but agreed that the offender caused at least one of the injuries noted. In submissions, Ms. Abbasi submitted the bodily harm was bruising. Further, the offender was not present for the more serious assaults in the basement. The Crown did not address those issues in submissions.

The Positions of Counsel

[15] The offender had been in custody for 23 months. Counsel agreed he should not serve any more time. Where they parted ways was on whether there should be a conviction.

[16] For the Crown, Ms. De Vuono submitted there should be a conviction with the pre-trial custody noted as time served and a suspended sentence and probation or pre-trial custody noted plus 1 day. The Crown submits that this is not a case for a discharge given all of the circumstances. The seriousness of the offence requires a conviction with time served included as part of the sentence.

[17] A discharge would permit the offender to have a “clean slate” after the automatic removal of the discharge from CPIC. It would be wrong to order time served and a discharge because time served implies a conviction. With a discharge there is no conviction. With regards to the offender’s submission that he desires to remain in Canada and with no status here he will be removed from Canada with a conviction, Ms. De Vuono disputes whether the offender has any ties here.

[18] For the offender, Ms. Abbasi submitted there should be a conditional discharge in addition to the pre-trial custody being noted. This could be accomplished by noting the pre-trial custody as a mitigating factor only without it being noted as part of the sentence or the sentence could include the pre-trial custody as ‘time-served” and a conditional discharge.

[19] Ms. Abbasi submitted that since Mr. Singh has no status in Canada, he will have immigration consequences regardless of the sentence. Section 36 of the Immigration and Refugee Protection Act, makes the offender inadmissible if there is a conviction. A discharge does not involve a conviction. Accordingly, a discharge would allow the offender to have some hope of remaining in Canada.

[20] Counsel agreed on the following corollary orders that will issue. DNA and s. 109 orders.

[21] There was no Victim Impact Statement.

The Offender

[22] Sukhmanpreet Singh is 26 years of age. He was born in India where his father is a police officer and his mother a homemaker. His father has an alcohol problem and was physically abusive to the offender and his mother.

[23] The offender completed grade 12, came to Canada where he completed a computer programming course and worked doing deliveries after obtaining a work permit. His work permit has expired so that he has no status in Canada at this time.

[24] He was charged with assault in 2017, became depressed, started using marijuana and became addicted to heroin. He returned to India for treatment for his addiction but the program involving shaming and discipline, was not what would be regarded as treatment in Canada.

[25] His mother sent him back to Canada where he was basically couch surfing and living in his car. He continued to use drugs and became involved with the others to get drugs. While before August 1, 2021, Sukhmanpreet Singh lived at the residence where N.G. was found, Amritpal Singh and Harkuwar Singh had moved into the residence, permitting Sukhmanpreet Singh to park his car in the garage and sleep in his vehicle.

[26] Since he has been custody he has been on methadone, taken counseling and completed three programs noted in the certificates: Anger Management, Thoughts to Actions and Substance Abuse.

[27] Despite the fact the offender was not charged with sex trade offences, as a result of the outstanding charges his father refuses to have any contact with the offender. He has forbidden the offender’s mother from talking to Sukhmandeep Singh, threatening to kill her if she did. The offender seeks to bring his mother to Canada if he is permitted to remain. He has a friend he can stay with in Canada and employment available with a previous employer. Ms. Abbasi submits that if he is returned to India he has no one there.

The Factors in Aggravation

1. While he was neither a party to any sex trade offences nor to the unlawful confinement, his assaults were committed while at least one other person was assaulting N.G.
2. While it is not admitted that he was involved or present for the two most serious assaults in the basement, he personally assaulted N.G. on two days, on the first with slaps and in an unspecified manner for the second. On the first date he slapped her repeatedly. It is not clear how many times he struck her on the second date.
3. He threatened to kill N.G. while others were assaulting her in the garage on August 21, 2021.
4. N.G. was vulnerable and only 17 years old. That she was under 18 years of age is a statutory aggravating factor: s. 718.2(a)(ii.1) of the Criminal Code.

The Factors in Mitigation

1. The offender pled guilty, saving court time and the public expense of a trial. Guilty pleas do not all merit the same mitigation. It is wrong to assign a fixed percentage reduction regardless of the facts. As the Court of Appeal held in R. v. Daya, 2007 ONCA 693: “… the credit to be given for a guilty plea cannot be reduced to any formula, but "will vary with the circumstances of each case". A non-exhaustive list of factors includes the timing of the guilty plea, if there was a preliminary inquiry, whether the Crown’s witnesses were vulnerable, and whether there were triable issues. Generally, a plea entered in the Ontario Court merits the greatest mitigation. This was not an early plea. The case came to the Superior Court pursuant to a Direct Indictment. In March of 2022 a trial date was set for April 11, 2023 for 10-12 days. On April 11, 2023 the offender indicated he was going to plead guilty. The plea was entered on June 23, 2023. Importantly, N.G. did not have to testify at the offender’s trial. That another former co-accused went to trial and she had to testify was beyond this offender’s control. The plea brings finality to the conviction stage of the proceedings involving the offender. When there are convictions after a trial, appeals often follow. On occasion, new trials are ordered because of errors at the first trial, new evidence or changes in the law. That the plea was entered during the pandemic when courts were facing significant challenges having cases tried within the Charter mandated period adds significance to the guilty plea. Finally, at any time it is important that accused persons who can enter valid guilty pleas will receive a meaningful reduction from the sentence that would have been imposed after a trial. Otherwise, there is no incentive to plead guilty.
2. He has taken some important steps to address his drug addiction.
3. He is remorseful and apologized.
4. He has been subjected to harsh jail conditions with 346 days of triple bunking in a cell with two others when it is smaller than the General Population cells built for two. That is a deplorable condition. He has been in during Covid lockdowns and outbreaks at Maplehurst. There were 231 lockdowns to the last date of the records.
5. On one occasion he held back Harkuwar Singh when he was hitting N.G.
6. He has work available.

Additional Issues

[28] First, that there is no Victim Impact Statement is not a mitigating factor. It would be wrong to infer there was no impact from the offence. As the Court of Appeal held in R. v. Whelan, 2011 ONCA 74: “ The trial judge seems to have thought that the absence of a victim impact statement entitled him to infer that the victims had not suffered any “unusual” harm.

[29] Second, is what use can be made of the CPIC printout showing Sukhmanpreet Singh was found guilty of assault and received a 9 month conditional discharge on February 21, 2019 and the fact that there was a prior incident. From Ms. Abbasi’s submissions that entry related to a 2017 arrest. No further details were noted although Ms. Abbasi submitted that the impact of being charged led the offender to start using hard drugs. In submissions, the Crown relied on the prior discharge as an aggravating factor, submitting the record was within the retention period for discharges. That was the only reference to the retention period during submissions.

[30] For the following reasons, I find the retention period has passed. After discharges were introduced in the 1970s, the Court of Appeal held that a prior discharge could not be regarded as a previous record but was relevant in determining whether a second discharge could be granted: R. v. McLean (1978), 7 C.R. (3d) S-3 (Ont. C.A.).

[31] Since 1995, s. 6.1 of the Criminal Records Act includes:

6.1 (1) No record of a discharge under section 730 of the Criminal Code that is in the custody of the Commissioner or of any department or agency of the Government of Canada shall be disclosed to any person, nor shall the existence of the record or the fact of the discharge be disclosed to any person, without the prior approval of the Minister, if

(a) more than one year has elapsed since the offender was discharged absolutely; or

(b) more than three years have elapsed since the day on which the offender was ordered discharged on the conditions prescribed in a probation order.

Purging C.P.I.C.

(2) The Commissioner shall remove all references to a discharge under section 730 of the Criminal Code from the automated criminal conviction records retrieval system maintained by the Royal Canadian Mounted Police on the expiration of the relevant period referred to in subsection (1).

[32] The exhibit shows the CPIC inquiry was made on August 22, 2021, well within the retention period. However, the retention period ended before it was introduced as an exhibit in June, 2023. Pursuant to s. 6.1(1)(b) the conditional discharge the offender received on February 21, 2019 could not be disclosed after February 21, 2022.

[33] The Court of Appeal judgment in R. v. Montesano 2019 ONCA 194 addressed the issue. Montesano had received an absolute discharge 2011 for assaulting his wife. When he pled guilty in 2016 to assaulting his wife again, the trial judge relied upon the 2011 discharge in refusing to grant a “second” discharge. The Court of Appeal held:

[11] The prohibition on disclosure of discharges is complete. Section 6.1(1)(a) of the CRA precludes disclosure not to selected persons but to any person. It is of no moment whether the record remains in provincial record bases; it cannot be disclosed without the minister's prior approval, and that approval was not obtained in this case prior to sentencing by the trial judge. The appeal judge properly concluded that the trial judge erred in considering the respondent's absolute discharge, although the Crown was entitled to put before the court "the factual reality that the incident on which there has been a plea is not the first incident". [emphasis added]

[34] While not addressed in arguments and given the timing issues that arose, on this record I am inclined to the view that the admissibility and use of the CPIC entry is determined as of the date it is introduced, not the date it was obtained. Accordingly, the CPIC entry is inadmissible. That is the first part of the CPIC entry.

[35] The second part is whether the underlined section of the Montesano quotation. In support of its use, it could be argued that a judge can consider uncharged offences on sentence (R. v. Round, [1981] O.J. No. 14 (C.A.)). Here, the previous incident might be relevant to whether or not to impose a discharge. Since full submissions were not heard on this issue, I would be hesitant on this record to find that the caselaw for uncharged offences being considered was applicable where the offender was charged with the offence but the entry removed by legislation.

[36] As noted later, one of the factors to be considered when determining if a discharge is appropriate is whether the offender is otherwise a person of good character. Here, Ms. Abbasi submitted that the offence was out-of-character while readily acknowledging the discharge as everyone proceeded on the basis it was properly before the court.

[37] With regards to whether there should be a discharge in Montesano the Court of Appeal held:

[26] We accept that the respondent has made progress since the assault: he has expressed remorse; has taken steps to address his alcohol abuse; has completed a Partner Assault Response Program; and has reconciled and attended counselling with his wife.

[27] However, s. 718.2(a)(ii) of the Criminal Code, which was in force in 2016 when the respondent was sentenced, makes abuse of an offender’s spouse or common-law partner an aggravating factor. This, combined with the fact of his admitted 2011 assault against his wife, renders a conditional discharge inappropriate in these circumstances, despite the mitigating effect of his guilty plea.

[28] Accordingly, we allow the appeal in part and set aside the appeal judge’s order remitting this matter for a sentencing hearing. We impose a suspended sentence and 12-month probation period in accordance with the terms set out by the trial judge. The other terms and conditions of the sentence imposed by the trial judge remain in place.

[38] In these circumstances, I will proceed on the following basis. First, the offender has no previous convictions or findings of guilt. Accordingly, he is sentenced as a first-offender: R. v. Barclay, [2018] O.J. No. 664 (C.A.); R. v. Naraindeen (1990), 75 O.R. (2d) 120 (C.A.). Second, the admitted prior incident removes the possibility of proceeding on the basis the events involving the offender and N.G. were isolated incidents. Third, given the submission this offence was out-of-character, the previous incident is a factor to consider.

[39] Third, the issue of what “bodily harm” suffered by N.G. supported the finding of guilt was raised. The only admission in the offender’s submissions was that it was bruising.

[40] The Criminal Code in s. 2 defines “bodily harm” as “any hurt or injury to a person that interferes with the health or comfort of a person and that is more than merely transient or trifling in nature.” In a series of photographs, exhibit #2 shows the injuries suffered by N.G. There is bruising and abrasions to her face and scalp, large bruises on her arms, abrasions on her legs, and bruises on her back.

[41] It is neither necessary nor possible to identify which injuries the offender inflicted for three reasons. First, in the absence of an agreement regarding the offender’s presence in the basement when J.D. was burned, had her head struck against the cement floor and she became deaf in one ear, I am not proceeding on the basis the offender was in any way involved in that conduct. He was neither a principle nor a party. He was involved in the assaulting of N.G. but was not one of the leaders in terms of physical participation or overall leadership. I accept he was the least involved.

[42] On both dates when he assaulted N.G. he was one of several people involved at the same time in assaulting her. On the first date at least one if not two others were assaulting her in the basement. On the second date, he assaulted N.G. at the same time three others were assaulting her after the person from B.C. had punched her in the head and stomach. On both occasions the offender acted in concert with others: In R. v. McMaster, [1996] 1 S.C.R. 740, where when dealing with a homicide the Supreme Court of Canada stated, at para. 33:

It is a well-established principle that where a trier of fact is satisfied that multiple accused acted in concert, there is no requirement that the trier of fact decide which accused actually struck the fatal blow.

See also, R. v. Brouillard, 2016 ONCA 342

[43] The offender caused or was a party to N.G. being bruised. The bodily harm does not have to substantially or gravely interfere with the health or comfort of the victim provided it is more than merely transient or trifling in nature. Nor is it a prerequisite to a finding of bodily harm that the victim’s functional use of the body part was harmed. Provided the injury interferes with the victim’s health or comfort beyond a very short time or to a minor degree, the injury is ‘bodily harm:’ R. v. Rabieifar, [2003] O.J. No. 3833 (C.A.), R. v. Peterson, 2017 ONSC 7008, R. v. Tabanao, 2020 ONSC 3501, R. v. Duke, [2019] O.J. No. 6866 (S.C.), R. v. Moquin, 2010 MBCA 22, R. v. Khan, 2014 ONSC 6541.

[44] Here, there are photographs of numerous injuries including many bruises that on these facts establish ‘bodily harm’ given the photographs were taken on August 22, the number of bruises, counsels’ admission those injuries amounted to ‘bodily harm’ for which the offender was responsible as a principle or party, and the bruises were neither brief, fleeting nor minor. The harm was neither trifling nor transient. Nor was the distress minor.

Pre-trial Custody Credit

[45] The offender was in custody from the date of his arrest, August 21, 2021 to July 31, 2023 – 23 months and 11 days (710 days). While the use to be made of pre-trial custody will be addressed later, applying Summers credit alone with a slight rounding up, 35 months credit would be available to consider on whether a discharge is appropriate. Given the offence to which the plea was entered, on a guilty plea the time served credit to date exceeds the sentence he would have received.

[46] There would also be Duncan credit to consider.

The Purposes and Principles of Sentencing

[47] There is no mathematical formula for determining what constitutes a just and appropriate sentence. Sentencing is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community: ” R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 91.

[48] The fundamental and cardinal principle of sentencing is proportionality: Criminal Code s. 718.1 The sentence “must be severe enough to denounce the offence but must not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence” (R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 42; see also R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37): R. v. Bissonnette, 2022 SCC 23, at para. 50.

[49] In our 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:” R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37.

[50] Assault causing bodily harm when proceeded by indictment has a 10 year maximum sentence. As the Supreme Court of Canada held in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424:

96 Maximum sentences help determine the gravity of the offence and thus the proportionate sentence. The gravity of the offence includes both subjective gravity, namely the circumstances that surround the commission of the offence, and objective gravity (L.M., at paras. 24-25). The maximum sentence the Criminal Code provides for offences determines objective gravity by indicating the "relative severity of each crime" (M. (C.A.), at para. 36; see also H. Parent and J. Desrosiers, Traité de droit criminel, t. III, La peine (2nd ed. 2016), at pp. 51-52). Maximum penalties are one of Parliament's principal tools to determine the gravity of the offence (C. C. Ruby et al., Sentencing (9th ed. 2017), at s. 2.18; R. v. Sanatkar (1981), 64 C.C.C. (2d) 325 (Ont. C.A.), at p. 327; Hajar, at para. 75).

[51] The offender’s moral culpability is high given there were assaults on two dates while others were assaulting N.G. Since he was involved in the first allegations about N.G. stealing the marijuana, his assaultive behaviour was related to the allegations. He was an active participant in assaultive behaviour on two dates. To be sure, he was not as involved as others. However, his conduct maintains a high level of moral culpability.

[52] The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, 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 objectives set out in s. 718 of the Criminal Code. The relative importance of each objective varies with the nature of the crime and the characteristics of the offender: R. v. Lyons, [1987] 2 S.C.R. 309, at p. 329.

[53] Parliament has provided the following objectives in sentencing: s. 718.1

(i) To denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct.

(ii) General deterrence, “intended to discourage members of the public who might be tempted to engage in the criminal activity for which the offender has been convicted” (R. v. B.W.P., 2006 SCC 27, [2006] 1 S.C.R. 941, at para. 2).

[54] Pursuant to s. 718.01 of the Criminal Code:

When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

[55] In R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, the Supreme Court of Canada held:

104 … while s. 718.01 requires that deterrence and denunciation have priority, nonetheless, the sentencing judge retains discretion to accord significant weight to other factors (including rehabilitation and Gladue factors) in exercising discretion in arriving at a fit sentence, in accordance with the overall principle of proportionality [citation omitted]: Friesen, at para. 104

[56] The other objectives may be given significant weight, but neither priority nor equivalency: Lis, at paras. 47-48, 53; R. v. T.J. (2021), 2021 ONCA 392, 156 O.R. (3d) 161.

(iii) The second form of deterrence is specific deterrence, “ meant to discourage the offender before the court from reoffending.”

(iv) To separate offenders from society where necessary.

(v) To assist in rehabilitating offenders, designed to reform offenders with a view to their reintegration into society so that they can become law-abiding citizens.

(vi) To provide reparations for harm done to victims or to the community.

(vii) To promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[57] Another principle in the Criminal Code is restraint: s. 718 Prison is the sanction of last resort. When a court is considering other sanctions, the court should seek the least intrusive sentence and the least quantum which will achieve the overall purpose of an appropriate and just sanction: R. v. Hamilton and Mason (2004), 70 O.R. (3d) 1, (C.A.) at para. 96. However, like all principles of sentencing, restraint operates in conjunction with other principles that often pull in a different direction: R. v. Reesor, 2019 ONCA 901, at para. 8.

[58] Parliament has directed that similar offenders who commit similar offences in similar circumstances should receive similar sentences, the parity principle: s. 718. Parity is a tool that helps calibrate proportionate sentences because at its core, it is about treating similar offenders who commit similar offences in similar circumstances similarly: R. v. A.J.K., 2022 ONCA 487, at para. 81.

[59] Ranges are a form of appellate non-binding guidance, a tool to assist judges, that provide a place to begin the exercise of reaching a fit and proportionate sentence: R. v. Bissonnette, 2022 SCC 23, at para. 1.

[60] The range of sentences imposed for assault causing bodily harm is very wide from an absolute discharge to significant penitentiary terms. Given the point of departure for counsel in this case is whether a discharge is appropriate, I will focus on that issue. But first, the examination of caselaw will be put into context by considering the criteria for granting a discharge, absolute or conditional.

The Criteria of a Discharge

[61] Pursuant to s. 730 of the Criminal Code,

730 (1) Where an accused … pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

Effect of discharge

(3) Where a court directs under subsection (1) that an offender be discharged of an offence, the offender shall be deemed not to have been convicted of the offence …

Where person bound by probation order convicted of offence

(4) Where an offender who is bound by the conditions of a probation order made at a time when the offender was directed to be discharged under this section is convicted of an offence, including an offence under section 733.1, the court that made the probation order may, in addition to or in lieu of exercising its authority under subsection 732.2(5), at any time when it may take action under that subsection, revoke the discharge, convict the offender of the offence to which the discharge relates and impose any sentence that could have been imposed if the offender had been convicted at the time of discharge, and no appeal lies from a conviction under this subsection where an appeal was taken from the order directing that the offender be discharged.

Factors to Consider regarding Discharges

Is a Discharge in the Best Interests of the Offender?

[62] To satisfy the first criteria, it presupposes specific deterrence is not a relevant consideration, except to the extent required in a probation order, nor is the offender's rehabilitation through correctional or treatment centers required, except to the same extent. Normally the offender is a person of good character, without previous conviction, it is not necessary to enter a conviction to deter them from future offences or to rehabilitate them, and the entry of a conviction may have significant adverse repercussions. In some cases the relatively minor or trivial nature of the offence will be an important consideration and in others the unusual circumstances peculiar to the offender may lead to an order that would not be made in the case of another offender: R. v. Sanchez-Pino (1973), 11 C.C.C. (2d) 53 (Ont. C.A.); R. v. Fallofield (1973), 13 C.C.C. (2d) 450 (B.C.C.A.) However, it is not a prerequisite to imposing a discharge that there be significant adverse consequences: R. v. Myers (1997), 37 C.C.C. (2d) 182 (Ont. C.A.).

Would a Discharge be Contrary to the Public Interest?

[63] The usual point of departure between counsel when the issue is whether to grant a discharge involves the second prong of the test – would a discharge be contrary to the public interest. When considering this area, the concern for general deterrence, while it must be given due weight, does not preclude the judicious use of the provisions: Fallowfield, supra. If there is a necessity for a sentence that will deter others, it is a factor telling against the imposition of a discharge: Sanchez-Pino, supra. The general principles of punishment must always be pliable enough to accommodate a careful consideration of the effect of punishment on the individual. Knowledge of speedy apprehension, arrest and trial should be an effective deterrent to persons like the offender who may be tempted to commit such an offence: R. v. Meneses (1974), 25 C.C.C. (3d) 115, at p. 117.

[64] Further, an offender who receives a discharge does not get off “Scott-free.” They are bound by probation with a conditional discharge and earn their discharge by complying with the terms. Meneses, at p. 117. If there are further offences, the discharge can be vacated: s. 730(5) of the Criminal Code.

[65] In R. v Hayes, [1999] O.J. No. 938 (Gen.Div.) at para. 31 Hill J. held.

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

Court of Appeal Judgments dealing with Discharges for Assault Causing Bodily Harm

[66] The Court of Appeal judgment in R. v. Wood (1975), 24 C.C.C. (2d) 79 (Ont. C.A.) is frequently cited where a discharge is being sought for assault causing bodily harm. The Court held:

2 The respondent is a much bigger man than the complainant and without provocation he committed an assault with his fists upon the complainant resulting in serious injury to the face and eyes of the complainant.

3 The respondent is 20 years of age. He has had no other convictions and the pre-sentence report evidences that he has been a model citizen. He has aspirations to be a professional hockey player and it is urged that a conviction would disable him from residing in the United States and that such residence would be necessary if he were hired by an American team.

4 It is our view that in cases of violence resulting in injury the requirement of general deterrence to the public militates, in almost every case, against the grant of a conditional discharge, notwithstanding considerations personal to the accused. [emphasis added]

5 In this case, accordingly, we are of the opinion that a grant of conditional discharge would not be in the public interest; we are not convinced that the interests of the appellant will be seriously prejudiced by the registration of a conviction.

6 In the result the appeal will be allowed and the sentence below set aside and in its place there will be a sentence of a fine of $300, followed by probation for one year on the conditions imposed by His Honour Judge Greco. The respondent will have 30 days to pay the fine.

[67] In R. v. Huh, 2015 ONCA 356, the Court of Appeal allowed a Crown appeal from a discharge and entered a conviction for an offence with more serious injuries than here as follows:

4 The assault committed by the respondent while he was severely intoxicated, was extraordinarily violent. The beating left the victim with facial fractures and post-concussion syndrome. He suffered brain damage with impairment in the higher executive functions. The victim was forced to withdraw from his university courses in finance. He has problems communicating in a fluent manner due to difficulties in organizing his thoughts. He also is fearful for his safety and for his future.

5 The pre-sentence report about the appellant was not especially positive. He was presented as a multi-substance abuser in denial of his need for rehabilitation. The Crown proposed a "significant" jail sentence within the reformatory range, on the basis that, according to the pre-sentence report, the respondent had no insight into his behaviour and the public ought to be protected from him. However, the Crown did not propose a specific sentence.

6 The sentencing judge adjourned the proceedings, at least in part in order to give the respondent an opportunity to show her that the public interest would not be offended by the imposition of a discharge.

7 In the months between the sentencing submissions on June 2, 2014 and the sentencing date of September 15, 2014, the respondent completed 144 hours of community service. He also met with a social worker at the Centre for Addiction and Mental Health and was awaiting placement into a counselling program.

8 Several additional positive letters of reference were filed, including from Reverend Mathias Kim. As a member of St. Andrew's Church, the respondent had participated in a mission trip to Mexico and regularly helped organize youth activities. He had also been working at his family's convenience store.

9 The sentencing judge relied primarily on the sentencing objectives of individual deterrence and rehabilitation in the circumstances of young first offenders. She was impressed by the respondent's progress, and noted that he had "gained some maturity, some insight" and demonstrated his recognition of the importance of the matter. She said:

In the circumstances I am going to grant you that conditional discharge because you have earned it, sir. You have done, as indicated, significant amount of community service, you have shown now some insight, and appropriately I am going to grant you that discharge. I'm going to place you on probation for two years, sir, because you do need that continued support and access to treatment.

12 We adopt the observation in R. v. Wood (1975), 24 C.C.C. (2d) 79 (C.A.), at para 4: "[i]n cases of violence resulting in injury the requirement of general deterrence to the public militates, in almost every case, against the grant of a conditional discharge, notwithstanding considerations personal to the accused." In our view, a conditional discharge does not meet the public interest in this case. While a discharge may have been in the interest of the appellant, in this circumstance, it was not in the public interest. Accordingly, leave to appeal the sentence is granted, and the sentence appeal is allowed. It now falls to this court to impose what we deem to be an appropriate sentence.

[68] The Court of Appeal imposed a 6 month sentence followed by 24 months probation.

[69] In R. v. McDonald, 2013 ONCA 295 the Court of Appeal allowed an appeal and granted a conditional discharge where the offender was 20 years of age at the time of the offence, had agreed to compensate the victim for his injuries, successfully completed a probationary period, paid the fines imposed and completed two years of medical school.

[70] In R. v. McDonald, 2014 ONCA 512, the Court of Appeal imposed discharges noting several basis upon which it was inappropriate to send the appellants back to jail. They had served 9 days pre-trial custody. The offence was assault, not assault causing bodily harm. There were no serious injuries. They have been on bail for 5 years. The Court noted that a conviction would impact on his ability to travel to see one of their parents.

[71] The Crown’s cases included R. v. Gervais, 2021 ONCA 404 where the Court of Appeal upheld a 4 year sentence for an older offender with a lengthy criminal record. The injuries were severe.

[72] In R. v. Philip, 2021 ONCA 295, 9 years was upheld although that case involved a carjacking and home invasion.

[73] In R. v. Khamea, 2016 ONCA 550, 3 years and 6 months was upheld albeit in a case that involved forcible seizure as well. The case includes that aggravated assault and assault causing bodily harm are “highly analogous” where serious injuries are caused.

[74] Based in Khamea, the Crown relied on Code J.’s most helpful analysis of aggravated assault cases in R. v. Tourville, 2011 ONSC 1677, where His Honour identified three ranges: first, in exceptional cases suspended sentences, second, the mid-range 18 months to 2 years less 1 day and the high end, 4 to 6 years for recidivists with serious prior records if they were involved in an unprovoked or premeditated assault with no element of self-defence.

[75] In R. v. Khamea, 2016 ONCA 550, the Court of Appeal upheld 3 years and 6 months years where the offender was involved in a parking lot assault and alleyway beating outside a nightclub. That offender was serving a conditional sentence at the time. He was the leader of a group that engaged in a premeditated attack resulting in serious injuries. He was sentenced for assault causing bodily harm and forcible seizure. Considering this offender’s pre-trial custody and Duncan credit he would have available, this case supports a finding the offender has done more time than would be fit on a guilty plea to assault causing bodily harm on these facts.

[76] In R. v. Thompson, 2013 ONCA 202, for assault causing bodily harm and unlawful confinement the Court of Appeal imposed 7 years and 2 months on one appellant and 6 years and 8 months on the other.

[77] In R. v. Lee, 2022 ONCJ 325, 4 years was imposed for unlawful confinement and aggravated assault. That was a 30-hour confinement.

[78] The offender relied upon the following cases. In R. v. Riley 2020 ONSC 6145, Monahan J. (as he then was) imposed a conditional discharge for possessing 42 grams of marijuana for the purpose of trafficking. The offender was found guilty of 3 of 10 counts in an indictment after a jury trial. He was found guilty of assault causing bodily harm where Riley refused to leave the victim’s apartment, hit him over the head with a piece of a broom and kneed him in the chest. The victim was partially disabled and used a walker and a motorized scooter for mobility. As a result of the assault he went to hospital and was diagnosed with bruised ribs. He felt pain and had trouble breathing for roughly one week. A Victim Impact Statement showed significant long-term impact on the victim’s mental health.

[79] There was a pre-sentence report and Enhanced Pre-sentence Report in the case. It is implicit in the Reasons for Sentence that the trial judge found there was a connection between the offender’s background and his offending: at par. 46.

[80] The Crown did not seek a custodial sentence. In light of 11 days pre-trial custody and 13.5 months on house arrest, the Crown sought a suspended sentence and 24 months probation. The defence sought conditional discharges for assault causing bodily harm and being unlawfully in a dwelling house.

[81] Riley was 18 years old at the time of the offence and was 21 at the time of sentencing. He had a Youth Record for assault causing bodily harm but no adult record. While he was a Canadian citizen, the offender submitted that a conviction would impact on his future employment prospects.

[82] His Honour found discharges were not appropriate given the aggravating factors for the assault causing bodily harm and unlawfully in a dwelling house.

[83] In R. v. Burghardt, 2020 ONCJ 517, West J. imposed a conditional discharge. That offender pled guilty to assault causing bodily harm and assault after both complainants had testified at his trial. The Crown proceeded summarily. He had a brief altercation with two security workers who were attempting to escort him from a bar. His Honour found the incident took around 10 seconds. The offender was under the influence of alcohol that “clouded his perception of what was happening.” He struck one security worker in the face, requiring two stitches to the upper lip. He pushed the second security worker into a wall requiring physiotherapy for her hyperextended arm. She was off work for several weeks. Her Victim Impact Statement that she did not feel jail was appropriate as the offender was “just a kid.”

[84] The offender had no record, was gainfully employed and had taken positive rehabilitative steps. He was diagnosed with an anxiety disorder.

[85] In R. v. Stojanovski, 2022 QCCQ 216, a conditional discharge was imposed for assault causing bodily harm with the trial judge considering 5 days pre-trial custody, the extremely low risk of re-offending, and the most unusual facts. Stojanovski noticed that an escort whose services he had procured stole his phone and wallet and tried to stop her from leaving by putting his arm in the car window in which she was a passenger. Someone rolled up the window trapping his arm and dragging him along as the car started. He broke the window. The car stopped, the driver got out, went to the trunk and approached him with a bottle in his hand. Stojanovski punched the driver in the face twice and kicked him in the face when he was on the ground causing a concussion. Only the kick was the basis of the sentencing. I infer that was because the punches were in self-defence.

[86] In R. v. Xiao, [2017] O.J. No. 4771 (C.J.) where the Crown proceeded summarily, the only issue was whether there should be a suspended sentence and probation or a conditional discharge. The offender had completed 77 hours of community service and there was a psychological assessment. The offender punched and kicked the victim when he was down. The offender was on a student visa. A conditional discharge was imposed.

[87] In R. v. Zhang and Zhoa [1992] O.J. No. 597 (O.C.J.) Vaillancourt J imposed a conditional discharge on two employees at a Mandarin restaurant who became involved in a physical altercation with a co-worker. The victim received a 12 stitch cut over his left eye. His Honour noted the Court of Appeal in Wood did not say a discharge was never appropriate for assault causing bodily harm, just that in almost every case the facts militate against the imposition of a discharge. He noted several cases where discharges had been granted. Zhang lost his job as a result of the offence. He was a landed immigrant whose visa was about to expire if he did not extend it. He was attending high school. Zhao was a 22 year old first offender and a political refugee. He was a demonstrator in Tiananmen Square in China in 1989. Their actions were out-of-character and isolated. Convictions could have had immigration consequences. The degree of violence was not such as to bar a conditional discharge.

[88] There are other cases where discharges have been imposed for assault causing bodily harm including R. v. Fantinato, 2018 ONCJ 710; R. v. Pera, 2016 ONSC 2800, [2016] O.J. No. 2428 (SCJ); R. v. McGee, [2011] O.J. No. 863 (CJ); R. v. Cruz, 2018 ONCJ 8; R. v. Adamson, 2017 ONCJ 174; R. v. Fensom, 2016 O.J. No. 3954 (SCJ), and R. v. Murphy, [2007] O.J. No. 327 (SCJ).

The Relevance of Immigration Issues

[89] In R. v. Melo (1975), 26 (2d) 510, Arnup J.A. held:

"... the fact that a convicted shoplifter may be in jeopardy under the Immigration Act is not, in itself and in isolation, a sufficient ground for the granting of a conditional or absolute discharge. It is one of the factors which is to be taken into consideration by the trial court, in conjunction with all the other circumstances of the case. In a case where, clearly, on the facts disclosed a discharge would not be granted, the fact that the convicted person may be subject to deportation is not sufficient to 'tip the scales' the other way and lead to the granting of a discharge."

[90] In R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, the Supreme Court held:

11 … 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.

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.

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.

[91] The following points can be derived from the authorities:

1. Discharges are available for any criminal offence for which there is no minimum sentence provided the maximum sentence is under 14 years.
2. While most often imposed for minor offences that is not prerequisite to granting a discharge.
3. At times where the offence is more serious, if the offender was acting out-of-character, under particular stress or other unusual circumstances a discharge could be appropriate.
4. The more serious the offence, the rarer a discharge will be.
5. That an offender has served some time in pre-sentence custody does not preclude the imposition of a discharge. How the pre-sentence custody is addressed varies. Section 719(3) of the Criminal Code provides that a court may take into account any time spent in pre-trial custody. It is not mandatory. Similarly, it is not mandatory to consider or apply Duncan mitigation. Accordingly, a sentencing judge is not required to reference pre-trial custody. It is apparent from the authorities that in the majority of cases where discharges have been imposed where there was pre-sentence custody that the pre-trial custody is regarded as a mitigating factor but not included in the actual sentence. This would appear to be the appropriate way to address the issue if it is going to be considered. All of the Court of Appeal judgments noted earlier where discharges were imposed and there was pre-trial custody proceeded on that basis. See also, R. v. Carson (2004, 185 C.C.C. (3d) 541 (Ont. C.A.) I have been unable to find any case where the sentencing judge or appellate court imposed a discharge noting time served as part of the sentence. For example, “time served of 2 months for which the offender is credited with 3 months and a conditional discharge with 12 months probation.” [3]

Should there be a conditional discharge?

[92] A discharge is available. The issue is whether it is appropriate for this offence for this offender in this community. With regards to the first criteria, I find a discharge would be in the offender’s best interests notwithstanding this is neither a trivial nor a minor offence. Nor was the offender experiencing an unusual or stressful situation that could account for the offending. However, there is no need to enter a conviction to specifically deter him after the time he has spent in jail, nor is there a need for a conviction to address any concerns regarding rehabilitation given there would be a period of probation. He has no previous record.

[93] The problematic element is whether a conditional discharge would be contrary to the public interest. It would for the following reasons.

[94] The first is a reason that standing alone results in a discharge being inappropriate. The nature of the assaults and the context in which they occurred is important and determinative. On both occasions when the offender participated with one or more person in assaulting N.G. it was adult men assaulting a 17 year old young woman. While she may have lived at the residence at one time, she was brought to the house and ordered around the home, initially being told to go to the basement, being brought to the garage twice and again to the basement.

[95] For the first assault the offender participated in, N.G. had been told to go to the basement where she was assaulted for stealing the marijuana. The second assault occurred in the garage after the offender and another had threatened to kill N.G. and another person had punched her, all over the alleged theft of the marijuana. In these circumstances, a discharge would not adequately reflect the requisite deterrence and denunciation: R v Dewan, 2014 ONCA 755. A discharge would not adequately address the proportionality requirement or meet the public needs even including the pre-trial custody and Duncan mitigating as mitigating factors.

[96] Parliament’s directive that for offences against persons under 18 years of age denunciation and general deterrence must give paramount consideration assists in informing that conclusion. What is required is a conviction and some pre-trial custody noted as part of the sentence.

[97] Second, given the first finding, I am not persuaded on these facts that the offender’s immigration status should result in or contribute to a finding that a discharge is appropriate. Ms. Abbasi submitted that absent any immigration issues her submission would been for a discharge. With respect, I am not persuaded this offence could result in a discharge absent the immigration issues the offender faces. To find a discharge is appropriate on these facts relying on the immigration factors would run contrary to the directive of the Supreme Court of Canada regarding letting immigration consequences dictate the sentence, resulting in a sentence below what is appropriate. It is not a case where there are two possible appropriate sentences.

[98] Third, given the circumstances of the offence, I am persuaded that there is a need to reflect that the sentence included a custodial component and that the entry be readily available for longer than 3 years. During submissions, I had thought that there was a 3 year waiting period from the end of the probation period as part of a conditional discharge so that with 3 years probation there would be a record of the entry for 6 years from the date it was imposed. Reviewing s. 6.1 of the Criminal Records Act, it would be 3 years from July 31, 2023 when the discharge would be removed subject to an application to the Minister. That would be insufficient.

The Sentence

[99] For the reasons noted, Sukhmanpreet Singh was sentenced to time served of 6 months less 1 day (as agreed by counsel on July 31, 2023 when counsel were told there would be a conviction) and 12 months probation on the terms dictated. DNA order. s. 109(2)(a) order for 10 years and s. 109(2)(b) order for life. Fine Surcharge waived.

[100] The remaining count regarding Sukhmanpreet Singh is withdrawn.

Durno J.

Released: September 1, 2023

Footnotes

[1] Ms. De Vuono was the assigned Crown but was unavailable on July 31, 2023.

[2] When the plea was entered, it was known that completing the case before August 1 was going to be challenging. After the second date for submissions, counsel were advised that because of a number of judgments that had to be given in court on July 31, I might only be able to provide a “bottom line” on July 31, 2023, my last date sitting.

[3] In R. v. Pera, 2016 OJ No. 2485 (SCJ) a conditional discharge was granted “with credit for 72 days pre-trial custody.” The sentence is not “time served.” This is the only case that I could find where this wording was used in the sentence.