Court File and Parties

CITATION: R. v. Morgenrood, 2011 ONCA 366

DATE: 2011-05-09

DOCKET: C52921

COURT OF APPEAL FOR ONTARIO

Laskin, Feldman and MacPherson JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dylan Lee Morgenrood

Appellant

Counsel:

Ian R. Smith, for the appellant

Greg Skerkowski, for the respondent

Heard and released orally: May 6, 2011

On appeal from the sentence imposed on September 18, 2009, by Justice Stephen J. Hunter of the Ontario Court of Justice.

ENDORSEMENT

[1] Following a preliminary inquiry, the appellant pled guilty to one count of aggravated assault in the Ontario Court of Justice. Justice Hunter imposed a sentence of three years, taking into account six months’ credit for time served (the appellant actually served five months and three days of pre-sentence custody). The appellant appeals his sentence. He also applies to have fresh evidence admitted in support of his appeal.

[2] The appellant was 23 years old when he committed a particularly vicious assault on the complainant. The complainant was rendered unconscious, hospitalized, and took some time to recover. The Crown sought a sentence of 4-5 years and the defence proposed two years.

[3] The appellant advances two grounds of appeal.

[4] First, the appellant asserts that the sentencing judge imposed an unreasonably harsh sentence.

[5] We do not accept this submission. In light of the circumstances of the offence and the offender, a sentence of three years and six months was not unduly harsh.

[6] Second, the appellant submits that the sentencing judge erred by failing to give sufficient weight to a relevant factor in sentencing the appellant. The factor in play was the almost certain deportation of the appellant to South Africa if he received a penitentiary term.

[7] This is not a case where the deportation factor was not raised at the sentence hearing: see, for example, R. v. B.R.C., 2010 ONCA 561. Indeed, the trial judge raised the issue during the Crown’s submission:

[A]s I understand it, with his record particular regard to this offence that if a penitentiary term was imposed he would be deported, and if he would be deported, which seems to be a fait a compli, would I not consider that to be significant since he came to this country as a young teenager and will now be prohibited from remaining?

Crown counsel responded in this fashion:

Your Honour can take that into account in terms of the overall sentence but it shouldn’t be a significant factor because we don’t know if he’s actually going to be deported. My experience in the past has been that sometimes it takes 10 years, sometimes it takes 15 years, sometimes things happen that prevent the deportation. It’s a possibility and it’s a strong probability that it will take place but there’s no guarantee that it will and the sentence should reflect what an individual should receive for this offence with these antecedents.

[8] Defence counsel made the potential deportation of the appellant the central point of his sentencing submission. He said:

But there is a human side to Mr. Morgenrood as well, he is a 24 year old, South African National, who came to Canada at age 14 and that, as you’ll see in the pre-sentence report, represented a significant transition in his life. Unfortunately he never did obtain citizenship and at this point he’s there is a significant consequence to this conviction. He is facing deportation, in fact the wheels have started rolling with respect to having him deported. Mr. Morgenrood did run a preliminary inquiry as per his Constitutional right but, didn’t do so out of any spite for the victim nor to somehow try to beat the charges on a technicality so to speak, but did so because of this threat of deportation, it is a very real threat which exists. Mr. Morgenrood has been contacted by Canada Border Services already and they are pursuing the deportation of Mr. Morgenrood. Which is particularly difficult given that Mr. Morgenrood’s entire family and social network exists here in Canada. He has nothing to go back to once he is sent back to South Africa.

[9] In his reasons, the sentencing judge said this about the deportation factor:

I agree with [Crown counsel] that the fact he will most probably be deported is not a critical factor for the court to consider, but it is, in my view, of some significance since it will potentially alter his life circumstances and is a high probability for him.

[10] It is clear from these passages that the sentencing judge was aware of the potential deportation issue, caused counsel to address it, and addressed it himself in his reasons. Based on the record and submissions before him, we cannot say that the sentencing judge gave insufficient weight to this factor.

[11] That leaves the appellant’s application to introduce fresh evidence. The fresh evidence has three components. First, a formal deportation order has been made against the appellant. Second, the appellant’s mother explains in an affidavit the current family situation (mother, step-father and brother live in Calgary; father, grandmother and aunt live in New Zealand; no close family member lives in South Africa). Third, a pastor from the Quinte area describes her involvement with the appellant at the Warkworth Institution, including the anger management program he is taking under her supervision. Both the appellant’s mother and pastor (who are former residents of South Africa) describe the difficulties the appellant will have if he is forced to return to South Africa after a 14-year absence and with no family network to support him.

[12] With the benefit of this enhanced record, including information about his family support system in Canada and the complete absence of any support in South Africa, we think it is appropriate to reduce the sentence to two years less a day (minus six months credit for pre-sentence custody) plus three years of probation upon his release, the terms of which we assume can be worked out by counsel.

[13] The appeal is allowed in accordance with these reasons.

“J. I. Laskin J.A.”

“K. Feldman J.A.”

“J. C. MacPherson J.A.”