WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. H.E., 2015 ONCA 531

DATE: 20150715

DOCKET: C59048

Hoy A.C.J.O., Doherty and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

H.E.

Respondent

Philippe G. Cowle, for the appellant

Saara Wilson, for the respondent

Heard: May 19, 2015

On appeal from the sentence imposed on June 12, 2014, by Justice William A. Gorewich of the Ontario Court of Justice.

Benotto J.A.:

[1] The respondent lived with his wife for sixteen years – thirteen years in Iran and nearly three in Canada. During the entire time, he regularly assaulted her and their children.

[2] He was convicted of sexual assault and four counts of assault for the crimes that occurred in Canada.

[3] The sentencing judge imposed a total sentence of 18 months in a reformatory plus probation for one year. In doing so, he credited the respondent with an unspecified amount of time for his pre-trial house arrest and took into account the “cultural impact” of the move from Iran to Canada. The Crown seeks leave to appeal the sentence. For the reasons that follow, I would grant leave and allow the appeal.

BACKGROUND

[4] The respondent and his now former wife were married in Iran in 1996. They have two sons born in 1997 and 1999. What follows is a summary of the evidence given at trial by the wife and the younger son. Their evidence was accepted by the trial judge. The respondent did not testify.

[5] It was routine for the respondent to violently assault his wife and children and to rape her. This pattern continued when the family moved to Canada in 2009.

[6] Since moving to Canada, the respondent sexually assaulted his wife at least three to four times a month. She would try to push him away; she pleaded with him and cried. The respondent told her to shut up and not say anything. He forced her to have sex with him by hitting her, pulling her hair, pinching her and forcefully removing her clothes. The sex was painful. She cried out quietly so the children would not hear. She suffered painful bruises to her legs and sides.

[7] In addition to the sexual assaults, the respondent was violent to her and the children. While there were many instances of assaults, two incidents formed the basis of the assault convictions against the wife: the respondent slapped her in the face; and he hit her with a pair of slippers. One of the children testified that he witnessed the respondent slapping and kicking his mother on several occasions. He also saw bruises on his mother as a result of such attacks.

[8] The respondent also abused the two children. He would slap them, kick them, punch them, and hit them with a belt. On one occasion he locked them outside on a snowy winter day while they were wearing nothing but shorts and T-shirts. They waited barefoot for 40 minutes until their mother arrived home.

[9] One night in the spring of 2012, the respondent started to hit the children in the face and body and kick them on the legs. Their mother tried to protect the children by standing between them and the respondent. The respondent pushed her away and told her it was none of her business. The respondent left the home that night, and by June 2012 had moved in with a woman he had been secretly dating since February of that year. This woman would become (and remains) his common-law spouse.

[10] The abuse did not end when the respondent left the home. On one occasion when he returned to the home to collect mail, he threatened to kill the boys because they had told their mother about his new relationship. The younger boy became so terrified that he took to sleeping with a knife.

[11] The police would likely never have become involved with the family had the younger son not confided in a teacher at his school. In October 2012, he told a teacher who called the principal who in turn informed the police. The police interviewed the respondent’s wife and charges were filed. She testified that she probably would not have gone to the police on her own because she felt extreme shame. Also, she was not aware that help was available. She testified that in her country of origin no one would help because the respondent’s conduct was considered normal.

Trial Judgment

[12] The respondent was convicted of one count of sexual assault for the many instances of forced intercourse, and four counts of assault – two counts with respect to his wife and two with respect to the children. Although the convictions were limited to the incidents alleged in the indictment, the sentencing judge accepted that there had been a pattern of domestic violence which reflected “longstanding and ongoing” abuse.

Reasons for Sentence

[13] The Crown sought a penitentiary term of four years. The respondent sought one year of incarceration with up to 18-24 months’ probation.

[14] The wife and the two children indicated in their victim impact statements that they hoped the respondent would get counselling for his “anger issues” and become a better person. They did not want him to go to jail. The sentencing judge found that the younger son, who testified as a Crown witness, loved and was loyal to both parents. During the trial, the younger son said: “My dad did bad things to me but he is still my dad.”

[15] In her victim impact statement, the wife expressed surprise that there were potentially serious consequences to the respondent’s conduct. The sentencing judge said that this “suggests a significant cultural gap between what is not accepted in this country, and what is accepted in her native country.”

[16] The sentencing judge referred to the aggravating factors of domestic violence, breach of trust and the involvement of minor children. Mitigating factors included the lack of a criminal record. The judge also referred to:

• the presentence report which he termed: “a positive report, except [H.E.] does not accept responsibility”;

• the “stringent bail conditions;”

• “no injuries” to the children;

• “no injuries to [the respondent’s wife]. No medical treatment was ever required. Regarding the sexual assault there was no injury”;

• the certainty of “psychological and emotional injury” which will be “long-standing”;

• the respondent as a “hardworking person” who “provides for his family” and “is active in his church”;

• the respondent’s behavior that “was not predatory in nature”; and

• “no threat of future sexual deviant behaviour” and “he is not at risk to re-offend”.

[17] The sentencing judge then returned to the issue of culture saying this:

In my considerations, I ask how much weight [should] the cultural impact of moving from Iran to Canada be given. [The respondent’s wife] testified in Iran if she complained about any abuse she would be ignored. It is a different culture, it is a different society. As far as I’m able to ascertain from the evidence those cultural differences moved with them from Iran to Canada. It is only a factor in my deliberations, and not a sentencing principle.

[18] The sentencing judge arrived at a global sentence of eighteen months in the reformatory plus probation. He sentenced the respondent to 18 months on the sexual assault conviction, 30 days for the assault on the wife with the slipper, and four months for “the balance of the assaults”, apparently referring to the other assault on the wife and the assaults on each of the children.

[19] The sentences for all the assaults were to be served concurrently with the sentence for the sexual assault.

[20] Although the sentencing judge took into account the bail conditions, citing the principles set out in R. v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321 (C.A.), he did not articulate what credit he ascribed to these conditions.

Appeal

[21] The Crown seeks leave to appeal the sentence on the basis that it is manifestly unfit. It is submitted that the sentencing judge erred in several ways, most significantly, by considering the allegedly different attitudes toward domestic violence in Iran and Canada.

Fresh Evidence

[22] Fresh evidence was admitted on consent. The fresh evidence updated the court with respect to the respondent’s current situation.

[23] The respondent was released on parole after completing six months (one third) of his prison sentence. He is still living with his common-law spouse, taking care of his two sons, and running his own carpentry business. His two sons live with him with the approval of his former wife and his parole officer. He has attended counselling on the referral of his parole officer.

ISSUES ON APPEAL

[24] The issues are:

1. Did the sentencing judge err?

2. Was the sentence demonstratively unfit and if so, what is the appropriate sentence?

3. Should the respondent be re-incarcerated?

ANALYSIS

[25] I have concluded that the sentencing judge erred in multiple ways. The cumulative effect of the errors led him to impose a sentence that is demonstratively unfit.

The Errors

[26] The errors disclosed by the sentencing judge’s reasons can be grouped into four categories:

1. The “cultural” considerations;

2. His finding that there were “no injuries”;

3. His conclusion that the there was no risk of re-offending; and

4. His imposition of concurrent sentences.

Cultural Considerations

[27] The respondent did not rely on cultural issues to justify or explain his behaviour. He did not testify, and his defence was a denial that the events took place. Yet, twice in his reasons, the sentencing judge referred to cultural issues.

[28] The first reference to a “significant cultural gap” was the sentencing judge’s explanation for the wife’s surprise at the sanctions for domestic violence. The second reference was to the “cultural impact” of moving from Iran to Canada. The sentencing judge said this was a “factor” in his deliberations, but “not a sentencing principle.” He stated: “As far as I’m able to ascertain from the evidence those culture differences moved with them from Iran to Canada.”

[29] The sentencing judge’s reasons indicate that he considered the cultural impact in his determination of the appropriate sentence. Although his reasons are unclear, it appears as though he considered culture as a mitigating factor. This is an error for two reasons. First, the respondent never took the position that cultural differences impacted his conduct. On the contrary, in the pre-sentence report he expressly disavowed any suggestion that he felt culturally justified in assaulting his wife and children; his defence was denial of the events. The respondent’s factum in this court took the same position.

[30] Second, and more importantly, cultural norms that condone or tolerate conduct contrary to Canadian criminal law must not be considered a mitigating factor on sentencing.

[31] The Alberta Court of Appeal commented on this issue in R. v. Teclesenbet, 2009 ABCA 389, 469 A.R. 193. In that case, the offender had immigrated to Canada five days before slapping his wife and beating her with a shoe. The wife was hospitalized, and the offender was convicted of assault causing bodily harm. The sentencing judge accepted as a mitigating factor the offender’s claim that, in his home country of Sudan, his behaviour was commonplace. The offender received a conditional discharge and 12 months’ probation. The Crown’s appeal was allowed. McDonald J.A. wrote for the court, at para. 9:

The law of Canada applies equally to all who are in Canada regardless of the length of time they have resided here. To suggest that it might be acceptable to beat one’s wife with a stick elsewhere does not mitigate the seriousness of the offence and is contrary to the purpose of domestic violence laws.

[32] Earlier, in R. v. Brown (1992), 1992 ABCA 132, 125 A.R. 150 (C.A.), the same court wrote, at para. 29:

Even if there were before the court a more articulated submission based on social attitudes within a particular ethnic or religious community to which the accused belongs, the courts of this province and of this country should be alert to the risk of moderating sentencing policy in such a case where to do so would mean that some women in Canadian society would be afforded less protection than others.

[33] A cultural practice that is criminal in Canada does not mitigate the perpetrator’s conduct for sentencing purposes. Cultural differences do not excuse or mitigate criminal conduct. To hold otherwise undermines the equality of all individuals before and under the law, a crucial Charter value. It would also create a second class of person in our society – those who fall victim to offenders who import such practices. This is of particular significance in the context of domestic violence. All women in Canada are entitled to the same level of protection from abusers. The need to strongly denounce domestic violence is in no way diminished when that conduct is the product of cultural beliefs that render women acceptable targets of male violence. If anything, cultural beliefs may be an aggravating factor enhancing the need for specific deterrence in cases where the sentencing judge is satisfied that the offender continues to maintain those views at the time of sentencing.

No Injuries

[34] At least four times in his reasons the sentencing judge said that there were “no injuries” as a result of the assaults or the sexual assault. This is a misapprehension of the evidence. The wife was bruised by the abuse, sexual and otherwise. The children were slapped, kicked and hit with a belt. The sentencing judge commented that medical attention was not sought. This does not mean there were no physical injuries.

No risk to reoffend

[35] The sentencing judge made an explicit finding that the respondent was at no risk to reoffend and an implicit finding that, consequently, specific deterrence was not an issue. The record does not support such a finding.

[36] The material before the sentencing judge demonstrated that the respondent was sorry only for the situation that he found himself in. He put the blame on his wife and assumed no responsibility. The pre-sentence report states:

The subject denies guilt for the current matter before the Court and defers blame for his negative contact with the Criminal Justice System to his ex-spouse ... who ... is a victim of the current offences.

The subject has not accepted responsibility for his behaviour as evidenced through his denial of the offences and designating his ex-spouse as the cause of his negative contact with the Criminal Justice System. This may limit a meaningful response to any relevant community based counselling programs.

[37] With respect to this report, the sentencing judge said:

It is a positive report, except [the respondent] does not accept responsibility. A court will look at lack of insight in considering sentence. Having said that, I do note at page four of the pre-sentence report that he expresses shame regarding his current circumstances with the justice system. He acknowledged his offences as dishonourable in nature.

[38] A fair reading of the pre-sentence report indicates that the shame he felt did not arise from remorse, or from his actions, but rather from the predicament he found himself in as a result of the police investigation into his family life.

[39] The letter from a therapist, also before the sentencing judge, was based on self-reports from the respondent. The letter made it clear that the respondent was upset for himself. There was no indication of remorse. He continued to declare his innocence.

[40] The sentencing judge chose to ignore these facts and instead described the respondent as “a hardworking person” and one who “is a law-abiding citizen, except for the matters [before the court]”.

[41] Given the lack of remorse, what then was the evidence that there was no risk to reoffend? I see none, except perhaps for the evidence of his common-law partner in the pre-sentence report that the offences were “out of character”. The respondent, in his late forties, was found guilty of routinely raping his wife over a many years, and of physically attacking his own children. These offences were not isolated incidents. By nearly all accounts, the respondent had difficulty controlling his anger. This engaged an inference that the respondent was a risk to re-offend. In R. v. Inwood (1989), 1989 263 (ON CA), 48 C.C.C. (3d) 173 (Ont. C.A.), at p. 181, Howland C.J.O wrote for this court:

[W]here there is a serious offence involving violence to the person, then general and individual deterrence must be the paramount considerations in sentencing in order to protect the public. In my opinion, this principle is applicable not only to violence between strangers but also to domestic violence. Domestic assaults are not private matters, and spouses are entitled to protection from violence just as strangers are. [Emphasis added.]

[42] There was no basis for the sentencing judge to find that specific deterrence was not important in this case.

Concurrent Sentences

[43] The sentencing judge imposed a low global sentence. He imposed sentences for the assaults against the children and made them concurrent to the sexual assault and assault against their mother. The assaults on the children were distinct from the assault and rapes of their mother. In light of the low global sentence, the sentences for the children’s assaults should have been consecutive.

Appropriate Sentence

[44] The global sentence of 18 months is manifestly unfit. In R. v. Smith, 2011 ONCA 564, 274 C.C.C. (3d) 34, at para. 87, this court held that the sentence range for cases involving forced intercourse with a spouse is 21 months to 4 years. The cases at the lower end of the range involve single events.

[45] In R. v. D.J., [2010] O.J. No 5878, counsel jointly recommended a sentence of three years after the guilty plea of a remorseful offender. At paras. 18-21, Justice Hill accepted the plea submissions from “experienced criminal counsel” but stated that it was at “the low end of an acceptable range.”

[46] As here, the offender in D.J. had repeatedly raped his partner. Justice Hill described the aggravating factors as “serial rape – a grossly violative intrusion on physical, emotional and psychological autonomy and dignity” (para. 16).

[47] In M.Q. the appellant was convicted of sexually assaulting his wife over a period of months using threats and force. He was also convicted of twice assaulting her with a weapon by choking her into unconsciousness. The sentencing judge imposed a sentence of three-and-a-half years for the sexual assault and two nine month sentences for the chokings, all of which were to be served consecutively. The global sentence was five years.

[48] In upholding the sentence, Goudge J.A. found, at para. 61, that the sentencing judge “properly took into account the extended time over which the abuse occurred”. Here the abuse took place over a period of years, not months. The relentless and prolonged nature of the repeated attacks reinforces the importance of the principles of denunciation and deterrence.

[49] The requirement for a high degree of denunciation and deterrence arise on the facts that the appellant raped his wife three to four times per month for nearly three years in Canada – a continuation of a pattern that began 16 years earlier. He also victimized the children. The household was terrorized such that the younger child took to sleeping with a knife. The respondent was in a position of trust in relation to these family members.

[50] Although the appellant had no criminal record, he does not benefit from any mitigation in sentence for remorse, since he has expressed none.

[51] Under these circumstances, I would impose a sentence of 44 months for the sexual assault. I would not alter the sentences on the common assaults except as follows: (i) the term for the assaults on the wife would be concurrent to the sexual assault sentence, and (ii) the four months on the assault convictions on the children would be consecutive to the sexual assault. This would result in a global sentence of four years.

Credit for Pre-sentence house arrest

[52] The appellant was under pre-sentence house arrest for approximately 18 months. The sentencing judge quoted from Downes, at para. 29:

Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistent with the fundamental principle of the presumption of innocence. House arrest is a form of punishment, albeit of a different character than actual incarceration. [Emphasis added.]

[53] The sentencing judge then said: “I will give effect to the stringent bail conditions that [the respondent] was subject to.” There is no mention of what effect is given.

[54] A review of the Judicial Interim Release Order reveals that the conditions were anything but stringent. The appellant was required to continue living with his common-law partner in the same house that they had been occupying. He could go to and from work, pick up his partner from her work, see his lawyer, and leave the house at any time if he was accompanied by his partner, or a friend. There is negligible evidence about the impact of the bail conditions on the respondent. He continued to work, attend church, and go to counselling sessions. He did not seek to vary his bail. In Downes, the terms were stringent: the offender was not permitted to leave the home for any purpose without his surety, not even to pursue employment, to attend a place of worship, or to obtain necessary medical care. In Downes, the 18-month house arrest entitled him to five months credit.

[55] The sentencing judge did not articulate the credit he awarded. The decision is therefore not entitled to deference. Since the bail conditions were not stringent, I would not grant credit.

Reincarceration

[56] In determining whether to recincarcerate an offender as a result of an increased sentence, courts have considered a number of factors. Those factors lose their significance when the original sentence imposed utterly failed to reflect the principles of denunciation and deterrence and the applicable precedents. This was not a sentence that was slightly outside of the appropriate range. It was far outside the range. On this basis alone, a stay is inappropriate. A consideration of the other factors confirms this result.

[57] Other factors include delay in the appellate process, the degree to which rehabilitation of the offender will be impacted by reincarceration and the potential for injustice if the sentence is served. The circumstances giving rise to these considerations will vary. There is some guidance on this issue from the New Brunswick Court of Appeal. In R. v. Veysey, 2006 NBCA 55, 303 N.B.R. (2d) 290, at para. 32 the court articulated a non-exhaustive list of criteria including: the seriousness of the offences for which the offender was convicted; the elapsed time since the offender gained his or her freedom and the date the appellate court hears and decides the sentence appeal; whether any delay is attributable to one of the parties; and the impact of reincarceration on the rehabilitation of the offender.

[58] These factors do not support a stay of the sentence here. There is not a significant gap between the release from jail and the release of these reasons; and the respondent’s treatment of his wife and his children led to his conviction for serious crimes. I turn to consider the impact of reincarceration on the respondent’s rehabilitation.

[59] Rehabilitation must – by its nature – involve a movement or a change for the better. On the facts before the court, the appellant is in precisely the situation he was in at the time of his sentencing. He is still living with his common-law partner. He is at the same job. The only change is that the boys, now teenagers, live exclusively with him. There is no evidence of any insight or awareness of the seriousness of his actions. On the contrary, the author of the pre-sentence report stated that the fact that he blames his ex-wife for his situation limits “any meaningful response” to counselling. In short, there is no evidence of rehabilitation and I cannot find that rehabilitation would be negatively impacted.

[60] The only potential hardship would be to his boys. There is insufficient evidence to make a determination of the family dynamics. The evidence before the sentencing judge was that the boys love both their parents. There is no evidence as to the mother’s current living arrangements, the boys’ relationship with the respondent’s common law wife or the impact of reincarceration on them. These issues, in any event, are more appropriately considered in the parole process.

[61] The court inquired from counsel whether the appellant’s time on parole thus far would be counted towards his time already served. We were told that it would. Therefore, the appellant would receive credit of around one year for time served.

DISPOSITION

[62] I would grant leave to appeal sentence and vary the sentence to the global term of four years. The probation term would be deleted. If necessary, a warrant for the arrest of the respondent would issue.

Released: “A.H.” July 15, 2015

“M.L. Benotto J.A.”

“I agree Alexandra Hoy A.C.J.O.”

“I agree Doherty J.A.”