Her Majesty the Queen v. McKenzie
[Indexed as: R. v. McKenzie]
Ontario Reports Court of Appeal for Ontario Weiler, Pepall and Trotter JJ.A. February 15, 2017
136 O.R. (3d) 614 | 2017 ONCA 128
Case Summary
Criminal law — Sentencing — Immigration consequences — Accused convicted of sexual assault after anally penetrating co-worker at workplace Christmas party — Accused not Canadian citizen and losing right to appeal removal order if he received sentence of six months or more — Trial judge sentencing accused to nine months' imprisonment followed by two years' probation — Trial judge not erring in first determining appropriate sentence and then considering whether it would be appropriate to reduce it to avoid immigration consequences — Sentence of less than six months demonstrably unfit in circumstances of this case.
The 35-year-old accused was convicted of sexually assaulting a 19-year-old co-worker at a workplace Christmas party. He touched her buttocks and thighs, kissed her, pulled her into a washroom and pressed his penis against her anus, achieving partial penetration. The accused stopped the sexual assault when someone knocked at the washroom door. The accused was a permanent resident of Canada. He would lose his right to appeal any removal order that might be made based on a finding of inadmissibility due to serious criminality if he received a sentence of six months' imprisonment or more. The trial judge sentenced the accused to nine months' imprisonment followed by two years' probation. The accused appealed.
Held, the appeal should be dismissed.
The trial judge did not fall into the error of concluding that a previous endorsement from the Court of Appeal created a sentencing floor and that he had no choice but to impose a nine-month sentence. Although the trial judge was mistaken about some of the facts of the earlier case and his reliance on it was misplaced, the nine-month sentence was fit in all of the circumstances. The offence was serious, and the many positive factors in the accused's background had to be balanced against his troubling lack of insight into his own behaviour and the harm he caused the complainant.
The trial judge did not err in first determining what the appropriate sentence should be and then considering whether it would be appropriate to reduce the sentence to avoid the immigration consequences, instead of considering the immigration consequences along with all of the other personal factors in determining the appropriate sentence. He gave serious consideration to the accused's immigration situation, and correctly concluded that a sentence of less than six months would be demonstrably unfit for a significant sexual assault involving anal penetration.
Counsel
Eva Taché-Green, for appellant.
Kathleen E. Farrell, for respondent.
Judgment
The judgment of the court was delivered by
TROTTER J.A.
A. Overview
[1] The appellant was convicted of sexual assault, contrary to s. 271(b) of the Criminal Code, R.S.C. 1985, c. C-46, for which he received a sentence of nine months' imprisonment, followed by two years of probation. He appeals on the basis that the sentence is unfit, especially in light of the immigration consequences he faces under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA").
[2] For the following reasons, I would grant leave to appeal but would dismiss the appeal.
B. The Facts of the Offence
[3] The appellant was found guilty after a judge-alone trial. At the time of the offence, the appellant, 33, and the complainant, 19, were co-workers at a restaurant. The incident giving rise to the charge occurred at a work Christmas party. They both consumed alcohol and danced with each other; as the complainant described it, she was, "winding and grinding on him". The appellant touched the complainant's buttocks and thighs. It made her feel uncomfortable, but she did not tell him that. The appellant and the complainant kissed on the lips, even though she did not wish to do so. She did not tell the appellant that she did not want him to kiss her. The appellant pulled the complainant into a washroom and then shut and locked the door. The appellant kissed the complainant's neck, without objection. He pulled his pants down and then the complainant's, turned her around and pressed his penis into her anus, achieving partial penetration. At the time, the victim said, "No, no, no." She said she felt pain. The penetration lasted for 20 to 35 seconds.¹ When someone knocked on the bathroom door, the incident came to an end.
[4] The appellant testified, claiming that the complainant consented. The trial judge found that the complainant did not consent, and rejected the defence of honest but mistaken belief in consent, holding that the appellant had failed to take reasonable steps to ascertain whether the complainant was consenting, as required by s. 273.2(b) of the Criminal Code.
[5] In her victim impact statement, the complainant said that she felt that the appellant took advantage of her that night. She reported feeling pain after the fact. The trial judge held [at para. 17] that, while the offence was "significant", the impact on the complainant fell "lower down on the scale than in many other cases".
C. The Circumstances of the Appellant
[6] The appellant was 35 at the time of sentencing. He was born in Jamaica and came to Canada when he was about 20. He is a permanent resident.
[7] The appellant has worked regularly since his arrival. At the time of sentencing, he worked in a factory that makes fibreglass pallets. He also owns a barbershop and beauty supply store, employing others.
[8] The appellant is the father of two children born in Canada, who were ten and three at the time of sentencing. He remains in a stable relationship with the mother of his youngest child. He provides financial and emotional support to both children, and sends money to his mother in Jamaica.
[9] A pre-sentence report ("PSR") was prepared. The trial judge observed, at para. 22, "[o]verall, the pre-sentence report is positive". After considering the input of the appellant's friends and family, who consider the appellant to be an upstanding individual, the author of the PSR said:
The subject continues to maintain his innocence, which could indicate a lack of insight into his offence behaviour. He admits to having sexual intercourse with the victim . . . , however maintains that the act was consensual. He stated that he is sorry for his actions (referring to his infidelity), as it has triggered trust issues in his current relationship.
He admitted to engaging in sexual behaviour with the victim but denied it was done in a forceful manner; noting that there was consent from the victim. Minimization of the subject's actions was present throughout the interview, as he alluded to the victim being flirtatious with him.
Victim awareness by the subject is non-existent as he [is] not of the belief that he did anything illegal; only unfaithful.
[10] The trial judge said, at para. 24, that this attitude reflected a lack of remorse, to which he ascribed no weight as an aggravating factor.
D. The Trial Judge's Reasons
[11] The trial judge provided thorough reasons for sentence. After referring to the relevant sections in Part XXIII (Sentencing) of the Criminal Code, he characterized the offence as a "significant sexual assault", recognizing that the principles of denunciation and general and specific deterrence must be given significant weight. The trial judge observed, at para. 31, "[w]hile the complainant was not a minor, I note that there was a considerable age difference between the accused and the complainant". He accepted that the offence was out of character and that the appellant had [at para. 47] "excellent prospects for rehabilitation".
[12] The trial judge reviewed the authorities provided by the Crown, in support of its submission that a period of imprisonment between two to four years should be imposed. He found that the misconduct sanctioned in those cases was more serious than the appellant's behaviour. The defence submitted that the appellant receive a sentence of six months less a day. However, the trial judge noted (at para. 27) that he had not been referred to any case "which would take the range of sentence for an offence similar to this one down to the area of six months".
[13] Ultimately, the trial judge concluded that nine months' imprisonment was at the bottom of the range that would be appropriate in this case. He then turned his attention to the immigration consequences at stake for the appellant, at para. 52:
After anxious consideration, I have come to the conclusion that to impose a sentence of six months less a day, as sought by the accused, would be to impose a sentence that is demonstrably unfit having regard to the degree of violation to the sexual integrity of the complainant. I wish to add, however, that should I be found to have been in error in this regard, I would have imposed a sentence if I felt it was within an appropriate range of sentence due to the impact deportation will have on the accused.
E. The Positions of the Parties
[14] The appellant argues that the trial judge made two errors. First, he misconstrued the facts in R. v. Dahouky, [2008] O.J. No. 1665, affd [2009] O.J. No. 2190, 2009 ONCA 453, and then placed too much reliance upon it, essentially creating an artificial nine-month floor for offences of this nature. Secondly, the appellant contends that the trial judge erred in his approach to the immigration consequences triggered by the sentence he imposed.
[15] The respondent agrees that the sentencing judge misapprehended the facts in Dahouky, but that the misapprehension was inconsequential. The respondent further submits that the trial judge did not use this decision to create an artificial floor of nine months' imprisonment. Lastly, the respondent submits that the sentencing judge did not err in his consideration of the immigration consequences and that the sentence he imposed was fit.
F. Analysis
(1) Establishing an artificial sentencing floor
[16] I agree that the trial judge misapprehended the facts in Dahouky, but only to a limited degree. He erred when he said that Dahouky and the complainant were in a relationship. Moreover, the trial judge failed to realize the considerable delay between the consensual and non-consensual activity between the accused and the complainant. Arguably, the circumstances of the offence in Dahouky were more serious than the trial judge appreciated.
[17] However, the trial judge's reliance on Dahouky is problematic for a different reason, one that was not raised on appeal. Referring to that case, the trial judge said, at para. 43: "[a]n appeal by the accused, seeking a conditional sentence was dismissed. The Court of Appeal made no adverse comment about the length of the custodial sentence imposed at trial." However, despite reference in this court's endorsement to an appeal from both conviction and sentence, an examination of the court file reveals that the sentence appeal had been abandoned in advance of the hearing of the appeal. Consequently, this court's endorsement has no precedential value on the sentencing issue.
[18] I disagree with the appellant's submission that the trial judge concluded that Dahouky created a sentencing floor and felt that "he had no choice but to impose a nine-month sentence". However, I cannot say that the trial judge's reliance on this case had no impact on his analysis. At one point in his reasons, he said, at para. 43, "[b]ased on Dahouky, I conclude a sentence of nine months is within the range of sentence that is appropriate on these facts". Shortly afterwards, he said, at para. 45, "[i]t seems to me that nine months represents the bottom of the range of sentence that would be appropriate in this case based on all of the facts".
[19] In my opinion, however, despite the trial judge's misplaced reliance on this court's endorsement in Dahouky, the sentence imposed was still fit in all of the circumstances. Dahouky was just one of the numerous cases the trial judge relied upon to craft the sentence he ultimately imposed. While this court did not affirm the sentence imposed by the trial judge in Dahouky, the trial judge was entitled to rely upon the trial judge's reasons in Dahouky, along with other trial and appellate decisions, in determining the appropriate range of sentence.
[20] Relying on other decisions from this court (R. v. Garrett, [2014] O.J. No. 5031, 2014 ONCA 734; R. v. Rand, [2012] O.J. No. 5061, 2012 ONCA 731; and R. v. Thurairajah, (2008), 89 O.R. (3d) 99, 2008 ONCA 91), the Crown at trial requested a penitentiary sentence. The trial judge was not persuaded that the "significant sexual assault" committed by the appellant was as serious as the misconduct in those cases. He said that (at para. 37), "had there been a fully completed act of vaginal or anal intercourse with the complainant" in the face of her saying "No, no, no", then three years' imprisonment would have been "entirely appropriate". However, given that there was only partial penetration, and in light of the activity that preceded the assault, the case was [at para. 39] "somewhat less serious than the assaults in the cases referred to by the Crown".
[21] The mitigating value attributed to these offence features (i.e., partial penetration and prior "consensual" behaviour) is doubtful, especially when the assault only came to an end when someone knocked on the bathroom door. Having expressed a different view in his reasons for judgment (i.e., the appellant did not stop because the complainant said "no"), in his reasons for sentence the trial judge said, at para. 10, "I am not certain the encounter would have continued if that knocking had not occurred." I mention these aspects of the trial judge's reasons to demonstrate that every possible benefit was extended to the appellant in terms of the manner in which his offending was characterized.
[22] Ultimately, it must be determined whether the sentence imposed upon the appellant was "demonstrably unfit": see R. v. Lacasse, [2015] 3 S.C.R. 1089, 2015 SCC 64, at paras. 51 to 53. The sexual offence was serious, one involving anal penetration, which is generally treated as an aggravating circumstance: see R. v. R. (M.), [2014] O.J. No. 2971, 2014 ONCA 484, at para. 6. Given the superficial relationship between the appellant and the complainant, their age difference, the complainant's alcohol consumption, the circumstances in which the sexual assault took place and the impact on the complainant, the trial judge was right to characterize this sexual assault as "significant". Leaving aside immigration consequences for the moment, which I will return to below, many aspects of the appellant's background and life circumstances were positive, and the trial judge did take them into account. However, these had to be balanced against the appellant's troubling lack of insight into his own behaviour, and the harm he caused the complainant.
[23] Every case is unique. Despite the existence of sentencing ranges for particular types of offending, "[t]he determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation": see Lacasse, at para. 58. The trial judge undertook this analysis and imposed a sentence that is supported by other decisions of this court: see Garrett, at paras. 15-23; R. v. Crespo, (2016), 132 O.R. (3d) 287, 2016 ONCA 454; and R. v. R. (C.), [2010] O.J. No. 911, 2010 ONCA 176.
(2) Immigration consequences: Applying Pham
[24] The immigration consequences of the appellant's offending are extremely serious. Under s. 36(1)(a) of the IRPA, a permanent resident is "inadmissible" on grounds of "serious criminality". When R. v. Pham, [2013] 1 S.C.R. 739, 2013 SCC 15 was decided, s. 64(2) provided that a removal order based on inadmissibility due to "serious criminality" could not be appealed to the Immigration Appeal Division ("IAD") "with respect to a crime that was punished in Canada by a term of imprisonment of at least two years". Upon appeal, the IAD can stay a removal order if it is satisfied "that sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case": IRPA, s. 68(1). This provision has since been amended by s. 24 of the Faster Removal of Foreign Criminals Act, S.C. 2013, c. 16, which ousts the right to appeal "with respect to a crime that was punished in Canada by a term of imprisonment of at least six months or that is described in paragraph 36(1)(b) or (c)".
[25] The appellant submits that the trial judge erred in the manner in which he approached this issue. He contends that the trial judge ought to have considered the immigration consequences that he faced along with all of the other personal factors in determining the appropriate sentence. Instead, the trial judge, wrongly in the appellant's submission, determined what the appropriate sentence should be, and then considered whether it would be appropriate to reduce the sentence to avoid the impact of the IRPA. The appellant argues that the erroneous two-step approach employed by the trial judge resulted in a sentence that was manifestly unfit. I disagree.
[26] In Pham, Wagner J., writing for the court, discussed the interaction of immigration consequences with the principles of sentencing set out in ss. 718, 718.1 and 718.2 of the Criminal Code. Referring to proportionality, parity, rehabilitation and denunciation, Wagner J. held, at paras. 11, 14 and 16:
In light of these principles, the collateral consequences of a sentence are any consequences for the impact of the sentence on the particular offender. They may be taken into account in sentencing as personal circumstances of the offender. However, they are not, strictly speaking, aggravating or mitigating factors, since such factors are by definition related only to the gravity of the offence or to the degree of responsibility of the offender (s. 718.2(1)(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.
The general rule continues to be that a sentence must be fit in having regard to the particular crime and the particular offender. In other words, a sentencing judge may exercise his or he 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.
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.
[27] In linking immigration consequences to the principles of sentencing, Wagner J. did not prescribe a preferred methodology for determining this issue.
[28] The appellant places great reliance on R. v. Nassri, (2015), 125 O.R. (3d) 578, 2015 ONCA 316, a decision referred to by the trial judge. That decision concerned an appeal from a sentence of nine months' imprisonment imposed for robbery and possession of a weapon for a dangerous purpose. Nassri's situation under the IRPA was the same as the appellant's in this case. However, the trial judge in Nassri was not apprised of Nassri's status. On appeal, this court received fresh evidence concerning his immigration circumstances.
[29] Writing for this court, Sharpe J.A. referred to para. 14 from Pham, quoted above, and held: "Wagner J. explained, at para. 14, a sentencing judge should therefore first determine whether the sentence that avoids the collateral consequences is even a possibility" (at para. 28). Ultimately, this court reduced Nassri's sentence of imprisonment to six months less 15 days.
[30] I do not read Nassri or Pham as requiring a specific methodology for dealing with the potential immigration consequences of an offender's sentence. I acknowledge that there is language in Pham that supports the appellant's preferred approach -- considering immigration status as a personal circumstance of the offender (paras. 11 and 20). However, Pham also contains language that supports an approach whereby potential immigration consequences are factored into the equation once the sentencing judge has made a determination of what would otherwise be an appropriate sentence. Wagner J. uses the following terms or expressions, all of which signal movement from such a fixed point: "varied sentence" (para. 18); "reduced sentence" (para. 18); "reduction" (para. 20); and "adjust" (para. 20).
[31] There are merits in both approaches. The approach employed by the trial judge avoids the need to deal with immigration consequences in circumstances when it is unnecessary. For example, where an otherwise fit sentence falls below the current IRPA threshold, an offender's immigration status is irrelevant for sentencing purposes. Similarly, where a sentencing judge determines that a substantial penitentiary term is warranted, there is little point in considering the offender's immigration status in the manner contemplated in Pham, at least based on the current IRPA threshold.
[32] Moreover, the appellant's suggested approach may create difficulties for judges applying sentencing ranges. The immigration status of an offender, a highly individualized circumstance, is not embedded or reflected in the sentencing ranges for various offences that have developed in this province over time. As Wagner J. noted in the passage quoted above (in para. 26 of these reasons), immigration consequences of a given sentence are neither aggravating nor mitigating factors. As such, immigration consequences are unlike other individualized factors that are generally considered when applying sentencing ranges. Viewed in this light, immigration consequences might best be addressed separately, and only if necessary.
[33] In Lacasse, the court discussed the nature of sentencing ranges. Writing for the majority, Wagner J. wrote the following, at paras. 57 and 58:
Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered "averages", let alone straightjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case[.]
There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical equation. It involves a variety of facts that are difficult to define with precision. This is why it may happen that a sentence that, on itself face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances[.]
[34] Returning to the immigration context, in his earlier decision in Pham, Wagner J. warned (at para. 16) that the consideration of immigration consequences "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". The appellant's approach risks doing just that.
[35] Finally, I am not persuaded that the competing approaches to addressing immigration consequences will make any difference at the end of the day. What is important is that, whatever mode of analysis is utilized, sentencing judges give the issue serious consideration in determining a fit sentence.
[36] Returning to the facts of this case, the trial judge did give serious consideration to the appellant's immigration situation. He thoroughly considered the issue and, after "anxious consideration", concluded that it would not be appropriate to impose a sentence of imprisonment that was less than six months. Indeed, he could find no jurisprudential support for such a lenient sentence in the circumstances of this case, nor could counsel on appeal point us to any authority. To have imposed a sentence of less than six months' imprisonment would have involved reducing the sentence solely for the purpose of avoiding the impact of the IRPA, something that the court in Pham, para. 15, held inappropriate. See, also, R. v. Badhwar, [2011] O.J. No. 1541, 2011 ONCA 266, at paras. 42 to 45; R. v. Freckleton, [2016] O.J. No. 777, 2016 ONCA 130, at para. 2; and R. v. Mohammed, [2016] O.J. No. 4717, 2016 ONCA 678, at para. 3. It would have resulted in a demonstrably unfit sentence for a "significant sexual assault" involving anal penetration.
G. Conclusion
[37] While I would grant leave to appeal sentence, I would dismiss the appeal.
Appeal dismissed.
Notes
¹ In his reasons for judgment, the trial judge said that the penetration lasted 20 to 35 seconds. In his reasons for sentence, he said it continued for 20 to 30 seconds.
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