Court of Appeal for Ontario

Date: 2017-05-25 Docket: C61936

Judges: Rouleau, Trotter and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

Airdamanjeet Sohal Appellant

Counsel

Mark Halfyard and Breana Vandebeek, for the appellant Andrew Hotke, for the respondent

Heard: May 17, 2017

Appeal Information

On appeal from the order of Justice Irving André of the Superior Court of Justice, dated March 22, 2016, sitting as a summary conviction appeal court, dismissing the appeal from the sentence imposed on October 15, 2014 by Justice Paul Currie of the Ontario Court of Justice.

Reasons for Decision

Introduction

[1] Mr. Sohal was convicted of assaulting his girlfriend, contrary to s. 265 of the Criminal Code. He received a suspended sentence. He appealed his conviction and sentence to the Summary Conviction Appeal Court. Both appeals were dismissed. Mr. Sohal now seeks leave to appeal his sentence.

The Circumstances of the Offence and the Offender

[2] The case arose from an incident that occurred on a sidewalk in Brampton. Several motorists witnessed the applicant and the complainant (his girlfriend) in an altercation. The witnesses saw the applicant grab the complainant's arm and then strike her. Some of them pulled over to assist the complainant.

[3] The applicant was 22 years old at the time of sentencing. He had no prior criminal record. The applicant came to Canada from India in 2012 on a student visa. As a result of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, his conviction makes him inadmissible based on criminality. We are advised that the applicant will be deported on May 31, 2017.

[4] The sentencing judge was aware of the applicant's immigration status. He was not persuaded that a discharge, which would avoid the immigration problems accompanying a conviction, was a fit sentence for this incident of domestic violence. He entered a conviction and imposed a suspended sentence with nine months of probation. The Summary Conviction Appeal Court Judge ("SCACJ") agreed and dismissed the appeal against sentence.

Analysis

[5] The applicant argues that leave to appeal should be granted because the SCACJ erred in: (1) relying on aggravating factors that were not relied upon by the sentencing judge; and (2) misapplying the law as it relates to the immigration consequences faced by the appellant. Applying the principles in R. v. R.R., 2008 ONCA 497, 90 O.R. (3d) 641, we would not grant leave to appeal on either ground.

(1) Aggravating Factors

[6] In his reasons for dismissing the appeal, the SCACJ mentioned that the offence occurred in a public space and "ceased only after the intervention of a few Good Samaritans." The SCACJ also mentioned that one of the witnesses said that, in the aftermath of the assault, the applicant attempted to justify his actions on the basis of his own cultural beliefs. He considered this to be an additional aggravating factor.

[7] In referring to the Good Samaritans, the language used by the SCACJ may have been imprecise. The trial judge did not find that the assault stopped because others physically intervened or restrained the applicant. However, it is clear that those who responded to what they saw did so with the purpose of assisting the complainant and preventing further problems.

[8] We agree that the SCACJ erred in relying upon an imputed cultural justification as an aggravating factor. The Crown did not rely upon it as an aggravating factor. The trial judge did not find that the applicant said these words. He did not consider this factor in sentencing the applicant.

[9] In all of the circumstances, these references in the reasons of the SCACJ were inconsequential. They had no tangible impact on his review of the fitness of the sentence that was imposed. The trial judge's reasons for sentence show that he applied the proper principles and the sentence imposed is owed deference. There was simply no basis for the SCACJ to intervene, nor is there any basis for this court to interfere. Consequently, leave is denied on this ground.

(2) Immigration Consequences

[10] The applicant argues that the SCACJ misapplied the law relating to the impact of the applicant's immigration status on the fitness of the sentence. We disagree.

[11] Although the SCACJ failed to mention R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, which had been referred to during submissions, he considered a number of earlier cases that addressed this issue. One of the authorities he relied on was R. v. Hamilton, 71 O.R. (3d) 1. The reasoning in that case was expressly adopted by the Supreme Court in Pham, at para. 19.

[12] The failure to cite Pham was inconsequential. The SCACJ was satisfied that the sentencing judge gave appropriate consideration to the applicant's immigration status. The applicant's immigration consequences were given serious consideration by both judges: see R. v. McKenzie, 2017 ONCA 128, 35 C.R. (7th) 216, para. 35. Neither judge was persuaded that it ought to have resulted in a more lenient disposition. We see no basis to intervene.

Disposition

[13] Leave to appeal is denied.

"Paul Rouleau J.A." "G.T. Trotter J.A." "David Paciocco J.A."