Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20230816 DOCKET: COA-23-CR-0526

Hourigan, Brown and Monahan JJ.A.

BETWEEN

His Majesty the King Respondent

and

Armen Avansi Appellant

Counsel: Mark C. Halfyard and Lindsay Board, for the appellant Emily Marrocco, for the respondent

Heard: August 15, 2023

On appeal from the sentence imposed by Justice Kathryn A. Fillier of the Ontario Court of Justice on May 1, 2023.

Reasons for Decision

[1] The appellant and his former spouse, Tammy Chan, were in a relationship from 2004 to 2016. They have one son, A. In April 2018, the appellant took A, who was two years old, to Armenia without Ms. Chan's knowledge or consent, contrary to a parenting order. Several months later, an Armenian court accepted the Canadian family court order, and A was returned to his mother's custody. The parties then spent the next two years before the courts in Armenia while the appellant pursued further legal proceedings. Global Affairs Canada and the RCMP became involved. In December 2020, Ms. Chan was permitted to go back to Canada with A.

[2] When the appellant returned to Canada, he was arrested at the airport. He eventually pleaded guilty to one count of abduction contrary to a parenting order and one count of disobeying a court order. The appellant was sentenced to two years’ incarceration less a day, three years’ probation, and an $8,600 restitution order, among other things.

[3] He appeals his sentence, advancing the following grounds of appeal: (i) the sentencing judge erred in applying the R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 analysis for a conditional sentence; (ii) the sentencing judge erred in treating an essential element of the offence—breaching a court order—as an aggravating factor; (iii) the sentencing judge erred by failing to account for R. v. Duncan, 2016 ONCA 754 credit regarding particularly onerous conditions in presentence custody; and (iv) the sentencing judge imposed a demonstrably unfit sentence by placing undue emphasis on R. v. Mann, 2021 ONSC 7071 and ignoring other relevant, comparable jurisprudence.

[4] The appellant requests that this court convert his custodial sentence to a conditional one or reduce his custodial sentence to nine months in custody. We are not persuaded by any of these grounds of appeal and decline to interfere with the sentence imposed.

[5] On the first ground of appeal, the sentencing judge’s decision that a custodial sentence was necessary to achieve deterrence and denunciation is entitled to deference. Moreover, her decision was appropriate in the circumstances. This was an egregious case where Ms. Chan was forced to give up her life in Canada for over two years to fight for the return of her son. The financial and emotional impact on Ms. Chan was devastating. Further, A was traumatized by being separated from his mother for several months. As noted by the Supreme Court in Proulx, at para. 114, “[w]here punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravating circumstances, incarceration will generally be the preferable sanction.”

[6] Regarding the second ground of appeal, the appellant is correct that generally an element of an offence cannot be an aggravating factor: R. v. Johnston, 2011 NLCA 56, 311 Nfld. & P.E.I.R. 129, at para. 19. We accept that it was an error for the sentencing judge to cite the breach of the court order as an aggravating factor. However, context is essential in understanding the point the sentencing judge was making in her reference to the breach. The real issue at sentencing was whether the sentence should be served in the community or in a correctional facility. It is through this lens that the reasons for the sentence should be considered. The availability of a conditional sentence is influenced by the ability of an offender to comply with a court order. In this case, the breach was so flagrant and longstanding that the sentencing judge was right to consider it as a factor in determining whether a conditional sentence was appropriate. Given this context, we are not persuaded that the sentencing judge’s error impacted the sentence imposed.

[7] On the third ground of appeal, the sentencing judge expressly considered the appellant’s arguments for enhanced Duncan credit for the hardships he experienced in presentence custody, namely his inability to use his sleeping CPAP machine and the 26 days in lockdown due to COVID-19. Duncan was a brief endorsement wherein this court denied enhanced presentence credit. In the course of its endorsement, the panel noted, “in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1).” From this modest statement, a body of jurisprudence has developed wherein so-called Duncan credits have morphed into a mathematical exercise akin to R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575 credits.

[8] In R. v. Marshall, 2021 ONCA 344, this court clarified that Duncan credits are not a deduction from the otherwise appropriate sentence. Instead, they are a factor to be considered in determining the proper sentence where particularly punitive presentence incarceration conditions are extant. Because a Duncan credit is a mitigating factor, it cannot justify the imposition of an inappropriate sentence, having regard to all of the relevant mitigating or aggravating factors: Marshall, at para. 52.

[9] The appellant argues that the sentencing judge erred by acknowledging the merits of his claim for Duncan credits but not making a specific deduction from the sentence imposed. We disagree. The sentencing judge referenced Marshall, and it is evident that she considered the impact of the presentence conditions as a mitigating factor in determining the appropriate sentence. To suggest that she was obliged to make a specific deduction to the otherwise fit sentence imposed is incorrect.

[10] Regarding the last ground of appeal, there is nothing improper in a sentencing judge referencing a particular case they believe to be relevant. It does not follow, as suggested by the appellant's counsel, that a specific reference to one case means that other pertinent cases were ignored. In addition, we are not persuaded that the sentence imposed was demonstrably unfit in the circumstances. It was well within the accepted range. Further, the appellant’s conduct in taking A to a war-torn foreign country and vehemently opposing his return for over two years could have easily justified a higher sentence.

[11] As a result, leave to appeal sentence is granted, but the sentence appeal is dismissed.

“C.W. Hourigan J.A.”

“David Brown J.A.”

“P.J. Monahan J.A.”