WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.5(1) or (2) of the Criminal Code. These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.5(1) or (2), read as follows:

486.5 Order restricting publication — victims and witnesses.—(1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) Justice system participants.— On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

486.6 Offence.—(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.

COURT FILE NO.: St. Catharines - 2111-998-11-W0789-00

DATE: 2012·01·16

Citation: R. v. C.(Y.J.), 2012 ONCJ 25

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

YJC

Before Justice D.A. Harris

Heard on December 23 and 30, 2011

Sentencing Judgment released on January 16, 2012

M. Eshuis/T. Shuster .............................................................................................. for the Crown

V. Singh ....................................................................................................... for the accused, YJC

HARRIS J.:

[1] YJC entered a guilty plea to a charge of assaulting his 10-year-old son with a weapon, to wit a hockey stick. Crown counsel had elected to proceed by summary conviction. YJC is before me today to be sentenced.

[2] Crown counsel argued that I should sentence YJC to imprisonment for between four and six months, followed by probation for three years. He also requested a firearms prohibition and a DNA order.

[3] Counsel for YJC argued that I should take into account the time spent in custody by YJC and then grant him a conditional discharge. Counsel did not take issue with the proposed firearms prohibition or DNA order.

[4] Counsel for YJC based his argument on the fact that YJC is a Korean citizen who is in Canada on a work permit and that as a foreign national, he will be considered inadmissible and will therefore likely be deported if a conviction is registered here. Counsel cited R. v. Koc, [2008] N.J. No. 161 (N.L.S.C.T.D.) for the proposition that I can and should take into account the jeopardy that YJC may face in the context of his immigration status if he is convicted of this offence.

[5] I note that this issue has been addressed by the Ontario Court of Appeal on a number of occasions.

[6] In R. v. B.R.C., [2010] O.J. No. 3571 (Ont. C.A.) Sharpe J.A. stated at para. 8 that:

This court has held that "the certainty of deportation may justify some reduction in the term of imprisonment for purely pragmatic reasons": R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1 at para. 156. While the sentencing process should not be used to circumvent the provisions of the Immigration and Refugee Act, the calculation of the appropriate sentence is not an exact science. Where there is a range of possible sentences, the fact that an offender will face deportation under one possibility "is one of the factors which is to be taken into consideration ... in conjunction with all of the other circumstances of the case" in choosing the appropriate sentence and tailoring the sentence to fit the crime and the offender: R. v. Melo (1975), 1975 CanLII 1299 (ON CA), 26 C.C.C. (2d) 510 at p. 516.

[7] In Melo, however, Arnup J.A. went on to say at para. 20 that “In a case where clearly on the facts disclosed a discharge would not be granted, the fact that the convicted person may be subject to deportation is not sufficient to ‘tip the scales’ the other way and lead to the granting of a discharge.”

[8] So I must first decide whether a conditional discharge could be appropriate here. Only then can I even consider the possible consequences with regard to YJC’s status in Canada.

[9] The facts in this case may be summarized as follows.

[10] YJC came to Canada in 2010 with his wife, his 12-year-old daughter and his 10‑year-old son. YJC is here to learn Canadian methods of horticulture before returning to South Korea in 2013. His children are enrolled in school. In addition they are studying English as a second language. They are also studying Chinese and Korean languages at home. Their father has high expectations of the children and as a result has subjected them to a very strict and rigorous study regime. Failure to meet these expectations resulted in discipline.

[11] On December 3, 2011, YJC became angry because he felt that his son was not studying hard enough and then to make matters worse, lied to his father. YJC then struck his son several times on the son’s buttocks and thighs with a hockey stick. These blows were struck with sufficient force that they caused a number of large, ugly bruises.

[12] The following day, YJC flew to Korea for business. On December 5, the son disclosed his injuries to his teacher. This led to Family and Children’s Services being contacted and then the police. When YJC returned to Canada on December 11, he turned himself in to the police. He has been in custody since then.

[13] A review of previous cases with similar fact situations discloses sentences ranging from a conditional discharge to lengthy jail terms.

[14] I note however that the cases involving discharges all predate amendments made to the Criminal Code in 2005.

[15] They also predate the case of Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] S.C.J. No. 6 (S.C.C.). In that decision the Supreme Court of Canada looked at s. 43 of the Criminal Code. That section provides that “Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances”. The Supreme Court ruled that this section was constitutional. However the Court went on to set clear limits on its application and, amongst other things, clearly stated at para. 40 that discipline by the use of objects is unreasonable and therefore not protected by s. 43.

[16] Section 718.01 of the Criminal Code came into effect in 2005 and provides that “When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct”.

[17] Section 718.2(a) was enacted at the same time and paragraphs (ii.1) and (iii) provide that evidence that an offender, in committing an offence, abused a person under the age of eighteen years or evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, shall be deemed to be aggravating circumstances.

[18] In light of these changes in the law, I am not prepared to give much, if any, weight to the earlier court decisions where a conditional discharge was imposed. In fact, while I cannot say that a conditional discharge would never be appropriate in cases similar to this one, I am satisfied that the granting of a conditional discharge in such cases would most definitely be extremely rare.

[19] So what mitigating factors are present here?

[20] YJC entered a guilty plea. That and his comments to me indicate that he has accepted responsibility for his actions and that he feels remorse.

[21] He has no previous record. Other than this offence, I have no reason to believe that he is anything other than a good man.

[22] The materials put before me indicate that YJC clearly loves his children. He hopes that they will succeed in life and his intention was to ensure that they make the most of their opportunities to do so. He understands now that he cannot continue in the same fashion though. He understands now that acts that may have been permitted in Korea may not be permitted in Canada. He understands now that there are definite limits on the extent to which Canada, as a multicultural country, is prepared to accommodate customs from other cultures.

[23] He has clearly learned a great deal from this court process and I think it is highly unlikely that he will ever be back before the court again.

[24] That is not enough to convince me that a conditional discharge in this case would not be contrary to the public interest.

[25] I note, however, that YJC has been in custody at the detention centre for the past 36 days. Had I sentenced him to a period of imprisonment on December 23, 2011, the day that he entered his guilty plea, he would have earned remission for a further 12 days. He had never been to jail before. He does not speak English very well and he has been in the jail for assaulting a 10 year old. I am satisfied that he has been serving “hard” time. I am also satisfied that he has been in jail long enough that the principles of denunciation and deterrence, both general and specific, have been satisfied.

[26] In B.R.C., supra the Ontario Court of Appeal at para. 10 took into account that

the appellant is within less than two months of his statutory release date. This means that he has effectively served virtually all the custodial time imposed by the sentencing judge. In practical terms, by reducing the sentence and adding a term of probation we do not significantly interfere with the practical effect of the sentence imposed by the sentencing judge.

[27] Similarly, in this case, whether I impose a sentence of time served plus probation, or grant a conditional discharge, my decision will not change the message that has been delivered to YJC over the past 36 days. It will however have a very real effect on whether YJC stays in Canada following his release.

[28] Section 36(2)(a) of the Immigration and Refugee Protection Act states that

A foreign national is inadmissible on grounds of criminality for

(a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment; …

[29] Section 36(3)(a) states that

An offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily; …

[30] So if I register a conviction against YJC, he will be deported. The presence of representatives of the Canada Border Services Agency in court on the last occasion brought that fact home very vividly.

[31] Quite frankly, it is of little importance to me whether YJC is deported or not. Rather, I am bound by the direction of the Ontario Court of Appeal in Melo, supra and therefore the fact that YJC “may be subject to deportation is not sufficient to ‘tip the scales’ the other way and lead to the granting of a discharge.”

[32] I am however concerned about the impact that this will have on his children. Common sense tells me that YJC’s spouse will likely follow him back to Korea. Similarly, I would expect that these two children would also be returning to Korea. They too are foreign nationals here and they have no other family in Canada. Needless to say, no order I make here would provide them with any protection in Korea.

[33] That then is my dilemma. Is the public interest better served by declaring that this offence is too serious to permit me to grant a conditional discharge or is it better served by my granting that conditional discharge so that the son might remain in Canada where he can be protected by the terms of my order? To further complicate the issue, I have to be mindful of the fact that while YJC and his family currently plan to remain in Canada for another two years, there is nothing preventing them from changing their minds and moving back to Korea even if I grant YJC a conditional discharge.

[34] I am satisfied that a conditional discharge would be in YJC’s interest. I am also satisfied that when I take into account the fact that YJC has already spent 36 days in custody, and when I take into account the fact that a conditional discharge may provide the best means for me to protect the son, I am satisfied that a conditional discharge would not be contrary to the public interest here.

[35] Accordingly, I am granting YJC a conditional discharge and placing him on probation for three years.

[36] The terms of his probation are that he will:

1. keep the peace and be of good behaviour;
2. appear before the court when required to do so by the court;
3. notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation;
4. report to a probation officer within two working days and thereafter, when required by the probation officer and in the manner directed by the probation officer;
5. remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the probation officer;
6. not associate or communicate directly or indirectly with AC or be within 20 metres of AC or any place known to him to be the residence or school of AC except with the written permission of the probation officer in consultation with Family and Children’s Services;
7. attend for and actively participate in, to the satisfaction of the probation officer, any assessment, treatment or counselling as required by the probation officer and sign whatever consents or releases that may be required by the probation officer to monitor and verify compliance with said assessment, treatment or counselling, and provide written proof of completion of said assessment, treatment or counselling to the probation officer;
8. not own, possess or carry any weapon as defined by the Criminal Code.

[37] I am making an order pursuant to s. 110 of the Criminal Code and for the next five years, YJC is prohibited from owning, possessing or carrying any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance.

[38] This is a primary designated offence, and I am making an order authorizing the taking, of any number of samples of one or more bodily substances, including blood, that is reasonably required for the purpose of forensic DNA analysis. That will be done today.

[39] YJC will be given four months in which to pay the victim fine surcharge.

Released: January 16, 2012 Signed: “Justice D.A. Harris”

_______________________

Justice D.A. Harris