Court File and Parties

Court File No.: Kitchener 13-6095 Date: 2015-01-16 Ontario Court of Justice

Between: Her Majesty the Queen — and — Yiyan Xie

Before: Justice G. F. Hearn

Heard on: May 14, May 26, May 27, May 28, June 5, June 17, June 19, July 24 and October 7, 2014

Reasons for Sentence released on: January 16, 2015

Counsel:

• M. Sopinka, for the Crown
• H. Mattson, for the defendant Yiyan Xie

HEARN J.:

BACKGROUND

[1] Following a trial which was conducted over a number of days in May and June of this year for reasons released on July 24, 2014 Mr. Xie, the accused, was found guilty of counts of attempted murder and criminal harassment. The victim in both cases was his former girlfriend and colleague Yiyang Hao.

[2] During the course of the trial Mr. Xie had changed his plea to guilty on the count of criminal harassment and the trial had proceeded thereafter on the charge of attempted murder. The charge of criminal harassment involved a finding that Mr. Xie had harassed Ms. Hao during the period from July 23, 2013 to September 2, 2013 by repeatedly communicating directly or indirectly with her, which in all the circumstances that existed caused her to reasonably fear for her safety. The attempted murder count relates to an event on September 23, 2013 where Mr. Xie stabbed and wounded Ms. Hao in a bush lot near to her home in the City of Waterloo.

[3] Following the findings of guilt the matter was put over for sentencing submissions to October 7, 2014. On that date counsel for the accused advised for the first time that he was concerned about the possible impact the sentences imposed by this court might have on the accused who is a citizen of China and is subject currently to a deportation order might have when he has completed his sentence and is deported to China. Counsel for Mr. Xie advised specifically as to a concern that the accused may be tried again in his homeland and may be subject to a sentence of imprisonment (on October 7 counsel advised that the accused may be in fact subject to re-prosecution and a sentence which could involve a penalty of death. This does not appear to be the case given the provisions of the penal law from China that have been provided to the court nor is it mentioned as a consequence in the letter from Marshall E. Drukarsh, a certified specialist in immigration law, filed on behalf of the accused and which will be referred to later).

[4] As a result of the concerns of counsel, the matter has been adjourned on further occasions since October 7 and has been ultimately adjourned to today's date for sentencing. A pre-sentence report was not requested nor ordered as counsel for the defence indicated Mr. Xie, and indeed Ms. Hao, had arrived in Canada from China in 2009 and a good deal of information would be provided on the return of the matter. In addition, when the matter came before the court for sentencing submissions on October 7, 2014, the court not only heard from the accused but also his father who had travelled from China to attend the sentencing.

CIRCUMSTANCES OF THE OFFENCES

[5] The facts as found by the court are set out in some detail in the reasons released on July 24, 2014. Also, at the commencement of the trial there had been an Agreed Statement of Facts filed which sets out a good deal of evidence concerning the charges before the court. Briefly, for the purposes of this sentencing, it is important to set out some of those details.

[6] The accused and the victim met each other in 2009 when they had travelled to Canada from China to attend high school in the Toronto area. Ms. Hao, whose evidence I accepted, indicated their relationship of boyfriend/girlfriend began in Grade 11 and that relationship continued following high school when they both attended the University of Toronto. The relationship, however, broke down in June of 2013 when Ms. Hao returned to China to visit relatives with the intention of returning to Canada and attending the University of Waterloo in September of 2013.

[7] The Agreed Statement of Facts sets out that between June 14, 2013 and August 27, 2013 the accused sent numerous e-mails to Ms. Hao. Details of those e-mails were discussed during the evidence of Ms. Hao. Basically, those e-mails make it quite clear that Mr. Xie was having difficulty with the termination of the relationship and he had initiated an ongoing campaign to have Ms. Hao reconsider her decision to end the relationship.

[8] The evidence also disclosed Mr. Xie had a history of self-cutting and would use that behaviour to attempt to have Ms. Hao continue their relationship, or at the very least communicate with him. The content of the various e-mails certainly sets the stage for what happened thereafter.

[9] The accused stepped up his conduct somewhat once Ms. Hao had returned from China. Of particular note was his attendance at Ms. Hao's residence in Waterloo on September 2, 2013 and contact with Ms. Hao which prompted the involvement of the police and a stern warning provided by the police to Mr. Xie not to continue to contact Ms. Hao nor attend at her residence. Of significance was an e-mail dated July 22, 2013, received almost immediately after she had returned from China. In that e-mail Mr. Xie effectively was pleading with Ms. Hao to continue their relationship and if she did not he would take some very serious steps including killing her and then committing suicide himself. Details of how that plan would be implemented were set out within that e-mail. The history of the exchange of e-mails, and more particularly the sending of various e-mails to Ms. Hao by Mr. Xie, again are set out in the reasons delivered on July 24, 2014.

[10] The incident leading to the attempted murder charge took place on September 23, 2013. Ms. Hao left her home to attend school on that date and was walking along a residential street towards a bus stop when she heard Mr. Xie call her name. Mr. Xie asked if they could speak. They sat on the curb at a location indicated by the accused where Mr. Xie questioned Ms. Hao as to why the police had been involved in the earlier incident in September. Mr. Xie then put his fingers in Ms. Hao's mouth so she could not scream and dragged her into a bush area nearby. She struggled and found herself on the ground. She realized that she was bleeding and felt blood in her throat area. Mr. Xie had been in the possession of a knife but apparently he had lost that knife and was looking for it. He then stated he wished to commit suicide and instructed Ms. Hao to remain where she was. He returned to his vehicle that he had parked nearby, returned with a knife and then attempted to kill himself by cutting his wrists and then his own neck.

[11] At some point Ms. Hao had attempted to take the knife from Mr. Xie to prevent him from harming himself while she herself was bleeding. She pressed the area where he was bleeding and called the police to request their attendance. Prior to Mr. Xie returning to his vehicle he had noticed the blood coming from Ms. Hao's neck area and he had pressed her neck in an apparent attempt to stop the flow of blood as well. When he had returned with a second knife he also handed her a cell phone and told her to call the police if she "thought she wasn't going to make it".

[12] The police arrived and found Mr. Xie in a state of distress with a significant wound to his neck. Both Mr. Xie and Ms. Hao were transported to the hospital. Ms. Hao was treated at the hospital. Her injuries were noted and the wound in her neck was described as superficial in a medical sense but did require some stitching. She spent a number of hours in the hospital and then was released.

[13] Mr. Xie's injuries were more serious. There is some medical information before the court setting out the nature of his own wound which involved major arterial bleeding requiring surgical intervention and hospitalization for a number of days.

[14] It should be noted as well that the facts the court has found indicate although Ms. Hao's injuries were not life-threatening ultimately, that appears to have been rather fortuitous. Ms. Hao was wearing a wool coat on that date which apparently deflected some of the force applied by Mr. Xie as evidenced by the cuts in the coat and the damage to a button in the neck area of the coat.

[15] That is a brief summary of the allegations and I would simply note that the court has taken into account all of the evidence and the facts as found and set out in the judgment of July 24, 2014 when considering the appropriate sentence in this matter.

VICTIM IMPACT STATEMENT

[16] Ms. Hao did not wish to provide a victim impact statement. The court was advised by the Crown that Ms. Hao simply did not wish to put herself through the trauma of preparing such a statement and did not wish to do so as she did not want to review the matter again in "her mind".

[17] It is quite clear, however, from the observations of Ms. Hao while giving her evidence that the events of September 23, 2013 and the circumstances leading up to that date have had a significant emotional impact upon her. She spoke of being afraid, terrified and thinking she was going to die during the course of the events on September 23, 2013. Also, it is acknowledged by the plea of guilty to the count of criminal harassment that the conduct of Mr. Xie preceding the September 23, 2013 date was such that throughout that period of time she reasonably feared for her safety.

[18] Defence counsel in submissions on behalf of Mr. Xie noted, and there does not appear to be any issue taken with the fact, that Ms. Hao had given a victim impact statement of sorts some time ago. In that particular statement she had indicated no ill will towards Mr. Xie and did not want him "to be punished" and wanted him "to get help".

CIRCUMSTANCES OF THE OFFENDER

[19] As noted, there is not a pre-sentence report before the court but defence counsel has provided a good deal of information concerning the background of Mr. Xie. In addition, there is material filed on his behalf in the form of various certificates as well as a letter from his mother and father.

[20] Mr. Xie is currently 21 years of age. He came from China in 2009 to continue his high school education in Scarborough. He had been raised in China by his maternal grandmother. His parents had divorced when he was six years of age but he maintains close contact with both of them. Indeed, his father had travelled from China for the purposes of the hearing on October 7, 2014 and again in December. His father also testified during the hearing on October 7, 2014. He set out some of the background of Mr. Xie and in a very respectful manner attempted to assist the court to understand the events of September 23, 2013. The father himself seems to have accepted a good deal of responsibility for the circumstances that led to what appears to have been the very much out of character actions of Mr. Xie on September 23, 2013.

[21] Much was said during the course of submissions on sentencing by defence counsel with respect to the upbringing of Mr. Xie in China. The existence of a one child policy, the result of which according to defence counsel, produces an overindulged child and an entire generation of children in China who are highly motivated from an educational point of view but have no responsibility otherwise. The focus is on academics, success and the youth of China, and in particular with reference to Mr. Xie, have no pro-social skills and have difficulty dealing effectively with the realities of life.

[22] Defence admits that is the stage that was set for Mr. Xie when he came to Canada in 2009. It was during that particular period of time after his attendance that he became emotionally and socially reliant upon Ms. Hao. Counsel spoke of Mr. Xie's inability to do things on a day-to-day basis and although he had some friends in Canada, they were few and far between. Counsel suggested that the maturity and socialization skills of Mr. Xie were that of a 12 to 14 year old.

[23] This difficulty and immaturity manifested itself in the self-cutting behaviour that Mr. Xie entered into. He had done fairly well in school while in Canada and had achieved Honours in his first semester at university, but his marks deteriorated somewhat after his relationship with Ms. Hao became unraveled.

[24] Counsel suggests that Ms. Hao's emotional support was essential to the accused. He had no one to turn to after the victim had changed their relationship. He had become more and more reliant on the victim and in his desperation to have her continue the relationship, which counsel continually referred to as not your "normal type of domestic relationship", evolved to the point of harming himself in an effort to get her to stay committed.

[25] All of this information was provided as to the background of Mr. Xie leading up to the offences before the court. There is no psychological or psychiatric assessment available to assist the court in understanding perhaps more fully Mr. Xie's state of mind at the time of the offences and when that was noted, counsel simply indicated there had been no ideations or mental health issues while Mr. Xie has been in custody. Effectively, Mr. Xie at the time of the events felt "trapped with no place to turn".

[26] The material before the court indicates Mr. Xie has no prior criminal record. He has led a rather sheltered life apparently in China and seems to have had some difficulty adjusting to life in Canada other than in an academic setting. Mr. Xie did speak to the court on the sentencing only. His remarks certainly indicate some insight into his conduct and he expressed sympathy and concern for the victim. I am satisfied that he is remorseful.

[27] His parents in their letters speak of their son as being very kind-hearted, generous and considerate while growing up. He had been an excellent student and was well liked by his peers.

[28] The self-inflicted wounds on September 23, 2013 were life-threatening, required surgical intervention and have had some long term effects on him. He has suffered a stroke since the event which, according to counsel, left his left side paralyzed for some two months which he spent in medical segregation while in custody and has left residual numbness on the left side of his body.

[29] It is clear that the background of Mr. Xie is uneventful from a criminal standpoint. He has strong family support, although somewhat distant given the fact that his family resides in China. He also appears to have a close small network of friends in Canada, some of whom attended throughout the trial.

[30] As noted previously, Mr. Xie's father travelled from China and gave evidence during the course of the sentencing hearing. He acknowledges his son made a serious mistake and noted as parents he and his wife are responsible somewhat for only focussing on the academic skills of the accused while he was growing up in China and neglecting to teach him appropriate social skills. The father further accepts responsibility for not paying enough attention to the care of his son after he had travelled to Canada to study. The father spoke eloquently of the sympathy that he has for the damage his son has caused to Ms. Hao and her family and noted that he and the mother of Mr. Xie are grateful and thankful for the help that Mr. Xie has received while in custody and during the medical treatment for his self-inflicted wounds. The father noted there has been a "big change" in his son since he has been in custody and he has "matured a lot".

POSITION OF THE PARTIES

[31] Both counsel have provided briefs of various cases. The Crown submits that there are a number of aggravating features in this matter including the planning and deliberation on the conduct as evidenced by the facts found by the court. The Crown also points out that this incident arose in a domestic relationship and it was fortuitous and by chance, not by planning, that the injuries sustained by the victim were not more significant than they were. The Crown submits that the absence of significant injuries does not in this particular case mean a reduction in any appropriate sentence. The Crown submits that there is nothing before the court indicating mental health issues on the part of Mr. Xie and his moral culpability is high. The Crown suggests that the appropriate range of sentence is six years to 15 years imprisonment and asks for a sentence in the range of nine to 12 years.

[32] The defence points out the mitigating circumstances and indicates that it would be a mistake to "pigeon hole" the relationship between Mr. Xie and the victim as a domestic situation. Defence submits that the background of the accused as supported by the evidence of the father clearly indicates that Mr. Xie was not fully equipped to live in Canadian society. He came here without adequate support or social skills and relied extensively on Ms. Hao. When the relationship broke down he was depressed and devastated and his conduct included not only the matters before the court but also the self-infliction of wounds to himself when that relationship deteriorated.

[33] Defence counsel also points out the duration of the attack as being extremely short, the nature of the weapon being a small knife and the efforts Mr. Xie made to apply pressure to the neck of Ms. Hao as well as the offering of a cell phone to call for assistance which counsel indicates results in an appropriate sentence being a sentence in the range of two to five years. Defence counsel submits that considering those matters as well as the deportation issue that the appropriate disposition prior to crediting time served is a sentence of two years less a day.

[34] Counsel both acknowledge Mr. Xie has been in custody since September 23, 2013 and is entitled to credit on an enhanced basis of one and a half days for every day spent in custody from the sentences advocated by both counsel. Both the Crown and the defence have also agreed that the sentence to be imposed on the charge of criminal harassment is a sentence that could appropriately be a concurrent sentence to that on the attempted murder.

PRINCIPLES TO BE APPLIED

[35] In Regina v. Hamilton, [2004] O.J. No. 3252, a decision of the Ontario Court of Appeal Mr. Justice Doherty noted at paragraph 87 as follows:

"Sentencing is a very human process. Most attempts to describe the proper judicial approach to sentencing are as close to the actual process as a paint by numbers landscape is to the real thing. The fixing of a fit sentence is the product of the combined effects of the circumstances of the specific offence and unique attributes of the specific offender."

[36] Sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. Each case must be conducted as an individual exercise. (See Regina v. Wright, [2006] O.J. No. 4870, para. 16; Regina v. D.(D.), 163 C.C.C. (3d) 471, para. 33, both decisions of the Ontario Court of Appeal).

[37] The principles of sentencing set out in the Code are set out in s. 718 to s. 718.2. Section 718 reads as follows:

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[38] Section 718.1 states a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[39] The issue of proportionality is a principle rooted in notions of fairness and justice. The sentence must reflect the seriousness of the offence and the degree of culpability of the offender and the harm occasioned by the offence. The court must consider both aggravating and mitigating factors, look at the gravity of the offence and the blameworthiness of Mr. Xie and the sentence ultimately imposed must properly reflect in terms of gravity that which the offence generally bears to other offences.

[40] Section 718.2 sets out:

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender and without limiting the generality of the foregoing,

(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,

(ii) evidence that the offender, in committing the offence, abused the offender's spouse or common law partner,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[41] The primary factors to be considered in this matter are of course the principles of general deterrence and denunciation. Still the court must recognize the other principles of sentencing and also must consider the circumstances of Mr. Xie.

[42] In dealing with the issue of denunciation the objective of denunciation mandates that such a sentence must communicate society's condemnation of the offender's conduct. Denunciation focuses on the conduct of Mr. Xie not his particular circumstances.

[43] As noted by Chief Justice Lamer in Regina v. M.(C.A.), 105 C.C.C. (3d) 327 at page 369:

"In short a sentence with a denunciatory element represents a symbolic collective statement that the offender's conduct should be punished for encroaching on our Society's basic code of values as enshrined within our substantive criminal law. As Lord Chief Justice Laughton stated in Regina v. Sargeant (1974) 60 Cr. App. R. 74 at page 77:

'Society through the courts must show its abhorrence of particular types of crimes and the only way in which the courts can show this is by the sentences they pass.'"

[44] Further:

"The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instils the basic set of communal values shared by all Canadians as expressed by the Criminal Code."

CASE LAW

[45] Both counsel have provided books of authorities and I have reviewed the various cases provided. The case law assists the court in understanding a range for attempted murder, which range certainly appears to be as suggested by Crown counsel in this matter. The case law is helpful in understanding that range of sentence and also the principles to be applied and considered. Still, as noted previously, sentencing is an individual exercise and is the product of the circumstances of the particular offence before the court and the circumstances of the particular offender.

[46] It is clear, however, that when dealing with the range of sentences for attempted murder significant factors to be considered are whether or not an accused had planned and deliberated to commit the murder and whether or not the attempted murder arose in a domestic or a domestic-like relationship.

[47] There has been much discussion during submissions, particularly the submissions of defence counsel, as to whether or not the relationship between Mr. Xie and Ms. Hao was a "domestic relationship". Defence argues that it was not and it would be wrong to "pigeonhole" their particular relationship into such a classification.

[48] Defence counsel submits that the couple never lived together, nor were they physically intimate. (On this issue there is no evidence one way or the other before the court.) Nor were they spouses or partners.

[49] However, notwithstanding the submissions of counsel I am fully satisfied that the relationship between Mr. Xie and Ms. Hao was in fact a domestic-like relationship. The relationship was indeed that of boyfriend/girlfriend and it was described as such by Ms. Hao in her evidence. In addition, the circumstances surrounding the event itself and the history of their relationship as disclosed in the evidence of Ms. Hao as well as in Mr. Xie's own e-mails clearly indicates the relationship between the two of them was in a domestic context. The very actions of Mr. Xie indicate his perception of the relationship was such as evidenced by the contents of the e-mails that he himself authored.

[50] As a result, the cases provided clearly indicate that a range of sentence generally for attempted murder committed in the context of a domestic relationship is as suggested by counsel for the Crown. The case law makes it perfectly clear that the principles of general deterrence and denunciation are paramount considerations in determining the appropriate range of sentence for attempted murders in the context of a domestic relationship. Where attempted murder takes place in the context of a domestic relationship the case law indicates that the likelihood of lasting psychological trauma to the victim arising from the irrational and obsessive nature of the misconduct is significant and where present justifies the imposition of a substantial penalty separate and apart from the issue of protection. (See para. 24 Regina v. Boucher, [2004] O.J. No. 2689, ON CA).

[51] In Regina v. Denkers, [1994] O.J. No. 660, the Ontario Court of Appeal dealt with an appeal of a sentence of 15 years for attempted murder where in the context of a domestic relationship the accused had stabbed the victim, slit her throat, performed an act of sexual intimacy on her and when the victim pleaded for her life stabbed her a further time. The injuries to the victim were significant and were major internal injuries. The impact of the attack had effects which the court determined were long and lasting.

[52] In the context of that sentence appeal, which was dismissed, the court stated as follows:

"The determination of what is a fit sentence in this case must be made in the context of the circumstances outlined above. This victim, and others like her, are entitled to break off romantic relationships. When they do so they are entitled to live their lives normally and safely. They are entitled to live their lives free of harassment by and fear of their former lovers. The law must do what it can to protect persons in those circumstances."

[53] There, and in other cases, the Ontario Court of Appeal has indicated sentences imposed in cases involving domestic violence must be such that they will foster an environment in which individuals can feel free to leave romantic relationships without fear of harassment or harm and without fear of violence aimed at forcing a return to a no longer wanted relationship.

[54] With respect to the deportation and immigration issues as a consideration on this sentencing, Mr. Xie entered Canada in 2009 on a valid student visa to study initially at the secondary school level. He has not been granted permanent resident status, has not been determined to be a Convention Refugee or person in need of protection pursuant to the Immigration and Refugee Protection Act (IRPA) nor did he have such application filed or under consideration prior to his conviction on these matters in July 2014.

[55] Defence counsel retained the services of Marshall E. Drukarsh a certified specialist in immigration law to provide an opinion with respect to the immigration consequences facing Mr. Xie as a result of the finding of guilt on these matters. Filed as an exhibit in this proceeding is a copy of a letter of opinion dated December 17, 2014 from Mr. Drukarsh.

[56] Mr. Drukarsh sets out that as a result of the conviction on the attempted murder charge Mr. Xie is subject to and has received a deportation order from which Mr. Drukarsh indicates he will have no legal recourse and "no practical hope of protection against his removal from Canada and returned to the People's Republic of China on the completion of his extended term of incarceration notwithstanding the serious risk that he will face there of re-prosecution and lengthy incarceration".

[57] The letter further provides that in accordance with the provisions of the Chinese penal law Mr. Xie is in serious jeopardy of re-prosecution and imprisonment, but notwithstanding that he is precluded from seeking "refuge and safety in Canada against his removal" by virtue of provisions of the Immigration and Refugee Protection Act.

[58] The letter further states on pages 2 and 3 as follows:

"I will state with absolute certain that, in all the circumstances herein, and most pointedly because of the law under which Mr. Xie faces double jeopardy on his removal from Canada back to China is a law of general application, applicable to every citizen of China regardless of race, religion, nationality, social group or political opinion; in short, he will not face retrial and imprisonment in China for a personal characteristic of the type articulated in the United Nations Charter on Refugee Rights, that he will have no hope, zero chance, of the Minister making an exception to save him. He will not be granted refugee status in Canada when he comes into the custody of Canada Border Services for removal at the end of his sentence.

As a consequence of his conviction, routine expectation for any non-citizen, is that he or she: Mr. Xie for instance, will be identified by the Correctional authorities to Canada Border Services. A CBSA officer will prepare a report under IRPA 44 (1) to allege that he is inadmissible by virtue of his conviction. The Minister's delegate will refer the report to the Immigration Division, who will find Mr. Xie inadmissible and make a Removal Order against him.

Individuals in such circumstances, who, will be released from custody by Corrections Canada directly into the custody of the Canada Border Service Agency for removal from Canada, of course cannot be, and are not released into the community under supervision.

One serious Immigration consequence of Mr. Xie's legal status is that: he will not be released on parole but will be incarcerated in prison until his mandatory release date.

The usual procedure to anticipate at the end of sentence, as experienced in practice, and as outlined in the Citizenship and Immigration Manual ENF22 will be for Mr. Xie to be 'released' directly into the custody of CBSA for removal arrangements to be made and executed."

[59] In Regina v. Hamilton (2004), 186 C.C.C. (3d) 129 (Ont.CA) Mr. Justice Doherty addressed the most common scenarios involving deportation at paragraph 177:

"The case law referable to the relevance of deportation in fixing an appropriate sentence addresses two very different situations. In the first situation, it is acknowledged that imprisonment is the only appropriate sentence and that deportation from Canada will inevitably follow upon completion of sentence. In the second situation, it is argued that a certain kind of sentence should be imposed to avoid the risk of deportation from Canada. In the first situation, the certainty of deportation may justify some reduction in the term of imprisonment for purely pragmatic reasons: Regina v. Critton, [2002] O.J. No. 2594 (S.C.J.), at paras. 77-86. In the second situation, the risk of deportation cannot justify a sentence which is inconsistent with the fundamental purpose and the principles of sentencing identified in the Criminal Code. The sentencing process cannot be used to circumvent the provisions and policies of the Immigration and Refugee Protection Act. As indicated above, however, there is seldom only one correct sentencing response. The risk of deportation can be a factor to be taken into consideration in choosing among the appropriate sentencing responses and tailoring the sentence to best fit the crime and the offender: Regina v. Melo (1975), 26 C.C.C. (2d) 510 (Ont. C.A.) at p. 516. [emphasis added]"

[60] The reasoning in Hamilton was followed by the Supreme Court of Canada in Regina v. Pham (2013) 2013 SCC 15, 1 S.C.R. 739. In that case the accused who was a non-citizen had been convicted of two drug related offences. There was a joint position at the trial level for a sentence of two years imprisonment. Pursuant to the provisions of the relevant legislation a non-citizen sentenced to a term of imprisonment of at least two years lost the right to appeal a removal order against him or her. At the trial level no one had raised the issue of the collateral consequences of a two year sentence on the accused's immigration status and the matter was appealed. The Court of Appeal in Alberta dismissed the appeal and refused to vary the sentence. The matter was then appealed to the Supreme Court which allowed the appeal and varied the sentence to one of imprisonment of two years less a day.

[61] In that case the court indicated that a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account provided that the sentence ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender. The court stated that the significance of collateral immigration consequences will depend on the facts of the case. Those consequences however are one of the relevant factors that the sentencing court is to take into account in determining the appropriate sentence.

[62] At paragraph 20 of the Pham decision the court indicated as follows:

"Accordingly, the sentencing judge is not compelled in all circumstances to adjust a sentence in order to avoid the impact of collateral immigration consequences on the offender. It remains open to the judge to conclude that even a minimal reduction, i.e. from two years' imprisonment to two years less a day, would render the sentence inappropriate for the particular offence and the particular offender. Collateral immigration consequences are but one relevant factor amongst many others related to the nature and the gravity of the offence, the degree of responsibility of the offender and the offender's personal circumstances."

[63] In this particular case it appears from the material before the court and the submissions made by defence that deportation is inevitable. However, the sentence imposed must be consistent with the fundamental purpose and principles of sentencing and the deportation consequences that follow result from the finding of guilt on the charges before the court in particular with respect to the count of attempted murder and are simply a further consequence of Mr. Xie's egregious conduct. Still as Mr. Justice Doherty in Regina v. Hamilton, supra, indicated that even where deportation from Canada will inevitably follow upon the completion of the sentence the certainty of deportation may justify some reduction in the term of imprisonment for purely pragmatic reasons. The practical reality is that upon completion of Mr. Xie's sentence he will in fact be subject to the deportation order without recourse and will be deported to China. The consequences that he faces in China as a result of his conduct here are something this court has no control over in the context of what is an appropriate sentence to be imposed in Canada. That is an issue that Mr. Xie will have to deal with under the laws of his homeland.

AGGRAVATING FACTORS

[64] The aggravating factors in this case are as follows:

1. The court has found on the evidence accepted and the facts as agreed that Mr. Xie on September 23, 2013 had the specific intent to kill Ms. Hao. The evidence clearly shows as well that Mr. Xie had planned and deliberated upon his actions prior to implementing the attack on that date. This was not a spur of the moment action on the part of Mr. Xie, nor a momentary lapse of good judgment as clearly illustrated by the contents of his own e-mails where both the intent and the plan ultimately implemented were set out. Mr. Xie had many opportunities prior to September 23, 2013 to step back and reconsider his proposed conduct but he did not.

2. The attack itself was terrifying and brutal. Ms. Hao herself stated that she felt she was "going to die". The attack took place in a relatively secluded area where no assistance was immediately available. Ms. Hao was dragged into the wooded area by Mr. Xie with his fingers in her mouth so she could not scream and a knife was put to her throat. It was only good luck and not good planning that the intent of Mr. Xie was not realized.

3. Although the injuries were not life-threatening, again that was a matter of good luck and rather fortuitous. The court has found and the evidence indicates that some of the force of the knife was deflected by the wool coat worn by Ms. Hao on the date in question and the attack ceased ultimately with the loss of the knife by Mr. Xie. It is quite clear, however, given the location of the wound to her neck that Mr. Xie fully intended to injure her in the way he injured himself by the self-inflicted wound immediately thereafter. One only has to hear Ms. Hao describe the event and the sensation of blood in her throat and on her neck and clothing to understand the impact that the event not only had on her on that occasion but which also apparently continues.

4. It is important also to keep in mind that the threatening nature of Mr. Xie's conduct and the harassment of Ms. Hao continued over a number of months prior to the events of September 23, 2013. They involved e-mails which were obviously meant to try to coerce and force Ms. Hao to stay in a relationship which she did not want nor desire to continue. In addition to the e-mails there was also the unwanted attendance at her residence in early September 2013. The e-mails and the attendance have been acknowledged by Mr. Xie to comprise criminal harassment as evidenced by his plea to that particular charge during the trial. The fear for her safety then did not simply evolve in September of 2013, but had been ongoing for a number of weeks and months.

MITIGATING FACTORS

[65] The mitigating factors in this matter are as follows:

1. Mr. Xie is a first-time offender, he has no criminal record and comes before the court as a youthful first-time offender being just 21 years of age presently and 20 years of age at the time of the offences.

2. Notwithstanding the absence of any medical input, but accepting the submissions of counsel for Mr. Xie as well as Mr. Xie's father, I am satisfied that at or about the time of the incident in September of 2013 Mr. Xie was a troubled young adult. I am satisfied that he was suffering from depression given the breakup of the relationship with Ms. Hao and I accept his counsel's position that Mr. Xie was desperate to maintain the relationship as it provided Mr. Xie with some emotional stability. I am also satisfied as a result of hearing the father that Mr. Xie perhaps lacked proper parental guidance while in China given the fact that he was raised by his grandmother. The mother and father had divorced. Also, in addition, the focus on academic achievement as opposed to improving Mr. Xie's emotional and social skills, all played a part in making him ill-equipped to deal with life in Canada where he was effectively without family support. He relied on Ms. Hao. She was of assistance to him and when that relationship broke down he was ill-equipped to deal with it. This in no way excuses his conduct but puts some context on the event of September 23, 2013 and leading up to that event, all of which conduct appears to be out of character for Mr. Xie.

3. The background of Mr. Xie is very positive otherwise. He has excelled academically, has been in Canada since 2009 and appears to have some support within the community as evidenced by some associates who have attended this matter in support of Mr. Xie. He completed high school and was involved in university education in which he was doing quite well until the breakdown of the relationship with Ms. Hao when his focus was elsewhere. I have heard Mr. Xie speak, I am satisfied that he has insight into his conduct and I am further satisfied that he is remorseful and that remorse is genuine and sincere. It is obvious as well from his conduct that he is concerned about the impact of his conduct on Ms. Hao and understands that his conduct was completely unacceptable.

4. Mr. Xie has been in custody since September 23, 2013, a period of approximately 16 months. He has never been in custody previously and he has been held in a detention centre after his hospitalization for the wounds that he inflicted on himself. He has suffered some medical issues as a result of those injuries while in custody and the scars that were the result of his own conduct will be with him for life. Both counsel agree that Mr. Xie is entitled to enhanced credit for the time that he has been in custody on the basis of one and a half days for each day spent in custody. There is nothing to disqualify him from such consideration and, in my view, he has served then the equivalent of approximately two years in custody.

5. Although perhaps not really a mitigating factor, I do note that notwithstanding the planning and deliberation and the brutal nature of the initial attack on Ms. Hao, Mr. Xie seems to have abandoned that intent once he lost the initial knife. Prior to going back to the car to get another knife he offered her some limited assistance by putting some pressure on her neck and when he returned he offered her his own phone in order that she might call 911 in case she "didn't think she was going to make it". Perhaps his after-the-offence conduct speaks more appropriately as to the character of Mr. Xie than his conduct preceding his return from the car and for the months before. I note the irony as well that upon his return from the vehicle and when he inflicted serious wounds to himself it was Ms. Hao, the intended victim initially of Mr. Xie, who effectively saved Mr. Xie's life.

SENTENCE TO BE IMPOSED

[66] Mr. Xie has been found guilty on the count of attempted murder and has pled guilty to a count of criminal harassment, two very serious criminal offences. The facts surrounding the count of attempted murder are violent, disturbing and there are many aggravating factors.

[67] Mr. Xie over a course of months was persistent and determined to effectively force Ms. Hao into a relationship she did not wish to continue. The sentence must denounce such conduct and denunciation and general deterrence are primary factors to be considered.

[68] Still, there are mitigating circumstances as noted. Mr. Xie is a youthful, first-time offender and presents as such. Any period of imprisonment will be difficult for Mr. Xie as I am sure he has experienced in the past 16 months while he has been in pre-trial custody. In my view, a penitentiary term is appropriate and I keep in mind the principles set out in the case law with respect to sentencing, particularly a youthful accused, to a first time penitentiary term. Mr. Xie's background and the support that he has, both from his family and in the community, bode well for his rehabilitation.

[69] After considering all of the factors and the principles to be applied I am satisfied that the appropriate sentence in this matter in total is one of seven years imprisonment. Mr. Xie will receive credit for the time he has spent in pre-trial custody as noted. When that period of custody is enhanced, in my view he has served the equivalent of approximately 24 months already.

[70] After crediting the time served on an enhanced basis there still remains a period of custody of 5 years to be served by Mr. Xie.

[71] There will also be an order under s. 109(2)(a) for ten years and under s. 109(2)(b) for life. There will be an order for a DNA sample to be taken in accordance with the provisions of the Criminal Code with respect to both offences before the court and there will also be an order prohibiting Mr. Xie from having any contact or communication with Ms. Hao while serving the sentence.

[72] To summarize then, Mr. Xie after receiving credit for pre-trial custody, will be sentenced to serve a sentence of a further period of imprisonment of five years. I propose to impose the five years on the count of attempted murder and there will be a six month concurrent sentence on the charge of criminal harassment.

[73] The court is appreciative of the manner in which the trial of this matter was conducted. A good deal of technical evidence was agreed to and counsel focused appropriately on the issues to be tried. Counsel's submissions were thorough and assisted the court in its deliberations.

Released: January 16, 2015

Signed: "Justice G. F. Hearn"