Court File and Parties

Ontario Court of Justice

Date: 2017-11-07

Court File No.: Ottawa 15-A12712

Between:

Her Majesty the Queen

— and —

Vandame Munga

Reasons for Sentence

Before: Justice P.K. Doody

Heard on: September 21, 2017

Reasons for Judgment released on: November 7, 2017

Counsel:

• Kerry McVey, for the Crown
• Sarah Ahsan, for the defendant

DOODY J.:

Part 1: Background and Issue

[1] On February 17, 2017 Vandame Munga was convicted after trial of possessing a weapon, a knife, for the purpose of committing a criminal offence and knowingly uttering a threat to cause bodily harm, contrary to subsections 88(1) and 264.1(2) of the Criminal Code. He committed those offences on September 27, 2015.

[2] On September 17, 2017 Mr. Munga pled guilty to failing to appear in court on January 6, 2016, contrary to s. 145(2)(b) and on June 14, 2017 failing to comply with a condition of a recognizance that he not be in the City of Ottawa contrary to s. 145(3). Findings of guilt were entered on both these charges.

[3] Mr. Munga was in custody on these charges for a total of at least 37 days. With the normal credit of 1.5 days for each day, he is entitled to a credit of up to 56 days on any custodial sentence to be imposed.

[4] The Crown submits that an appropriate sentence for the first two counts should be thirty days concurrent on each, with no custody sought for the latter two counts. Giving Mr. Munga credit for his pre-sentence custody, the Crown seeks a suspended sentence and a period of probation, together with a DNA order and a weapons prohibition of 5 years under s. 110. Defence counsel seeks a conditional discharge together with a period of probation, and does not object to the ancillary orders. The issue is therefore whether I should grant a conditional discharge or suspend the passing of sentence, thereby registering a conviction.

Part 2: A Removal Order May Be Issued Against Mr. Munga If a Suspended Sentence Is Issued

[5] Mr. Munga is a permanent resident of Canada and a citizen of the Democratic Republic of Congo. He has a child, born September 20, 2017, the day before sentencing submissions. He plans to live with the child and his partner with his family in Trois Rivières.

[6] If I were to issue a suspended sentence instead of a discharge (thereby convicting him of the offence under s. 88(1) which is punishable by a term of imprisonment of at least 10 years), and the Minister of Citizenship and Immigration chose to refer his case to the Immigration Division of the Immigration and Refugee Board, a removal order would be issued against him under s. 45(d) of the Immigration and Refugee Protection Act, R.S.C. 2001 c. 27 (the Act). If I were to impose a sentence of less than six months in custody (as the Crown is seeking) that order would be subject to an appeal to the Immigration Appeal Division (see ss. 36(1)(a), 63(2), 64(1), and 64(2) of the Act).

[7] Because Mr. Munga has a child who would be directly affected by the decision, the Immigration Appeal Division of the Board has jurisdiction to allow such an appeal on the basis that "sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of this case." (s. 67(1)(c) of the Act)

[8] If a discharge were granted, Mr. Munga would not be in jeopardy of a removal order being issued against him.

[9] A great deal of the sentencing submissions were taken up with these immigration consequences of my decision, and the extent to which I should take them into consideration in my decision whether to impose a discharge or a suspended sentence.

Part 3: Immigration Consequences Are Relevant to, but Not Determinative of, Sentencing Decisions

[10] The Supreme Court of Canada dealt with the relevance of immigration consequences to sentencing decisions in R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739. In that case, the Court agreed to vary a sentence of two years imprisonment (a joint position on original sentencing) to two years less a day as jointly requested by Crown and defence counsel on appeal. Doing so meant that a removal order issued against the offender would be subject to an appeal. This immigration consequence had not been considered at the time of sentencing.

[11] Writing for the Court in Pham, Wagner J. emphasized the importance of a sentence being proportional to the gravity of the offence and the degree of responsibility of the offender. He noted that the parity principle requires that a sentence be similar to those imposed on similar offenders for similar offences committed in similar circumstances. He wrote:

Ultimately, the sentence that is imposed must be consistent with the fundamental purpose of sentencing, which is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. The sentence must have one or more of the objectives of denunciation, general and specific deterrence, separation of offenders from society if need be, rehabilitation, reparations to victims for harm done to them, promotion of a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community (s. 718 of the Criminal Code).

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(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.

However, the weight to be given to collateral consequences varies from case to case and should be determined having regard to the type and seriousness of the offence. Professor Manson explains this as follows:

As a result of the commission of an offence, the offender may suffer physical, emotional, social, or financial consequences. While not punishment in the true sense of pains or burdens imposed by the state after a finding of guilt, they are often considered in mitigation....

The mitigating effect of indirect consequences must be considered in relation both to future re-integration and to the nature of the offence. Burdens and hardships flowing from a conviction are relevant if they make the rehabilitative path harder to travel. Here, one can include loss of financial or social support. People lose jobs; families are disrupted; sources of assistance disappear. Notwithstanding a need for denunciation, indirect consequences which arise from stigmatization cannot be isolated from the sentencing matrix if they will have bearing on the offender's ability to live productively in the community. The mitigation will depend on weighing these obstacles against the degree of denunciation appropriate to the offence. [Emphasis added.]

(The Law of Sentencing (2001), at pp. 136-37)

Therefore, collateral consequences related to immigration may be relevant in tailoring the sentence, but their significance depends on and has to be determined in accordance with the facts of the particular case.

The general rule continues to be that a sentence must be fit having regard to the particular crime and the particular offender. In other words, a sentencing judge may exercise his or her 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.

The flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament's will.

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.

[12] The Ontario Court of Appeal applied Pham in R. v. Nassri, 2015 ONCA 316, in which it varied a sentence of 9 months in custody to 6 months less 15 days for bank robbery and possession of a weapon for a dangerous purpose. At the time the original sentence was imposed, neither counsel nor the court were aware that the law had been changed so that the right of appeal of a removal order was barred when an offender was sentenced to 6 months and not 2 years, as the law had been in Pham's case. (S.C. 2013, c. 16, s. 24, the "Faster Removal of Foreign Criminals Act"). The offender was a permanent resident of Canada and a citizen of Syria. If the sentence of 9 months was allowed to stand, he would not be entitled to appeal a removal order.

[13] Sharpe J.A., writing for the court, held that while the offender's offences were serious offences for which a period of incarceration was required, there was no clearly defined lower limit from the jurisprudence that would require a sentence of 6 months or more. He held that a custodial sentence of just under 6 months was within the appropriate range for this offence and offender. Consequently, he held that to reduce the sentence to 6 months less 15 days would not offend the principles set out in Pham. He wrote:

It is self-evident that depriving the appellant of the right to appeal deportation to one of the most dangerous places on Earth would be grossly disproportionate to this offence and this offender and would contravene the sentencing principle of individualization.

[14] Crown counsel in the case before me submitted that it was only appropriate to consider immigration consequences where the effect of a particular sentence was to remove the right to appeal a removal order. She argued that it was not appropriate to take them into account when the issue was whether to impose a sentence which came with a right of appeal to the Immigration Appeal Division. She noted that the Appeal Division was a specialized tribunal specifically created by Parliament for the purpose of determining whether a removal order should be stayed on humanitarian and compassionate grounds, and was equipped with the tools and expertise to understand circumstances in the country to which an offender would be removed.

[15] The cases cited to me where the immigration consequences were considered all involved a sentence which would have removed the right of appeal rather than the removal order itself. Justice Fairburn, as she then was, noted the same thing at paragraph 59 of R. v. Carrera-Vega, 2015 ONSC 4958. Crown counsel's submission is attractive, because it recognizes the importance of honouring the statutory scheme Parliament has established, which gives to a specialized tribunal, and not the courts, the decision of whether to hold off sending a serious offender to another country because of humanitarian and compassionate grounds. I would not be prepared to go that far, however. In my view, such a categorical removal of the consideration of immigration consequences would be contrary to the Supreme Court's decision in Pham. I agree, however, that the presence of an appeal ameliorates the effect of the immigration consequences under consideration.

Part 3: When Should a Discharge Be Granted?

[16] The Supreme Court in Pham held that a sentence imposed taking into account immigration consequences should not be inappropriate or artificial in order to avoid collateral consequences. The Court of Appeal in Nassri held that the sentence should be "within the range" of appropriate sentences for similar offences involving similar offenders in similar circumstances. It is therefore important to consider the circumstances in which it is appropriate to grant a discharge.

[17] The Criminal Code simply says that a discharge can be imposed if a court "considers it to be in the best interests of the accused and not contrary to the public interest". (s. 730(1)) A sentencing court therefore has jurisdiction to grant a discharge for any offence other than one which attracts a minimum punishment or potential punishment of incarceration for 14 years or more.

[18] A discharge may be granted in cases that are not "technical or trivial", unintentional or unavoidable. ([R. v. Fallofield](https://www.canlii.org/en/bc/bcca evidence973/1973canlii1412/1973canlii1412.html), 22 C.R.N.S. 342 (B.C.C.A.))

[19] It would not, however, be appropriate to impose a discharge in every case. The Court of Appeal set out the appropriate considerations in R. v. Sanchez-Pino, 11 C.C.C. (2d) 53 (O.C.A.). In that case, the first decided by the Court of Appeal after the discharge provisions had been added to the Code, Arnup J.A. wrote:

The granting of some form of discharge must be "in the best interests of the accused". I take this to mean that deterrence of the offender himself is not a relevant consideration, in the circumstances, except to the extent required by conditions in a probation order. Nor is his rehabilitation through correctional or treatment centres, except to the same extent. Normally he will be a person of good character, or at least of such character that the entry of a conviction against him may have significant repercussions. It must not be "contrary to the public interest" to grant some form of discharge. One element thereby brought in will be the necessity or otherwise of a sentence which will be a deterrent to others who may be minded to commit a like offence -- a standard part of the criteria for sentencing.

... it is only common sense that the more serious the offence, the less likely it will appear that an absolute discharge, or even a conditional one, is "not contrary to public interest". In some cases, the trivial nature of the offence will be an important consideration; in others, unusual circumstances peculiar to the offender in question may lead to an order that would not be made in the case of another offender.

To attempt more specific delineation would be unwise, and might serve to fetter what I conceive to be a wide, albeit judicial, discretion vested in the trial Court. That Court must consider all of the circumstances of the accused, and the nature and circumstances of the offence, against the background of proper law enforcement in the community, and the general criteria that I have mentioned.

[20] These considerations are still valid today. I must consider them when determining whether a discharge is appropriate in this case.

Part 4: The Circumstances of the Offence Are Serious

[21] Mr. Munga's offences are serious. He intentionally secreted a kitchen knife, 13 inches long with an 8 inch blade, in his shirt sleeve. While carrying the knife concealed in this way, he and 3 friends walked around the Market area in the small hours of the morning. That neighbourhood contains many bars and restaurants. He was in a group of people surrounding persons fighting on the sidewalk outside a bar at about 2:30 a.m. As a security guard approached the group, Mr. Munga pulled the knife out of his sleeve and moved toward the security guard, yelling "back up back up". I found that he did so in order to intimidate him and cause him to fear serious bodily harm. I also found that he was carrying the knife for the purpose of committing the offences of intimidation, assault, or uttering threats.

[22] In addition to these offences, Mr. Munga has been convicted of breaching the terms of his bail by being in the city of Ottawa. This is not a minor offence because the purpose of that condition was to keep him away from the individuals and influences which could lead to commission of offences. He has also been convicted of failing to attend court, an administration of justice offence. Both of these offences show a disregard for the justice system which ordinarily would not be present in someone who receives a discharge.

Part 5: The Circumstances of the Offender Show Both Mitigating and Aggravating Features

[23] Mr. Munga was 20 years old at the time of the offences and is now 22. He has no criminal record.

[24] It would not be an understatement to say that his life before his arrival in Canada in 2010 was horrific. He was born and raised in the Democratic Republic of the Congo. He has memories of significant violence while he was growing up in that country, including frequent sounds of gunshots and bombs, and seeing a number of dead bodies.

[25] His family fled the Congo when he was 9 years old and lived in a refugee camp in Uganda. The pre-sentence report indicates that the refugee camp in which Mr. Munga and his family lived appears to be still operating and home to over 20,000 refugees from Congo, Rwanda, Burundi, South Sudan, Somalia, and Kenya. The author of that report writes that Mr. Munga "describes a hard life in Uganda marred with homelessness, poor living conditions, limited sustenance and sleepless nights due to constant fear." Mr. Munga's father died in 2005.

[26] On arrival in Canada, Mr. Munga and his family lived in Kitchener, the Greater Toronto Area, and most recently in Trois-Rivières. He told the report writer that none of he or his family members, with whom he lives, are employed (although it appears that he has started to work recently). He told the pre-sentence report writer that he had a great relationship with his mother and some of his siblings.

[27] Mr. Munga's counsel filed letters from his partner, the mother of his child; his mother and uncle; and Marilyn Houle, a counsellor with Hunt International, an employment firm.

[28] Ms. Houle's report stated that Mr. Munga had been employed through that firm in the past and had recommenced employment on Sept. 7, 2017 (two weeks before the sentencing submissions) for $12 an hour, with the number of hours per week dependent on demand.

[29] Mr. Munga's partner wrote that she believed that he was changing for a better life, that he has realized the mistakes he has made, and that she knows he will take care of her and her baby. His mother and uncle wrote a letter indicating that he has the support of his family.

[30] Mr. Munga has had difficulty completing high school and is six credits shy of graduation. He has worked only six months since turning 18.

[31] The pre-sentence report includes the following:

When discussing the index offences, the subject explains his version of events and suggests the incident resulting in his criminal conviction was a misunderstanding. He claims that he was attempting to intervene in order to deescalate the physical altercation involving his cousin. He acknowledges having a weapon (knife) but claims it was tucked into the sleeve of his shirt as he did not have pockets. He also admits telling people to "back-up" as indicated in the police report but denies waving the knife while making that statement. The subject argues that he would not have had to intervene if the security guard was "doing his job". Furthermore, the subject denies threatening the security guard.

[32] I asked Mr. Munga if he wished to say anything at the conclusion of sentencing submissions. He expressed remorse and told me that he was trying to move on and do something with his life, and that he has a new daughter who he was trying to take care of.

[33] Defence counsel filed reports from the United States Department of State and Amnesty International describing the situation in the Democratic Republic of the Congo. They described a terrible situation. The Department of State report included the following:

Armed conflict in the east exacerbated an already precarious human rights situation.

The most significant human rights problems included unlawful killings; torture and other cruel, inhuman, and degrading treatment and punishment and sexual and gender-based violence (SGBV), including rapes and abductions.

Other major human-rights problems included disappearances; life-threatening conditions in prisons and detention facilities; arbitrary arrests and prolonged pretrial detention; arbitrary interference with privacy, family, and home; abuse of internally displaced persons (IDPs); arbitrary arrests and prolonged detention; harassment of civil society and opposition leaders and the inability of citizens to change their government; corruption at all levels of government; and restrictions on freedom of speech and press.

Despite modest improvements, authorities often took no steps to investigate, prosecute, or punish officials who committed violations, whether in the security forces or elsewhere in the government, and impunity for human rights abuses was a problem.

Rebel and militia groups (RMGs) continued to commit abuses, primarily in the east, but also in Katanga and Orientale provinces. These abuses included unlawful killings, disappearances, torture, and SGBV. RMGs also recruited, abducted, and retained child soldiers and compelled forced labor. The government took military action against some RMGs but had limited ability to investigate abuses and bring the accused to trial.

[34] The Amnesty International report was much the same.

Part 6: Analysis

[35] There are both aggravating and mitigating factors applicable to Mr. Munga's sentencing.

[36] He is a young first offender. He pled guilty to the fail to appear and breach of his bail terms charges. He has significant personal circumstances which make him less morally culpable. He has just fathered an infant who needs and wants his support. He has a supportive family.

[37] While he did not plead guilty to the more serious charges, this is not an aggravating factor – it is just not a mitigating factor.

[38] The offences were quite serious. The knife was used in a violent manner, in a manner which was pre-planned and deliberate. While Mr. Munga did express remorse at the sentencing hearing, he had just a short time earlier refused to do so – blaming the victim for his own crime, and minimizing his culpability. He has not performed any community service or shown in other ways that he is determined to change his path.

[39] I cannot conclude that a conditional discharge is appropriate. To use Justice Arnup's test, the specific deterrence of a custodial sentence is required for these offences for this offender. It is also required for the general deterrence in the community of crimes involving concealed weapons in situations such as the Market area at night.

[40] These are serious offences for which a discharge would not be appropriate unless there were "peculiar circumstances unusual to the offender". I cannot find that the horrific conditions in Mr. Munga's home country, and the possibility of his deportation there, are such peculiar circumstances, in light of Pham. If I granted discharges, I would be, in Justice Wagner's words:

imposing inappropriate and artificial why he is order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament's will.

[41] Parliament has crafted a statutory scheme which requires both a discretionary decision by the Minister to issue a removal order, and the denial of an appeal by the Immigration Appeal Division, before Mr. Munga could be deported. If the circumstances in the Congo are as they are described in the material before me, I sincerely hope that the commission of these crimes do not result in Mr. Munga being sent there. I would certainly not impose that as part of a sentence. But Parliament has determined that that decision is to be made by the Minister and the tribunal, who have the experience and expertise to do so. I leave it to them.

[42] Mr. Munga is sentenced as follows:

(a) On the possession of a weapon charge, the appropriate sentence would have been 20 days in custody; after giving credit for 20 days of pre-sentence custody, I suspend the passing of sentence and impose a period of probation of 18 months, on terms I will describe shortly;

(b) On the uttering a threat charge, the appropriate sentence would have been 10 days in custody, consecutive to the 20 days for the possession of a weapon charge; after giving credit for 10 days of pre-sentence custody, I suspend the passing of sentence and impose a period of probation of 18 months concurrent, on the same terms;

(c) On the other two charges, I suspend the passing of sentence and impose a period of probation of 18 months concurrent, on the same terms;

(d) Mr. Munga will be required to submit a sample suitable for DNA analysis for registration on the DNA database on the uttering threat count, which is a secondary designated offence;

(e) Mr. Munga will be subject to a 5 year weapon ban under s. 110 for both the possession of a weapon count and the uttering threat count.

Released: November 7, 2017

Signed: Justice P.K. Doody