ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

COURT FILE NO.: SCA(P)120/13
DATE: 2013 09 23

B E T W E E N:

HER MAJESTY THE QUEEN

Jeremy Schaffer, for the Crown

Appellant

• and -

SYED HUSSAIN

In Person

Respondent

HEARD: September 9, 2013

REASONS FOR JUDGMENT

[On appeal from the judgment of Botham J. dated January 28, 2013]

Fragomeni J.

1The respondent, Syed Hussain, was charged with assault and fail to comply with an undertaking. The assault related to his wife. Mr. Hussain entered a plea of guilty to both counts. The sentencing judge imposed the following sentence:

1. Re: Assault – Conditional discharge with probation for a period of 12 months with the following conditions:

• Keep the peace and be of good behaviour;

• Attend for assessment and participation in any counselling recommended by a probation officer to deal with issues relating to domestic violence, anger management and any other issues the probation officer feels are relevant;

• Not to possess any weapons.

2. Re: The Breach of Undertaking – Absolute discharge.

2The Crown appeals this sentence on three grounds:

1. The sentencing judge erred in principle in finding that there is no distinction between registering a conviction rather than a discharge;

2. The sentencing judge overemphasized the wishes of the victim wife;

3. The sentences were demonstrably unfit.

Facts of the Offence and the Pleas of Guilt

Re: Assault

3It is important, for the purposes of this appeal, to set out in some detail the facts set out by the Crown and agreed to by Mr. Hussain. These facts are set out in the transcript of the proceeding as follows:

MR. MICHAUD: … She and the accused have been in a relationship for 18 years, at least of – that- that was at the time of the offence in Ottawa. I think…

THE COURT: All right.

MR MICHAUD: …it may be 19 years now. The accused immigrated to Canada 10 years ago, and brought the victim and two children to Canada five years ago. They now have three children again, aged at the time 2, 13 and 16. The accused was employed as a driver for the Bangladesh Embassy, and was the sole breadwinner for the family. The accused reportedly has a gambling problem which is part of the reason for the marital strife. There was a brief period of separation in 2008 but they reconciled. There are no previous calls to police of a domestic nature. And so what happened, at approximately 9:42, June 20th of 2011, patrol officers attended 1339 Meadowlands Drive East to investigate a domestic assault following a 9-1-1 call from that address. It was the 13-year old, Shabieh, who called police to report that her father had just assaulted her mother. The accused had already left the residence when police arrived. The – the kids and Ms. Raza herself were present when they did. The victim spoke limited English and communicated to the officers what happened through her daughter who called …..

THE COURT: The 13-year-old?

MR. MICHAUD: The 13-year-old. On June 19th, at 4:30 p.m., in the living room of their apartment, the accused approached the victim about giving him money; she refused, telling him it – it was needed for household expenses. The accused became angry and kicked the victim in the leg area and punched her as she sat on a mattress on the living room floor. The accused punched his wife in the forehead twice. She struck back and scratched his neck. The daughter, once again, tried to intervene. The victim tried to get out of the apartment but he locked the door and stood in front of it, preventing her from leaving. Continued to strike her with fists until she retreated to her bedroom. He then left her alone for a short period of time, went into the bedroom after her, punched her arms and head, and twisted her wrists. The assaults continued off and on until approximately 10:00 p.m. Eventually the victim did leave the apartment and when the accused tried to follow her, Shabieh, again that’s the 13-year-old, blocked – blocked him, and the accused struck the back of her head with an open hand. No injuries to her. The accused eventually left the residence and the victim came back after he was gone. Now that – that – that’s the assaultive behaviour he is pleading guilty to and ….

THE COURT: Does he acknowledge those facts?

MS. DIMARTINO: Yes, he does acknowledge those facts…

Re: Breach of Undertaking

4Again it is my view that a detailed review of what was agreed to at the plea of guilt is relevant and informative to the analysis on this appeal:

So, that happened, he was released on an undertaking and I- I don’t want to start editorializing too much, but I’m surprised that he was released on an undertaking on – on- on the facts there, but he was released on an undertaking not to associate and not to go near. What – what brings us here now is they –they all moved to Mississauga it seems, both the wife, the kids and the accused. So they left Ottawa and had been living together more or less for two years on this undertaking. And what happened- what finally alerted peel police to this is, September 11 at 1:07 p.m., police received a CPIC message from the Ottawa Police Service, advising that their Crown’s office would like a compliance check on Mr. Hussain. I don’t know exactly how they determined where he was but, and – and alerted them that – to the conditions of the undertaking. At 3:09 p.m. police attended 1111 Forestwood Drive in Mississauga. That was the last known address for Mr. Hussain. Police spoke with the current tenant, who advised that he knows both Mr. Hussain and his – his wife or partner, that he has not lived there for a while, he does not know where he lives, but he knows that he works at Tim Hortons and he gave the address. So they follow that lead to the employer, they maintain – they obtained the current address from him. At 3:44 p.m., they go to that address, which is 1004 Whispering Woods in Mississauga. Police observe a Southeast Asian male in his 40s with a blue shirt, standing on the sidewalk. As soon as he sees them, he turns around and enters the residence. Police ring the doorbell and were greeted by his wife and daughter. When police asked to speak with Mr. Hussain, both females advised there was no one there other than themselves, and demanded to see a warrant. While speaking with the female, police could see shadows moving upstairs and hear movement. At one point, Shafqat went upstairs for 5 to 10 minutes. Shabieh advised police that her mother had gone to get her father. So she finally – the daughter came clean at that point. Shafqat returned to the front door alone and advised the police they could search the residence. At which point they searched and he’s gone. September 12 at 2:20, police attended the accused’s residence to conduct surveillance. They waited for him to come back after work but he never returned home. They spoke with the neighbour who advised, in fact, that he had seen the accused leave in a blue and white taxi. He actually had – had caught it on video surveillance that he keeps on his own property, so we have that. Ms. DiMartino and I observed that today. Police contacted his place of employment and were advised that he didn’t show up for work that day. A warrant in the first was sought. Those are the facts.

THE COURT: All right. Those facts admitted? Did he, in fact, move to, I guess, Mississauga with his family knowing that he wasn’t supposed to have any contact with his family?

MS. DIMARTINO: Those facts are admitted, Your Honour.

Position of Crown at the Plea of Guilt

5The Crown opposed the defence request for a conditional discharge on the basis that it was absolutely contrary to the public interest. The Crown asked for a suspended sentence on the assault. The Crown asked for 30 days on the Breach of Undertaking.

Position of the Defence at the Plea of Guilt

6The defence argued that a conditional discharge with a period of probation was reasonable on the Assault and Breach of Undertaking.

Reasons for Sentence

7The learned sentencing judge first stated that, with respect to the assault, “it is a serious assault. I do not disagree with that.” The judge then noted the following:

I am not sure and I have said this before, I do not know if there is some real magic about registering a conviction rather than a conditional discharge. I really do not. Maybe in this courtroom there is, but I am not sure there is anywhere else.

8The judge referred to the wife’s letter indicating she did not want to end her relationship with her husband of 19 years and that she has no fear of her husband. She wants to continue to live with her husband. In giving Mr. Hussain a conditional discharge the judge stated that it allows Mr. Hussain to maintain employment to support his family and that that “is both in his interest and I think it is in the public interest.”

9The sentencing judge acknowledged her concern “that there does not seem to be a total acknowledgement of the significance of what has happened.”

10With respect to the breach of undertaking the sentencing judge noted that it is a blatant ignoring of a court order. The judge goes on to say “I think it is unfortunate that there was no provision, at least on the release, to allow the family, if they wanted to, to apply for some kind of variation.”

11The sentencing judge concluded that this is not the kind of breach that requires a jail sentence. The trial judge stated that it is unfortunate that “we have families, basically, kind of hiding from police in order to continue to keep their family together.”

Position of the Crown on Appeal

Re: Assault

12The Crown submits that the appropriate sentence on this appeal is a suspended sentence with 18 months’ probation. The Crown submits that it would only be fair to maintain the position taken by trial counsel at the time of the plea of guilt.

Re: Breach of Undertaking

13The appropriate sentence is 30 days.

ANALYSIS AND CONCLUSION

14At this time, Mr. Hussain is employed as a Supervisor at the Caravan Motel in Niagara Falls.

Standard of Review

15An appellate court may interfere with the sentence imposed by a sentencing judge in two broad instances. First, an appellate court may interfere if the sentence is demonstrably unfit in the sense that it clearly falls outside the range of acceptable sentences. Second, an appellate court may interfere if the sentencing judge committed an error of principle. R. v. Rezaie (1996), 1996 1241 (ON CA), 112 C.C.C. (3d) 97 (Ont. C.A.) at p. 103.

16An error of principle will have occurred if the sentencing judge unreasonably failed to consider a relevant factor, considered an irrelevant factor, failed to give sufficient weight to relevant factors, overemphasized relevant factors, or erroneously applied relevant factors. R. v. Rezaie (supra); R. v. Hamilton (2004), 2004 5549 (ON CA), 186 C.C.C. (3d) 129 (Ont. C.A.) at para. 86.

17If the sentencing judge commits an error in principle, the sentence imposed is no longer entitled to deference and an appellate court may impose the sentence it thinks fit. R. v. Razaie (supra); R. v. Hamilton (supra).

Issue: Distinction between registering a conviction rather than a discharge

18In R. v. Sanchez-Pino, 1973 794 (ON CA), [1973] O.J. 1903 (C.A.) the Court set out the factors that ought to be considered by a sentencing judge. At paras. 17 and 18 the Court sets out the following:

The trial Judge in this case was right in saying that the guide-lines are meagre. The section does not apply to corporations, nor to offences for which a minimum sentence is prescribed, nor to offences punishable, in the very proceedings, by imprisonment for 14 years or for life or by death. 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.

Obviously the section is not confined to "simple cases of possession of marijuana". It is not confined to any class of offences except to the extent I have noted. On the other hand, 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.

19There is a two branch test, the “best interests of the accused” and “not contrary to the public interest”.

20The Crown referred to several cases that support the principle that denunciation and deterrence are the controlling sentencing principles in offences involving domestic violence. See R. v. Inwood, 1989 263 (ON CA), [1989] O.J. No. 428 (C.A.); R. v. Campbell, 2003 48403 (ON CA), [2003] O.J. No. 1352 (C.A.); and R. v. Menary, 2012 ONCA 706, [2012] O.J. No. 4957 (C.A.).

21Section 718.2(a)(ii) of the Criminal Code sets out, as an aggravating factor that the offender, in committing the offence, abused the offender’s spouse or common-law partner.

22I am satisfied that the sentencing judge erred in failing to properly appreciate the distinction between a conviction and a discharge. In doing so the sentencing judge did not adequately address the seriousness of the offences. I am satisfied this was an error in principle.

23There is a distinction between a conviction and a discharge. The former recognizes that in certain circumstances of an offence and in particular circumstances of an accused it would be contrary to the public interest to impose a discharge.

24The sentencing judge clearly acknowledged that the assault was serious. I agree with that assessment. The assault was serious and prolonged. The victim was forcibly confined and could not leave. This assault took place in front of his thirteen year old daughter who was forced to intervene twice.

25This was not a momentary lapse of judgment. Mr. Hussain conducted himself in the way he did over several hours. He had plenty of time to resile from this conduct but he deliberately continued the conduct, despite intervention by his thirteen year old daughter. The thirteen year old daughter was the one who called 911. The conduct read in by the Crown was acknowledged by Mr. Hussain, through counsel. I find that the conduct was a serious, egregious and a prolonged attack on the integrity of the victim, with the thirteen year old daughter as a witness to this criminal behaviour exhibited by her father.

26I am satisfied in all of these circumstances that the imposition of a conditional discharge is an error in law. It is contrary to the public interest in the circumstances of this case.

27The conduct of the accused could have easily attracted a period of incarceration on the assault count. The Crown, in my view, took a very lenient and generous position at the plea of guilt. The plea of guilt certainly would have been a mitigating factor obviating the need for the wife and their thirteen year old daughter to testify. Mr. Hussain does not have a criminal record.

28I accept the Crown’s position on appeal and allow the appeal such that Mr. Hussain’s sentence on the assault will be as follows.

Suspended Sentence for a period of 18 months with the following conditions:

1. Keep the peace and be of good behaviour;

2. Appear before the court when required to do so;

3. Notify the court or probation officer in advance of any change of name or address and promptly notify the court and probation officer of any change in employment or occupation;

4. Co-operate with your probation officer. He shall sign any release necessary to permit the probation officer to supervise him and he must provide on request proof of compliance with any term of this order;

5. Report immediately to a probation officer and report thereafter as required;

6. Not to possess any weapons as defined by the Criminal Code;

7. To attend and actively participate in such assessment, counselling or rehabilitative programs as recommended by his probation officer to address issues of domestic violence, anger management and such issues as identified by his probation officer.

29With respect to the Breach of Undertaking the appeal is also allowed. I am satisfied that an absolute discharge is a demonstrably unfit sentence. The sentencing judge stated that the breach of undertaking is a blatant ignoring of a court order. I agree and what makes this breach particularly serious is that it was a continuous prolonged breach. Mr. Hussain made no attempt to vary the Undertaking to accommodate his family situation and permit him to move in with his family when they moved from Ottawa to Mississauga. The further aggravating feature of this breach relates to the circumstances surrounding the search of his residence by police to locate Mr. Hussain. When the police searched the residence, Mr. Hussain left in a taxi in order to avoid detection by the police.

30An absolute discharge in these circumstances is an error in principle and such a sentence is demonstrably unfit.

31I agree with the Crown that a period of 30 days incarceration for the breach of undertaking is the appropriate range of sentence. However, I am not at this time prepared to incarcerate Mr. Hussain.

32I make this determination because at this time Mr. Hussain is employed full time and is supporting his family. The wife and daughter are dependent on Mr. Hussain. Mrs. Hussain is a particularly vulnerable victim. In her letter to the sentencing judge she states that she has no fear of her husband and wants to continue to live with him. She states, “I am unable to survive in this country without my husband.” Although a victim’s wishes and comments are matters that a judge should consider, the ultimate decision on balancing all of the sentencing principles rests with the judge.

33There is no doubt that within the sentencing principles set out in the Criminal Code and the jurisprudence, one such objective in sentencing is to preserve, where possible, the family unit. However, the wishes of a victim cannot be the only or determinative factor in that analysis.

34As I indicated a 30 day jail term at the first instance would have been a reasonable response to the circumstances surrounding the breach. The 30 day jail term could have been intermittent, although I note that at the time of sentence the indication was that Mr. Hussain was not employed.

35Having said all of that and as I indicated I am not now prepared to send Mr. Hussain to jail. He is working full time. He is supporting his family. He is residing with his family and his wife has no fear and wishes to continue their marriage. Mr. Hussain has been the subject matter of probation terms and has had no issues with any of the terms. The terms of the probation order I am imposing mirror the terms of the probationary terms of the conditional discharge.

36I am satisfied therefore, that the sentence appeal relating to the Breach of Undertaking be allowed. The sentence on the Breach of Undertaking will be a Suspended Sentence for 18 months, concurrent to the Assault charge and with the same conditions.

DISPOSITION

37On the Assault count and the Breach of Undertaking count the appeals are allowed. The sentences will be varied to a suspended sentence with probation for a period of 9 months with the following conditions:

1. Keep the peace and be of good behaviour;

2. Appear before the court when required to do so;

3. Notify the court or probation officer in advance of any change of name or address and promptly notify the court and probation officer of any change in employment or occupation;

4. Co-operate with your probation officer. He shall sign any released necessary to permit the probation officer to supervise him and he must provide on request proof of compliance with any term of this order;

5. Report immediately to a probation officer and report thereafter as required;

6. Not to possess any weapons as defined by the Criminal Code;

7. To attend and actively participate in such assessment, counselling or rehabilitative programs as recommended by his probation officer to address issues of domestic violence, anger management and such issues as identified by his probation officer.

38The sentences are concurrent. I have made the period of probation 9 months reflecting the fact that Mr. Hussain has been on the stipulated probationary terms since January 28, 2013 while on his conditional discharge sentence.

Fragomeni J.

Released: September 23, 2013

COURT FILE NO.: SCA(P)120/13
DATE: 2013 09 23

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT