R. v. Alzahrani, 2015 ONSC 355

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN

Sean Bradley, for the Respondent

Respondent

• and -

SAEED ALZAHRANI

Jody Berkes, for the Appellant

Appellant

HEARD: January 7, 2015 at Milton, Ontario

REASONS FOR JUDGMENT

[On appeal from the judgment of V. Starr J.

dated September 3, 2014]

F. Dawson J.

1At the hearing of the appeal on January 7, 2015 I allowed the appeal, set aside the sentence imposed by the trial judge and granted the appellant a conditional discharge, with reasons to follow. These are the reasons.

2On September 3, 2014 the appellant pleaded guilty before Justice Victoria Starr of the Ontario Court of Justice to a charge of simple assault against his wife Alya Alzahrani, contrary to s. 266 of the Criminal Code.

3The appellant sought a conditional discharge from the trial judge. The trial judge, without addressing whether a discharge was in the best interests of the accused and not contrary to the public interest, registered a conviction and imposed a suspended sentence and terms of probation. The terms of probation required the appellant to take counselling for partner abuse and provided that he was to have no contact with his wife except pursuant to her revocable written consent. The trial judge was advised that the complainant wished to reconcile with the appellant and proposed to give such consent.

4Trial counsel for the appellant (not Mr. Berkes) advised the trial judge that the complainant was a graduate student at McMaster University. Both she and the appellant are Saudi Arabian nationals. The complainant was being supported in her studies by the Saudi Arabian government which required that the complainant be accompanied by an adult male family member. The appellant was fulfilling that role.

5Trial counsel also advised the trial judge that he had not been able to determine what effect a conviction would have upon the appellant’s visa to remain in Canada. It is unfortunate that trial counsel did not provide the trial judge with more complete information in that regard.

6Fresh evidence filed on the sentence appeal shows that the conviction that was registered resulted in the appellant being inadmissible to Canada pursuant to s. 36(2)(a) of the Immigration and Refugee Protection Act, S.C. 2001 c. 27. That evidence also shows that the appellant was immediately rearrested by immigration officials. On September 4, 2014 he was ordered deported from Canada pursuant to s. 40 of that Act. I am advised the appellant was removed from Canada pursuant to that order in November 2014.

7Counsel for the respondent consented to the admission of the fresh evidence and did not oppose the appeal, on the basis that a probation order identical to that which was ordered by the trial judge can be imposed pursuant to the terms of a conditional discharge. I am advised that if the appellant is granted a conditional discharge he will again become eligible for admission to Canada.

8The trial judge was not made aware that a conviction would automatically lead to a deportation order. Nonetheless, trial counsel did raise concerns about the potential impact a conviction would have upon the appellant’s ability to remain in Canada. That issue was before the trial judge.

9In R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739 it was held that a sentencing judge may take collateral immigration consequences into account, provided that the sentence that is imposed remains proportionate to the gravity of the offence and degree of responsibility of the offender. Such collateral circumstances may be taken into account as part of the personal circumstances of the offender and in relation to the issue of rehabilitation of the offender.

10In my view, the trial judge erred because it does not appear from her reasons that she considered whether a conditional discharge was in the best interests of the appellant and not contrary to the public interest. Consequently, the deference which usually applies to a sentence imposed by a trial judge does not apply in this instance.

11Having regard to all of the evidence, including the fresh evidence, I concluded at the hearing of the appeal that it was in the appellant’s interest and not contrary to the public interest to grant the appellant a conditional discharge on the same terms that were included by the trial judge in the probation order she imposed. Crown counsel agrees that such a disposition remains within an appropriate range of sentence having regard to all relevant factors.

12I concluded that such a sentence is in the best interests of the appellant as it will allow him to return to Canada and reconcile with his wife. I understand that is the complainant’s wish as well.

13This disposition is not contrary to the public interest. The appellant will still be required to undergo counselling for partner abuse and the complainant will be able to withdraw her consent to their relationship should she wish to do so. The appellant’s ability to return to Canada may also facilitate the completion of the complainant’s studies.

14As indicated, the appeal is allowed and the appellant is granted a conditional discharge on the terms and conditions set out in my endorsement of January 7, 2015.

F. Dawson J.

Released: January 16, 2015

CITATION: R. v. Alzahrani, 2015 ONSC 355

COURT FILE NO.: 121/14

DATE: 20150116

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT