CITATION: R. v. Zhou, 2015 ONSC 3557
COURT FILE NO.: 14-10000105-00AP
DATE: 20150604
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
JEN WEN ZHOU
Appellant
Megan Petrie, for the Crown
Daniel Moore, for the Appellant
HEARD: April 17, 2015
[ON APPEAL FROM THE SENTENCE IMPOSED BY JUSTICE S. NAKATSURU OF THE ONTARIO COURT OF JUSTICE DATED AUGUST 12, 2014]
B. P. O’Marra, J.
overview
[1] The appellant was a practitioner of alternative Chinese medicine. He was convicted after trial of two counts of sexual assault against two female patients. The trial judge imposed a 23-month conditional sentence with a strict house arrest term for the full duration. There was no exception permitted for work or education purposes. THE ISSUE
[2] Was there an error in principle or did the trial judge fail to consider evidence relevant to sentence in not permitting an exception for work or education purposes?
PROCEEDINGS AT TRIAL
[3] The sexual assaults against the two female patients occurred approximately one year apart. In between the two assaults, the appellant had been cautioned by police about his inappropriate behavior towards another female patient for which he was never charged.
[4] The appellant testified at trial. His evidence was rejected by the court and referred to as evasive, argumentative and simply incredible.
[5] Victim Impact Statements from both of the complainants were filed on sentence. They both described the profound negative impact of these crimes on themselves and their families.
[6] The appellant had no prior convictions.
[7] The Crown sought a two-year jail term. The appellant sought a conditional sentence, an intermittent sentence or a combination of both.
[8] The court imposed the following sentence:
a global 23-month conditional sentence;
3 years probation after the completion of the conditional sentence;
ancillary orders that the appellant provide a DNA sample, a 10 year weapons prohibition and that he register with the Sex Offender Registry.
CONDITIONAL SENTENCES
[9] The Supreme Court of Canada has clearly stated that a conditional sentence is a sentence of imprisonment. It is to address both punitive and rehabilitative objectives:
The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence. It is this punitive aspect that distinguishes the conditional sentence from probation, and it is to this issue that I now turn.
There has been some confusion among members of the judiciary and the public alike about the difference between a conditional sentence and a suspended sentence with probation. This confusion is understandable, as the statutory provisions regarding conditions to be attached to conditional sentences (s. 742.3) and probation orders (s. 732.1) are very similar. Notwithstanding these similarities, there is an important distinction between the two. While a suspended sentence with probation is primarily a rehabilitative sentencing tool, the evidence suggests that Parliament intended a conditional sentence to address both punitive and rehabilitative objectives.
Despite the similarities between the provisions and the fact that the penalty for breach of probation is potentially more severe than for breach of a conditional sentence, there are strong indications that Parliament intended the conditional sentence to be more punitive than probation. It is a well accepted principle of statutory interpretation that no legislative provision should be interpreted so as to render it mere surplusage. It would be absurd if Parliament intended conditional sentences to amount merely to probation under a different name. While this argument is clearly not dispositive, it suggests that Parliament intended there to be a meaningful distinction between the two sanctions. I will now consider more specific arguments in support of this position.
The conditional sentence is defined in the Code as a sentence of imprisonment. The heading of s. 742 reads “Conditional Sentence of Imprisonment”. Furthermore, s. 742.1(a) requires the court to impose a sentence of imprisonment of less than two years before considering whether the sentence can be served in the community subject to the appropriate conditions. Parliament intended imprisonment, in the form of incarceration, to be more punitive than probation, as it is far more restrictive of the offender’s liberty. Since a conditional sentence is, at least notionally, a sentence of imprisonment, it follows that it too should be interpreted as more punitive than probation.
In light of the foregoing, it is clear that Parliament intended a conditional sentence to be more punitive than a suspended sentence with probation, notwithstanding the similarities between the two sanctions in respect of their rehabilitative purposes. I agree wholeheartedly with Vancise J.A., who, dissenting in R. v. McDonald (1997), 1997 CanLII 9710 (SK CA), 113 C.C.C. (3d) 418 (Sask. C.A.), stated, at p. 443, that conditional sentences were designed to “permit the accused to avoid imprisonment but not to avoid punishment”.
Accordingly, conditional sentences should generally include punitive conditions that are restrictive of the offender’s liberty. Conditions such as house arrest or strict curfews should be the norm, not the exception. As the Minister of Justice said during the second reading of Bill C-41 (House of Commons Debates, supra, at p. 5873), “[t]his sanction is obviously aimed at offenders who would otherwise be in jail but who could be in the community under tight controls” (emphasis added).
See R. v. Proulx [2000] S.C.J. 6, 2000 SCC 5, at paras. 22, 23, 28, 29, 35 and 36.
ANALYSIS
[10] An appellate court may vary a sentence imposed where the trial judge has erred in principle, failed to consider evidence relevant to sentence, misapprehended a material fact, or imposed a sentence that is demonstrably unfit. See R. v. Thurairajah, 2008 ONCA 91 at para. 31 and 32.
[11] In R. v. Harb, 2001 MBCA 180, [2001] M.J. No. 492, the Manitoba Court of Appeal found that the condition that the accused not be able to work on weekends was unreasonable and undermined his rehabilitation. Mr. Harb appealed his sentence on a conviction for dangerous driving causing bodily harm. He was sentenced to 18 months to be served in the community. He was permitted to leave his house for employment purposes only between 7:30 a.m. and 6:30 p.m., Monday to Friday. Mr. Harb was a painter who worked from 9:00 a.m. to 5:00 p.m., Monday to Friday, with occasional work on Saturdays. He argued that the curfew hours were too restrictive, preventing him from day-to-day responsibilities such as paying bills, shopping, recreation and haircuts. The Manitoba Court of Appeal determined that the restriction placed on Mr. Harb’s ability to go out on weekends jeopardized his employment, and as such his permission to be absent from home for employment purposes was extended to Saturday, subject to the supervisor’s prior written approval. At paragraph 21 the court indicated as follows:
The refusal of the trial judge to permit the accused to work if asked to do so at a weekend was, however, unreasonable. It is not a question of the accused earning less money, but of jeopardizing the accused’s employment. The accused’s inability to work weekends, as he is sometimes asked to do, may make him a less desirable employee. The continued employment of this accused is an important part of his rehabilitation.
[12] Trial and appellate courts in Ontario have imposed conditional sentences where there was no exception for work or education purposes.
[13] In R. v. Gaudon, [2004] O.J. No. 3918 (C.A.), the appellant was convicted of assault causing bodily harm and was sentenced to a one-year conditional sentence of imprisonment and three years’ probation. He appealed his sentence, arguing that certain conditions imposed as part of the conditional sentence were unreasonable, including the condition that he remain at home and not work. The Court of Appeal found that “in the unusual circumstances of this case”, the lack of permission to leave for work was not unreasonable.
[14] In R. v. Bansch, [1997] O.J. No. 1691 (C.A.), the specifics of the offence are unavailable in the brief endorsement. The Court of Appeal upheld the conviction but considering the appellant’s deteriorating medical condition varied the sentence to a conditional sentence without exception for work or education.
[15] In R. v. Lai, [2008] O.J. No. 1342, Justice Belobaba of the Superior Court dealt with a case where Mr. Lai pleaded guilty to one count of breaking and entering and one count of robbery. The court imposed a conditional sentence of 18 months’ imprisonment to be served in the community. After giving the offender a credit for pre-sentence house arrest and curfew, the court outlined the terms of the conditional sentence. Specifically, strict house arrest with no exception for work or education was imposed for the first three months.
[16] In R. v. Robinson [2003] O.J. No. 4722 (S.C.J.), the accused was convicted of fraud over $5,000.00 involving a breach of trust. Justice Juriansz imposed a 20-month conditional sentence. For the first 14 months Ms. Robinson was subject to strict house arrest except for medical appointments or emergencies. The court declined to grant an exception for work. The offender was permitted to leave her residence one day a week for three hours to run errands. For the last six months of the conditional sentence, the offender was allowed to seek and obtain employment or attend school. If she obtained employment or became enrolled in an educational program, then she would be permitted to leave the house for the purposes of employment or education.
[17] In R. v. Casciaro, 2006 ONCJ 422, [2006] O.J. No. 4501, the offender was a caretaker who was found guilty of sexually assaulting an 18-year-old student who suffered from a disability that affected her mobility as well as her cognitive and communicative functioning. Justice Green of the Ontario Court of Justice would have imposed a sentence of three to four months’ incarceration, but for the mitigating factors that included the accused’s loss of employment and the fact that he suffered from a number of grave infirmities. Justice Green imposed a conditional sentence of six months with no exception for work or education.
CONCLUSIONS
[18] The trial judge gave thoughtful reasons for sentence. He understandably viewed this case as a close call between “real jail” in a cell and a conditional sentence. A traditional jail term of the same length would not have been an error in principle or demonstrably unfit. If the Crown had proceeded by indictment the appellant would not have been eligible for a conditional sentence. See Criminal Code s. 742.1(f)(iii).
[19] The principles of deterrence and denunciation were properly viewed as paramount but the court also considered rehabilitation.
[20] Rehabilitation is a valid goal of any sentence even where deterrence and denunciation are the paramount considerations. In most conditional sentences, a term permitting a work or education exception to house arrest will assist in rehabilitation. However, there will be cases where a punitive aspect reflecting the overriding principles will preclude resort to those exceptions.
[21] A convicted person does not have a right to employment or education during the term of a conditional sentence. Where those exceptions to house arrest are permitted, the court clearly has the authority to limit hours of work or the type of work. Someone convicted of a sexual assault will not be permitted to work in circumstances where he or she would be in close contact with further potential victims.
[22] Where rehabilitation is the primary principle to be considered, a term permitting a work or education exception to house arrest would usually be appropriate. Where denunciation and deterrence are paramount that may not be the case.
[23] The appellant was convicted after a trial of two sexual assaults involving a serious breach of trust. The victims have suffered long standing and prospective negative impacts. This offender was one small step away from a jail cell when he received a conditional sentence. The trial judge’s decision not to permit an exception for work or education is entitled to significant appellate deference. I do not find there was an error in principle nor did he fail to consider evidence relevant to sentence.
RESULT
[24] The appeal from sentence is dismissed.
B. P. O’Marra, J.
Released: June 4, 2015
CITATION: R. v. Zhou, 2015 ONSC 3557
COURT FILE NO.: 14-10000105-00AP
DATE: 20150604
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
JEN WEN ZHOU
Appellant
REASONS FOR JUDGMENT
B. P. O’Marra, J.
Released: June 4, 2015