ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
C. Presswood, for the Respondent
Respondent
- and -
ARIDAMANJEET SOHAL
N. Sanford, for the Appellant
Appellant
HEARD: January 20 and 29, 2016 in Brampton
REASONS FOR JUDGMENT
[On appeal from the judgment of P. Currie J.
dated August 13, 2014]
André J.
[1] Mr. Aridamanjeet Sohal (“Mr. Sohal”) appeals his conviction and sentence by Justice Paul Currie on the charge of assault. He submits that the learned trial judge misapprehended the evidence, improperly directed himself on the issues at trial and consequently arrived at improper conclusions. He also submits that his counsel’s conduct amounted to incompetence which played a role in his conviction. The Crown insists that there is no evidence that the trial judge misapprehended the evidence, made any unreasonable factual finding, or applied different standards of scrutiny to the Crown and defence witnesses. The Crown also submits that Mr. Sohal has not presented any evidence in support of his claim of ineffective assistance of counsel.
SUMMARY OF EVIDENCE
[2] On June 1, 2014, Mr. Victor Ferreira was riding his motorcycle eastbound on Steeles Avenue in Brampton. He observed Mr. Sohal and a woman who turned out to be Ms. Patel on the opposite side of the road, beside the sidewalk. He initially believed that the two were arguing. As he approached closer, he saw Mr. Sohal grab Ms. Patel’s arm. He then saw Mr. Sohal swing his other arm downwards but did not see what happened next. He did not hear any conversation between Mr. Sohal and Ms. Patel. Mr. Ferreira testified that he proceeded to the scene and took Ms. Patel away from Mr. Sohal. Mr. Sohal advised him: “Sir, sir, you don’t understand. You don’t understand. In my culture …there’s no such thing as separating or splitting, whatever”. Mr. Ferreira testified that Ms. Patel “was crying her eyes out”. (Transcript of the Evidence, August 13, 2014, pages 9-11).
[3] Ann Ferreira, Mr. Ferreira’s wife, testified that she saw Mr. Sohal raise his hands, grab a bag from the woman and raise his hand to stop her. They then decided to turn around and go to the assistance of the girl. When they arrived, Mr. Sohal and Ms. Patel were sitting in a ditch. Ms. Ferreira testified that she did not see Mr. Sohal hit Ms. Patel.
[4] Daljeet Singh testified that while driving eastbound on Steeles Avenue he saw a lot of struggling from Ms. Patel who was trying to get away from Mr. Sohal as he stopped her with his right hand and pulled her towards him. (Transcript of the Evidence, August 13, 2014, pages 20-21).
[5] Mr. Singh testified that he saw Mr. Sohal slap Ms. Patel’s right cheek. In cross-examination, Mr. Singh indicated that given that Mr. Sohal had used his right hand to slap Ms. Patel, he would have slapped her left cheek rather than her right. He also testified that the man on a motorcycle was behind him but rode ahead of him to make a U-turn to go to Mr. Sohal and Ms. Patel’s location. They divided Mr. Sohal and Ms. Patel and the police arrived two minutes later.
[6] Tanya Williams was also driving eastbound on Steeles Avenue when she witnessed an altercation between Mr. Sohal and Ms. Patel. She saw a young girl on the ground being punched by a male. She slowed down her vehicle to see what was happening. She saw the girl get off the ground and then saw the male pull her shoulder bag. She testified that the male was “jerking her around by her – by her arm”. She testified further that the male appeared to hit the female in her shoulder area and upper body while she lay on the ground. (Transcript of the evidence, August 13, 2014, pages 30, 32.)
[7] Ms. Williams testified that she saw Mr. Sohal’s fist suspended in the air and therefore knew that he had punched Ms. Patel. Ms. Williams called 911, made a U-turn and drove to the scene of the altercation. By then, a motorcycle had passed her and had made a U-turn ahead of her.
[8] Ms. Komal Patel testified that Mr. Sohal was her boyfriend on the date of the alleged incident. While walking to work they had a conversation about her sister’s relationship with another male. The two got into a verbal altercation. At one point Ms. Patel walked away from Mr. Sohal at a fast pace. Mr. Sohal tried to stop her by grabbing her hand. He did not want them to go to work while they were both upset. Ms. Patel reiterated that Mr. Sohal was merely trying to pacify relations between the two before they arrived at work. Ms. Patel stated Mr. Sohal did not grab her hand with any significant force and that she was trying to pull her hand away when Mr. Sohal grabbed her.
[9] Ms. Patel also testified that Mr. Sohal put his hand on her shoulder in an attempt to get her to sit down. She fell because she was standing on a slope and she dropped her leg. (Transcript of the Evidence, August 13, 2014, pages 55-56.)
[10] Ms. Patel testified that Mr. Sohal’s voice was loud and that she had told the police that Mr. Sohal tried to push her down but denied that he had touched her anywhere other than on her hand and shoulder. She denied that Mr. Sohal had punched or slapped her.
MR. SOHAL’S EVIDENCE
[11] Mr. Sohal testified that while walking to work, Ms. Patel and himself got into a heated conversation about her sister. He asked her to sit down so they could talk about it. Ms. Patel was running and upset. Mr. Sohal held her arm lightly and stopped her. However, she brushed his hand off. Mr. Sohal testified that he grabbed Ms. Patel in order to pacify her. (Transcript of the Evidence, August 13, 2014, page 71.)
[12] Mr. Sohal testified that he had held his hands light on Ms. Patel’s shoulder and had asked her to please have a seat on the ground. He denied that he slapped or punched Ms. Patel. He also denied telling Mr. Perreira that in his culture and religion, you cannot split up. (Transcript of the Evidence, August 13, 2014, page 76-78.)
REASONS FOR JUDGMENT
[13] In his reasons for judgment, Justice Currie noted that:
None of the civilian witnesses thus far had any prior dealings as far as I can tell with Mr. Sohal. They were simply members of the community going about their business on a Sunday morning and I accept their evidence in terms of what they saw. All of these witnesses turned around to go back and investigate because what they had seen, in their view, was a serious matter.
(Reasons for Judgment, page 89.)
[14] The trial judge did not accept Ms. Patel’s evidence because of what he perceived to be a bias towards Mr. Sohal. Noted Justice Currie:
She obviously from the outset of this incident was bent on protecting Mr. Sohal from the authorities. That position was evident from her eagerness on the witness stand today to protect Mr. Sohal. When confronted with some portions of her transcript of her police interview, she was quick to further exculpate Mr. Sohal in terms of whether he was yelling or simply speaking loudly.
(Reasons for Judgment, pages 89-90.)
[15] Of Mr. Sohal’s testimony, Justice Currie noted that:
His position apparently is that they were having some conversation he did not want to continue and then he pursued Ms. Patel to continue the conversation. His evidence was that he really just wanted them to sit down and talk. One wonders whether anyone would be interested in sitting either on a sidewalk or what was described as a muddy, grassy area. As I say, I do not believe Mr. Sohal’s evidence. It does not raise, in my mind, a reasonable doubt.
(Reasons for Judgment, page 90.)
ANALYSIS
[16] This appeal raises the following issues:
(1) What is the standard of appellate review regarding the trial judge’s factual findings?
(2) Did the trial judge misconstrue or misapprehend the evidence?
(3) Did the trial judge apply a different standard of scrutiny to the Crown and defence evidence?
(4) Was Mr. Sohal’s trial counsel incompetent, thereby rendering the trial justice’s verdict an error in law?
(5) Was the sentence imposed on Mr. Sohal unfit?
ISSUE NO. ONE: THE STANDARD OF APPELLATE REVIEW
[17] Absent palpable or overriding error, factual findings by a trial judge should be afforded considerable deference: R v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20; R v. R.E.M., 2008 SCC 51, [2008] S.C.J. No. 52, at para. 49; R v. Cresswell, 2009 ONCA 95, [2009] O.J. No. 363 (C.A.), at para. 14.
[18] In Waxman v. Waxman (2004), 2004 39040 (ON CA), 186 O.A.C. 201 (C.A.), at paras. 296-297, leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 291, the Court of Appeal described “palpable and overriding error”, as follows:
The “palpable and overriding” standard addresses both the nature of the factual error and its impact on the result. A “palpable” error is one that is obvious, plain to see or clear: (Citation omitted). Examples of “palpable” factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference.
An “overriding” error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a “palpable” error does not automatically mean that the error is also “overriding”. The appellant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error: (citation omitted).
[19] A trial judge has considerable latitude in his or her appreciation of the evidence and the inferences to be drawn therefrom in the assessment of the credibility of witnesses. Accordingly, all factual findings are open to a trier of fact, except unreasonable ones: R v. Biniaris, 2000 SCC 15 at paras. 32, 33, 37 and 42.
[20] In reviewing the learned trial judge’s factual determinations, the test is not whether the appellate judge would have arrived at a different factual conclusion but whether it was open to the trial judge to make the factual conclusion that he or she did.
ISSUE NO. TWO: DID THE TRIAL JUDGE MISAPPREHEND OR MISCONSTRUE THE EVIDENCE?
[21] In R. v. Morissey (1995) 1995 3498 (ON CA), 97 C.C.C. (3d) 193, the Ontario Court of Appeal noted that :
A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence.
[22] Did the trial judge misconstrue or misinterpret the evidence? Mr. Sohal’s counsel insists that he did. He provides the following examples of this perceived error:
i) his finding that Mr. Sohal’s description of his conversation with Ms. Patel did not make sense.
ii) his finding that Ms. Williams must have been driving in front of the Ferreiras and Mr. Singh when she observed the incident, given that this finding is inconsistent with all of the evidence.
iii) his reason for rejecting Mr. Sohal’s evidence that he wanted to sit down with Ms. Patel and talk given that the area was muddy. That was wrong given Ms. Ferreira’s evidence that she saw Mr. Sohal and Ms. Patel sitting down on a piece of land that was like a ditch.
iv) his rejection of Ms. Patel’s evidence because it showed a bias towards Mr. Sohal without a proper evidentiary foundation for doing so.
v) the trial judge’s failure to find that Mr. Sohal’s evidence raised a reasonable doubt in the Crown’s case.
[23] Regarding the first issue, Justice Currie concluded that Mr. Sohal’s testimony did not make sense given that on one hand he testified that he did not wish to talk about Ms. Patel’s sister while on the other hand, he testified that he pursued her to get her to talk to him about it. It was open to the trial judge to reject Mr. Sohal’s reasons for stopping Ms. Patel which he apparently did. In so doing, he neither misconstrued or misapprehended the evidence.
[24] Second, it was open to the trial judge to find that Ms. Williams must have been driving in front of the Ferreiras and Mr. Singh given Ms. Williams’ evidence that “all the other parties there were on motor cycles, they passed me and already made a U-turn”.
[25] Third, while Ms. Ferreira testified that she saw Mr. Sohal and Ms. Patel sitting down on a piece of land that was like a ditch, there was also evidence in the trial that the area was muddy and grassy. Indeed, Ms. Patel testified, while being cross-examined, that the ground on which she fell “was slopey (sic) and it was muddy”. She later testified that: “We’re running on a – we are walking on a muddy-muddy road.” (Transcript of the Evidence, August 13, 2014, pages 65-66).
[26] The trial judge did not err or commit palpable or overriding error when he rejected Mr. Sohal’s testimony that he wanted to sit down with Ms. Patel and talk to her.
[27] Fourth, it was open to the trial judge to find that Ms. Patel manifested a bias towards Mr. Sohal. She made it clear that she still cared for Mr. Sohal. (Transcript of the Evidence, August 13, 2014, page 61, lines 16-17). She told a police officer on the date of the alleged offence that Mr. Sohal was yelling but was only prepared to testify during the trial that he was loud. Second, she told the police on the date of the alleged incident that Mr. Sohal tried to push her down. During her testimony she denied that Mr. Sohal touched any part of her body, besides grabbing her hands and shoulder. (Transcript of the Evidence, August 13, 2014, pages 60-61).
[28] There was clearly an evidentiary basis for the trial judge to reject Ms. Patel’s evidence as having been tailored to assist Mr. Sohal.
[29] Fifth, it was within the trial judge’s discretion to reject Mr. Sohal’s evidence and to find that it was incapable of raising a reasonable doubt. The fact of the matter is that Mr. Sohal’s version of the events; that he gently touched Ms. Patel and asked her to sit is fundamentally in conflict not only with that of the Ferreiras, Mr. Singh and Ms. Williams; it is contradicted by Ms. Patel herself.
[30] Consider Ms. Patel’s evidence while being cross-examined by Mr. Sohal’s trial lawyer. She initially testified that Mr. Sohal is a very gentle and polite man. See Transcript of the Evidence, August 13, 2014, page 65. Defence counsel, at page 66 of the transcript, asked her the following question and she provided the following answer:
Q. And when he tried to push you in the shoulder, did you feel like frightened or scared?
A. I was a little but scared because he never – he never was – he – I never seen him like this before.
Transcript of the Evidence, August 13, 2014, page 66.
[31] Ms. Patel proceeded to deny that Mr. Sohal had punched or slapped her. However, she earlier testified that Mr. Sohal had grabbed her hand and shoulder and pushed her down. (Transcript of the Evidence, August 13, 2014, page 61, lines 2-5.)
[32] I remind myself that the Code defines an assault as the application of force without consent. On Ms. Patel’s own evidence, Mr. Sohal assaulted her. On the evidence of Ms. Ferreira and Ms. Williams, he grabbed her and slapped and punched her. There was ample evidence for Justice Currie to have convicted Mr. Sohal of the offence of assault, after rejecting his evidence and concluding that it was incapable of raising a reasonable doubt.
ISSUE NO. THREE: DIFFERENT STANDARDS OF SCRUTINY
[33] In R. v. J.H. (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480, at paragraph 39, the Ontario Court of Appeal cautioned that:
To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make[s] it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant.
[34] In R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, the Ontario Court of Appeal noted at para. 39:
The “different standards of scrutiny” argument is a difficult argument to succeed on in an appellate court. It is difficult for two appellate reasons: credibility findings are the province of the trial judge and attract a very high degree of deference on appeal; and appellate courts invariably view this argument with skepticism, seeing it as a veiled invitation to reassess the trial judge’s credibility determinations.
[35] Similarly in R. v. Gravesande, 2015 ONCA 774, the Ontario Court of Appeal indicated at paragraph 19 that:
For an appellant to successfully advance this ground of appeal, she must identify something clear in the trial judge’s reasons on the record indicating that a different standard of scrutiny was applied and something sufficiently significant to displace the deference due to a trial judge’s credibility assessments: R. v. Howe (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480 at para. 59 (Ont. C.A.); R. v. Rhayel, 2015 ONCA 377, 324 C.C.C. (3d) 362, at para. 98.
[36] In this case the trial judge’s decision not to accept the evidence of Ms. Patel and Mr. Sohal is not, necessarily evidence of different standards of scrutiny. He provided reasons for his rejection of Ms. Patel’s evidence. These included her relationship to Mr. Sohal, her prior inconsistent statements and the evidence of the Crown’s witnesses. The trial judge also provided reasons for his rejection of Mr. Sohal’s evidence. These reasons do not have to be perfect; they must however, be sufficiently clear so as to permit meaningful appellate review. In my view, the trial judge’s decision meets this test.
ISSUE NO. FOUR: INEFFECTIVE ASSISTANCE BY COUNSEL
[37] In R. v. Zheng, 2014 ONCA 345 at paragraph 22, the Ontario Court of Appeal indicated that an appellant must demonstrate three things to succeed on a claim of ineffective assistance of counsel:
(1) Where the facts underlying the claim are contested, they must be proven on a balance of probabilities;
(2) That counsel was incompetent, judged on a reasonableness standard with a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance; and
(3) That counsel’s incompetence caused a miscarriage of justice.
[38] Mr. Sohal’s appellate counsel is relying on the admission of fresh evidence on consent, and the transcript of the trial evidence in support of his contention that Mr. Sohal’s trial counsel was either ineffective, incompetent or both.
SUMMARY OF THE FRESH EVIDENCE
[39] Mr. Sohal testified that he met Mr. Mann three times before the trial. He met him for two hours, two to three days before the trial. He agreed that he may have met him a day before the trial. At that meeting, Mr. Mann reviewed the witnesses’ statements. There was no discussion of Mr. Sohal’s testimony or about the cross-examination of the Crown’s witnesses. He also spoke to Mr. Mann on the phone three to four times before the trial.
[40] Mr. Sohal however, agreed that he had trouble recalling what transpired in his meetings with Mr. Mann. He agreed that he met Mr. Mann three times rather than twice as he claimed in his affidavit in support of his appeal. He conceded that he made no mention in his affidavit that he had spoken to Mr. Mann 3 to 4 times over the telephone. He also denied that Mr. Mann had showed him a Google Map of the area where the incident allegedly occurred. He denied that Mr. Mann discussed trial strategy with him.
[41] Mr. Rambir Mann testified that he gave Mr. Sohal a copy of the trial transcript and advised him that he should appeal his conviction and sentence because he faced deportation as a result. He also gave Mr. Sohal his trial notes.
[42] He testified that on June 7, 2014, Mr. Sohal went into Mr. Mann’s computer and pointed out the location of the alleged assault to Mr. Mann. Mr. Sohal kept repeating that he did not hit Ms. Patel.
[43] He again met Mr. Sohal on June 12, 2014, and discussed the disclosure with him. He disagreed that he never discussed the disclosure with Mr. Sohal. He showed Mr. Sohal the witnesses’ statements and did the same on August 12, 2014. On that date, he discussed trial strategy with Mr. Sohal and how he should testify. Mr. Mann stated that he never felt that the Ferreiras’ evidence was harmful to his client.
[44] He conceded that he never questioned the Ferreiras about collusion, or asked Mr. Singh how fast he was travelling when he observed the alleged incident. He also stated that he recommended to Mr. Sohal to plead guilty but that Mr. Sohal insisted on having a trial. Mr. Mann conceded that Mr. Sohal told him that he never assaulted Ms. Patel.
ANALYSIS
[45] Mr. Sohal’s recollection of the number of meetings he had with Mr. Mann and what transpired during these meetings is rather sketchy and therefore unreliable. It appears that Mr. Sohal is downplaying the meetings he had with Mr. Mann and the trial preparation that Mr. Mann undertook in this case. It appears to me that Mr. Sohal’s amnesia may be related to his possible deportation as a result of his conviction and sentence.
[46] That said, a review of the transcript reveals that Mr. Mann’s strategy in defending Mr. Sohal was to highlight the fact that the Crown’s civilian witnesses did not see Mr. Sohal punch or slap Ms. Patel. He got the Ferreiras, Mr. Singh and Ms. Patel to admit to this. Ms. Williams however, maintained that she saw Mr. Sohal punch Ms. Patel. The trial judge ultimately found as a fact that Mr. Sohal had punched and slapped Ms. Patel.
[47] While Mr. Mann could have asked the witnesses more probing questions about whether they had a clear and unobstructed view of the incident, whether the witnesses, other than the Ferreiras, knew each other or put to them Mr. Sohal’s version of events, it is doubtful that this would have affected the outcome of the trial. The fact that three different witnesses, all of whom were total strangers to Mr. Sohal, would have been so concerned about what they had witnessed that they turned their vehicles around to come to the assistance of Ms. Patel, a young woman in distress, speaks volumes about the strength of the Crown’s case. It would have been curious, to say the least, if the individual accounts of these witnesses were all identical.
[48] After reviewing the trial evidence and fresh evidence, I cannot conclude that Mr. Mann was incompetent or that his conduct of the trial caused a miscarriage of justice in this case. Accordingly, this ground of appeal fails.
ISSUE NO. FIVE: FITNESS OF SENTENCE
[49] Justice Currie imposed a suspended sentence on Mr. Sohal. He viewed the fact that the assault occurred on a Sunday in full view of motorists as an aggravating factor. He also noted that Mr. Sohal did not benefit from the mitigatory effect of a guilty plea. He noted that Mr. Sohal’s counsel requested a discharge, “citing the difficulties of a criminal conviction would entail in terms of your status on a student visa”. Justice Currie concluded that a discharge would be entirely inappropriate in the circumstances of the case.
[50] Mr. Sohal’s counsel submits that Justice Currie gave inadequate consideration to the immigration consequences which would flow from a conviction.
[51] The standard of review in a sentence appeal is one of great deference. Absent an error in principle, or a failure to consider a relevant factor, or an over-emphasis of appropriate factors, an appellate court will only vary a sentence if it is demonstrably unfit: see R. v. M.(C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500; R. v. L.M., 2008 SCC 31; R. v. Knockwood, 2009 NSCA 98; R. v. Jamieson, 2011 NSCA 122, at para. 25.
[52] Did the trial judge give inadequate consideration to the possibility that if convicted, Mr. Sohal would be deported?
[53] In R. v. Rosov, 2006 BCCA 276, paragraph 29, the British Columbia Court of Appeal noted that “Courts in Ontario, Saskatchewan and Nova Scotia have given some modest effect to the prospect of deportation as a mitigating circumstance”: R. v. Sullivan (1972), 1972 1251 (ON CA), 9 C.C.C. (2d) 70 (Ont. C.A.); R. v. Greggary Paul Tresidder, [1978] S.J. No. 369 (C.A.) (Q.L.); and R. v. Bratsensis (1974), 1974 2588 (NS CA), 8 N.S.R. (2d) 298 (C.A.). Courts in Alberta and Quebec have refused to consider deportation as a mitigating factor: R. v. Hung et al. (1991), 113 A.R. 205 (C.A.); and R. v. Antonecchia (1959), 1959 791 (QC CA), 31 C.R. 320 (Que. C.A.). The British Columbia Court of Appeal in Rosov also noted at paragraph 32 that: “While our courts must ensure that fit sentences are imposed in every case, in my view, imminent deportation may properly be taken into account as one mitigating factor.”
[54] The question in this case is not whether the trial judge should have viewed Mr. Sohal’s immigration status as a mitigating factor. Rather, it is the extent to which Mr. Sohal’s immigration status should have had an impact on his sentence.
[55] In R. v. L.M., 2008 SCC 31, para. 17, Justice LeBel described the sentencing function as follows:
[17] … To arrive at an appropriate sentence in light of the complexity of the factors related to the nature of the offence and the personal characteristics of the offender, the judge must weigh the normative principles set out by Parliament in the Criminal Code:
‑ the objectives of denunciation, deterrence, separation of offenders from society, rehabilitation of offenders, and acknowledgment of and reparations for the harm they have done (s. 718 Cr. C.)…;
‑ the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1 Cr. C.); and
‑ the principles that a sentence should be increased or reduced to account for aggravating or mitigating circumstances, that a sentence should be similar to other sentences imposed in similar circumstances, that the least restrictive sanctions should be identified and that available sanctions other than imprisonment should be considered (s. 718.2 Cr. C.).
[56] In R. v. Critton, 2002 3240 (ON SC), Justice Hill noted at paragraph 86 that: “I prefer the view that the accused’s deportation is a factor which can, in some circumstances, serve to mitigate the severity of the sanction imposed by the court.”
[57] In R. v. Hamilton, 2004 5549 (ONCA), 72 O.R. (3d) 1; [2004] O.J. No. 3252, Justice Doherty noted at para. 156 that “the risk of deportation cannot justify a sentence which is inconsistent with the fundamental purpose and 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 Act.” He added however, that: “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: R. v. Melo (1975), 1975 1299 (ON CA), 26 C.C.C. (2d) 510, 30 C.R.N.S. 328 (C.A.) at p. 516.”
[58] Did Justice Currie give sufficient weight to Mr. Sohal’s immigration status in his sentence? In my view he did in the circumstances of this case. Mr. Sohal has no criminal record and came to Canada in 2013, at considerable expense to his parents, to attend college. However, Mr. Sohal perpetrated a brazen assault in a public space. It ceased only after the intervention of a few Good Samaritans. The trial judge accepted Mr. Ferreira’s evidence that Mr. Sohal seemed to justify his actions on the basis of his “culture”. This justification is an added aggravating factor which, in my view, should be reflected in the sentence. It was statutorily aggravating that this was a domestic assault. There was no indication of remorse on Mr. Sohal’s part or any evidence that he had taken any counselling.
[59] In my view, the sentence imposed by the trial judge is proportionate to the facts of the offence and the circumstances of Mr. Sohal.
DISPOSITION
[60] The appeal of conviction and sentence is dismissed.
André J.
Released: March 22, 2016
CITATION: R. v. Sohal, 2016 ONSC 2002
COURT FILE NO.: SCA(P) 648/14
DATE: 20160322
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
ARIDAMANJEET SOHAL
Appellant
REASONS FOR JUDGMENT
André J.
Released: March 22, 2016