R. v. Sagar, 2016 ONSC 6520

CITATION: R. v. Sagar, 2016 ONSC 6520

COURT FILE NO.: 27/16

DATE: 20161019

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Appellant

– and –

SHAWAN SAGAR

Respondent

Robert Wright, for the Crown, Appellant

Joseph Kappy, for Mr. Sagar, Respondent

HEARD: October 18, 2016

R. F. GOLDSTEIN J.

REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL

BACKGROUND

1Shawan Sagar was charged with assaulting his wife, the complainant. She attended at the police station and made a complaint. While she was making her complaint he was boarding an airplane to Bangladesh. When he returned a few weeks later he was arrested and detained in custody. He faced several charges involving assault and assault causing bodily harm. He had no criminal record. After three weeks in custody he obtained bail. As is common in these cases, one of his bail conditions was that he was to have no contact with his wife.

2On the first day of trial, the complainant did not appear. The trial judge, Madam Justice M. Greene of the Ontario Court of Justice, issued a material witness warrant returnable the next day. The next day, the police went to the complainant’s residence to bring her to court. The police observed her going to a plaza. There she met with Mr. Sagar. He brought her a coffee. They talked in her car. The interaction was five to ten minutes. The complainant then went to court. She recanted some of her allegations.

3Mr. Sagar’s contact with the complainant, his wife, was an obvious breach of the bail condition. It also was unusual. It occurred under the eyes of a Toronto Police officer. The officer declined to arrest Mr. Sagar when it happened. Instead, she informed Crown and defence counsel. Mr. Sagar was arrested at the end of the trial and spent three further days in custody. The officer testified about the breach. At the end of the officer’s testimony, Mr. Sagar pleaded guilty to the breach of recognizance. He pleaded not guilty to all of the other offences. The trial judge believed some aspects of the complainant’s evidence, and disbelieved others. She ultimately convicted Mr. Sagar of one simple assault count but acquitted him of all the other charges, including the more serious charge of assault causing bodily harm. She granted him an absolute discharge and ordered that a DNA sample be taken.

4The trial judge then heard submissions on the breach. She granted a conditional discharge and put him on probation. She declined to order a DNA sample.

ANALYSIS:

5The Crown appeals the trial judge’s sentence on the breach charge. Crown counsel argues that the trial judge made errors in principle and that the sentence was demonstrably unfit. The Crown also argues that the trial judge should have imposed a DNA order and erred in failing to do so.

6Absent an error in principle a trial judge’s sentencing decision is entitled to substantial deference unless it is demonstrably unfit: R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227 at para. 46; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at para. 11.

7In my view, the trial judge did not err in principle and did not impose a sentence that was demonstrably unfit. I also find that she did not err in declining to order that Mr. Sagar provide a DNA sample.

(a) Did the trial judge err in principle?

8The Crown argues that the trial judge made three errors in principle. The first error identified by Crown counsel was that the trial judge expressed a personal view that jail was never an appropriate disposition. The Crow argues that the trial judge’s comment that the best way to address deterrence and denunciation is to give an offender a criminal record was also an error.

9It would have been an error if that what was what the trial judge did: R. v. Song, 2009 ONCA 896 at paras. 8-13. That, however, is not what the trial judge did. She reasoned as follows:

Crown counsel argues that jail is required. I respectfully disagree. Had the Crown proven that this was a flagrant breach with the intention to interfere with the administration of justice, and intimidate a witness, then obviously jail would have been required. But I have disagreed with the Crown’s view of the facts of this matter, and for that reason, in my view, a period of imprisonment would be disproportionate to the gravity of the offence and the circumstances of the offender and would not serve any of the aims or objectives of sentencing.

10In my view, the trial judge’s reasons indicate that all she did was find that the principles of general and specific deterrence did not require a jail sentence in the circumstances of this case. I see no error.

11The second error identified by Crown counsel was the trial judge’s application of the test for a conditional discharge. A conditional discharge can only be imposed where it is in the best interests of the offender, and it would not be contrary to the public interest. Crown counsel concedes that the trial judge articulated the test correctly but argues that she erred by not properly considering the first part of the test. That was because she found that a criminal record might impact his ability to travel and there was no real evidence to support that finding.

12I disagree. Briefly, the trial judge found that Mr. Sagar was required to travel to Bangladesh for work and family. Evidence to support that finding came out during the trial. The trial judge was then prepared to take judicial notice that a criminal record creates some problem with respect to travel. That was an unassailable finding. For example, s. 36 of our own Immigration and Refugee Protection Act creates classes of criminal inadmissibility. It was entirely reasonable to assume that other countries have such restrictions. Evidence may be required for particular assertions in particular cases. In R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739 the Supreme Court of Canada dealt with the collateral consequences of a conviction, where evidence was specifically required.

13The third error identified by the Crown is that the trial judge took the lack of an aggravating factor – something that should have been treated as neutral – and used it as a mitigating factor. The trial judge specifically declined to find that that Mr. Sagar’s coffee meeting with the complainant – his wife – was for the purpose of influencing her testimony, intimidating her, or otherwise interfering with the administration of justice. Crown counsel argues that she then used it as a mitigating factor.

14I simply cannot agree with the Crown’s reading of the trial judge’s reasons. In my respectful view, the trial judge did not indicate that she found the lack of interference and intimidation with the complainant to be a mitigating factor. Rather, she simply found that they were not present and therefore could not be aggravating factors. I think all that the trial judge was trying to communicate was that if there had been interference (or an attempt to interfere) with the administration of justice then it would have been contrary to the public interest to grant a conditional discharge.

15I find no error of law. That, of course, does not end the matter. An error-free sentence may still be demonstrably unfit: Lacasse at para. 52. I turn to that issue.

(b) Was the sentence demonstrably unfit?

16The Crown argues that where an offender breaches the core term of a domestic bail – the non-contact clause – general and specific deterrence require a jail sentence. Crown counsel was unable to draw on any Ontario appellate authority for that proposition. Instead, Crown counsel relied on two appellate cases from outside Ontario and two trial cases from Ontario to show that custodial sentences are the norm for these types of breaches.

17In R. v. Young, 2014 NSCA 16 the offender was self-represented. He attempted to plead guilty to charges involving his domestic partner. There was a non-communication clause. During the guilty plea proceedings he became agitated and made threats in open court to the complainant. He was charged with uttering a threat, attempt to obstruct justice, and two counts of breach of recognizance. The Nova Scotia Court of Appeal lowered the sentence for the two breaches from 12 months to six months and noted that “breaches of recognizance usually attract a sentence of one to three months incarceration”.

18In R. v. Murphy, 2011 NLCA 16 the offender was on two probation orders when he committed a violent sexual assault. The trial judge sentenced him to 24 months on one breach of probation, consecutive to the sexual assault, and 12 months concurrent to the other breach of probation. On appeal, the Newfoundland Court of Appeal noted that breaches of probation are serious because they indicate a failure to follow court orders. The Court noted that the usual range for breaches of probation is one to three months incarceration. The Court lowered the sentence to six months consecutive on the first breach and six months concurrent on the second.

19Crown counsel referred me to two Ontario trial level decisions. In R. v. Hammond, 2016 ONCJ 176 the offender made a throat-slitting gesture to the victim, his former domestic partner, in open court. He was convicted of intimidating a justice system participant and breach of recognizance. The recognizance included a non-communication clause. Schwarzl J. of the Ontario Court of Justice found that the offences were serious as they involved crimes against the administration of justice: the offender threatened the complainant while she was in the midst of giving evidence at a preliminary inquiry. The sentencing judge imposed eight months on the justice system participant count and a further two months consecutive on the breach, as well as 18 months of probation.

20In R. v. Lewis, 2014 ONSC 1390 the accused pleaded guilty to four counts of breach of recognizance. The recognizance had a non-communication clause between the offender and the complainant, his former domestic partner. A jury acquitted him of all the underlying assault charges. There were four instances of communication, two of which were consensual. J. Macdonald J. found that these were not minor offences. He noted that bail orders are sometimes the only protection available to a victim of domestic abuse. The offender had a lengthy criminal record. J. Macdonald J. imposed a global sentence of seven months and applied 7 and 2/3ds months of pre-trial custody, such that the offender did not have to spend any more time in jail. He also imposed 18 months of probation.

21I make three observations about these cases:

• While appellate decisions from other provinces are of course highly persuasive, they are not binding on this Court;

• A range is not mandatory; and,

• The four cases cited to me involved criminality that was considerably more serious than in this case.

22I do agree with the Crown that a strong denunciatory sentence is ordinarily appropriate where there has been a significant breach of a court order. A strong denunciatory sentence often involves a period of incarceration. Ordinarily a discharge will only be imposed where the breach is trivial or minor.

23Significant breaches of court orders must be punished in order to deter potential offenders and preserve confidence in the administration of justice. I agree with the Crown that this sentence fell outside the range that is ordinarily reserved for breaches of significant terms of court orders. It will be a rare case of this nature that does not involve jail. That said, trial judges are entitled to depart from sentencing ranges as long as they apply the appropriate principles and the sentence is otherwise fit: Lacasse, at para. 67. In my view this particular sentence was not demonstrably unfit. A sentence is demonstrably unfit where it departs from the fundamental principle set out in s. 718.1 of the Criminal Code that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Lacasse at para. 53. The trial judge explicitly conducted a proportionality analysis and determined that jail was not required. After hearing extensive evidence and weighing the principles she was in the best position to conduct that analysis. I see no error in her analysis. There is no basis for an appellate court to intervene.

(c) Did the trial judge err in refusing to order a DNA sample?

24The trial judge found that it was not in the best interests of the administration of justice to order that Mr. Sagar provide a DNA sample. The trial judge noted that she had already ordered a DNA sample on the assault charge. Given that there was no violence and the breach only involved a short period of communication the interests of justice did not require a DNA order.

25The Crown argues that the trial judge erred by imposing a requirement that there be violence as a pre-requisite for making a DNA order.

26The standard for interfering with a trial judge’s decision to make or refuse to make a DNA order is the same as the standard for interfering with any sentencing decision. Absent an error in principle an appellate court should only interfere if the decision was clearly unreasonable: R. v. Hendry (2001) 2001 CanLII 21168 (ON CA), 57 O.R. (3d) 475 at para. 8.

27In Hendry, Rosenberg J.A. canvassed the factors upon which a sentencing judge should determine whether or not to make a DNA order. There is clearly a reduced expectation of privacy for those who have been found guilty of an offence, and the procedures for taking samples are not intrusive. After an extensive analysis Rosenberg J.A. commented that he expected that in the vast majority of cases a DNA order would be made.

28I agree with the Crown that violence is not a pre-requisite for making a DNA order. The trial judge also appreciated that fact. The trial judge also mentioned that in the vast majority of cases a DNA order is appropriate. That said, in my view the real reason she did not order a DNA sample taken was simply because she had already ordered it in relation to the assault charge. In my view, this was not an error in principle or unreasonable.

DISPOSITION

The appeal is dismissed.

R.F. Goldstein J.