Court File and Parties

COURT FILE NO.: CR-16-014-00AP DATE: 2017-04-05

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

Her Majesty the Queen Mr. Michael Martin, for the Respondent Respondent

• and -

R. J.-B. Mr. Gerald Chan, for the Appellant Appellant

HEARD: April 4, 2017

REASONS FOR JUDGMENT

[On appeal from the sentence of Morneau J. dated May 28, 2015]

Conlan, J.

I. Introduction

1This is a Summary Conviction Appeal brought by Mr. J.-B. (“Appellant”). It relates to sentence only.

2At a prior hearing, I reinstated the Appeal as to sentence after it had been dismissed by Gibson J. for non-compliance with the Rules. This Court’s decision to reinstate the sentence Appeal, but not the Appeal from the convictions, is reported at 2017 ONSC 1632.

The Sentence Imposed in the Court Below

3On May 28, 2015, before Morneau J. in the Ontario Court of Justice sitting in Owen Sound, the Appellant was sentenced to a total of 35 months in custody for two convictions of sexual assault (17 months in jail on the first count, and 18 months consecutive on the second count).

4The Crown’s position had been a global sentence of imprisonment for three years, while the Defence advocated for a total jail sentence of 6-12 months.

The Facts

5After trial, the Appellant had been found guilty of the two offences. The victim was his 16-year old female cousin. The Appellant was a much older adult at the time of the offences (he was born in 1981).

6The facts were summarized at page 8 of the transcript of the Judge’s reasons for sentence (the “transcript”).

7There was sexual communication between the Appellant and the girl. In the summer of 2012, the Appellant touched the girl’s vagina with his fingers. He also held the victim against the wall and placed his finger into her vagina for about 25 seconds. Finally, he tried to insert his penis into the girl’s vagina but could not do so. That caused her to bleed.

8These incidents did not all occur on the same date.

The Circumstances of the Appellant, including the Deportation Issue

9At page 9 of the transcript, the Judge identified some mitigating factors: the lack of any prior criminal record, that the Appellant was cooperative with the author of the presentence report, that he was described as a hardworking man, and that he was open to counselling.

10At page 6 of the transcript, the Judge referred to the Appellant’s “residency status in Canada, having arrived here from Mexico in 2005”.

11That issue is what drives this Appeal.

12Without objection by the Crown, the Appellant’s Application to adduce fresh evidence on appeal was granted. Based on that fresh evidence, we know the following.

13The Appellant is not a Canadian citizen, and he has been deemed inadmissible and subject to removal from the country under the provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended (the “legislation”).

14A removal order has been made, and arrangements will be undertaken to deport the Appellant at the end of his sentence.

15The deportation order has been made under section 36(1)(a) of the legislation. That provides as follows.

Serious criminality

36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for

(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;

16The Appellant meets both items mentioned in that paragraph – he has been convicted of an offence punishable by a maximum of at least ten years in custody, and he received a sentence of more than six months in jail.

17As it stands currently, the deportation of the Appellant is automatic in that he has no right to appeal the removal order. That is the result of sections 64(1) and (2) of the legislation, which provide as follows.

No appeal for inadmissibility

64 (1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.

Serious criminality

(2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least six months or that is described in paragraph 36(1)(b) or (c).

18To maintain at least a right to appeal the deportation order, this Appeal as to sentence must succeed. If it does, then the Appellant can raise humanitarian grounds in appealing the removal order, including that he has been in this country for about 12 years now and has a five-year old son in Canada.

19Finally, it should be noted that the Appellant’s time in custody thus far has had its challenges. He has been assaulted. He had his medication for post-traumatic stress disorder mixed-up. And he has been under a lot of stress.

II. The Grounds of Appeal, and the Remedy Sought

20I am indebted to both counsel but wish to acknowledge, in particular, the work of Mr. Chan as he was only recently retained by the Appellant and was able to take a languishing Appeal and present it very competently, demonstrating why he is a highly sought-after appellate lawyer.

21In oral argument at Court on April 4, 2017, Mr. Chan made it clear that there is a single issue that grounds the Appeal, namely, the immigration consequences to the Appellant that both sides agree, through no fault of the Crown or the Court below, were not fully canvassed before the sentencing Judge.

22This Court is asked to substitute for what was imposed in the Court below a sentence of six months less one day in jail on each conviction, consecutive, or, alternatively, a conditional sentence on each conviction of 18 months in length.

III. The Standard of Review

23There is no better summary of the applicable standard of review than that outlined by Fragomeni J. at paragraphs 10 through 12 of His Honour’s decision in R. v. D.V., 2013 ONSC 1275, which commentary I adopt.

10A variation in the sentence should only be made if the Court of Appeal is convinced it is not fit. That is to say, that it has found the sentence to be clearly unreasonable (R. v. Shropshire, [1995] 4 S.C.R. 227 at para. 46.

11In R. v. M. (C.A.), [1996] S.C.R. 500 the Court stated at para. 90 in part:

… absent an error in principle, failure to consider a relevant factor or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.

12Finally, in R. v. Hamilton, (2004), 72 O.R. (3d) 1 Doherty J.A. stated the following at para. 85:

Sentencing is a delicate case-specific exercise. There is seldom only one fit sentence. Fitness usually describes a range of appropriate sentencing responses. The individualistic nature of the sentencing process, the myriad of factors to be balanced, and the absence of any single "correct" sentencing response in most cases dictates that appellate courts defer to sentencing decisions made by trial judges. That deference is reflected in the now well-established standard of appellate review applicable on sentence appeals. A court will vary a sentence only if it reflects an error in principle, demonstrates a failure to consider a relevant factor or to give appropriate weight to a relevant factor, or is demonstrably unfit.

IV. Analysis and Conclusion

24There is no question that this Court can take into consideration the immigration consequences to the Appellant in determining whether the sentences imposed ought to be varied.

25In support of that, and for a discussion of when it is appropriate to do so, paragraphs 13 through 16 of the decision of the Supreme Court of Canada in R. v. Pham, 2013 SCC 15 are instructive.

13Therefore, collateral consequences related to immigration may be relevant in tailoring the sentence, but their significance depends on and has to be determined in accordance with the facts of the particular case.

14The general rule continues to be that a sentence must be fit having regard to the particular crime and the particular offender. In other words, a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.

15The flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament’s will.

16These consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation. Moreover, it must not lead to a separate sentencing scheme with a de facto if not a de jure special range of sentencing options where deportation is a risk.

26Further, there are occasions where an appellate court may vary a sentence on account of immigration consequences rather significantly (as opposed to just modestly), and one of those occasions might involve a situation, as with this Appellant (whose statutory release date is next month), where the sentence imposed at first instance has nearly been fully served. R. v. C.(B.R.), 2010 ONCA 561, at paragraphs 9, 10 and 14.

27Unfortunately for the Appellant, that is where his counsel and this Court part opinions.

28I disagree that the sentences being suggested would be fit ones for these crimes committed by this offender. In my view, a global sentence of close to three years in the penitentiary was entirely fit for the Appellant.

29The conduct here was despicable. The Appellant was entrusted by the victim’s family to try to help her deal with having been sexually abused by her uncle. Instead of doing that, the Appellant preyed on the girl, his minor cousin, by sexually assaulting her again.

30With respect, none of the authorities filed by the Appellant would support the sentences being suggested.

31It must be remembered that immigration consequences cannot be relied upon to the extent of justifying what would otherwise be an unfit sentence.

32Let us examine some of the cases relied upon by the Appellant.

33In R. v. JLM, 2016 ABPC 285, the offender entered a guilty plea to sexually assaulting his teenage step-daughter. There was no penetration. The offender confessed early on and was extremely remorseful. Six months in jail was the sentence imposed.

34Our case involves no guilty plea, more than one count, digital penetration and attempted vaginal penetration with the Appellant’s penis.

35The case of R. v. D.V., 2013 ONSC 1275, is of limited to no value as the Crown’s appeal on sentence would have been allowed but for the appellate Court exercising its discretion not to re-incarcerate the offender.

36In R. v. G.(D.), 2011 ONCJ 116, the offender entered a guilty plea to sexually assaulting his teenage daughter. There was digital penetration but no attempted or actual vaginal intercourse. Six months in jail was the sentence imposed.

37Our case involves no guilty plea, more than one count and attempted vaginal intercourse which caused bleeding to the victim.

38Strangely, G.(D.), supra did have something in common with our case in that the offender there, like the Appellant in our case, was aware at the time that the victim had been sexually abused by someone else in the past.

39Nevertheless, the other important distinguishing factors cannot be overlooked.

40In R. v. J.W., 2016 ONCJ 812, the offender pleaded guilty to sexually assaulting his teenage step-daughter. There were multiple incidents. There was digital penetration but no attempted or actual vaginal intercourse. The sentence imposed was eight months in jail.

41Our case involves no guilty plea and attempted vaginal intercourse which caused bleeding to the victim.

42The decision of Hill J. in R. v. AA, 2014 ONSC 1405 and the decision of the Court of Appeal for Ontario in R. v. A.C., 2012 ONCA 608, both relied upon by the Appellant as supportive of his alternative submission for conditional sentences, are just too factually different to be that helpful to this Court.

43The former involved a guilty plea and touching of the vaginal area with fingers over underwear.

44The latter is closer to the facts in our case in that it did not involve a guilty plea, something recognized by the other authorities relied upon by the Appellant as being highly mitigating.

45A.C., supra was a Crown appeal of a conditional sentence imposed upon a mature first offender for an historical sexual assault on a teenaged relative. The facts did not include any attempted or actual vaginal intercourse and did not include either of the other two serious aggravating factors present in our case and identified by the sentencing Judge: (i) grooming of the victim by the Appellant, and (ii) the fact that the Appellant was brought into the victim’s life to help her deal with past sexual abuse (not to sexually abuse her again).

46Had those factors been present in A.C., supra, I am confident that the result would have been different.

47In summary, denunciation and deterrence were key sentencing principles in the case of the Appellant.

48He took advantage of his supposed “healing” role and sexually abused, more than once and in more than one way, his vulnerable 16-year old female cousin. His criminal actions included digital penetration of her vagina while holding her against the wall and attempting, for some duration, to insert his penis into her vagina to have intercourse with her, which caused her injury.

49In my view, even considering the immigration consequences to the Appellant, anything close to a global sentence of just under twelve months in jail, or long conditional sentences, would be manifestly unfit.

50The sentences imposed in the Court below were within the range. They were certainly not unreasonable or demonstrably unfit.

51Assuming that the absence of a fulsome consideration of the immigration consequences to the Appellant in the Court below amounted to an error in principle, failure to consider something relevant or failure to give appropriate weight to a relevant factor, entitling this Court to intervene, I decline to do so.

52In this particular case, the objective of placing a human face on the sentencing process cannot be stretched so far as to vary the sentences to the extent sought by the Appellant.

53Despite Mr. Chan’s able submissions, the Appeal as to sentence is dismissed.

54Again, I thank Mr. Chan and Mr. Martin for their assistance.

Conlan, J. Released: April 5, 2017

COURT FILE NO.: CR-16-14-00AP DATE: 20170405 ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT B E T W E E N: Her Majesty the Queen Respondent - and – R. J.-B. Appellant REASONS FOR JUDGMENT Conlan, J.