Court File and Parties

Court File No.: CR-17-00000105-00AP Date: 2018-07-30 Ontario Superior Court of Justice

Between: Her Majesty the Queen And: Yao Li

Counsel: N. Golwalla, for the Crown Yao Li, self-represented – did not attend

Heard: 16 May 2018

Before: S.A.Q. Akhtar J.

[1] On appeal from the sentence imposed on 15 September 2017 by Justice Fergus O’Donnell of the Ontario Court of Justice.

Factual Background

[2] The respondent was in Canada on a student visa and rented a room on the main floor of a house belonging to the victim’s mother. The victim, C, 15-16 years of age, lived in the same house in a bedroom on the same floor as the respondent.

[3] The respondent took an interest in C and suggested they become romantically involved, a suggestion that C declined to take up.

[4] On the evening of 29 November 2014, the respondent met C in the street, whilst she was on her way home after visiting friends. The respondent told her that he was looking for her everywhere and grabbed her by the arm, demanding to know why she had been ignoring him.

[5] C pulled away and told him that she had blocked his number from her mobile phone because of his continuous unwanted phone calls and requests that they start to see each other as boyfriend and girlfriend.

[6] C informed the respondent that she no longer wished to be friends. Angered by this rebuff, the respondent grabbed C by the collar, pulling off two buttons, causing her pain and making it hard for her to breathe. After a couple of minutes, the respondent dragged C to her house holding her wrist and forced her into his room and onto his bed.

[7] Straddling her, the respondent opened two buttons on her shirt and fondled and pinched C’s breasts under her clothing. As C resisted, the respondent pushed her back and kissed her face mouth and breasts as he attempted to remove her underwear. These acts lasted five minutes and were stopped when C kicked the respondent “hard” forcing him to remove himself from her.

[8] C ran to her room and locked her door, testifying in court that no one else was home. The respondent came to her door, asking that she let him in.

[9] C did not tell her mother about the incident because she needed to calm down. The following day, C came out of her room only for dinner when her mother was present and remained silent about Tuesday’s events.

[10] The sentencing judge found that C suffered pain and bruising that was visible for three days.

[11] After trial, the judge found the respondent guilty of assault and sexual assault.

[12] At the sentencing hearing, the appellant sought a four month custodial sentence whilst counsel for the respondent requested a conditional discharge.

[13] The judge identified the governing principles of deterrence, denunciation and rehabilitation, placing heavy emphasis on the latter factor. He characterised the sexual assault offence as “not right at the bottom, it’s not a single grope. I’d say it’s a level and a half above that.” The judge continued “There’s an argument, the physicality, the efforts with the underwear and so and so forth. There’s an element of persistence. And all of that was unacceptable.”

[14] Acknowledging the respondent’s youth, lack of criminal record and potential immigration consequences, the judge imposed a conditional discharge with a 3 year probationary period with 249 hours of community service in addition to a s. 110 order, a DNA order and SOIRA order for 10 years.

[15] The Crown appeals the sentence on the basis that it is unfit.

Analysis

[16] Deference is owed to sentences imposed after trial. An appellate court may only intervene if the sentencing court has made an error in principle, failed to consider a relevant factor, overemphasised otherwise appropriate factors or imposed a sentence that is demonstrably unfit: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11; R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 46; R. v. Lu, 2013 ONCA 324, 307 O.A.C. 40, at para. 37; R. v. Ramage, 2010 ONCA 488, 257 C.C.C. (3d) 261, at paras. 67-73.

[17] I agree with the appellant that the trial judge imposed a sentence that was manifestly unfit in the circumstances of this case.

[18] A conditional discharge has been described as appropriate for “what may be loosely described as a ‘less serious’ offence” and avoid the stigma of a criminal conviction: R. v. Sanchez-Pino (1973), 11 C.C.C. (2d) 53 (Ont. C.A.) at p. 58.

[19] In R. v. Fallofield (1973), 13 C.C.C. (2d) 450 (B.C.C.A), at p.p. 454-455, the court set out the following guidelines in imposing a conditional discharge:

(1) The section [permitting a conditional discharge] may be used in respect of any offence other than an offence for which a minimum punishment is prescribed by law or the offence is punishable by imprisonment for 14 years or for life or by death. (2) The section contemplates the commission of an offence. There is nothing in the language that limits it to a technical or trivial violation. (3) Of the two conditions precedent to the exercise of the jurisdiction, the first is that the Court must consider that it is in the best interests of the accused that he should be discharged either absolutely or upon condition. If it is not in the best interests of the accused, that, of course, is the end of the matter. If it is decided that it is in the best interests of the accused, then that brings the next consideration into operation. (4) The second condition precedent is that the Court must consider that a grant of discharge is not contrary to the public interest. (5) Generally, the first condition would presuppose that the accused is a person of good character, without previous conviction, that it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of a conviction against him may have significant adverse repercussions. (6) In the context of the second condition the public interest in the deterrence of others, while it must be given due weight, does not preclude the judicious use of the discharge provisions. (7) The powers given by s. 662.1 should not be exercised as an alternative to probation or suspended sentence. (8) Section 662.1 should not be applied routinely to any particular offence. This may result in an apparent lack of uniformity in the application of the discharge provisions. This lack will be more apparent than real and will stem from the differences in the circumstances of cases.

[20] Thus, before imposing a discharge, the court must consider not only that it is in the best interests of an accused but also that it is not contrary to the public interest.

[21] Moreover, the judge was bound by s. 718.1 of the Criminal Code to consider the principles of denunciation, deterrence, rehabilitation and the encouragement of responsibility when imposing sentence. Section 718.01 of the Code directs a sentencing court to ensure that denunciation and deterrence are given “primary consideration” when the offence involves the abuse of a person under the age of 18 years.

[22] In this case, whilst the judge acknowledged denunciation and deterrence in his reasons, he never implemented those principles when imposing sentence. Instead, the judge’s focus appeared to fix on whether the particular sentence would deter the respondent rather than whether it would act as a general deterrent or as general denunciation.

[23] Nor did the judge explain why the imposition of a conditional discharge was not contrary to the public interest.

[24] Even if the Fallofield test been satisfied, it would have been incumbent on the sentencing judge to explain why the imposition of a discharge would be consistent with “the fundamental purpose and principles of sentencing” as set out in the Criminal Code: R. v. Thurairajah, 2008 ONCA 91, 89 O.R. (3d) 99, at para. 39. Again, the judge erred by failing to do so.

[25] A conditional discharge in this case was clearly against the public interest. In Thurairajah, the court explained, at paras. 41-42:

Generally speaking, sentences imposed on young first offenders will stress individual deterrence, where necessary, and rehabilitation. General deterrence will play little, if any, role in fashioning the appropriate sentence in this category of offender in most cases: R. v. Ijam (2007), 87 O.R. (3d) 81 at 93-94 (C.A.). Serious crimes of violence, particularly sexual assaults, do provide an exception to the general rule described above. While all of the principles of sentences remain important, including rehabilitation, for serious crimes involving significant personal violence, the objectives of denunciation and general deterrence gain prominence: R. v. Ijam, supra; R. v. Wells (2000), 2000 SCC 10, 141 C.C.C. (3d) 368 at para. 26 (S.C.C.).

The emphasis to be placed on denunciation and to a lesser extent general deterrence, grows with the seriousness of the particular circumstances surrounding the sexual assault for which an accused, even a young accused, is being sentenced.

[26] Here, the judge relied far too heavily on the respondent’s youth and failed to give any weight to the aggravating factors in this case.

[27] This was a serious and frightening set of assaults. The victim was 16 years of age at the time of the offence. The attack commenced when she was in a public area and then she was forcibly dragged back into her house before being forced into the respondent’s bedroom and onto the bed. The sexual assault was hardly minor: the respondent touched C’s breasts under her clothing and attempted to remove her underwear. As serious as the respondent’s actions were, they could have been even worse had it not been for C’s successful efforts at fending off the attack and escape.

[28] Not only did C suffer physical injuries but the trauma of the event meant that C remained in her room the rest of the day and the next, coming out only to eat food. The assault was not one between strangers but between two people who resided in the same house: C’s own house, a place in which she was entitled to feel safe and protected.

[29] In my view, the aggravating features in this case warranted a custodial sentence that underlined general deterrence and denunciation. I find that the sentence imposed failed to come close to executing those principles and is manifestly unfit.

[30] The appeal is therefore allowed. A sentence of four months - originally requested by the trial Crown - is substituted for the conditional discharge. All other ancillary orders remain in force.

S.A.Q. Akhtar J.

Released: 30 July 2018

COURT FILE NO.: CR-17-00000105-00AP DATE: 20180730 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN – and – YAO LI REASONS FOR JUDGMENT S.A.Q. Akhtar J.