Court File and Parties

COURT FILE NO.: 110/19 DATE: 2019/06/25 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – Young Min Shon Appellant

COUNSEL: Joseph Perfetto, for the Respondent Her Majesty the Queen Robert Sheppard, for the Appellant Young Min Shon

HEARD: June 20, 2019

Reasons for Decision on Summary Conviction Appeal

GEORGE J.

Background & Nature of Appeal

[1] The Appellant pleaded guilty to assaulting and causing bodily harm to his twelve-year old son, contrary to s. 267 (b) of the Criminal Code of Canada. He was sentenced to 10 months in jail. The sentencing judge also imposed a 10 year firearms prohibition and made a DNA order.

[2] He appeals against the custodial portion of the sentence arguing that the sentencing judge gave insufficient weight to the punitive effect of his immigration consequences, and that the objectives of deterrence and denunciation could have been achieved in a sentence of four to six months.

[3] The Appellant and his two children – including the victim – are from Korea. The three of them came to Canada so that the Appellant could further his studies. He has no criminal record. His wife, the children’s mother, remained in Korea to work and support the family financially.

[4] On June 5, 2018, while at home, the Appellant spoke to his son about what he perceived to be his lack of effort at school. The Appellant lost his temper and began to hit him. While not a continuous attack, the boy was struck several times over the course of five hours. The Appellant used a weapon which I am told was the handle of an axe or hammer. The facts read into the record describe the Appellant as being in a fit of rage and to striking the child “numerous times in the head, arms, torso and back”.

[5] The child used his arms in an attempt to repel his father and protect himself. This did not stop the Appellant who continued to strike him. He also told the child that a “kid like him needs to die”. The child disclosed to authorities that he feared for his life and thought he was actually going to die.

[6] The next day at school the child’s injuries were observed by staff who subsequently transported him to the hospital for treatment. Injuries included areas of bruising, abrasions on the top of his head, linear abrasion marks on his forearms, elbows, upper arms and in the middle of his back, and a laceration to the forehead. Stitches were required.

[7] Upon arrest the Appellant admitted to having lost his temper and striking the child. He attributed his conduct to the significant stress he was then under. He confirmed that he used a weapon.

[8] Shortly thereafter the victim and his sister returned to Korea and are now living with their mother, who has since advised the Appellant that their relationship is over and that she wants a divorce.

[9] The Appellant was lawfully in Canada on a student visa, but his conviction for this offence will surely lead to his deportation. His visa has been revoked.

[10] At the sentencing hearing defence counsel sought a suspended sentence with probation, focussing largely on immigration consequences and the Appellant’s sincere expressions of remorse and regret.

[11] Before sentence was imposed, the Appellant addressed the court saying this:

Thank you very much for allowing me to speak. First of all I am financially troubled and I really sincerely like to apologize to my son. My behaviour was like animal like. It was not human behaviour and I deeply regret for what I’ve done…

When I go back to Korea I’d like to see my children and – and apologize to them. My wife is pursuing a divorce because we are financially troubled. So, it is very important that I continue to work and support them otherwise my children will suffer more.

And I did not contact my children in Korea but I got a text message from – from them. I got a text message saying “cheer up” and “I love you dad”. I wanted to reply back, but I knew that I wasn’t allowed to communicate with them so I didn’t. If you could please take all of this into consideration and allow me to go back to Korea, I will do my best to continue with my life. And I’m not able to graduate the culinary school and therefore in the future if I get a chance I’d like to come back and finish the school. Thank you very much for listening.

Sentencing Judge’s Reasons

[12] The sentencing judge made these remarks before imposing sentence:

[T]he assault was on his 12-year old son. It was unprovoked, significant, resulting in significant injury, all over the fact that the son was not doing as well in school as his father thought he should. He lost control, beat his son savagely with a stick, leaving the son with many bruises, contusions, cuts over the entirety of his body…This is the abuse of a child age 12 by a father. Denunciation and deterrence are paramount, in the court’s view…Statutorily the Criminal Code sets out, because of the age of the complainant and the position of trust, those are aggravating factors and should be considered.

[13] He went on to indicate that he had considered a lengthier period but decided upon 10 months as he was giving “the accused credit for not having to put his son through a trial and pleading guilty and getting this matter dealt with”. His reasons for sentence were brief.

Appellant Position

[14] The Appellant argues that it cannot be discerned from the sentencing judge’s reasons why 10 months in jail was necessary. In other words, he did not appear to weigh or factor in the immigration consequences, nor can one tell whether he applied the principle of restraint. In fact, he did not appear to consider any collateral consequences in imposing sentence including, for example, the fact he was not going to be reunited with his family, would be immediately sent back to his country of origin, and had lost his opportunity to study here. And while the Appellant now concedes that a non-custodial sentence was never in the cards – as was advocated by his trial counsel – he submits that, as he was a first-time offender, the sentencing judge had an obligation, and failed, to specifically impose a sentence of the least duration capable of giving meaningful effect to the more punitive aims of sentencing.

Crown Position

[15] The Crown argues that the collateral consequences suffered by the Appellant are suffered by every offender. There is nothing unique about his circumstances. For example, domestic violence will often lead to family disruption and relationship loss, and the Appellant’s deportation was never an open question as in these circumstances it is the conviction, not the type of sentence, that will lead to his removal from Canada. Not to mention the fact it was always the Appellant’s intention to return to Korea when his studies were complete. It is simply the timing of his return that has changed, which should not warrant appellate intervention.

[16] The Crown focusses on the prolonged nature of the beating and resultant injuries. It characterizes the conduct as extremely serious.

[17] Against this backdrop, the Crown urges me to conclude that a 10 month jail sentence is not demonstrably unfit. In the alternative, it argues that should I find that the trial judge committed an error or failed to consider a relevant factor, I should conclude that it did not impact upon sentence.

Analysis

[18] To the Crown’s primary position, it now appears there is common ground that the sentence imposed is not demonstrably unfit. And I agree. It is well within the range of acceptable sentences for this type of offence.

[19] I must still, however, address whether the sentencing judge erred in principle or overlooked a relevant factor that impacted upon the sentence imposed. When addressing this ground of appeal, the Supreme Court in R. v. Lacasse 2015 SCC 64, [2015] S.C.J. No 64 provides this guidance:

My colleague states that a sentence may be unfit if there is a reviewable error in the thought process or reasoning on which it is based. For this reason, in his view, where there is a reviewable error in the Trial Judge’s reasoning, for example where the judge has characterized an element of the offence as an aggravating factor, it is always open to an Appellate Court to intervene to assess the fitness of the sentence imposed by the Justice. Having done so, the court can then affirm that sentence if it considers the sentence to be fit, or impose the sentence it considers appropriate without having to show deference. In other words, any error of law or error in principle in a trial judge’s analysis will open the door to intervention by an appellate court, which can then substitute its own opinion for that of the trial judge.

With all due respect for my colleague, I am of the view that his comments on this point need to be qualified. I agree that an error in principle, the failure to consider a relevant factor, or the erroneous consideration of an aggravating or mitigating factor can justify the intervention of an appellate court and permit that court to inquire into the fitness of the sentence and replace it with the sentence it considers appropriate. However, in my opinion, every such error will not necessarily justify appellate intervention regardless of its impact on the trial judge’s reasoning. If the rule were that strict, its application could undermine the discretion conferred on sentencing judges. It is therefore necessary to avoid a situation in which the term “error in principle” is trivialized; R. v. Levesque-Chaput, 2010 QCCA 640 Que. CA.

In my view, an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor will justify appellate intervention only where it appears from the trial judge’s decision that such an error had an impact on the sentence.

[20] I will add this. At the end of the day, the true measuring stick is proportionality. A sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender. Every other principle and factor takes a back seat to this. The requirement that a sentence be proportional is fundamental. And, in arriving at a proportional sentence, it is the sentencing judge’s job to weigh the various principles, factors and objectives and to determine how important and relevant each is. They are far better positioned than I to do this. This exercise, of course, depends on the personal circumstances of the offender, the nature of the crime, and the circumstances surrounding its commission. It must attract significant deference. In this case is there any basis upon which to interfere?

[21] This question can be distilled into a consideration of the sentencing judge’s treatment of collateral consequences.

[22] First, I can quickly dispose of any complaint that arises from the Appellant’s suggestion that the disruption to his family, and inability to continue his studies should have had a greater impact on sentence. I find that even if the sentencing judge failed to consider these factors – or, if he did consider them but failed to adequately explain his reasons for discounting them – this failure had no impact on sentence.

[23] Second, I find that the sentencing judge properly considered the presenting mitigating factors (i.e. guilty plea, expression of remorse) by effectively concluding that these were overwhelmed by the need to denounce the Appellant’s behaviour. The sentencing judge put it this way:

The mitigating factor in this case is he pled guilty and he expresses remorse now. But, in the court’s view, it does not take away from the brutal attack on his son over what the court considers a trivial transgression on the part of the child, not making his best efforts at school. The court understands its role in such cases and agrees with the Crown this sort of case calls out for denunciation by way of jail component.

[24] It was open to the sentencing judge to so find.

[25] That leaves me to consider immigration consequences. The sentencing judge’s reasons are silent on this topic so it is difficult to assess whether he turned his mind to it at all. That does not mean, however, that I must automatically reconsider sentence afresh. As the court in Lacasse directs, even when there is an error in principle, failure to consider a relevant factor, or when the sentencing judge erroneously considers an aggravating or mitigating factor, there can only be appellate intervention where it appears from the trial judge’s decision, read as a whole, that such an error had an impact on the sentence.

[26] In the result I find that even though the sentencing judge did not address the immigration fall-out, this failure did not impact upon sentence. We must remember that not all collateral immigration consequences are the same. In some cases immigration consequences are significant. In others, as is the case here, it will have either no effect or minimal effect upon sentence. Consider the Supreme Court’s comments in R. v. Pham 2013 SCC 15, [2013] 1 SCR 739:

An appellate court has authority to intervene if the sentencing judge was not aware of the collateral immigration consequences of the sentence for the offender, or if counsel had failed to advise the judge of this issue. In such circumstances, the court’s intervention is justified because the sentencing judge decided on the fitness of the sentence without considering a relevant factor

The 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.

[27] Two things. First, the sentencing judge was not required to apply collateral immigration consequences as a way to reduce sentence. It was within his discretion. Second, the trial judge was fully informed of the immigration consequences at play. I suspect he paid it little mind, failing to mention it at all in his reasons, because as it turned out it was inconsequential. He was told that by virtue of a conviction being registered, the Appellant was going to be deported. This is significant given a discharge was not on the table. In fact, trial counsel did not even pursue that as a disposition. A conviction was going to be registered and this was known, and accepted, by the judge and both parties.

[28] Which means, the Appellant’s complaint is really about the timing of his return to Korea, which would have had no import at the sentencing hearing. Nor does it now. It is true that the jail sentence has extended the Appellant’s stay in Canada longer than he now wants it to be, but consider trial counsel’s submissions on this point, which entirely undermines, in my view, the immigration argument. Speaking of his client - the Appellant - he said:

He’s an Italian trained cook. He worked in the hotel industry for major hotels for 15 years, then opened – he’d also opened his own restaurant in Korea.

He has two children as you’ve heard, a son and a daughter. When he’s able to, he would like to go back and rekindle his relationship. He’s apologetic. He misses his family dearly.

He’s in essence trapped at this point. He doesn’t have his passport due to the – it being taken away when he was charged, but he is no longer allowed to work here because his Visa has been revoked.

[29] There it is. The Appellant now wants to get back home to Korea as quickly as possible. He feels “trapped”. I do not fault him for that, but I am fairly certain that everyone who has to step into custody wants to return home sooner rather than later. No one wants to be in jail.

Conclusion

[30] This is no reason to interfere with the sentence. It falls firmly within the range of acceptable sentences for this type of offence.

[31] The appeal is therefore dismissed.

“Justice Jonathon C. George” Justice Jonathon C. George Released: June 25, 2019