A. HISTORY OF THE PROCEEDINGS AND OVERVIEW

[1] The accused Cecil Seerattan (hereinafter Seerattan) was charged in a 13 count Indictment with various offences that all related to two ongoing series of assaults on a victim named Earnsteen David. The first set of offences took place on November 7, 2015 and included assault with a weapon (a knife), contrary to s.267 of the Criminal Code, and forcible confinement contrary to s.279. The second set of charges took place just over three months later, on February 21 and 22, 2016, and included aggravated assault by wounding contrary to s.268, forcible confinement contrary to s.279, and various breaches of recognizance contrary to s.145 (the accused was out on bail for the earlier offences at the time of the subsequent offences).

[2] The case encountered delays in the Ontario Court of Justice, partly due to the victim Ms. David failing to appear to testify on the first trial date in October 2016, and partly due to the accused Seerattan changing counsel and changing his initial election for trial in the Ontario Court of Justice. A preliminary inquiry was held in May 2017, after Seerattan’s change of election, and he was committed for trial. In this Court, he changed counsel again and a trial date was set for May 2018. Seerattan applied to adjourn the first trial date in this Court, due to a work-related issue, and the adjournment was granted. A second trial date was set for November 26, 2018. There were two waivers of s. 11(b) of the Charter of Rights by Seerattan at various points in this history.

[3] On November 26, 2018, Seerattan appeared before me for trial. By this point, there had been over three years of delay in the case. Seerattan sought to adjourn this second trial date in this Court, in order to try to retain what would have been his fourth counsel. Seerattan did not have a letter from this counsel who he sought to retain, Jordan Weisz, either indicating that he had been retained or indicating that he was willing to act, or indicating when he would be able to proceed with the trial. I was also advised that Seerattan had repeatedly failed to meet with and communicate with his current counsel, Mr. Rabinovitch, who was still on the record. The Crown witnesses were present at court and the Crown was ready to proceed. In all these circumstances, I denied Seerattan’s request for a further adjournment of the trial. However, I gave Seerattan and Mr. Rabinovitch time to confer. I adjourned court twice on the morning of the first day of trial, in order to give Seerattan and his counsel time to meet and prepare, and to give defence and Crown counsel time to discuss the case. As a result, the trial did not proceed on its first day.

[4] Late in the morning of this first day set for trial, Crown counsel advised that “we are having ongoing discussions, we are working towards a resolution.” Mr. Rabinovitch advised that he was “going through the synopsis with Mr. Seerattan, taking a little bit longer because I am reading it to him so that there is no misunderstanding on the facts that are being put forward … I need to go through it line by line … to ensure that Mr. Seerattan understands all the details …. and there is no miscommunications.” I advised Mr. Rabinovitch to “take the time you need with your client” and adjourned court until after the lunch recess.

[5] In the afternoon of this first day set for trial, Seerattan re-elected and pleaded guilty before me to four counts in the Indictment, after a plea inquiry by his own counsel and by me in open court. In relation to the first incident on November 7, 2015, he pleaded guilty to assault with a weapon (Count Two). In relation to the second incident on February 21 and 22, 2016, he pleaded guilty to the lesser included offence of assault causing bodily harm (Count Six), to forcible confinement (Count Eight), and to breach of recognizance for communicating with Ms. David (Count 11). The other counts were to be withdrawn. The Crown agreed to accept the accused’s guilty plea to the lesser included offence on Count Six and agreed not to proceed on the greater offence of aggravated assault by wounding.

[6] The parties advised me that there was a joint submission for what I initially understood to be, in effect, a total sentence of two years less two days, with 12 months credit for Seerattan’s eight months of pre-trial custody, thereby reducing the total sentence to be served to one year less two days. However, counsel clarified for me that the sentence being proposed was deliberately structured by the parties as six months less a day on Count Two and six months less a day consecutive on Count Six, due to “immigration issues”. I was advised by counsel that Seerattan “came to Canada as a refugee”, that he does not have Canadian citizenship, and that counsel would be seeking “further information about the structuring of the sentence so it’s clear.”

[7] Although there was to be a joint submission, the parties wanted to obtain a Pre-Sentence Report and, as noted, Mr. Rabinovitch was seeking “further information” about how best to “structure” the sentence for immigration purposes. As a result, sentencing was adjourned to January 18, 2019. On that date, sentencing did not proceed due to two intervening events. I had hip surgery in early January 2019 and was unavailable for a period of time. In addition, Seerattan changed counsel and needed time to complete the new retainer with his fourth counsel, Mr. Weisz. The sentencing hearing was twice adjourned by McMahon J., on January 18, 2019 and again on March 6, 2019, for the above two reasons.

[8] The sentencing hearing finally came back on before me on April 12, 2019. The victim of the two assaults, Ms. David, was present. She addressed the Court and provided “victim impact” evidence that was helpful to Seerattan, as I will explain below. The Crown advised the Court that the resolution and proposed sentence outlined to the Court on November 26, 2018 were structured in light of immigration considerations, in particular, the plea to the lesser included offence on Count Six (assault causing bodily harm) was to an offence with a 10 year maximum sentence (as opposed to a 14 year maximum sentence for the greater offence of aggravated assault), and the two sentences of 6 months less a day were also believed to have more favourable immigration consequences. Mr. Weisz was now retained and on the record for Seerattan. He advised the Court that he had just obtained the criminal defence file from Mr. Rabinovitch, and the immigration file from Seerattan’s original immigration lawyer, and that he needed additional time to prepare. He was exploring two separate issues: first, the immigration consequences of Seerattan’s guilty pleas and how best to structure the sentences in light of these immigration consequences; and second, whether Seerattan’s guilty pleas were “fully informed.” In relation to this second issue, Mr. Weisz made it clear that, in his view, Seerattan’s guilty pleas were free, voluntary, and fully informed in relation to the facts that he was admitting and the criminal law consequences of his guilty pleas. The only issue was whether the guilty pleas were “fully informed” in relation to the immigration consequences. I granted Mr. Weisz’ request for a one month adjournment of the sentencing hearing, in order to allow him further time to explore these two issues.

[9] On May 10, 2019, the sentencing hearing again resumed before me. Mr. Weisz provided the Court with a number of letters relevant to sentencing, that I will summarize below. He also advised the Court that he had recently received an opinion letter from an immigration lawyer to the effect that Seerattan is a refugee claimant and a “foreign national”, and that he is not a “permanent resident” within the meaning of the Immigration and Refugee Protection Act (hereinafter, I.R.P.A.). As a result, the immigration lawyer’s opinion was that Seerattan has no right of appeal under s.63 of I.R.P.A., from a removal order “on grounds of criminality” under ss.36 and 44 of I.R.P.A. Given this lack of an appeal, Seerattan would only be entitled to seek an exercise of discretion against a removal order under s.44 and he could also apply to the Minister on “humanitarian and compassionate grounds.” Mr. Weisz had not had time to review this opinion from the immigration lawyer with Seerattan and to seek instructions as to its impact on Seerattan’s guilty pleas. In this regard, Mr. Weisz referred to the Supreme Court’s decision in R. v. Wong (2018), 2018 SCC 25, 364 C.C.C. (3d) 1 (S.C.C.). I adjourned Court in order to allow Mr. Weisz time to confer with his client.

[10] After recessing for an hour and a half, the hearing resumed. Mr. Weisz advised the Court that he had spoken to the immigration lawyer by telephone and had conferred with his client. However, he still did not have final instructions from his client. He advised, once again, that he was satisfied that Seerattan’s guilty pleas were free and voluntary and fully informed, from a criminal law perspective. He was also satisfied that Seerattan understood some of the immigration law consequences. In this regard, it was apparent that he was pleading guilty to an indictable offence “punishable by a maximum term of imprisonment of at least 10 years” and that he was therefore “inadmissible on grounds of serious criminality” pursuant to s.36 of I.R.P.A., and that he could rely on either an exercise of discretion against a removal order under s.44 of I.R.P.A., or on a submission to the Minister on “humanitarian and compassionate” grounds. Mr. Weisz was of the view that the only immigration consequence that Seerattan did not understand was the lack of a right of appeal under s.63 of I.R.P.A. In that regard, Mr. Weisz was having difficulty determining whether the second branch of the test for striking a guilty plea in R. v. Wong, supra could be satisfied, that is, “whether the accused would have taken a meaningfully different course of action in pleading.” I adjourned court until after the lunch recess in order to allow Mr. Weisz more time to confer with his client and to decide on a course of action.

[11] After the lunch recess, Mr. Weisz advised the Court that he now had written instructions to waive solicitor and client privilege and to proceed with a Motion to strike Seerattan’s guilty pleas. However, he needed time to prepare and file the affidavit material required by the Supreme Court’s decision in R. v. Wong, supra. He advised that he would have this material prepared, served on the Crown, and filed in court by May 31, 2019. I made an Order that the accused’s Motion Record and Factum were to be filed by that date, and that the Crown would file any responding Record and Factum in the following three week period. I indicated that no further delays would be permitted, that the Motion was scheduled to be heard on June 24, 2019, and that three days were booked for the hearing in the event that cross-examination on affidavits was required, and in order to complete the sentencing if the Motion to strike the guilty pleas was denied.

[12] Nothing was filed with the Court, either on the May 31, 2019 filing date or thereafter. I made inquiries on June 19, 2019, as to whether the Motion to strike the guilty pleas was proceeding. The Trial Coordinator’s office spoke to Mr. Weisz, and received an email from him that same day, advising as follows: “the defence had been unable to prepare the required materials in time because the defendant had been obliged to retain an immigration lawyer for a second opinion after our last appearance in Court, and that this resulted [in] unanticipated delays in both being able to prepare meaningful and accurate materials, as well as delays in my retainer being satisfied” [emphasis added].

[13] On June 24, 2019, the parties appeared before me on the date scheduled for the Motion to strike the guilty pleas, and the date for sentencing, depending on the results of the Motion. Mr. Weisz amplified on the reasons set out in his June 19 email for Seerattan’s failure to file the Motion to strike his guilty pleas. He then sought a further adjournment. I denied this request for a further adjournment and the sentencing hearing proceeded.

[14] In summary, the reasons for denying any further adjournment were as follows:

• First, there had been a record of previous delays in this case, amounting to almost 44 months of total delay since the initial charges were laid on November 7, 2015. The sentencing hearing alone had been delayed for seven months. Included in these delays were two prior adjournments that I granted on April 12 and May 10, 2019, solely for the purpose of allowing the defence more time to consider the issue of a Motion to strike Seerattan’s guilty pleas and, if so advised, to prepare it and file it. What was being requested was a third adjournment for this same purpose, after numerous other delays;

• Second, I had set a fixed filing date of May 31, 2019 for the Motion and had set aside three full days for the hearing, including for cross-examination on affidavits and for sentencing, if the Motion was unsuccessful. I had made it clear that there would be no further delays and that the matter would proceed;

• Third, the reasons for requesting further delay, and the failure to file the Motion, were not persuasive. Mr. Weisz referred to the fact that he had sought a second opinion from a second immigration lawyer, concerning the immigration law consequences of Seerattan’s guilty pleas, and had not received the second opinion until May 30, 2019 (that is, one day prior to the May 31 filing date). Mr. Weisz explained that the opinion was thorough and it required only some minor editing of privileged references to a potential defence. Mr. Weisz did not advise whether this second immigration law opinion differed substantially from the first opinion received prior to the May 10, 2019 adjournment. When I pressed Mr. Weisz as to why the necessary minor editing of this second opinion about immigration law consequences could not have been carried out by May 31, 2019, he agreed that it could have been completed by the May 31, 2019 filing date. When I further pressed Mr. Weisz, as to why there was no affidavit from Seerattan and/or from Mr. Rabinovitch, concerning what Seerattan was told about the immigration consequences at the time of his guilty pleas and whether he would have done anything differently, in light of either of the two immigration law opinions, Mr. Weisz could not adequately explain the failure to prepare and file these materials from Seerattan and Mr. Rabinovitch. At this point, I suggested to Mr. Weisz that the real reason for his failure to file the Motion appeared to be “delays in my retainer being satisfied”, as Mr. Weisz put it in his June 19, 2019 email to the Trial Coordinator’s office. Mr. Weisz agreed with my suggestion and acknowledged that this was the reason for his failure to file the Motion. I then reminded Mr. Weisz that he had told me on May 10, 2019 that he was retained for the Motion to strike the guilty pleas. Mr. Weisz agreed that he had so advised the Court. In all these circumstances, I concluded that there was no legitimate explanation for the failure to file the Motion; and

• Fourth, it appeared that the Motion to strike was weak and unlikely to succeed. It was made clear at the time of the guilty pleas, and on the subsequent appearances, that everyone was aware that there were “immigration consequences” flowing from Seerattan’s guilty pleas. Indeed, Mr. Weisz conceded on the May 10, 2019 appearance, as summarized above, that Seerattan was aware that his guilty pleas made him inadmissible pursuant to s. 36 of I.R.P.A., and subject to removal pursuant to s. 44 of I.R.P.A. The only issue of uncertainty was his rights of appeal. Mr. Rabinovitch had made it clear, immediately after the guilty pleas, that he was seeking “further information” (presumably from an immigration lawyer) as to how best to “structure” the sentences. In other words, it appears from the record that Mr. Seerattan was not given definitive guarantees about his immigration law rights of appeal, at the time of his guilty pleas, and that further inquiries were being made. He would undoubtedly have perceived certain benefits from the plea agreement (in particular, not proceeding on the aggravated assault charge and the likelihood of successfully reducing each of the two sentences to less than six months, given the joint submission), and these benefits may have outweighed any uncertainties about immigration rights of appeal. Mr. Weisz conceded a number of times during the May 10, 2019 appearance, that there were real questions in his mind concerning the likelihood of satisfying the second branch of the Wong test, namely, whether Seerattan “would have taken a meaningfully different course of action in pleading”. See: R. v. Girn (2019), 2019 ONCA 202, 145 O.R. (3d) 420 (C.A.).

[15] For all the above reasons, I concluded that Seerattan and his counsel had failed to diligently pursue a weak Motion in accordance with a schedule set by the Court, and after a long series of similar delays in a case where there had already been almost 44 months of total delay. In my view, a further adjournment could not be justified in the post-Jordan era where “robust case management and trial scheduling processes” are to be observed. See: R. v. Jordan (2016), 2016 SCC 27, 335 C.C.C. (3d) 403 at paras. 112-117 (S.C.C.); R. v. Oliver and Morrison (2005), 2005 CanLII 3582 (ON CA), 194 C.C.C. (3d) 92 at paras. 19-32 (Ont. C.A.).

[16] With no Motion to strike the guilty pleas before me, and none of the materials required by R. v. Wong, supra, I proceeded to hear final sentencing submissions.

B. FACTS RELATING TO THE OFFENCES

[17] The facts relating to the offences were read in by the Crown on November 26, 2016 and were admitted by Seerattan, after entering his guilty pleas. In summary, the accused Seerattan and the victim Ms. David had been in a dating relationship for about two years. On November 7, 2015, they had spent the day together and were at his apartment in the evening. Seerattan proposed marriage to Ms. David. She did not want to marry and he became enraged. He threw a glass at a table, struck her in the face with his cell phone, picked up a kitchen knife, demanded that she remove her clothes and that she put on another set of clothes, dragged her into the bedroom, slapped the knife blade against her, held the knife to her throat and threatened her. Ms. David managed to persuade him, on the basis of a ruse, to take her down in the apartment building elevator to her car. This attempt to escape failed and resulted in further assaults and threats. However, Ms. David was able to get the attention of a neighbour in the apartment building who then called the police on 911. The police arrived and arrested Seerattan. Ms. David had various cuts and bruises but she did not require medical attention. Seerattan was released on bail. The terms included “house arrest” and no contact with Ms. David.

[18] The second incident, on February 21 and 22, 2016, occurred when Seerattan called Ms. David to wish her a happy birthday and to invite her out for drinks. She agreed, met him at his apartment, and drove with him in his truck to a bar. After a few drinks, Seerattan told her that he would drive her home. She said that she wanted to take a taxi. Outside the bar, he punched her in the face and forced her into his truck. While he was driving, she tried to honk the horn and gain the attention of onlookers. He struck her in the arm and face with an object of some kind and threatened her. He eventually parked the truck in a lot and told her to get out. She begged him not to harm her and told him that she loved him and that she would have sex with him. He then slashed her right leg with a knife of some kind, causing a wound that was 2” deep and 7” long. He forced her back into the truck and drove to his apartment building. She collapsed on the floor in a corridor inside the building. He left her there. She made her way to a gas station and called the police. Seerattan was arrested and denied bail. He remained in custody for eight months before bail was granted in October 2016, on the Crown’s consent, when the first trial date in the Ontario Court of Justice did not proceed, due to the absence of Ms. David. She was hospitalized for six days after Seerattan’s arrest. She had numerous bruises and scratches and the one serious wound to her leg. Photographs of the injuries were filed before me on sentencing.

C. FACTS RELATING TO THE OFFENDER

[19] Seerattan is a 46 year old first offender. His antecedents are set out in considerable detail in a lengthy and thorough Pre-Sentence Report.

[20] In summary, Seerattan was born in Guyana in South America. His mother was of Indian descent and his father was of African descent. This mixed race status led to abuse and stigma, in the context of certain Guyanan social norms, according to the author of the Pre-Sentence Report. Seerattan’s parents separated and he was raised by his maternal grandmother, while his mother went to the United States in order to work and send money home. His upbringing appears to have had some positive aspects as he had a generally good relationship with his mother. However, he did experience emotional abuse due to his mixed race status and due to incidents of sexual abuse that occurred when he was age 9 to 10.

[21] Seerattan attended high school in Guyana until age 16. He then worked in Guyana as a welder. At age 20 he moved to the United States and worked there as a welder from 1992 to 2001. He married and had a son during his time in the United States. He eventually divorced but he maintains a good relationship with his ex-wife. Seerattan has two other children in Guyana who he has little contact with.

[22] Seerattan returned to Guyana from the United States in 2001, and again worked as a welder, mainly in Trinidad and Tobago, before obtaining a work permit that allowed him to come to Canada where he was seeking a “better life”, as he put it. He arrived in Canada in July 2012 and has been here for the past seven years. He claimed refugee status in July 2012, upon arrival, but his claim was never heard. He apparently did not receive notice of the hearing, did not attend the hearing, and his claim was dismissed in September 2018 as abandoned. He is presently seeking leave to re-apply for refugee status. He has worked in his own general contracting businesses in Ontario since 2013. He presently has three separate employment contracts in janitorial, maintenance and flooring businesses. One of the letters filed on the sentencing hearing from a flooring company described Seerattan as a “valued subcontractor” who is a “diligent, respectful, hardworking man and an asset to our company”.

[23] There is some indication from Ms. David, that Seerattan abused alcohol and marijuana on occasion, in particular, at the time of the present offences. Seerattan agrees with Ms. David’s account in this regard. In spite of the harm done to her, Ms. David speaks well of Seerattan, describing him in the Pre-Sentence Report as a “nice person” and “very loving”. Seerattan’s ex-wife in the U.S.A. described him as a “non-aggressive, friendly and helpful person who tends to be laid back and quiet”. His half-sister described him as a “good person who tries his best to do right”. He has been receiving help recently from various health care providers in Toronto and they have diagnosed him as having “mild intellectual disability” and “post-traumatic stress disorder”, requiring cognitive behavioural therapy. He suffers from nightmares associated with the period of sexual abuse in his childhood. He has also received anger management and alcohol abuse counseling, which appears to have been productive. Letters from various counseling and support agencies who have worked with Seerattan described him very positively.

[24] Seerattan has performed well on his most recent bail order, since October 2016, reporting and residing as required, as well as working and attending for counselling and, perhaps most importantly, not re-offending. He has a current girlfriend. The author of the Pre-Sentence Report concluded that Seerattan has “some insight into his situation” and “he expressed remorse” and experienced “a guilty conscience” concerning the offences. However, he also “appeared to minimize his role and shifted some blame towards the victim”. The author of the Pre-Sentence Report was of the view that Seerattan would benefit from counseling in relation to anger management, substance use, and sexual abuse victimization issues, in order to address his “self-management skills deficits and intimidating and controlling behaviour”.

[25] The victim, Ms. David, appeared before me on April 12, 2019, as mentioned above, and addressed the Court. She asked that I not sentence Seerattan to jail as she feared that he would be deported and that he would be harmed if he was returned to Guyana. She described him as a “good person” and explained that the two sets of offences in this case were brought about by alcohol and drug consumption. Significantly, she said that she was doing well, she was now working as a chef, and she has apparently recovered fully from the effects of the assaults.

D. THE POSITIONS OF THE PARTIES

[26] As summarized above, the guilty pleas were entered on November 26, 2018 on the basis of a joint submission that the parties had negotiated over the course of that day, prior to Seerattan entering his pleas of guilty. In summary, the joint submission was that the second set of offences (in February 2016) were the more serious and should attract a lengthier sentence that would be applied to Count Six (assault causing bodily harm). The 12 months credit for Seerattan’s pre-trial custody would be applied to this sentence and would reduce it to six months less a day. The other two February 2016 offences, namely, forcible confinement and breach of recognizance (Counts 8 and 11), would attract concurrent sentences of less than six months. In relation to the first set of offences (in November 2015), the guilty plea to assault with a weapon (Count Two) would attract a consecutive sentence of six months less a day. In other words, the total remanet to be served from the date of sentencing would be two sentences of six months less a day, to be served consecutively.

[27] It appears that the parties sought to structure the sentence in this way, as two terms of less than six months each, in order to allow immigration counsel to argue that it was not a case of “serious criminality” in relation to rights of appeal under s.64(2) of I.R.P.A. It would still remain a case of “serious criminality” under s.36(1) of I.R.P.A., in relation to Seerattan’s inadmissibility and potential removal pursuant to s.44. I have attached these sections of I.R.P.A. as an appendix, at the end of the these Reasons, for ease of reference.

[28] When the final sentencing hearing proceeded on June 24, 2019, Mr. Weisz resiled from the joint submission, based on the immigration law advice he had received. He sought a total sentence of 18 months less a day, reduced by the 12 months credit for pre-trial custody, leaving a remanet to be served of six months less a day.

E. ANALYSIS

[29] The principles of sentencing are set out in ss. 718, 718.1, and 718.2 of the Criminal Code and I am bound by those principles. The fundamental principle of sentencing is “proportionality”, as set out in s. 718.1, that is, the sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”.

[30] One particularly important legal principle relating to sentencing, that applies in this case, concerns the deference accorded to counsel’s agreement to a joint submission, especially when that agreement precedes a guilty plea. The Court of Appeal set out the proper approach to this consideration in R. v. Cerasuolo (2001), 2001 CanLII 24172 (ON CA), 151 C.C.C. (3d) 445 at para. 8 (Ont. C.A.):

This court has repeatedly held that trial judges should not reject joint submissions unless the joint submission is contrary to the public interest and the sentence would bring the administration of justice into disrepute: e.g. R. v. Dorsey (1999), 1999 CanLII 3759 (ON CA), 123 O.A.C. 342 at 345. This is a high threshold and is intended to foster confidence in an accused, who has given up his right to a trial, that the joint submission he obtained in return for a plea of guilty will be respected by the sentencing judge. [Emphasis added].

[31] In determining whether the joint submission advanced by counsel is “contrary to the public interest” and whether “the sentence would bring the administration of justice into disrepute”, the particular mitigating and aggravating circumstances in the case and the normal range of sentence for this kind of case should be taken into consideration.

[32] In my view, there are significant mitigating circumstances in this case. In particular, I note the following five:

• Seerattan is a first offender;

• all the evidence in the record indicates that he is a hard-working individual who has led a pro-social life for many years, until these first offences arose in mid-life, that is, at age 46;

• he pleaded guilty, saving the victim from testifying and saving valuable court resources, while expressing some degree of remorse and regret for his conduct in the Pre-Sentence Report;

• there is reliable evidence in the record that he suffers from a “mild intellectual disability” and from “post-traumatic stress disorder” and that he has sought treatment and counseling, with some success, in relation to these conditions. To the extent that these conditions may have contributed to the offences in this case, they reduce Seerattan’s moral culpability; and

• there are collateral consequences that flow from the convictions as Seerattan now becomes inadmissible and subject to removal from Canada, pursuant to ss. 36 and 44 of I.R.P.A. His ability to remain in Canada will depend on an exercise of discretion, as I will explain below.

[33] On the other hand, the aggravating circumstances in this case include the following two, which are both significant:

• the use of a knife against a vulnerable female partner who he had forcibly confined; and

• the repetition of the offence, after being released on bail and in violation of his terms of release.

[34] However, I note that alcohol appears to have played a role in the offences, according to both Seerattan and Ms. David, the victim. I also note that Ms. David has made a full recovery from the offences and she attended Court in order to express her support for Seerattan. Finally, I note that the knife was not used to attack Ms. David’s face, head, or central organs, as in many of the more serious cases. These factors all serve to reduce the gravity of the offences in this case. In the result, the two significant aggravating factors are counter-balanced by the five mitigating factors, which are also significant in their totality. In other words, the case is not at the most mitigated end of the spectrum, where a particularly lenient sentence would be appropriate, nor is it at the most aggravated end of the spectrum, where an exemplary sentence would be appropriate.

[35] Turning to the normal range of sentence for these kind of offences committed by this kind of offender, the case law discloses a broad range of appropriate sentences for serious assaults. Most of the reported cases involve the offence of aggravated assault, which carries a maximum sentence of 14 years imprisonment pursuant to s. 268. In the present case, Seerattan pleaded guilty to assault with a weapon and assault causing bodily harm, which both carry a maximum sentence of ten years imprisonment pursuant to s. 267. Nevertheless, broadly similar sentencing considerations apply in relation to all three of these offences.

[36] At the bottom end of the range are the most mitigated cases where intermittent sentences have been imposed. See, e.g.: R. v. Panchan (2013), 294 C.R.R. (2d) 92 (Ont. S.C.J.); R. v. Pulido, 2010 ONSC 3143; R. v. Bainbridge, 2016 ONSC 2119; R. v. Smart, [2013] O.J. No. 509 (S.C.J.). In exceptional cases, completely non-custodial sentences have been imposed and upheld. See, e.g. : R. v. Peters (2010), 2010 ONCA 30, 250 C.C.C. (3d) 277 (Ont. C.A.). In the mid-range of gravity, there are a large number of cases where high reformatory sentences have been imposed. See, e.g.: R. v. Tourville (2011), 2011 ONSC 1677, 93 W.C.B. (2d) 296 (Ont. S.C.J.); R. v. Jones, 2013 ONCA 245; R. v. Pomanti, 2017 ONCA 48; R. v. MacDonald (2010), 2010 ONCA 178, 259 O.A.C. 308 (C.A.). Finally, in the most aggravated cases, at the high end of the range, sentences of four to eight years have been imposed. See, e.g. R. v. Haly, 2012 ONSC 2302, [2012] O.J. No. 1847 (S.C.J.); R. v. Scott, [2002] O.J. No. 1210 (C.A.); R. v. Thompson, [2005] O.J. No. 1033 (C.A.); R. v. Vickerson (2005), 2005 CanLII 23678 (ON CA), 199 C.C.C. (3d) 165 (Ont. C.A.); R. v. Khan (1991), 49 O.A.C. 42 (C.A.).

[37] As explained above, the particular mix of aggravating and mitigating circumstances in this case situate it in the mid-range of gravity. However, I note that the higher end of the range was what Seerattan was at risk of receiving, had he gone to trial and not entered into the plea agreement. Given that the case is situated in the mid-range of gravity, the effective total sentence originally submitted by the parties, as reduced by 12 months credit for pre-trial custody, namely, two consecutive sentences of six months less a day, fits squarely within the appropriate middle range of sentence suggested by the above authorities. I am satisfied that the original joint submission should be respected and adopted. There is nothing about it that is contrary to the public interest or that would bring the administration of justice into disrepute. Furthermore, none of the developments that have arisen since the guilty pleas were entered, justifies resiling from the joint submission, as explained above when dismissing the request for a further adjournment.

[38] Before concluding these Reasons, I wish to address the issue of collateral immigration consequences. On the court appearances when I twice allowed Mr. Weisz adjournments in order to look into the applicable immigration law consequences, I advised him that the judges of this Court who regularly hear criminal cases had received a helpful briefing from senior immigration department officials in relation to this issue. As I understand the provisions of I.R.P.A., Seerattan’s guilty pleas to assault with a weapon and assault causing bodily harm (Counts Two and Six) mean that he is “inadmissible on grounds of serious criminality”, pursuant to s.36(1). This is because both offences carry maximum sentences of 10 years. This would be the case, regardless of Seerattan’s status in this country, because s.36(1) applies to both “a permanent resident” and to “a foreign national”. This would also be the case regardless of the sentence imposed because s.36(1) inadmissibility is triggered by the “maximum term of imprisonment” available for the offence and not by the actual sentence imposed. Mr. Weisz advised the Court on May 10, 2019 that Seerattan was always aware of this state of the law. As a result, I.R.P.A. removal procedures under s.44 are applicable to Seerattan. However, those procedures provide for discretion, both at the s.44(1) stage and at the s.44(2) stage. The senior immigration officials who briefed the judges of this Court advised that the discretion is meaningful, at both s. 44 stages, and that the Reasons of the judge on sentencing carry weight. In this regard, I strongly urge the officer who “may prepare a report” pursuant to s.44(1), and the Minister who “may refer the report” pursuant to s.44(2), to consider these Reasons for Sentence. Seerattan is a first offender, he pleaded guilty, he has led a law-abiding life for 46 years, he is hard-working and maintains a number of different jobs, he has certain diagnosed conditions that have responded well to counseling from a number of different agencies in Toronto, and he has been on bail successfully since October 2016 without re-offending. Perhaps most significantly, the victim in this case (Ms. David) has recovered fully and speaks highly of Seerattan (as do the other women in his life, such as his ex-wife and his half-sister). In particular, Ms. David advised the Court that Seerattan is a “good person” and that he would be harmed if he was deported to Guyana. She struck me as unbiased, in this regard, because she no longer has any relationship with Seerattan. She also struck me as a strong and sincere individual who was now working at a good job and who had successfully “moved on” from the effects of the present offences. I join her in urging an exercise of discretion pursuant to s.44 of I.R.P.A. It is a rare case where I have made such a recommendation to immigration officials but I believe that it is appropriate in this case.

F. CONCLUSION

[39] For all the reasons set out above, the accused Seerattan is sentenced as follows:

(i) six months less a day on Count Two (assault with a weapon);

(ii) six months less a day consecutive on the lesser included offence in Count Six (assault causing bodily harm);

(iii) four months concurrent on Count Eight (forcible confinement);

(iv) two months concurrent on Count Eleven (breach of recognizance);

(v) the warrant of committal and the accused’s criminal record should note that Seerattan received 12 months credit for eight months of pre-trial custody, in relation to Count Six;

(vi) the custodial sentence will be followed by two years probation on the terms submitted by the Crown; and

(vii) there will be a s.109 Order for 10 years and a DNA order.

M. A. Code J.

Released: July 17, 2019

Appendix

Immigration and Refugee Protection Act

S.C. 2001, c. 27

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;

(b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or

(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.

Criminality

(2) A foreign national is inadmissible on grounds of criminality for

(a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence;

(b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament;

(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under an Act of Parliament; or

(d) committing, on entering Canada, an offence under an Act of Parliament prescribed by regulations.

Application

(3) The following provisions govern subsections (1) and (2):

(a) an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily;

(b) inadmissibility under subsections (1) and (2) may not be based on a conviction in respect of which a record suspension has been ordered and has not been revoked or ceased to have effect under the Criminal Records Act, or in respect of which there has been a final determination of an acquittal;

(c) the matters referred to in paragraphs (1)(b) and (c) and (2)(b) and (c) do not constitute inadmissibility in respect of a permanent resident or foreign national who, after the prescribed period, satisfies the Minister that they have been rehabilitated or who is a member of a prescribed class that is deemed to have been rehabilitated;

(d) a determination of whether a permanent resident has committed an act described in paragraph (1)(c) must be based on a balance of probabilities; and

(e) inadmissibility under subsections (1) and (2) may not be based on an offence

(i) designated as a contravention under the Contraventions Act,

(ii) for which the permanent resident or foreign national is found guilty under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or

(iii) for which the permanent resident or foreign national received a youth sentence under the Youth Criminal Justice Act.

2001, c. 27, s. 36 2008, c. 3, s. 3 2010, c. 8, s. 7 2012, c. 1, s. 149

Preparation of report

44 (1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister.

Referral or removal order

(2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order.

Conditions

(3) An officer or the Immigration Division may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that the officer or the Division considers necessary on a permanent resident or a foreign national who is the subject of a report, an admissibility hearing or, being in Canada, a removal order.

Competent jurisdiction

62 The Immigration Appeal Division is the competent Division of the Board with respect to appeals under this Division.

Right to appeal — visa refusal of family class

63 (1) A person who has filed in the prescribed manner an application to sponsor a foreign national as a member of the family class may appeal to the Immigration Appeal Division against a decision not to issue the foreign national a permanent resident visa.

Right to appeal — visa and removal order

(2) A foreign national who holds a permanent resident visa may appeal to the Immigration Appeal Division against a decision to make a removal order against them made under subsection 44(2) or made at an admissibility hearing.

Right to appeal removal order

(3) A permanent resident or a protected person may appeal to the Immigration Appeal Division against a decision to make a removal order against them made under subsection 44(2) or made at an admissibility hearing.

Right of appeal — residency obligation

(4) A permanent resident may appeal to the Immigration Appeal Division against a decision made outside of Canada on the residency obligation under section 28.

Right of appeal — Minister

(5) The Minister may appeal to the Immigration Appeal Division against a decision of the Immigration Division in an admissibility hearing.

2001, c. 27, s. 63; 2015, c. 3, s. 110

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).

Misrepresentation

(3) No appeal may be made under subsection 63(1) in respect of a decision that was based on a finding of inadmissibility on the ground of misrepresentation, unless the foreign national in question is the sponsor’s spouse, common-law partner or child.

2001, c. 27, s. 64; 2013, c. 16, s. 24

Appeal allowed

67 (1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of,

(a) the decision appealed is wrong in law or fact or mixed law and fact;

(b) a principle of natural justice has not been observed; or

Minister, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.

Effect

(2) If the Immigration Appeal Division allows the appeal, it shall set aside the original decision and substitute a determination that, in its opinion, should have been made, including the making of a removal order, or refer the matter to the appropriate decision-maker for reconsideration.

R. v. Seerattan, 2019 ONSC 4340

Case Summary

A. HISTORY OF THE PROCEEDINGS AND OVERVIEW

B. FACTS RELATING TO THE OFFENCES

C. FACTS RELATING TO THE OFFENDER

D. THE POSITIONS OF THE PARTIES

E. ANALYSIS

F. CONCLUSION

Appendix

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legal Tests 2

Legislation 3