Court File and Parties
COURT FILE NO.: CR-18-40000091-00AP DATE: 20201026
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
RIZWAN SHAH Appellant
Counsel: K. Motyl, for the respondent M. Feldmann, for the appellant
HEARD: October 22, 2020 by videoconference.
REASONS FOR DECISION
On appeal from the sentence imposed on November 29, 2018 by the Honourable Justice L. Pringle of the Ontario Court of Justice.
SCHRECK J.:
[1] Rizwan Shah repeatedly breached the conditions of a recognizance he was bound by while on bail on charges of assault, threatening and forcible confinement in relation to his estranged wife. Following a trial in the Ontario Court of Justice, he was acquitted of the underlying charges but found guilty of two counts of failing to comply with a recognizance. After noting the equivalent of 21 days spent in presentence custody, the sentencing judge suspended the passing of sentence and placed Mr. Shah on probation for 18 months.
[2] Mr. Shah appeals his sentence. He submits that the sentencing judge erred by failing to have sufficient regard for the principle of restraint and the objective of rehabilitation. He claims that a conviction may have an adverse effect on his future employment as a massage therapist as well as his ability to sponsor his parents as immigrants to Canada. He submits that in light of these factors, the appropriate disposition in this case is a conditional discharge.
[3] I would dismiss the appeal. The sentence imposed was well within the range of appropriate sentences and the sentencing judge’s reasons reflect no error in principle. In these circumstances, it is not open to an appellate court to interfere. In any event, this is not an appropriate case for a discharge.
I. FACTS
A. The Offences
[4] The appellant and the complainant were married in Belarus following which the complainant moved to Canada in 2014 to live with the appellant, who already lived here. The couple had two children.
[5] The relationship between the appellant and his wife became acrimonious. In January 2017, the appellant was arrested after the complainant contacted the police and alleged that he had threatened her. After spending 10 days in custody, he was released on a recognizance which included a condition that he not attend the residence where he had lived with his wife. On February 2, 2017, a few days after his release, the appellant attended the residence in breach of his recognizance. His wife came home to find him emerging from a closet, which frightened her. She also alleged that while he was there, he assaulted and forcibly confined her.
[6] The appellant was arrested as a result of the new allegations. After spending several days in custody, he was released on a new recognizance which included a condition prohibiting him from having direct or indirect contact with the complainant. Between March 16 and April 25, 2017, the appellant sent numerous messages to the complainant on her Facebook page attempting to persuade her to reconcile with him. These messages were not threatening in nature.
[7] Both the appellant and the complainant testified at the trial. The appellant admitted breaching his recognizance but denied guilt on the substantive charges. He was found not guilty of the substantive charges but guilty on two counts of failing to comply with a recognizance.
B. The Appellant’s Circumstances
(i) Employment
[8] The appellant was 42 years old at the time of the offences, had no prior criminal record and was employed at a major bank as a banking advisor. A letter from his supervisor described him as “an excellent contributor to his workplace” and “an extremely reliable person.”
[9] At the time of the sentencing hearing, the appellant was also taking courses through the Canadian College of Massage Therapists and planned to become a registered massage therapist. He was also enrolled at a university, where he was working towards a science degree in the hope that he could later enter an occupational therapist program.
(ii) Counselling
[10] Prior to sentencing, the appellant voluntarily attended two counselling sessions with a psychotherapist. The psychotherapist indicated in a letter that the sessions had been positive and recommended further counselling.
(iii) Plans to Sponsor Parents
[11] The appellant immigrated to Canada from Pakistan and planned to sponsor his parents to join him. At his sentencing hearing, he tendered a letter from an immigration lawyer dated November 28, 2018. In the letter, the lawyer stated:
Sponsors from Canada may not be eligible to sponsor your parents and grandparents if you … were convicted of a violent criminal offence, any offence against a relative or any sexual offence, depending on circumstances, such as the nature of the offence [and] how long ago it occurred.
At the conclusion of the letter, the lawyer stated:
You have discussed with me the charges laid by your spouse and I am of the opinion that your above pending criminal charges may seriously impact your application for sponsoring your parents.
II. ANALYSIS
A. Appellate Review of Sentencing Decisions
[12] A sentence appeal is not a second sentencing hearing at which the appellate court can substitute its view of what an appropriate sentence should be for that of the sentencing judge. While a sentencing judge has a wide discretion with respect to what sentence to impose, an appellate court’s authority is much more limited. Those limits were described by the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11:
This Court has on many occasions noted the importance of giving wide latitude to sentencing judges. Since they have, inter alia, the advantage of having heard and seen the witnesses, sentencing judges are in the best position to determine, having regard to the circumstances, a just and appropriate sentence that is consistent with the objectives and principles set out in the Criminal Code in this regard. The fact that a judge deviates from the proper sentencing range does not in itself justify appellate intervention. Ultimately, except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit. [Emphasis added].
The appellant does not suggest that the sentence in this case is demonstrably unfit. Rather, he suggests that the trial judge erred in principle by failing to apply the principle of restraint and failing to have regard for the appellant’s rehabilitation which, along with general and specific deterrence and denunciation, is one of the central sentencing objectives enumerated in s. 718 of the Criminal Code.
B. The Principle of Restraint
[13] The principle of restraint is an important part of Canadian sentencing law. It applies to all offenders, but particularly to first offenders such as the appellant. Put simply, the principle of restraint means that “the sentence should constitute the minimum necessary intervention that is adequate in the circumstances”: R. v. Priest (1996), 1996 CanLII 1381 (ON CA), 30 O.R. (3d) 538 (C.A.), at para. 18. The principle of restraint is tied to the objective of rehabilitation in that sentences that are harsher than necessary cannot be imposed to give effect to the objectives of deterrence and denunciation without consideration for rehabilitation: R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643, at paras. 33-34.
C. The Sentencing Judge’s Reasons
[14] In this case, while the sentencing judge did not explicitly mention restraint, it is clear from her reasons that she was guided by this principle. She rejected the Crown’s submission that a further period of incarceration was warranted. She considered the appellant’s request for a discharge and the reasons for it, but concluded that a discharge would “send the wrong message to Mr. Shah and the wrong message to the public.”[^1] She also stated:
I have considered the potential consequences of a conviction on Mr. Shah’s employment prospects as a massage therapist, and on his ability to sponsor his parents. I acknowledge that it is possible that a conviction will impact his ability to work as a massage therapist and possibly to sponsor his parents. However, I believe the Crown is right in this submission: While I cannot lose sight of the effect of the sentence for Mr. Shah and the prospects of his employment and his sponsorship, I also have to consider the fundamental principles and purpose of sentence. In this case of a very serious breach, and then repeated breaches of court orders in a domestic situation, I find there is a need for both specific and general deterrence.[^2]
[15] It is clear from this passage that the sentencing judge was aware of the potential effect a conviction could have on the appellant, but in light of the seriousness of the breaches and the fact that they were repeated over a period of time, she concluded that a conviction was required to give effect to the principles of general and specific deterrence. It was within the sentencing judge’s discretion to give as much or as little weight to the various competing factors as she determined was appropriate: Lacasse, at para. 49; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 46; R. v. McKnight (1999), 1999 CanLII 3717 (ON CA), 135 C.C.C. (3d) 41 (Ont. C.A.), at para. 35. After conducting that balancing and cautioning herself not to “lose sight of the effect of the sentence for Mr. Shah”, the sentencing judge concluded that a suspended sentence was appropriate. It can be inferred from this that the sentencing judge had concluded that a suspended sentence was “the minimum necessary intervention that is adequate in the circumstances.” That conclusion was open to her on this record.
[16] I recognize that a suspended sentence is not necessarily a greater deterrent to others than a conditional discharge: R. v. Cheung (1976), 19 Crim. L.Q. 281 (C.A.); R. v. Pera, 2016 ONSC 2800, at para. 13; R. v. Hayes, [1999] O.J. No. 938 (S.C.J.), at para. 32. However, a conviction carries greater consequences than a discharge, as is evident from the fact that the appellant and others in his position would rather have the latter. While a suspended sentence does not necessarily have a greater deterrent effect, it may in some cases. The trial judge was obviously of the view that this was such a case and it was open to her to come to that conclusion.
[17] In these circumstances, it cannot be said that the trial judge erred by failing to consider the principle of restraint or the appellant’s rehabilitation. Absent an error, there is no basis for this court to intervene.
D. Whether a Discharge Was Appropriate
[18] Even if the sentencing judge had erred and it was open to me to impose whatever sentence I deemed fit, I would not have imposed a discharge in this case. The appellant repeatedly violated court orders. These were not technical breaches. Rather, they were breaches of conditions designed to ensure the safety of the complainant and the integrity of the criminal justice system. Breaches of no-contact conditions in relation to charges that arise in a domestic context are particularly serious where, as in this case, the complainant does not want to have contact with the accused. A person who choses to end a relationship is entitled to have that decision respected and protected by the law: R. v. Bates (2000), 2000 CanLII 5759 (ON CA), 146 C.C.C. (3d) 321 (Ont. C.A.), at para. 36; R. v. Denkers (1994), 1994 CanLII 2660 (ON CA), 69 O.A.C. 391, at paras. 15-16; R. v. Dewan, 2014 ONCA 755, at para. 14.
[19] I accept that a conviction may have some impact on the appellant’s plans to become a massage therapist, although there is no evidence in the record as to this. While I do not know what factors the College of Massage Therapists of Ontario looks at in determining whether to grant someone a licence, other professional bodies, including the Law Society of Ontario, do not necessarily view a conviction as an absolute bar to obtaining a licence.
[20] If a conviction would prevent the appellant from sponsoring his parents, this could be a relevant factor: R. v. Ghaddar, 2018 ONCJ 959, at paras. 54, 58. However, the only evidence that a conviction might affect the appellant’s ability to sponsor his parents is the letter from the immigration lawyer. Although the date of the letter is after the trial was completed, it appears to have been written before the trial as it refers to “pending criminal charges.” The appellant was acquitted of the more serious charges. Furthermore, while interpreting immigration legislation is beyond the purview of this court, it appears from a review of the relevant regulation that only sexual offences and offences of violence preclude an individual from being a sponsor: Immigration and Refugee Protection Regulations, (SOR/2002-227), s. 133(1)(e).
III. DISPOSITION
[21] The appeal is dismissed.
Justice P.A. Schreck
Released: October 26, 2020
COURT FILE NO.: CR-18-40000091-00AP DATE: 20201026
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN – and – RIZWAN SHAH
REASONS FOR DECISION
P.A. Schreck J.
Released: October 26, 2020
[^1]: Reasons for Sentence, Transcript – November 29, 2018, p.50, l.31-p.52, l.2. [^2]: Ibid., p.52, l.28-p.53, l.12.