COURT FILE NO.: CR-18-30000024
DATE: 20210924
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Alexandra Penny for the Crown
- and -
M. G.
Leanna Seetahal for M. G.
HEARD: July 19, 2021
REASONS FOR SENTENCE
Subject to any further order by a court of competent jurisdiction, an order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way.
CORRICK J.
Introduction
[1] Following a trial, I found M. G. guilty of two counts of assault, uttering a threat to cause bodily harm and sexual assault causing bodily harm on December 20, 2020. The complainant in the offences was M. G.’s wife. The offences occurred in 2013, 2015 and 2016. The complainant reported the offences to the police in October 2016.
Circumstances of the Offences
[2] In 2013, during an argument, M. G. grabbed the complainant’s arms and pushed her backwards. The complainant lost her balance and fell to the floor, ripping the nail of her pinkie finger from the nail bed. While they were arguing, M. G. threatened the complainant, telling her that he was going to, “take her face down”. This event is the subject matter of the assault and uttering a threat to cause bodily harm charges.
[3] The second assault occurred in March 2015. When the complainant reached for M. G.’s cell phone during an argument, he grabbed her hand and twisted it towards her back, causing her pain.
[4] The circumstances of the sexual assault causing bodily harm are as follows. Sometime in April 2016, the complainant was sitting on the couch watching television in the basement. M. G. was showering in the basement bathroom. He came out of the bathroom with a towel wrapped around his waist. He stood in front of the complainant and opened his towel, exposing himself. The complainant told him to go away. She stood up to leave but caught her left foot on something and fell on the floor. M. G. grabbed her lower back, and they struggled. The complainant told M. G. not to touch her.
[5] The complainant was wearing a short loose dress. M. G. pulled off her underwear and had intercourse with the complainant against her will. He told her that as his wife, she had a duty to be intimate with him. After the assault, M. G. asked the complainant whether he should always try to struggle with her over marital affairs.
[6] The complainant’s left foot was badly sprained during the assault. It was swollen, bruised and painful to walk on. She thought it was broken but an x-ray revealed no fracture.
Circumstances of the Offender
[7] M. G. is 61 years old. He was born in Iran and remains an Iranian citizen. He came to Canada in 2013 and is a permanent resident. He and the complainant have been married for 40 years. They have three adult daughters.
[8] In 2007, the complainant settled in Canada with their youngest daughter. The two older daughters remained with M. G. in Iran until 2013 when the entire family was reunited in Canada. According to the pre-sentence report prepared in this case, M. G. has found the transition to life in Canada difficult. In Iran he owned and operated a successful transportation logistics business. He indicated to the author of the pre-sentence report that it has been stressful starting over in a new country. In Iran, he was the sole provider for his family and when he came to Canada he had to live under his wife’s supervision.
[9] After completing a two-month English as a Second Language course when he arrived in Canada, M. G. worked in a bakery for four years. For the past four years, he has been working for four different companies as a delivery assistant. Letters from his four current employers and his former employer at the bakery were filed on M. G.’s behalf. They speak of a hard-working, dedicated, honest and reliable employee who has been an asset to their businesses.
[10] Letters from his landlady and other members of the community were also filed. M. G.’s landlady indicated that for the past four years that M. G. has been a tenant in her house, he has been responsible and kind, helping her with household chores in the absence of her husband. A letter signed by 52 people echoed the sentiment that M. G. is kind, hard-working and responsible.
[11] M. G.’s daughters were interviewed by the author of the pre-sentence report. They indicated that M. G. was a good parent, who sacrificed for his family. They have not been able to see him since he was arrested on these charges in November 2016 because of M. G.’s bail conditions. They believe that the six-year separation of their family before they all emigrated to Canada and M. G.’s difficulties adjusting to Canada have taken an emotional toll on M. G. The current five-year separation arising from these charges have compounded the emotional toll.
[12] M. G. wants to reconcile with his wife and children. The pre-sentence report notes that he is willing to attend counselling if directed to do so by the court but does not feel it would be helpful at his age. He told the author of the pre-sentence report that he was innocent and that this matter was a misunderstanding. When I asked M. G. if he wanted to say anything, he indicated through the Farsi interpreter that this was all based on a misunderstanding and false accusations. He went on to say that “Unfortunately, the Canadian law is mostly in favour of women and women are now taking advantage of this situation and getting some benefits out of this.” He later apologized for insulting Canadian law.
[13] M. G. has no criminal record.
Impact on the Victim
[14] The complainant provided a Victim Impact Statement in which she indicated that it has been difficult not having M. G. at home. Her children are sad and miss their father very much. As he has been the sole provider for the family, his absence from the home has caused financial difficulties.
[15] The complainant regrets involving the police in her relationship with her husband. She testified at trial that in Iranian culture, intimate matters between a husband and wife are never shared with outsiders. Two days before giving evidence at the trial, she swore an affidavit saying that her memory of the events in question was vague and blurry and she could only remember bits and pieces.
[16] After I found M. G. guilty, the complainant sent an email to the Crown Attorney indicating that she was 100% sure that M. G. did not hurt her physically or sexually. She fell on her own because her medication made her drowsy and she blamed M. G. because of her hallucinations.
[17] The complainant is not afraid of her husband and is eager to reunite with him.
Positions of the Parties
[18] The Crown argues that the appropriate sentence is a total of 4 years and 4 months in prison broken down as follows – 4 years for the sexual assault causing bodily harm, 60 days consecutive for the 2013 assault and uttering threat, concurrent to each other and 60 days consecutive for the 2015 assault. She also seeks several ancillary orders.
[19] Defence counsel submits that a two-year conditional sentence is the appropriate disposition given the extraordinary mitigating circumstances.
Legal Parameters
[20] The Criminal Code provides as follows. Sexual assault causing bodily harm is punishable by a maximum of 14 years in prison: s. 272(2)(b). Uttering a threat to cause bodily harm is punishable by a maximum of five years in prison: s. 264.1(2)(a). Assault is also punishable by a maximum of five years in prison: s. 266(a).
[21] As a result of the Ontario Court of Appeal’s decision in R. v. Sharma,[^1]which struck down s. 742.1(c) of the Criminal Code as unconstitutional, a conditional sentence is an available disposition for sexual assault causing bodily harm.
[22] Section 742.1(c) of the Criminal Code prohibited a court from imposing a conditional sentence for any offence punishable by a maximum term of 14 years or life imprisonment. Ironically, now that it has been struck down, a person convicted of sexual assault causing bodily harm can receive a conditional sentence while a person convicted of sexual assault cannot by virtue of s. 742.1(f)(iii).
[23] A conditional sentence is an available disposition if the criteria listed in s. 742.1 of the Criminal Code are met. If the court imposes a sentence of imprisonment of less than two years, the court may order that an offender serve the sentence in the community if it is satisfied that the community’s safety would not be endangered and that a conditional sentence is consistent with the fundamental purpose and principles of sentencing.
Governing Sentencing Principles
[24] In determining the fit sentence for M. G., I am governed by the sentencing principles set out in the Criminal Code.
[25] The first is the fundamental purpose of sentencing set out in s. 718 of the Criminal Code, which is to “contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society” by imposing sentences that have one or more of the following objectives:
denouncing unlawful conduct,
deterring the offender and others from committing crimes,
separating offenders from society where necessary,
assisting in the rehabilitation of the offender,
providing reparations for harm done to the victim or to the community,
promoting a sense of responsibility in the offender, and
acknowledging the harm done to victims and the community.
[26] The second is the principle of proportionality set out in s. 718.1. This is a foundational principle of sentencing.[^2] Any sentence I impose must reflect the gravity of the offence and the responsibility of the offender.
[27] I am also required by s. 718.2 to take the following matters into consideration when imposing sentence:
❏ the sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
❏ where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
❏ the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
❏ offenders should not be deprived of liberty if less restrictive sanctions may be appropriate; and
❏ all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to the victim or the community should be considered for all offenders.
Sentences Imposed in Other Cases
[28] To determine the appropriate disposition, I must consider sentences imposed on similar offenders for similar offences in similar circumstances. I turn to that now.
[29] Crown and defence counsel have provided me with cases in support of their respective positions on the appropriate sentence.
[30] The cases relied upon by the Crown were decided before the Court of Appeal’s decision in R. v. Sharma, when sentencing judges had no alternative to imprisonment to address denunciation and deterrence. Other cases involved multiple acts of forced intercourse,[^3] or the use of weapons.[^4]
[31] The cases relied upon by defence counsel where conditional sentences were imposed both involve Indigenous offenders,[^5] an important distinguishing factor from this case.
[32] I have reviewed all the cases provided. Although they assist me in determining the governing principles that must guide my decision, a careful review of them demonstrates that sentencing is not an exact science. It is instead a profoundly individualized process driven by the unique facts of every offence and the unique characteristics of every offender. As Chief Justice Lamer noted in R. v. M. (C.A.),[^6] “there is no such thing as a uniform sentence for a particular crime.” The circumstances of any case, including this one, can be readily distinguished from any other case.
[33] The jurisprudence is clear that offences involving the sexual assault of a spouse merit sentences that emphasize general and specific deterrence and denunciation.[^7]
Aggravating and Mitigating Circumstances
[34] I turn now to consider the aggravating and mitigating circumstances.
[35] First the aggravating circumstances.
This was a serious sexual assault involving vaginal penetration.
The complainant suffered a badly sprained ankle when she tried to escape from M. G. She fell on the floor rendering her more vulnerable and reducing her ability to resist M. G. The complainant was later unable to put her weight on her foot and had difficulty walking.
The offences involve the abuse of M. G.’s wife, an aggravating factor set out in s. 718.2(a)(ii) of the Criminal Code.
The complainant was assaulted, threatened, and sexually assaulted in her own home, a place where she is entitled to feel secure and safe from harm.
M. G.’s attitude towards his wife’s sexual integrity as revealed by his comment to her that it was her duty to have sex with him because she was his wife and afterwards asking her if they will always have to struggle over marital relations is indicative of his sense of entitlement and control over the complainant.
[36] I have also considered the following mitigating circumstances.
M. G. has no criminal record.
He has been employed since coming to Canada. The letters of support filed on his behalf indicate that he is a hard-working, diligent, and responsible employee, who is valued by his employers. He is a productive, contributing member of the community.
He enjoys the support of his daughters, co-workers, and friends, which will assist him in his rehabilitation.
Since his arrest in November 2016, he has been prohibited from seeing his daughters by the conditions of his release. This separation from his family has been difficult not only for him, but also for his daughters.
These offences occurred between five and seven years ago. M. G. has been subject to conditions of judicial interim release for almost five years without incident.
[37] Defence counsel submits that the fact the complainant now asserts that the sexual assault did not happen puts this case in the exceptional category and is relevant to my determination of the gravity of the offence.
[38] I do not accept this submission. As I indicated in my Reasons for Judgment, it was clear that the complainant regretted reporting these incidents to the police. In her culture, there is a stigma associated with involving police in personal family matters. She testified that, as a woman, she should have reacted in a more “suitable” way. She has apologized to her children for making such a big issue out of a minor thing. At trial, she testified that her memory was blurry. After M. G. was convicted, she asserts that the sexual assault did not occur, but was the product of her hallucinations.
[39] I believe that the complainant’s attempts to recant her evidence stems from her regret that her family has been separated once again, and the duty she feels toward her children, who miss their father and want him home. As she testified at trial, she should have simply sat on the couch and smiled at M. G. when he approached her and dropped his towel, and none of this would have happened.
Collateral Consequences
[40] Two further matters require consideration in determining a fit sentence.
[41] The first relates to the fact that M. G. is not a Canadian citizen, but a permanent resident. If he is sentenced to a term of imprisonment of six months or more for this offence, he will lose the right to appeal a removal order made against him by the Immigration and Refugee Board of Canada. He could be deported to Iran. Of course, this would have a devastating effect on his wife and his children. The effect of the sentence I impose on him will have a more significant impact because of this. I must take that into consideration when determining the appropriate sentence.
[42] However, the sentence of two years suggested by his counsel is disproportionate to the gravity of these offences and M. G.’s moral blameworthiness. As Justice Moldaver wrote in R. v. Suter,[^8] “… the fundamental principle of proportionality must prevail in every case – collateral consequences cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender.”
[43] The second matter I must consider is the impact of the COVID-19 pandemic on the sentence that ought to be imposed. Many of my colleagues have commented on the pandemic’s adverse effects on the conditions of imprisonment.[^9]
[44] How does COVID-19 affect the determination of a fit sentence? Justice Pomerance noted that the fitness of a sentence requires the consideration of both the length of the sentence and the harshness of the conditions under which it will be served. She wrote the following:
As a result of the current health crisis, jails have become harsher environments, either because of the risk of infection, or because of restrictive lock down conditions aimed at preventing infection. Punishment is increased, not only by the physical risk of contracting the virus, but by the psychological effects of being in a high-risk environment with little ability to control exposure.[^10]
[45] I appreciate that the pandemic is at a different stage now than it was when Justice Pomerance wrote those words in April 2020. Nevertheless, COVID-19 is not yet behind us and it is a factor I have considered in determining the appropriate disposition.
Determination of a Fit Sentence
[46] Sentencing is a trial judge’s most difficult task. It is especially difficult when sentencing first offenders such as M. G.
[47] This case is most like the case of R. v. N. H.,[^11] in which the Court of Appeal upheld a four-year sentence imposed on a relatively young first offender for three counts of sexual assault and one count of assault on his wife. The offender was a productive member of society and had a supportive family. The court held that, “such offences demand a significant penitentiary sentence to properly reflect proportionality as well as the principles of denunciation and both general and specific deterrence.”[^12]
[48] I do not accept defence counsel’s submission that a sentence of two years adequately addresses the sentencing objectives of denunciation and deterrence, which are paramount in this case. A conditional sentence is therefore not available.
[49] I also do not accept Crown counsel’s submission that a sentence of four years and four months is the appropriate disposition. In my view, such a sentence does not adequately consider the mitigating circumstances and collateral consequences. It is also a longer sentence than imposed in R. v. N. H. for three counts of sexual assault and one count of assault. I recognize that sexual assault causing bodily harm carries a more severe penalty, but the facts in N. H. are, in my view, more aggravating.
[50] In my view, a total sentence of three years is the appropriate disposition. It recognizes the serious nature of these offences and gives effect to the principles of denunciation and deterrence, both general and specific. It also recognizes the mitigating circumstances and collateral consequences that M. G. will face.
[51] I acknowledge that ordinarily sentences for offences committed at different times would run consecutively to each other. However, I am imposing them to run concurrently to give effect to the principle of totality.
[52] M. G., on Count 4, sexual assault causing bodily harm, you are sentenced to three years. On Counts 1 and 2, you are sentenced to 45 days on each concurrent, and on Count 3, you are sentenced to 45 days concurrent.
Ancillary Orders
[53] In addition, I impose the following ancillary orders:
M. G. is prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition or explosive substance for a period of ten years pursuant to s. 109(3) of the Criminal Code.
As sexual assault causing bodily harm is a primary designated offence and assault and uttering a threat are secondary designated offences, M. G. is ordered to provide a sample of his DNA.
M. G. must comply with the Sex Offender Registration Act for the period of 20 years, pursuant to ss. 490.012 and 490.013(2)(b) of the Criminal Code.
Corrick J.
Released: September 24, 2021
COURT FILE NO.: CR-18-30000024
DATE: 20210924
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
M. G.
reasons for SENTENCE
Corrick J.
Released: September 24, 2021
[^1]: 2020 ONCA 478
[^2]: R. v. Safarzadeh-Markhali, 2016 SCC 14, at para. 73.
[^3]: R. v. Q. (M.), 2012 ONCA 224; R. v. N. H., 2017 ONSC 2493; R. v. N. T., 2011 ONCA 114
[^4]: R. v. Evans, 2012 ONSC 5801; R. v. Nelson, 2014 ONCA 853
[^5]: R v. R. S., 2021 ONSC 2263; R. v. Lariviere, 2021 ABQB 432.
[^6]: 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 92
[^7]: R. v. N. H., 2020 ONCA 694
[^8]: 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 48
[^9]: See R. v. Hearns, 2020 ONSC 2365; R. v. Studd, 2020 ONSC 2810; R. v. Kandhai, 2020 ONSC 1611; R. v. M.W., 2020 ONSC 3513.
[^10]: Hearns, at para. 16
[^11]: 2020 ONCA 694
[^12]: R. v. N. H., at para. 56.