R. v. Gonzalez-Ramirez, 2023 ONSC 5468

Court File and Parties

COURT FILE NO.: CR-19- 5648 DATE: 2023-09-29 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – EMILIO GONZALEZ-RAMIREZ Defendant

Counsel: Sean Doyle, for the Crown David Zbarsky, for the Defendant

HEARD: June 21 and July 28, 2023

RESTRICTION ON PUBLICATION Pursuant to s. 486.4(1) of the Criminal Code, information that may identify the person described in these Reasons as the complainant may not be published, broadcast or transmitted in any manner.

REASONS FOR SENTENCE

DE SA J.:

1After trial, I found Mr. Gonzalez-Ramirez guilty of Aggravated Assault (Count 1). I also found Mr. Gonzalez-Ramirez guilty on Count 3 of the Indictment (Use of Imitation Firearm in the Commission of Offence).

Facts Underlying the Conviction

2On June 24, 2019, the complainant was heading home through a park. As she was walking along a path, Mr. Gonzalez-Ramirez approached her from behind, and asked her if she smoked weed. She said no and pretended that she did not speak English and kept walking. She crossed a bridge and Mr. Gonzalez-Ramirez came up to her again and asked “do you want to see something amazing”. The complainant ignored him and kept walking.

3As she continued to walk along the path, Mr. Gonzalez-Ramirez came from behind the complainant and tackled her. After pushing her down, he tried to cover her mouth and she bit his hand. He told her to stay down and asked where her phone was. As the complainant tried to get up, he pushed her down multiple times.

4During the struggle, Mr. Gonzalez-Ramirez retrieved what looked to be a gun. He said if you move, I’ll do something with this gun. It was a small silver pistol with a black handle which was wrapped in a sandwich bag.

5The complainant tried to grab the gun. Mr. Gonzalez-Ramirez then knocked her on the head with it. After striking the complainant, Mr. Gonzalez-Ramirez stated that this was never meant to happen. He made a gesture like he wanted to kiss her but did not. He ran off.

6At the time of assault, the complainant (Y.L.) was 14 years old and in grade 9.

Position of the Parties

7The Crown seeks a global sentence of 5 years jail. The Crown takes the position that the conduct at issue is at the more serious end of the spectrum for offences of this nature. Given the complainant’s age, the unprovoked nature of the assault, and the use of an imitation of a firearm in the commission of the offence, the Crown submits that a 5-year sentence is warranted. See R. v. Tourville, 2011 ONSC 1677.

8While the Crown does not dispute that the mental health issues may have factored into the offender’s commission of the offence, the Crown submits that Mr. Gonzalez-Ramirez’s mental health was not a “significant contributing factor” to his decision to assault the complainant. Accordingly, this factor should not be given a great deal of weight.

9With respect to the potential immigration consequences, the Crown points out that while collateral circumstances can be considered, they cannot result in a sentence outside the appropriate range for the offence at issue: R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739.

10The defence seeks a suspended sentence or alternatively a total sentence of 6 months less a day. A sentence of 6 months or more would have significant immigration consequences for Mr. Gonzalez-Ramirez. The consequences for Mr. Gonzalez-Ramirez, should he be deported, would be severe. Mr. Gonzalez-Ramirez has been diagnosed with schizophrenia. His mother, who lives in Canada, is his primary support. While his father is in Mexico, he has not maintained a significant relationship with him.

11The defence takes the position that Mr. Gonzalez-Ramirez’s mental illness was a significant contributing factor in the commission of the offence. Mr. Gonzalez-Ramirez has no prior record and no history of violence. The conduct was clearly not planned or deliberate. He also apologized for the assault during his interaction with the complainant.

12The defence points out that Mr. Gonzalez-Ramirez spent significant time in segregated custody. He also spent time in custody during COVID-19 where custody was particularly difficult. The defence submits that Mr. Gonzalez-Ramirez should be afforded consideration for these harsher conditions: See R. v. Marshall, 2021 ONCA 344; R. v. Avansi, 2023 ONCA 547.

Mental Health Circumstances of Mr. Gonzalez-Ramirez

13In this case, Mr. Gonzalez-Ramirez clearly is dealing with mental illness. He has been dealing with it since 2015. His primary diagnosis is schizophrenia with co-morbid cannabis use disorder.

14Since his charges, Mr. Gonzalez-Ramirez has been admitted to Ontario Shores on two occasions; the first was July 31, 2019, where he was being assessed for his suitability to stand trial. Mr. Gonzalez-Ramirez remained at Ontario Shores until he returned to court on October 4, 2019. From there he was transferred to the Central East Correctional Centre. While at Central East, he was placed in segregated custody and his condition deteriorated. He was readmitted to Ontario Shores on October 8, 2020 and remains there to present.

15In September 2019, an assessment was conducted for his criminal responsibility related to the charges. The assessing psychiatrist concluded that there was little information to suggest that Mr. Gonzalez-Ramirez’s mental illness was a motivating factor in the commission of the offence. According to the assessing psychiatrist, while he likely had some degree of mild psychotic symptoms, these symptoms likely did not have a significant impact on his behaviour.

16Mr. Gonzalez-Ramirez’s current treating psychiatrist has come to the conclusion that Mr. Gonzalez-Ramirez’s mental condition would likely deteriorate if he were not in a hospital setting. He remains in his bed most of the day and does not come out of his room for prescribed medications.

17Where mental illness plays a role in the offender’s commission of the offence, deterrence takes on less significance in the sentencing process: R. v. Ellis, 2013 ONCA 739. R. v. Fabbro, 2021 ONCA 494; R. v. Pond, 2020 NBCA 54. As explained in R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643, at para. 38:

As this court emphasized in R. v. Robinson (1974), 19 C.C.C. (2d) 193, at p. 197, where offenders commit offences while they are out of touch with reality due to mental illness, specific deterrence is meaningless to them. Further, general deterrence is unlikely to be achieved either since people with mental illnesses that contribute to the commission of a crime will not usually be deterred by the punishment of others. As well, severe punishment is less appropriate in cases of persons with mental illnesses since it would be disproportionate to the degree of responsibility of the offender. In such circumstances, the primary concern in sentencing shifts from deterrence to treatment as that is the best means of ensuring the protection of the public and that the offending conduct is not repeated. This is especially so where a lengthy prison term may be regarded as counterproductive: see also R. v. Hiltermann (S.G.) (1993), 141 A.R. 223 (C.A.), and R. v. Peters (D.A.) (2000), 2000 NFCA 55, 194 Nfld. & P.E.I.R. 184 (Nfld. C.A.), at paras. 18-19.

18A sentence can also be reduced on psychiatric grounds when the effect of imprisonment or any other penalty would be disproportionately severe because of the offender’s mental illness: See R. v. Belcourt, 2010 ABCA 319; C. C. Ruby, Sentencing (6th ed.) (Markham: Butterworths, 2004) at paras. 5.246 and 5.256.

Immigration Consequences for Mr. Gonzalez-Ramirez

19The parties filed a letter from Daniel Morse, a Justice Liaison Officer for the Intelligence and Enforcement Branch of the Canada Border Services Agency. The letter clearly sets out the procedures that follow a conviction and the potential immigration consequences for an offender in the position of Mr. Gonzalez-Ramirez. I have attached the letter as an appendix, at the end of these Reasons, for ease of reference.

20The letter makes clear that given these convictions and Mr. Gonzalez-Ramirez’s current immigration status (permanent resident), he could face a deportation/removal order.

21If Mr. Gonzalez-Ramirez were to receive a sentence of 6 months or more on either of the charges, he would lose his right to appeal such an order on humanitarian and compassionate grounds.

22In sentencing, the fact that an offender faces the collateral consequence of deportation is a relevant factor to be considered: see R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.), at para. 158.

23While the immigration consequences are to be considered, the jurisprudence makes clear that the flexibility of the sentencing process should not be misused to impose an inappropriate and artificial sentence to circumvent Parliament’s will. The sentence imposed must still be proportionate to the gravity of the offence and the degree of the responsibility of the offender: R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 14; R. v. Freckleton, 2016 ONCA 130, at para. 2.

24As explained by Doherty J.A. in R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.), at paras. 156 and 158:

[T]he risk of deportation cannot justify a sentence which is inconsistent with the fundamental purpose and the principles of sentencing identified in the Criminal Code. The sentencing process cannot be used to circumvent the provisions and policies of the Immigration and Refugee Act. As indicated above, however, there is seldom only one correct sentencing response. The risk of deportation can be a factor to be taken into consideration in choosing among the appropriate sentencing responses and tailoring the sentence to best fit the crime and the offender. [Citations omitted.]

What is the Appropriate Sentence having regard to all the Circumstances?

25Pursuant to s. 718 of the Criminal Code, the “fundamental purpose” of sentencing is to contribute to “respect for the law and the maintenance of a just, peaceful and safe society” by imposing “just sanctions” that have one or more of the following objectives: (1) to denounce unlawful conduct; (2) to deter the offender and others from committing offences; (3) to separate offenders from society where necessary; (4) to assist in rehabilitating offenders; (5) to provide reparations for harm done to victims or the community; and (6) to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and the community.

26Mr. Gonzalez-Ramirez is a 26-year-old first time offender.

27The range for aggravated assault is a broad one given the wide variety of conduct captured by the offence. At the bottom end of the range are the less serious cases where intermittent sentences have been imposed. In the mid-range of gravity, courts have imposed high reformatory sentences. See, e.g.: R. v. Tourville (2011), 2011 ONSC 1677. Finally, in the most aggravated cases, sentences of four to eight years have been imposed. R. v. Seerattan, 2019 ONSC 4340, at paras. 35 and 36.

28In this case, given the complainant’s young age (14), the unprovoked nature of the assault, the injuries caused and the use of an imitation of a firearm in the commission of the offence, I agree with the Crown that the offence is serious.

29The evidence does not suggest that Mr. Gonzalez-Ramirez’s mental illness played a significant role in the commission of the offence. However, given the unusual circumstances of the offence, and Mr. Gonzalez-Ramirez’s ongoing mental health struggles, I am satisfied that it is an important mitigating factor to be considered in this case.

30The nature of the custody served has been unusually harsh for Mr. Gonzalez-Ramirez given that Mr. Gonzalez-Ramirez served a significant amount of time in segregated custody while suffering from a mental illness. Notably, his condition has worsened significantly since he was incarcerated. Much of his time in custody was during Covid-19 where lockdowns were more frequent, and the conditions in custody were more difficult. I must take these facts into consideration when considering the appropriate sentence in this case. ¹

31Mr. Gonzalez-Ramirez has already served sufficient time in custody to satisfy the sentence sought by the Crown. However, Mr. Gonzalez-Ramirez is in the unusual situation where, if he is given enhanced credit for his time in custody, his sentence will increase the likelihood of his deportation.: R. v. Dhaliwal, 2020 MBCA 65: R. v. Safarzadeh-Markhali, 2016 SCC 14, at para. 8.

32In R. v. El-Azrak, 2023 ONCA 440, the Ontario Court of Appeal reduced a sentence from 13 years to 8 years when considering the serious collateral consequences on the offender’s child. The Court explained at para. 144:

Undoubtedly, a collateral consequence can arise from the commission of an offence, the conviction for an offence or the sentence imposed for an offence: R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 47. Sometimes adjusting a sentence downward is entirely necessary to ensure that a sentence does not become disproportionate to the crime, because the offender is not like other offenders in the sense that they will not experience incarceration in the same way. In other words, although only arising in rare and extreme circumstances, if an offender is going to experience custody in a more severe way, then a sentence can become disproportionate to the offender’s offending behaviour. [Emphasis added.]

See also R. v. Shahnawaz (2000), 51 O.R. (3d) 29 (C.A.), at para. 34, leave to appeal refused, [2001] 1 S.C.R. xvii.

33In this case, the impact of deportation on Mr. Gonzalez-Ramirez, given his current mental illness would be significant. In the circumstances, here, I agree with the defence that it would be disproportionate to impose a sentence which fails to consider the severe potential immigration consequences for Mr. Gonzalez-Ramirez: See R. v. El-Azrak, supra.

34Mr. Gonzalez-Ramirez has been struggling with his mental health. Having regard to the particular circumstances of this case, in my view, giving Mr. Gonzalez-Ramirez the opportunity to have his particular circumstances (humanitarian and compassionate grounds) considered by the Immigration Appeal Division would not be circumventing the policies of the IRPA: R. v. Pham, supra.

35It is my understanding that a sentence of 6 months or under on each of these two offences consecutive to one another does not engage s. 36 of the IRPA even if the two consecutive sentences lead to a global sentence that is more than six months.: R. v. Hennessey, 2007 ONCA 581; R. v. Francis, 2020 ONCJ 581.

36Accordingly, on Count 1, a sentence of 5 ½ months is to be reflected on the record (Aggravated Assault). On Count 3, Mr. Gonzalez-Ramirez is sentenced to a consecutive sentence of 5 ½ months (Use of Imitation Firearm).

37In addition, there will be a term of probation for 2 years on terms as proposed by the parties.

38There will be a s. 109 Order for 10 years and a DNA order.

39I thank both counsel for their significant efforts to obtain all the necessary materials to assist in this matter.

Justice C.F. de Sa Released: September 29, 2023

Appendix "A"

ONTARIO SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING – and – EMILIO GONZALEZ-RAMIREZ Defendant

REASONS FOR SENTENCE Justice C.F. de Sa Released: September 29, 2023

27 July, 2023

To: Sean Doyle (he/him) Crown Attorney Judicial District of York Region 50 Eagle St W Newmarket, ON L3Y 6B1 Tel: 905-853- 4800 Fax: 905-853- 4849

From: Daniel Morse Justice Liaison Officer, Intelligence and Enforcement Branch Canada Border Services Agency / Government of Canada daniel.morse@cbsa-asfc.gc.ca / Cell: +1 (416)-859-2489

Dear Mr. Doyle,

You have asked me to provide you with a synopsis of how a criminal conviction could impact a permanent resident’s status in Canada.

Definition of a permanent resident

“A permanent resident means a person who has acquired permeant resident status and has not subsequently lost that status under section 46.” ²

The rights of a permanent resident

A permanent resident status gives an individual the right to enter Canada ³; to remain in Canada; to work or study anywhere in Canada, and to apply for Canadian Citizenship ⁴.

When a permanent resident becomes inadmissible for serious criminality

According to the Immigration and Refugee Protection Act (IRPA), if the individual who is a Permanent Resident is convicted of a crime in Canada that has a maximum penalty of 10 years or more, then the individual is inadmissible to Canada for “Serious Criminality” per section 36(1)(a) of the IRPA.

Enforcement action taken against a permanent resident who is inadmissible for s36(1)(a)

An officer may write a report ⁵, citing the conviction to allege that the permanent resident is inadmissible. Then, if the report is well-founded, an officer who is has the delegated authority of a “Minister’s Delegate” may refer the report to the Immigration Division ⁶.

The permanent resident will have an opportunity to make submissions to the Minister’s Delegate in reply to the report, and in some rare, exceptional circumstances, a Minister’s Delegate may decide to issue the permanent resident a warning letter rather than take further enforcement action and refer the report to the Immigration Division.

A Minister’s Delegate is not required to consider Humanitarian and Compassionate factors when making the decision as to whether to refer the report to the Immigration Division for a hearing ⁷.

If the Minister’s Delegate refers the report to the Immigration Division ⁸, the Immigration Division will hold a hearing, and issue a deportation order against the individual if the allegation in the report is substantiated ⁹. The Immigration Division cannot take into account any Humanitarian and Compassionate factors in its decision ¹⁰.

Once the deportation order is issued: the right to appeal to the Immigration Appeal Division

If and only if the actual the sentence he received was less than 6 months, the permanent resident will have a right to appeal to the Immigration Appeal Division ¹¹ to request a stay of removal on humanitarian and compassionate grounds ¹². If the sentence is 6 months or more, there is no right of appeal to the Immigration Appeal Division, and the deportation order will come into force ¹³. Once the deportation order comes into force, the individual loses his permanent resident status ¹⁴.

Please take note that, if the individual has been granted Convention Refugee Status ¹⁵ or Protected Person status ¹⁶, he cannot be deported without a declaration that he is a danger to the public ¹⁷.

If the sentence is less than 6 months, the Immigration Appeal Division has jurisdiction to hold a hearing and will typically consider the following non-exhaustive factors – these are called the “RIBIC factors”:

• a) the seriousness of the offence or offences leading to the removal order;
• b) the possibility of rehabilitation;
• c) the length of time the Applicant has been in Canada and the degree to which he is established here;
• d) the impact of removal on the Applicant’s family members in Canada;
• e) the support available for the Applicant in the family and community and the degree of hardship that would be caused by his return;
• f) the degree of hardship that the Applicant would face in the country to which he would likely be removed; and
• g) the best interests of a child directly affected by the decision.

For as long as the Immigration Appeal Division has not made a decision to reject the appeal, the deportation order will not come into force ¹⁸, and therefore, the individual retains his permanent resident status.

Statistically, a permanent resident who appeals a removal order to the Immigration Appeal Division has a good chance of success to obtain a stay or to have their appeal allowed ¹⁹. For example, his year, in 2023, out of 76 cases filed in the Central Region, 23 cases were stayed, 31 were allowed, and only 15 were dismissed, while 3 were abandoned.

If the permanent resident can present credible, trustworthy evidence to establish H&C factors, including his testimony, the permanent resident has a good opportunity to be granted a stay of removal for a period of 1-5 years (as determined by the Immigration Appeal Division), or to have his appeal allowed.

If a stay is granted by the Immigration Appeal Division

If granted a stay of removal, while on the stay, the individual must abide by conditions of the stay ²⁰, which typically include conditions to treat addiction or behavioral issues, such as anger management, or drug treatment plans, for example.

If, while on a stay, the individual gets convicted of another serious crime ²¹, the stay will be terminated ²²; the deportation order comes into force; the individual will lose his permanent resident status; and the individual will be subject to enforcement action for deportation.

If the individual completes the period of the stay, having complied with the conditions, the appeal will be allowed, and the individual retains their permanent residence status unencumbered.

If the individual violates the conditions of the stay without obtaining a serious criminal conviction, then another hearing is scheduled at the Immigration Appeal Division for a reconsideration of appeal hearing, and the individual will ask to extend the stay to be given another chance ²³.

If the Immigration Appeal Division declines to issue or extend a stay, and/or declines to allow the appeal, it will dismisses the individual’s appeal ²⁴. Upon dismissal of the appeal, the deportation order will come into force, and as a result, this will trigger the loss of the individual’s permanent resident status.

Consequences of a dismissal of an appeal, or where there is no right of appeal: loss of permanent resident status.

Where the Immigration Appeal Division has dismissed the appeal, or where the individual had no right of appeal to the Immigration Appeal Division due to a sentence of six months or more, the individual will have lost his permanent resident status. Once the individual has lost his permanent residence status, he becomes a foreign national who is under a deportation order that is in force ²⁵.

Options available to the individual once the removal order comes into force and he is no longer a permanent resident

A section 25 application for permanent resident status

The individual may apply to regain his permanent resident status by making an application to Citizenship and Immigration Canada under s25 of the IRPA on Humanitarian and Compassionate grounds. This section’s purpose is to offer equitable relief on an exceptional basis for persons who are otherwise inadmissible to Canada ²⁶.

Section 25 H&C application’s processing time is currently estimated at 20 months for applications that are complete ²⁷. Due to the time it takes for processing, it may be the case that deportation will be scheduled and executed prior to a decision being rendered because the filing of a section 25 application does not stay the deportation ²⁸.

Pre-Removal Risk Assessment (PRRA)

The individual may apply for a stay of removal through a pre-removal risk assessment application to Citizenship and Immigration Canada ²⁹. In order to be successful on this application, the individual will have to establish that he meets the legal test for section 97 of the IRPA to show a danger of torture; or risk to life; or risk of cruel and unusual treatment or punishment if he were to be deported.

A pre-removal risk assessment application stays removal while it is pending if it is the individual’s first PRRA application ³⁰. Its processing time depends on the complexity of the case, and can range anywhere from a matter of weeks to several months.

Deferral of removal

Section 48(2) of the IRPA stipulates that once the removal order is enforceable, that the person must leave Canada immediately and the order must be enforced as soon as possible ³¹.

Once the individual is served with notice of a deportation date, the individual may apply to a CBSA removals officer to defer their removal on a temporary basis ³².

Grounds for a deferral may include issues such as a pending H&C application; H&C factors; “Best interests of the child”; a pending spousal sponsorship application; medical issues including mental health; risk to life; or pending litigation.

However, the discretion of a removals officer to defer a removal is limited. Deferral of removal “should be reserved for those applications or processes where the failure to defer will expose the applicant to the risk of death, extreme sanction or inhumane treatment in circumstances where deferral might result in the order becoming inoperative.” ³³

Application for a stay of removal to the Federal Court of Canada

The individual may apply to the Federal Court of Canada for a stay of removal, which is a form of injunction ³⁴. In order to obtain a stay of removal from the Federal Court, the individual will have to meet the three-part “Toth test” ³⁵ – i.e. that there is a serious issue; that there would irreparable harm to the applicant if the stay is not granted; and the balance of convenience is in favor of the applicant over the legal obligation to enforce removal.

I hope that this synopsis will assist you with your representations to the Court at the sentencing hearing.

Sincerely,

Daniel Morse Justice Liaison Officer, Intelligence and Enforcement Branch Canada Border Services Agency / Government of Canada daniel.morse@cbsa-asfc.gc.ca / Cell: +1 (416)-859-2489

Footnotes

1. 1The “Duncan” credit addresses exceptionally punitive conditions which go well beyond the normal restrictions associated with pretrial custody. The very restrictive conditions in the jails and the health risks brought on by COVID-19 are a good example of the kind of circumstance that may give rise to a “Duncan” credit: R. v. Morgan, 2020 ONCA 279.
2. 2Section 2(1) of the IRPA under the heading “definitions”.
3. 3Section 19(2) IRPA.
4. 4Understand PR Status - Canada.ca
5. 5Per subsection 44(1) of the IRPA
6. 6Per subsection 44(2) of the IRPA
7. 7OBAZUGHANMWEN v CANADA MPSEP 2023 FCA 151 at paragraph 55
8. 8A division of the Immigration and Refugee Board (IRB) tribunal.
9. 9IRPA s45(d) and IRPA Regulation 229(1)(c).
10. 10s45 IRPA limits the Immigration Division to only four possible decisions.
11. 11IRPA s.63(3) and s 64(2).
12. 12IPRA s.66(b) and s68
13. 13IRPA s. 49(1)(a).
14. 14IRPA s46(1)(c)
15. 15Section 96 IRPA
16. 16Section 97 IRPA
17. 17A process that considers whether the individual is a danger to the public [s115(3) IRPA]
18. 18Section 49 IRPA.
19. 19Immigration appeals statistics - Immigration and Refugee Board of Canada (irb.gc.ca)
20. 20IRPA 68(2)(a) – IAD may impose any condition that it considers necessary.
21. 21An indictable offence that has a maximum punishment of 10 years or more.
22. 22IRPA 68(4).
23. 23IRPA 68(3).
24. 24IRPA 69(1)
25. 25IRPA 49(1)(a)
26. 26Kanthasamy v Canada 2015 SCC 61
27. 27https://www.canada.ca/en/immigration-refugees-citizenship/services/application/check-processing-times.html
28. 28IRPA Regulation 233.
29. 29IRPA s112(1), s112(3), s114(1)(b), and IRPA regulation 160
30. 30IRPA Regulation 232
31. 31Unless the individual had been previously found to be a Convention Refugee [s96 IRPA] or a Protected Person [s97 IRPA], then he cannot be removed without the CBSA first obtaining an opinion that the individual is a danger to the public [s115 IRPA]
32. 32Canada v Shpati 2011 FCA 286
33. 33Baron v Canada 2009 FCA 81
34. 34Section 50(a) IRPA
35. 35Toth v Canada (Minister of Employment and Immigration), [1988] FCJ No 587 (QL)