Ontario Superior Court of Justice

COURT FILE NO.: CR-24-0023-00AP DATE: 2024-08-07

B E T W E E N:

Devarsh Patel Appellant

K. Brindley, for the Devarsh Patel (Appellant)

- and -

His Majesty the King Respondent

D. Pierce, for the Crown (Respondent)

HEARD: August 2nd, 2024, at Thunder Bay, Ontario

Mr. Justice F. B. Fitzpatrick

There is a publication ban pursuant to section 486.4(1) of the Code directing that information that could identify the complainant shall not be published in any document or transmitted in any way.

Judgment on Summary Conviction Appeal

[1] On June 9, 2023, Devarsh Patel pleaded guilty to one count of sexual assault contrary to section 271 of the Criminal Code. Mr. Patel was sentenced by Hoshizaki J. of the Ontario Court of Justice on January 3, 2024. Mr. Patel was given a suspended sentence and twelve months probation and ordered to provide a sample of his DNA.

[2] Mr. Patel appeals his sentence on the basis that Hoshizaki J. erred by either not considering or misapprehending the nature of the immigration consequences of the sentence which was imposed and by failing to consider relevant mitigating factors including, lack of criminal record, expression of remorse, effect of guilty plea and further that the Justice gave insufficient weight to Mr. Patel’s rehabilitation efforts.

[3] Mr. Patel submits the appeal should be allowed and the court should impose a conditional discharge with a period of 16 months probation.

[4] The appeal is dismissed for the following reasons.

The Facts of the Offence

[5] Counsel for Mr. Patel provided the Court with a factum and an appeal book including the transcript of the sentencing proceedings before Hoshizaki J.. The facts which were submitted to the Court and accepted by the defence on the sentencing hearing were set out in the transcript of the proceedings and summarized at paragraphs 26 through 32 of Mr. Patel’s factum. They are as follows.

[6] On July 21, 2021, police spoke with SG, who indicated that she had been sexually assaulted in the early morning hours of July 20, 2021. SG spoke with police and provided a written statement that indicated on July 19, 2021, at approximately 10:45 p.m., SG had left her place of employment and attended a farewell party for a coworker. SG left that location, returned to her residence, but was called by friends to attend a new location. After initially declining, SG conceded and attended the party at the new location. At the new location, she was introduced to a male by the name of Devarsh Patel.

[7] During the party, SG consumed a small amount of alcohol consisting of half a can of Strongbow cider. She proceeded to ensure some of her friends had made it to their respective bedrooms. Mr. Patel asked SG if she would like to share one of the empty beds and sleep together. SG felt uncomfortable by the comment and declined. She advised police that she planned to leave and go to her own residence.

[8] July 20, 2021, at approximately 3 a.m., SG stated that Mr. Patel offered to walk her home, but SG declined due to living a short distance away. SG stated that Mr. Patel followed her to her residence, where he then grabbed SG from behind, attempted to kiss her on the lips, groped her breasts over her shirt and rubbed her genitals over her pants. SG was able to push Mr. Patel away and promptly shut and locked the door behind her. That was the last contact she had with Mr. Patel. Mr. Patel was subsequently arrested for sexual assault.

Facts about Mr. Patel

[9] At time of sentencing Mr. Patel was 27 years old. He is single. He had no criminal record. He is an Indian citizen, born and raised. He immigrated to Canada in 2019. In 2023, he was a foreign national and applied for permanent residency in Canada. He completed a master’s degree in science at Lakehead University in 2021. He is currently working in British Columbia as a software development engineer for Amazon. He has an impressive record of community service. Since offending he has made extensive efforts to rehabilitate himself, including abstaining from alcohol and completing an alcohol abuse recovery program.

Issues on Appeal

1. Did Hoshizaki J. misapprehend the true nature of the immigration consequences on Mr. Patel when imposing the sentence.
2. Did Hoshizaki J. fail to consider relevant mitigating factors, including lack of a criminal record, the expression of remorse, and the effect of the guilty plea, and was insufficient weight given to Mr. Patel’s rehabilitative efforts.

Standard of Review

[10] At paragraphs 25 through 29 of R. v. Friesen 2020 SCC 9, [2020] 1 S.C.R. 424, Wagner CJC and Rowe J. stated;

25 Appellate courts must generally defer to sentencing judges' decisions. The sentencing judge sees and hears all the evidence and the submissions in person (Lacasse, at para. 48; R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 46). The sentencing judge has regular front-line experience and usually has experience with the particular circumstances and needs of the community where the crime was committed (Lacasse, at para. 48; R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 91). Finally, to avoid delay and the misuse of judicial resources, an appellate court should only substitute its own decision for a sentencing judge's for good reason (Lacasse, at para. 48; R. v. Ramage, 2010 ONCA 488, 257 C.C.C. (3d) 261, at para. 70).

26 As this Court confirmed in Lacasse, an appellate court can only intervene to vary a sentence if (1) the sentence is demonstrably unfit (para. 41), or (2) the sentencing judge made an error in principle that had an impact on the sentence (para. 44). Errors in principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor. The weighing or balancing of factors can form an error in principle "[o]nly if by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably" (R. v. McKnight (1999), 135 C.C.C. (3d) 41 (Ont. C.A.), at para. 35, cited in Lacasse, at para. 49). Not every error in principle is material: an appellate court can only intervene if it is apparent from the trial judge's reasons that the error had an impact on the sentence (Lacasse, at para. 44). If an error in principle had no impact on the sentence, that is the end of the error in principle analysis and appellate intervention is justified only if the sentence is demonstrably unfit.

27 If a sentence is demonstrably unfit or if a sentencing judge made an error in principle that had an impact on the sentence, an appellate court must perform its own sentencing analysis to determine a fit sentence (Lacasse, at para. 43). It will apply the principles of sentencing afresh to the facts, without deference to the existing sentence, even if that sentence falls within the applicable range. Thus, where an appellate court has found that an error in principle had an impact on the sentence, that is a sufficient basis for it to intervene and determine a fit sentence. It is not a further precondition to appellate intervention that the existing sentence is demonstrably unfit or falls outside the range of sentences imposed in the past.

28 However, in sentencing afresh, the appellate court will defer to the sentencing judge's findings of fact or identification of aggravating and mitigating factors, to the extent that they are not affected by an error in principle. This deference limits the number, length, and cost of appeals; promotes the autonomy and integrity of sentencing proceedings; and recognizes the sentencing judge's expertise and advantageous position (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 15-18).

29 Often the sentence that the appellate court determines to be fit will be different from that imposed by the sentencing judge, and the appellate court will vary the sentence. If the sentence chosen by the appellate court is the same as that imposed by the sentencing judge, the appellate court may also affirm the sentence despite the error.

Analysis

Issue 1.

[11] Mr. Patel admits in oral submissions that while Hoshizaki J. did consider the immigration implications of the sentence she imposed, she misapprehended the implications of the sentence and thereby committed an error of principle allowing this Court to intervene.

[12] In the course of making sentencing submissions before Hoshizaki J., counsel for Mr. Patel first outlined the steps he had taken since the offence to rehabilitate himself, his degree of remorse, his current excellent work situation, and the support he had from his local community. Counsel for Mr. Patel then submitted;

The bottom line is, Your Honour, if he's convicted of this offence all of that will be gone for naught and he will be deported. He has received advice from an immigration lawyer that if he's been convicted of this offence, he is not a Canadian citizen, although there is evidence that he's applied to become a Canadian citizen, and that with a conviction, he will be deported and he will have to leave Canada and go back to his home country, which is a country which obviously he's left because there's a better life in Canada and he is loath to return. In addition, Your Honour, there, in his culture there's arranged marriages and his family has arranged for a marriage with him, for him, and he feels that if he's convicted and then deported back to his home country that marriage will be terminated as well because the conditions of the marriage, of course, are based on the fact he's employed and he's able to stay in Canada and 30 will be hopefully becoming a Canadian resident and citizen. So your Honour, we’re asking Your Honour to consider a conditional discharge plus probation for him” (Transcript p. 5 – 6 lines 10 – 32 and 1)

[13] In support of the submission that Hoshizaki misapprehended the reality the sentence would have on him, Mr. Patel focuses on the following comments made by Hoshizaki J. in passing sentence;

“ I don't take much pleasure in issuing a sentence that will affect your immigration. (Transcript, January 3, 2024, p. 12, line 26) and;

“ I hope this, things work out for you, sir. If there's obviously anything you can do to stay in this country, that would be preferable because I think you're an asset, but unfortunately, this is the sentence for today. (Transcript, January 3, 2024, p. 15, line 11).

[14] Mr. Patel submits these comments demonstrate a misapprehension of the “black and white” reality that any sentence short of a conditional or absolute discharge would result in Mr. Patel being subject to deportation from Canada.

[15] Mr. Patel argues that the decision of the Supreme Court of Canada in R v. Pham 2013 SCC 15, [2013] 1 S.C.R. 739 at paras 13 and 24 stands for the proposition that collateral consequences related to immigration may be relevant in tailoring a sentence. This Court has the authority to intervene where a sentencing judge was unaware of the collateral immigration consequences at the time of sentencing.

[16] The Crown argues that rather than a misapprehension of the immigration realities of the sentence, the comments from Hoshizaki J. demonstrate that she was well and fully alive to these concerns but determined that issues of denunciation and deterrence of this occasion of sexual assault would render a conditional discharge an unfit and inappropriate sentence.

[17] With respect to Issue 1, I agree with the submissions of the Crown. The sentencing decision has to be read in its entirety. The “black and white” reality for Mr. Patel’s immigration situation was front and center in his sentencing submissions. I note that Hoshizaki J. said “I don’t take pleasure in issuing a sentence that will affect your immigration” [emphasis added]. To me this indicates that Hoshizaki J. was completely aware of what was going to happen with the imposition of a suspended sentence. Just as Mr. Patel was upfront in his submissions about immigration, in my view, Hoshizaki J. was equally upfront in considering and then rejecting them. I say this because after Hoshizaki J made the “I don’t take pleasure” comment she continued to say:

However, clearly, to me, I agree with the Crown, denunciation and deterrence is a big issue here. It wasn't just once. You made the suggestion to her, she said no. You then said you would walk her home, she said no. Then you followed her, and she still said no. This is a big issue. You need to understand that, sir. This has affected her significantly. (transcript p. 12 lines 28 -32, p. 13 lines 1 – 4).

[18] The gravity of the commission of an act of sexual assault by Mr. Patel was a central aspect of the sentence that was being imposed. In my view, the sentence was very lenient. The other remarks relied upon Mr. Patel concerning his “being an asset” occurred after the sentence was passed. One could take a technical view that these remarks were obiter as opposed to composing part of the ratio of the decision on the sentence. However parsing words is not to be encouraged when reviewing decisions. In total, it is clear that Hoshizaki J. exercised her discretion to impose a sentence that had an immigration consequence on Mr. Patel. It would have been an error not to have considered the immigration consequences. However, in my view, Hoshizaki J. did consider these consequences, and made a decision accordingly. Hoshizaki J. committed no reviewable error in passing the sentence that she did.

Issue 2.

[19] Mr. Patel argues that Hoshizaki J. failed to take into account mitigating factors like his plea, his age, his lack of a criminal record, and his expressions of remorse. Mr. Patel further submits that insufficient weight was given to his efforts at rehabilitation.

[20] The Crown submits that the failure to specifically mention the guilty plea or the lack of a criminal record does not amount to a failure to take those factors in to consideration.

[21] In my view, the approach taken by the defence in respect to Issue 2 constitutes an attempt to simply have this Court substitute its opinion for that of the sentencing judge. I agree with the submissions of the Crown that the failure to mention the mitigating nature of a plea of guilt or the lack of a criminal record is not fatal, nor does it indicate that Hoshizaki J. committed a reversable error. In context of the entire decision, it is clear that Hoshizaki J. was focused on principles of denunciation and deterrence. The existence of a guilty plea is an obvious mitigating circumstance. The absence of a criminal record is an obvious mitigating circumstance. The resulting sentence was very lenient in light of the offence at issue. Hoshizaki J. emphasized the “three strikes” aspect of Mr. Patel’s conduct that evening. His sexual advances were rebuffed twice by GS. He nevertheless decided to follow her home and then aggressively put his hands on her in an unwelcome way. This was not a benign event. It was a serious criminal act. In my view, the requisite judicial restraint and consciousness of balancing aggravating and mitigating factors in determining the least restrictive sanction, as mandated by section 718.29(e), was demonstrated by the imposed sentence. It was not manifestly unfit. Hoshizaki J. committed no error in principle in her determinations as evidenced by her oral reasons on sentence.

[22] For all these reasons the appeal is dismissed.

[23] I thank both counsel for their excellent materials and focused advocacy.

“originally signed by”

The Hon. Mr. Justice F.B. Fitzpatrick

Released: August 7, 2024