IMMIGRATION CONSEQUENCES NOT SUFFICIENT FOR LIGHTER SENTENCE IN SEX OFFENDER CASE

The Ontario Court of Appeal limited and clarified the limits of flexibility n sentencing to take into consideration the immigration consequences of criminal convictions, where the result would be patently unreasonable and the sentence would be unfit.

R. v. R.B.

Between Her Majesty the Queen, Respondent, and
R.B., Appellant

[2013] O.J. No. 278

2013 ONCA 36

Docket: C52908

 Ontario Court of Appeal
Toronto, Ontario

J.I. Laskin, H.S. LaForme and A. Hoy JJ.A.

Heard: January 9, 2013.
Judgment: January 23, 2013.

(33 paras.)

Criminal law -- Criminal Code offences -- Sexual offences, public morals, disorderly conduct and nuisances -- Sexual offences -- Sexual interference -- Invitation to sexual touching -- Sexual exploitation -- Offences against person and reputation -- Assaults -- Sexual assault -- Appeal by accused from conviction for multiple sexual offences dismissed -- Accused was found to have repeatedly abused niece between 1988 and 1997 when niece was between six and 14 years of age -- Misconduct progressed from touching to intercourse -- Niece disclosed abuse to mother in 2000 and reported it to police in 2002 and 2007 -- Trial judge rejected accused's evidence denying abuse and contending his rejection of niece's infatuation led her to fabricate allegations -- No error in trial judge's analysis established -- Conviction for sexual interference stayed on basis of Kienapple principle.
 Criminal law -- Sentencing -- Criminal Code offences -- Sexual offences, public morals, disorderly conduct and nuisances -- Sexual offences -- Invitation to sexual touching -- Sexual exploitation -- Offences against person and reputation -- Assaults -- Sexual assault -- Particular sanctions -- Imprisonment -- Concurrent sentences -- Sentencing considerations -- Totality principle -- Offence involving breach of trust -- Sexual offences against children -- Seriousness of offence -- Deportation -- Procedure -- Appeals -- Appeal by accused from sentence for multiple sexual offences dismissed -- Accused was found to have repeatedly abused niece between 1988 and 1997 when niece was between six and 14 years of age -- Misconduct progressed from touching to intercourse -- Accused received five-year global sentence comprised of concurrent sentences -- He sought to have constituent sentences shortened but made consecutive to preserve right to argue against deportation with global sentence remaining unchanged -- Sentencing process could not be used to circumvent immigration provisions and policies -- Sentence as constructed was fit and complied with totality principle.

Appeal by the accused, RB, from a conviction and sentence for multiple sexual offences. The accused was a permanent resident of Canada from El Salvador and the complainant's uncle. Sexual misconduct commenced in 1988 when the complainant was six years of age and continued until 1997. The sexual contact progressed from touching to intercourse. The complainant reported the conduct to her mother in 2000 when she was 18 years of age. She reported it to police in 2002 when she was 20 and gave a statement to police in 2007 at age 25. The accused testified at trial and denied the allegations. He contended that the complainant was infatuated with him and fabricated the allegations after he rejected her. The trial judge rejected the accused's evidence and found that it did not raise a reasonable doubt, as it was unlikely the complainant would fabricate allegations in response to a rejection at age 14. The judge accepted the complainant's evidence as credible and reliable and noted that the delay in disclosing the conduct was not uncommon. The accused was convicted of sexual assault, sexual interference, invitation to sexual touching and sexual exploitation. He was sentenced to five years' imprisonment comprised of four concurrent sentences. The accused appealed the conviction and the sentence. He did not argue against the resulting five-year term, but rather sought to have the constituent concurrent sentences reduced in length and made consecutive in order to preserve his right to argue against his deportation from Canada.

HELD: Appeal dismissed. The conviction for sexual interference was stayed based on an application of the Kienapple principle. Otherwise, there was no error in the trial judge's analysis or decisions on either of the issues of the complainant's motive to fabricate or the complainant's disclosure. The conclusions were supported by the trial judge's lengthy reasons for judgment. The loss of a potential remedy against a deportation order was not a mitigating factor on sentence. Nor could the sentencing process be used to circumvent the provisions and policies of the Immigration and Refugee Protection Act. To impose a sentence of two years or less for the sustained sexual assault of a young family member would be patently inadequate or artificial. Proper application of the totality principle supported the sentence imposed by the trial judge. Sentence: Five years' imprisonment for sexual assault; one-year concurrent for invitation to sexual touching; four years' concurrent for sexual exploitation.

Statutes, Regulations and Rules Cited:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 64(1), s. 112, s. 113, s. 114

Appeal From:

On appeal from the conviction entered on June 17, 2009 and the sentence imposed on October 21, 2009 by Justice Alison Harvison-Young of the Superior Court of Justice, sitting without a jury.
 

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The judgment of the Court was delivered by

H.S. LaFORME J.A.:--

INTRODUCTION

1     The appellant is married to the sister of the complainant's mother and is thereby the uncle of the complainant. The sexual offences were found to have started in 1988 when the complainant was 6 years old and they continued until 1997 when she was almost 15. Throughout that time the sexual contact progressed from sexual touching to intercourse.

2     The complainant reported the appellant's conduct to her mother in 2000 when she was 18; to the police on October 27, 2002 when she was 20; and she gave a statement to the police on October 31, 2007 when she was 25. In other words, her reporting of the assaults and her police statement were 4, 6 and 11 years after the last assault.

THE TRIAL

3     At trial it was essentially the evidence of the appellant and his wife against that of the complainant. The appellant's evidence was a denial of all the allegations. His testimony was that the complainant became infatuated with him and that when he rejected her, she made the false allegations. The result of the trial therefore turned on credibility findings and the application of R. v. W.(D.), [1991] 1 S.C.R. 742.

4     The trial judge rejected the appellant's denial of involvement and his assertions that the complainant was infatuated with him and his rejection of her when she was 14 motivated her to fabricate the allegations. She held that the evidence of the defence did not raise a reasonable doubt, particularly the suggestion that the complainant would fabricate allegations as a result of having been rejected at the age of 14. She found that there was no air of reality to this assertion.

5     Finally, the trial judge held that the rest of the evidence proved the appellant's guilt beyond a reasonable doubt. She accepted the complainant's evidence, finding her to be a credible and reliable witness. She found that details, such as which vehicle the offences occurred in, were understandably unclear and peripheral. She also found that the delay in reporting is not uncommon in such cases and did not negatively affect the complainant's credibility.

6     The trial judge convicted the 42 year old appellant of four historic sexual offences -- sexual assault, sexual interference, invitation to sexual touching, and sexual exploitation. She sentenced him to a "fair, fit and global" term of 5 years imprisonment. In addition, he was required to provide a DNA sample for registration for a period of twenty years and a weapons prohibition for a period of ten years.

THE APPEAL

7     On appeal the appellant submitted that the trial judge made three critical errors. First, he argued that the trial judge ought to have applied the principle in R. v. Kienapple, [1975] 1 S.C.R. 729. Second, he submitted that the trial judge improperly reversed the onus of proof on the issue of the complainant's motive to fabricate. Third, he submitted that the trial judge failed to consider all the circumstances in her assessment of the delay of the complainant in reporting the offences. Finally, the appellant argues that the sentence imposed is unfit.

 

·        (a) 

Conviction appeal

8     We did not call upon the Crown to respond to any of the grounds of appeal against the convictions. We allowed the appeal on the Kienapple issue and dismissed the balance of the appeal against convictions. The following brief reasons will sufficiently explain our decision.

9     The trial judge decided that the Kienapple principle -- that an accused cannot be convicted of two offences where they are both arise out of substantially the same facts -- should not apply in this case. On appeal, the appellant submitted that the principle ought to have applied and that count 2 should have been stayed.

10     Given the particularity in the indictment in count 1 (sexual assault) and count 2 (sexual interference) the Crown did not oppose this submission. We agreed, and accordingly the less serious offence in count 2 was stayed.

11     On the balance of the appeal against the convictions, we found no error in the trial judge's analysis or decisions on either of the issues of the complainant's motive to fabricate or the complainant's disclosure. The trial judge provided lengthy reasons for her decision and when those reasons are read as a whole, the appellant's assertions of errors are simply not present. Accordingly, apart from the Kienapple point, the appeal of the convictions was dismissed.

 

·        (b) 

Sentence appeal

12     We were, however, somewhat sympathetic to the appellant's submissions on his sentence appeal, and reserved our decision in order to consider it more fully. In the circumstances of this case, we saw some merit in the approach submitted by the appellant, which is set out more fully below. In essence, the totality of the sentence would not change and would therefore result in the appellant serving the period of imprisonment found by the trial judge to be appropriate. Moreover, we initially wondered whether the principles and objectives of sentencing would still be addressed and would continue to reflect the objective seriousness of the offences if we were to adopt the appellant's submissions.

13     However, after further consideration, and although my initial impressions of the merits remain, I conclude that the authorities limit our ability to accede to his request. The following will explain my reasons for this conclusion.

14     At the sentencing hearing defence counsel argued for a total sentence of 3-4 years imprisonment, while the Crown sought the maximum of 10 years. The trial judge noted that the appellant "came to Canada, having fled war-torn El Salvador in 1987 ..." She rejected the Crown's submission that this was a case deserving of the maximum sentence of 10 years. Also, it is clear that she did not consider this case to be one which required strict adherence to this court's decision in R. v. D.D. (2002), 58 O.R. (3d) 788 (C.A.).

15     As noted, the trial judge ultimately sentenced the appellant to a 5 year total term of imprisonment. She apportioned his imprisonment as follows: on count 1, sexual assault, 5 years; on count 2, sexual interference, 5 years (concurrent); on count 3, invitation to sexual touching, 1 year (concurrent); and on count 4, sexual exploitation, 4 years (concurrent). Given that count 2 is stayed, the sentence being considered by us is only in respect of counts 1, 3 and 5.

16     The only submission the appellant makes on appeal is that the totality of the sentence be apportioned differently from that of the trial judge. In other words, he does not argue against the five years total sentence. Rather, he asks this court to recognize the circumstances of the appellant and the consequences to his family and to assist them by imposing a maximum sentence of two years less a day for any of the counts of 1, 3 and 4, but have them run consecutively and maintain the total sentence of five years imprisonment. He submits that this would not impose a shorter sentence in totality and would be entirely in keeping with the principles and objectives of sentencing.

17     The appellant is a permanent resident of Canada, originally from El Salvador, and was convicted of criminal offences that resulted in his being ordered deported. Thus, one of the avenues by which he could challenge that deportation order has been lost by virtue of the length of the sentences imposed for those offences, namely more than two years imprisonment: see, Immigration and Refugee Protection Act, S.C. 2001, c. 27. Under s. 64(1) of the Act, the appellant has no right to appeal the deportation order if he receives a sentence of two years imprisonment or more for any single offence. While the trial judge may have been aware of the appellant's permanent resident status, she does not consider its implications in her sentencing analysis.

 

·        (i) 

The appellant's circumstances

18     I begin, as the appellant suggests, with the comments of Doherty J.A. in R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.), at para. 87:

 

·        Sentencing is a very human process. Most attempts to describe the proper judicial approach to sentencing are as close to the actual process as a paint-by-numbers landscape is to the real thing. I begin by recognizing, as did the trial judge, that the fixing of a fit sentence is the product of the combined effects of the circumstances of the specific offence with the unique attributes of the specific offender. 

19     It is the unique attributes and circumstances of the appellant, which he says can allow this court to reflect "the human face of the sentencing process" by giving him another opportunity to remain in Canada with his family. He has been in Canada since 1987, his family is here and he wishes to access every opportunity to remain here with them. His statutory release date we were told is February 19, 2013.

20     The appellant says he left El Salvador in 1985 "because of the war", which the trial judge seems to accept. He originally entered the United States as a refugee and in 1987 came to Canada. He obtained landed immigrant status in Canada in 1991.

21     Also in 1991, the appellant married the sister of the complainant's mother and they have three children now aged 15, 17 and 19. He did not complete high school because, he says, of the war in El Salvador. Nevertheless, since in Canada he has learned to be an auto mechanic, which was his occupation at the time of these offences. He is the sole provider for his family.

22     In his pre-sentence report he is described by others as being "devoted to his wife and children" and has a close connection with his Christian church. He is a first time offender.

ANALYSIS

23     Generally speaking I think the overall principles and objectives of sentencing would still be addressed and would continue to reflect the objective seriousness of the offences if we were to adopt the appellant's submissions. However, there are also the interests of the Parliament of Canada and existing legal principles from this court that must be considered. Because of these considerations, I believe the Crown's arguments must prevail, and ultimately compel the dismissal of the appeal against sentence.

24     I acknowledge at the outset that the risk of deportation can be a factor to be considered in choosing among the appropriate sentencing responses and tailoring the sentence to best fit the crime and the offender: R. v. Melo (1975), 26 C.C.C. (2d) 510, at p. 516 (Ont. C.A.). However, the loss of a potential remedy against a deportation order is not a mitigating factor on sentence, nor can the sentencing process be used to circumvent the provisions and policies of the Immigration and Refugee Protection Act: Hamilton, at paras. 156 and 157. The Crown submits that circumventing the Act is what results here if the appellant's submissions are accepted. I agree.

25     The second submission by the Crown is that the appellant's suggested approach is simply not available even if the totality of the sentence is not disturbed. This is because, it is argued, the appropriate sentence for either of counts 1 and 4 in this case cannot reasonably be less than 5 years imprisonment. The Crown relies on several authorities including this court's decision in R. v. D.M., 111 O.R. (3d) 721. Once again I agree.

26     This court's fairly recent decision in R. v. Badhwar, 2011 ONCA 266 comments on both the Immigration and Refugee Protection Act issue and adjusting the length of sentences where an accused person has been convicted of multiple counts as here. Moldaver J.A. first described the adjustment of the length in counts without interfering with the total length of sentence as amounting to a benefit over someone convicted of a single count. He then goes on in para. 45 to caution that:

 

·        No matter how one chooses to come at the issue, the bottom line remains the same. Courts ought not to be imposing inadequate or artificial sentences at all, let alone for the purpose of circumventing Parliament's will on matters of immigration. 

27     Without commenting on whether or not there is any benefit to the appellant because of his multi-count convictions, the fact remains, a sentence of 2 years less a day for either of counts 1 or 4 would be patently "inadequate or artificial." This was made abundantly clear by this court in D.M. where the issue on appeal was the proper range of sentence for prolonged sexual assault including intercourse on a single child by a person in a position of trust. At para. 44, Feldman J.A. left little doubt about the appropriate range of sentence:

 

·        To conclude on the issue of the proper range of sentence, although sentencing is always an individualized process of decision-making, where there is prolonged sexual abuse and assault of a child, including penetration, by an adult in a position of trust, the minimum sentence will be five or six years in the penitentiary. 

28     It is important to recall that Feldman J.A. observed that the reason the courts were being called upon to focus on sentencing in this type of case is because of the increasing number of them over the past 20 years. Partly because of this increase, the courts' strict sentencing has evolved to respond to it: see D.M., at paras. 24-26. The appellant in our case was found to have committed sexual offences against his niece from 1988 when she was 6 years old continuously until 1997 when she was almost 15. And as I noted at the outset, the sexual assaults progressed from sexual touching to intercourse.

29     Finally, I want to comment briefly on the principle of totality: i.e. a series of sentences, each properly imposed in relation to the offence to which it relates, is on the whole just and appropriate. When this principle is properly understood and applied to facts of the appellant's case, it will be seen that it does not assist him.

30     The proper approach to applying the principle of totality on sentencing is to first identify the most serious part of the accusations or offences made against the person that resulted in the criminal offenses he or she was charged with. Next, the court is to determine the total sentence to be imposed, and then to impose sentences with respect to each offence that they add up to the total sentence. In doing so, the sentence for each offence must properly reflect the most serious part of the overall criminal conduct and must reflect the proper sentence for that offence. At this stage the court will then decide whether a particular sentence should be consecutive or concurrent to the other sentences imposed: R. v. Jewell; R. v. Gramlick, [1995] O.J. No. 2213 (Ont. C.A.), at para. 27.

31     Once again, in the appellant's case, the most serious part of the offences is the sexual assault of his niece reflected in count 1. And, as I explained, this has a sentencing range that begins at least at 5 years. To accept the appellant's submissions would require the imposition of a sentence that is inadequate or artificial. Although sympathetic to the appellant's concerns to remain in Canada with his family, I believe this court is required to dismiss the appeal against sentence.

DISPOSITION

32     For these reasons I would dismiss the appeal against convictions. I would grant leave to appeal the sentence, but I would dismiss it.

33     I would conclude by noting that although the appellant may be denied his right of appeal to the Immigration Appeal Division as a consequence of this result, he is not entirely without further recourse. The appellant still has the right to apply to the Minister of Public Safety and Emergency Preparedness for protection: Immigration and Refugee Protection Act, at ss. 112-114.

H.S. LaFORME J.A.
J.I. LASKIN J.A.:-- I agree.
A. HOY J.A.:-- I agree.