



WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the
Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence under section 151, 152, 153,
    153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).




(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the complainant of the
    right to make an application for the order; and

(b)     on application made by the complainant,
    the prosecutor or any such witness, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b).

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.





COURT OF APPEAL FOR ONTARIO

CITATION: R. v. H.E., 2015 ONCA 531

DATE: 20150715

DOCKET: C59048

Hoy A.C.J.O., Doherty and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

H.E.

Respondent

Philippe G. Cowle, for the appellant

Saara Wilson, for the respondent

Heard: May 19, 2015

On appeal from the sentence imposed on June 12, 2014, by
    Justice William A. Gorewich of the Ontario Court of Justice.

Benotto J.A.:

[1]

The respondent lived with
    his wife for sixteen years  thirteen years in Iran and nearly three in Canada.
    During the entire time, he regularly assaulted her and their children.

[2]

He was convicted of
    sexual assault and four counts of assault for the crimes that occurred in
    Canada.

[3]

The sentencing judge imposed
    a total sentence of 18 months in a reformatory plus probation for one year.  In
    doing so, he credited the respondent with an unspecified amount of time for his
    pre-trial house arrest and took into account the cultural impact of the move
    from Iran to Canada. The Crown seeks leave to appeal the sentence. For the
    reasons that follow, I would grant leave and allow the appeal.

BACKGROUND

[4]

The respondent and his now
    former wife were married in Iran in 1996. They have two sons born in 1997 and
    1999. What follows is a summary of the evidence given at trial by the wife and
    the younger son. Their evidence was accepted by the trial judge. The respondent
    did not testify.

[5]

It was routine for the
    respondent to violently assault his wife and children and to rape her. This
    pattern continued when the family moved to Canada in 2009.

[6]

Since moving to Canada,
    the respondent sexually assaulted his wife at least three to four times a month.
    She would try to push him away; she pleaded with him and cried. The respondent
    told her to shut up and not say anything. He forced her to have sex with him by
    hitting her, pulling her hair, pinching her and forcefully removing her
    clothes. The sex was painful. She cried out quietly so the children would not
    hear. She suffered painful bruises to her legs and sides.

[7]

In addition to the sexual
    assaults, the respondent was violent to her and the children.  While there were
    many instances of assaults, two incidents formed the basis of the assault
    convictions against the wife:  the respondent slapped her in the face; and he hit
    her with a pair of slippers. One of the children testified that he witnessed the
    respondent slapping and kicking his mother on several occasions. He also saw
    bruises on his mother as a result of such attacks.

[8]

The respondent also
    abused the two children. He would slap them, kick them, punch them, and hit
    them with a belt. On one occasion he locked them outside on a snowy winter day
    while they were wearing nothing but shorts and T-shirts.  They waited barefoot
    for 40 minutes until their mother arrived home.

[9]

One night in the spring
    of 2012, the respondent started to hit the children in the face and body and
    kick them on the legs. Their mother tried to protect the children by standing
    between them and the respondent. The respondent pushed her away and told her it
    was none of her business. The respondent left the home that night, and by June
    2012 had moved in with a woman he had been secretly dating since February of
    that year. This woman would become (and remains) his common-law spouse.

[10]

The
    abuse did not end when the respondent left the home.  On one occasion when he
    returned to the home to collect mail, he threatened to kill the boys because
    they had told their mother about his new relationship. The younger boy became
    so terrified that he took to sleeping with a knife.

[11]

The
    police would likely never have become involved with the family had the younger son
    not confided in a teacher at his school. In October 2012, he told a teacher who
    called the principal who in turn informed the police. The police interviewed
    the respondents wife and charges were filed.  She testified that she probably would
    not have gone to the police on her own because she felt extreme shame.  Also, she
    was not aware that help was available. She testified that in her country of
    origin no one would help because the respondents conduct was considered
    normal.

Trial Judgment

[12]

The
    respondent was convicted of one count of sexual assault for the many instances
    of forced intercourse, and four counts of assault  two counts with respect to
    his wife and two with respect to the children. Although the convictions were
    limited to the incidents alleged in the indictment, the sentencing judge
    accepted that there had been a pattern of domestic violence which reflected longstanding
    and ongoing abuse.

Reasons for Sentence

[13]

The
    Crown sought a penitentiary term of four years. The respondent sought one year
    of incarceration with up to 18-24 months probation.

[14]

The
    wife and the two children indicated in their victim impact statements that they
    hoped the respondent would get counselling for his anger issues and become a
    better person.  They did not want him to go to jail. The sentencing judge found
    that the younger son, who testified as a Crown witness, loved and was loyal to
    both parents.  During the trial, the younger son said: My dad did bad things
    to me but he is still my dad.

[15]

In
    her victim impact statement, the wife expressed surprise that there were
    potentially serious consequences to the respondents conduct. The sentencing
    judge said that this suggests a significant cultural gap between what is not accepted
    in this country, and what is accepted in her native country.

[16]

The
    sentencing judge referred to the aggravating factors of domestic violence,
    breach of trust and the involvement of minor children.  Mitigating factors
    included the lack of a criminal record.  The judge also referred to:

·

the presentence report which he termed: a positive report,
    except [H.E.] does not accept responsibility;

·

the stringent bail conditions;

·

no injuries to the children;

·

no injuries to [the respondents wife]. No medical treatment was
    ever required. Regarding the sexual assault there was no injury;

·

the certainty of psychological and emotional injury which will
    be long-standing;

·

the respondent as a hardworking person  who provides for his
    family and is active in his church;

·

the respondents behavior that was not predatory in nature; and

·

no threat of future sexual deviant behaviour and he is not at
    risk to re-offend.

[17]

The
    sentencing judge then returned to the issue of culture saying this:

In my considerations, I ask how much weight [should] the
    cultural impact of moving from Iran to Canada be given. [The respondents wife]
    testified in Iran if she complained about any abuse she would be ignored. It is
    a different culture, it is a different society. As far as Im able to ascertain
    from the evidence those cultural differences moved with them from Iran to
    Canada. It is only a factor in my deliberations, and not a sentencing
    principle.

[18]

The
    sentencing judge arrived at a global sentence of eighteen months in the
    reformatory plus probation. He sentenced the respondent to 18 months on the
    sexual assault conviction, 30 days for the assault on the wife with the
    slipper, and four months for the balance of the assaults, apparently
    referring to the other assault on the wife and the assaults on each of the
    children.

[19]

The
    sentences for all the assaults were to be served concurrently with the sentence
    for the sexual assault.

[20]

Although
    the sentencing judge took into account the bail conditions, citing the
    principles set out in
R. v. Downes
(2006),
    79 O.R. (3d) 321 (C.A.),
he did not articulate what credit he
    ascribed to these conditions.

Appeal

[21]

The
    Crown seeks leave to appeal the sentence on the basis that it is manifestly
    unfit.  It is submitted that the sentencing judge erred in several ways, most
    significantly, by considering the allegedly different attitudes toward domestic
    violence in Iran and Canada.

Fresh Evidence

[22]

Fresh
    evidence was admitted on consent. The fresh evidence updated the court with
    respect to the respondents current situation.

[23]

The
    respondent was released on parole after completing six months (one third) of
    his prison sentence. He is still living with his common-law spouse, taking care
    of his two sons, and running his own carpentry business. His two sons live with
    him with the approval of his former wife and his parole officer. He has
    attended counselling on the referral of his parole officer.

ISSUES ON APPEAL

[24]

The
    issues are:

1. Did the sentencing judge err?

2. Was the sentence demonstratively unfit and if so, what
    is the appropriate sentence?

3. Should the respondent be re-incarcerated?

ANALYSIS

[25]

I
    have concluded that the sentencing judge erred in multiple ways.  The
    cumulative effect of the errors led him to impose a sentence that is
    demonstratively unfit.

The Errors

[26]

The
    errors disclosed by the sentencing judges reasons can be grouped into four categories:

1. The cultural
    considerations;

2. His  finding that there were no injuries;

3. His conclusion that the there was no risk of
    re-offending; and

4. His imposition of concurrent sentences.

Cultural Considerations

[27]

The
    respondent did not rely on cultural issues to justify or explain his behaviour.
    He did not testify, and his defence was a denial that the events took place.
    Yet, twice in his reasons, the sentencing judge referred to cultural issues.

[28]

The
    first reference to a significant cultural gap was the sentencing judges
    explanation for the wifes surprise at the sanctions for domestic violence. The
    second reference was to the cultural impact of moving from Iran to Canada.
    The sentencing judge said this was a factor in his deliberations, but not a
    sentencing principle. He stated: As far as Im able to ascertain from the
    evidence those culture differences moved with them from Iran to Canada.

[29]

The
    sentencing judges reasons indicate that he considered the cultural impact in
    his determination of the appropriate sentence. Although his reasons are
    unclear, it appears as though he considered culture as a mitigating factor.
    This is an error for two reasons.  First, the respondent never took the
    position that cultural differences impacted his conduct.  On the contrary, in
    the pre-sentence report he expressly disavowed any suggestion that he felt
    culturally justified in assaulting his wife and children; his defence was
    denial of the events. The respondents factum in this court took the same position.

[30]

Second,
    and more importantly, cultural norms that condone or tolerate conduct contrary
    to Canadian criminal law must not be considered a mitigating factor on
    sentencing.

[31]

The
    Alberta Court of Appeal commented on this issue in
R. v. Teclesenbet
,
2009 ABCA 389, 469 A.R. 193. In that
    case, the offender had immigrated to Canada five days before slapping his wife and
    beating her with a shoe. The wife was hospitalized, and the offender was
    convicted of assault causing bodily harm. The sentencing judge accepted as a
    mitigating factor the offenders claim that, in his home country of Sudan, his
    behaviour was commonplace. The offender received a conditional discharge and 12
    months probation. The Crowns appeal was allowed.  McDonald J.A. wrote for the
    court, at para. 9:

The law of Canada applies equally to all who are in Canada
    regardless of the length of time they have resided here.  To suggest that it
    might be acceptable to beat ones wife with a stick elsewhere does not mitigate
    the seriousness of the offence and is contrary to the purpose of domestic
    violence laws.

[32]

Earlier,
    in
R. v. Brown
(1992), 125 A.R. 150 (C.A.), the same court wrote, at para.
    29:

Even if there were before the court a more articulated
    submission based on social attitudes within a particular ethnic or religious
    community to which the accused belongs, the courts of this province and of this
    country should be alert to the risk of moderating sentencing policy in such a
    case where to do so would mean that some women in Canadian society would be afforded
    less protection than others.

[33]

A
    cultural practice that is criminal in Canada does not mitigate the
    perpetrators conduct for sentencing purposes. Cultural differences do not
    excuse or mitigate criminal conduct. To hold otherwise undermines the equality
    of all individuals before and under the law, a crucial
Charter
value. 
    It would also create a second class of person in our society  those who fall
    victim to offenders who import such practices. This is of particular
    significance in the context of domestic violence. All women in Canada are
    entitled to the same level of protection from abusers. The need to strongly
    denounce domestic violence is in no way diminished when that conduct is the
    product of cultural beliefs that render women acceptable targets of male
    violence.  If anything, cultural beliefs may be an aggravating factor enhancing
    the need for specific deterrence in cases where the sentencing judge is
    satisfied that the offender continues to maintain those views at the time of
    sentencing.

No Injuries

[34]

At
    least four times in his reasons the sentencing judge said that there were no
    injuries as a result of the assaults or the sexual assault. This is a
    misapprehension of the evidence. The wife was bruised by the abuse, sexual and
    otherwise. The children were slapped, kicked and hit with a belt. The sentencing
    judge commented that medical attention was not sought.  This does not mean
    there were no physical injuries.

No risk to reoffend

[35]

The
    sentencing judge made an explicit finding that the respondent was at no risk to
    reoffend and an implicit finding that, consequently, specific deterrence was
    not an issue. The record does not support such a finding.

[36]

The
    material before the sentencing judge demonstrated that the respondent was sorry
    only for the situation that he found himself in.  He put the blame on his wife
    and assumed no responsibility. The pre-sentence report states:

The subject denies guilt for the current matter before the
    Court and defers blame for his negative contact with the Criminal Justice
    System to his ex-spouse ... who ... is a victim of the current offences.

...

The subject has not accepted responsibility for his behaviour
    as evidenced through his denial of the offences and designating his ex-spouse
    as the cause of his negative contact with the Criminal Justice System. This may
    limit a meaningful response to any relevant community based counselling
    programs.

[37]

With
    respect to this report, the sentencing judge said:

It is a positive report, except [the respondent] does not
    accept responsibility. A court will look at lack of insight in considering
    sentence. Having said that, I do note at page four of the pre-sentence report
    that he expresses shame regarding his current circumstances with the justice
    system. He acknowledged his offences as dishonourable in nature.

[38]

A
    fair reading of the pre-sentence report indicates that the shame he felt did
    not arise from remorse, or from his actions, but rather from the predicament he
    found himself in as a result of the police investigation into his family life.

[39]

The
    letter from a therapist, also before the sentencing judge, was based on
    self-reports from the respondent. The letter made it clear that the respondent
    was upset for himself. There was no indication of remorse. He continued to
    declare his innocence.

[40]

The
    sentencing judge chose to ignore these facts and instead described the
    respondent as a hardworking person and one who is a law-abiding citizen,
    except for the matters [before the court].

[41]

Given
    the lack of remorse, what then was the evidence that there was no risk to
    reoffend? I see none, except perhaps for the evidence of his common-law partner
    in the pre-sentence report that the offences were out of character. The respondent,
    in his late forties, was found guilty of routinely raping his wife over a many
    years, and of physically attacking his own children. These offences were not
    isolated incidents.  By nearly all accounts, the respondent had difficulty
    controlling his anger. This engaged an inference that the respondent was a risk
    to re-offend. In
R. v. Inwood
(1989), 48 C.C.C. (3d) 173 (Ont. C.A.), at
    p. 181, Howland C.J.O wrote for this court:

[W]here there is a serious offence involving violence to the
    person, then general and individual deterrence must be the paramount
    considerations in sentencing in order to protect the public. In my opinion,
    this principle is applicable not only to violence between strangers but also to
    domestic violence. Domestic assaults are not private matters, and spouses are
    entitled to protection from violence just as strangers are. [Emphasis added.]

[42]

There
    was no basis for the sentencing judge to find that specific deterrence was not
    important in this case.

Concurrent Sentences

[43]

The
    sentencing judge imposed a low global sentence. He imposed  sentences for the
    assaults against the children and made them concurrent to the sexual assault
    and assault against their mother. The assaults on the children were distinct
    from the assault and rapes of their mother. In light of the low global
    sentence, the sentences for the childrens assaults should have been
    consecutive.

Appropriate Sentence

[44]

The
    global sentence of 18 months is manifestly unfit.  In
R. v. Smith
, 2011
    ONCA 564, 274 C.C.C. (3d) 34, at para. 87, this court held that the sentence
    range for cases involving forced intercourse with a spouse is 21 months to 4
    years. The cases at the lower end of the range involve single events.

[45]

In
R. v. D.J.
, [2010] O.J. No 5878, counsel jointly recommended a sentence
    of three years after the guilty plea of a remorseful offender. At paras. 18-21,
    Justice Hill accepted the plea submissions from experienced criminal counsel
    but stated that it was at the low end of an acceptable range.

[46]

As
    here, the offender in
D.J.
had repeatedly raped his partner. Justice
    Hill described the aggravating factors as serial rape  a grossly violative
    intrusion on physical, emotional and psychological autonomy and dignity (para.
    16).

[47]

In
M.Q.
the appellant was convicted of sexually assaulting his wife over
    a period of months using threats and force. He was also convicted of twice assaulting
    her with a weapon by choking her into unconsciousness. The sentencing judge
    imposed a sentence of three-and-a-half years for the sexual assault and two nine
    month sentences for the chokings, all of which were to be served consecutively.
    The global sentence was five years.

[48]

In
    upholding the sentence, Goudge J.A. found, at para. 61, that the sentencing
    judge properly took into account the extended time over which the abuse
    occurred. Here the abuse took place over a period of years, not months. The
    relentless and prolonged nature of the repeated attacks reinforces the importance
    of the principles of denunciation and deterrence.

[49]

The
    requirement for a high degree of denunciation and deterrence arise on the facts
    that the respondent raped his wife three to four times per month for nearly
    three years in Canada  a continuation of a pattern that began 16 years
    earlier. He also victimized the children. The household was terrorized such
    that the younger child took to sleeping with a knife. The respondent was in a
    position of trust in relation to these family members.

[50]

Although
    the respondent had no criminal record, he does not benefit from any mitigation
    in sentence for remorse, since he has expressed none.

[51]

Under
    these circumstances, I would impose a sentence of 44 months for the sexual
    assault. I would not alter the sentences on the common assaults except as
    follows: (i) the term for the assaults on the wife would be concurrent to the
    sexual assault sentence, and (ii) the four months on the assault convictions on
    the children would be consecutive to the sexual assault.  This would result in
    a global sentence of four years.

Credit for Pre-sentence house arrest

[52]

The
    respondent was under pre-sentence house arrest for approximately 18 months. The
    sentencing judge quoted from
Downes
, at para. 29:

Stringent bail conditions
,
    especially house arrest, represent an infringement on liberty and are, to that
    extent, inconsistent with the fundamental principle of the presumption of
    innocence.  House arrest is a form of punishment, albeit of a different
    character than actual incarceration. [Emphasis added.]

[53]

The
    sentencing judge then said:  I will give effect to the stringent bail
    conditions that [the respondent] was subject to. There is no mention of what
    effect is given.

[54]

A
    review of the Judicial Interim Release Order reveals that the conditions were
    anything but stringent.  The respondent was required to continue living with
    his common-law partner in the same house that they had been occupying. He could
    go to and from work, pick up his partner from her work, see his lawyer, and
    leave the house at any time if he was accompanied by his partner, or a friend.
    There is negligible evidence about the impact of the bail conditions on the
    respondent. He continued to work, attend church, and go to counselling
    sessions. He did not seek to vary his bail.  In
Downes
,
the terms were stringent: the offender
    was not permitted to leave the home for any purpose without his surety, not
    even to pursue employment, to attend a place of worship, or to obtain necessary
    medical care. In
Downes
,
the 18-month house arrest entitled him to five months credit.

[55]

The
    sentencing judge did not articulate the credit he awarded.  The decision is
    therefore not entitled to deference. Since the bail conditions were not
    stringent, I would not grant credit.

Reincarceration

[56]

In
    determining whether to recincarcerate an offender as a result of an increased
    sentence, courts have considered a number of factors.  Those factors lose their
    significance when the original sentence imposed utterly failed to reflect the
    principles of denunciation and deterrence and the applicable precedents.   This
    was not a sentence that was slightly outside of the appropriate range. It was
    far outside the range.  On this basis alone, a stay is inappropriate.  A
    consideration of the other factors confirms this result.

[57]

Other
    factors include delay in the appellate process, the degree to which
    rehabilitation of the offender will be impacted by reincarceration and the
    potential for injustice if the sentence is served.   The circumstances giving
    rise to these considerations will vary.  There is some guidance on this issue from
    the New Brunswick Court of Appeal. In
R. v. Veysey,
2006 NBCA 55, 303
    N.B.R. (2d) 290, at para. 32 the court articulated a non-exhaustive list of
    criteria including:  the seriousness of the offences for which the offender was
    convicted; the elapsed time since the offender gained his or her freedom and
    the date the appellate court hears and decides the sentence appeal; whether any
    delay is attributable to one of the parties; and the impact of reincarceration
    on the rehabilitation of the offender.

[58]

These
    factors do not support a stay of the sentence here. There is not a significant
    gap between the release from jail and the release of these reasons; and the
    respondents treatment of his wife and his children led to his conviction for
    serious crimes. I turn to consider the impact of reincarceration on the
    respondents rehabilitation.

[59]

Rehabilitation
    must  by its nature  involve a movement or a change for the better.  On the
    facts before the court, the respondent is in precisely the situation he was in
    at the time of his sentencing. He is still living with his common-law partner.
    He is at the same job. The only change is that the boys, now teenagers, live
    exclusively with him.  There is no evidence of any insight or awareness of the
    seriousness of his actions. On the contrary, the author of the pre-sentence
    report stated that the fact that he blames his ex-wife for his situation limits
    any meaningful response to counselling. In short, there is no evidence of
    rehabilitation and I cannot find that rehabilitation would be negatively
    impacted.

[60]

The
    only potential hardship would be to his boys. There is insufficient evidence to
    make a determination of the family dynamics. The evidence before the sentencing
    judge was that the boys love both their parents. There is no evidence as to the
    mothers current living arrangements, the boys relationship with the
    respondents common law wife or the impact of reincarceration on them. These
    issues, in any event, are more appropriately considered in the parole process.

[61]

The
    court inquired from counsel whether the respondents time on parole thus far
    would be counted towards his time already served.  We were told that it would.
    Therefore, the respondent would receive credit of around one year for time
    served.

DISPOSITION

[62]

I
    would grant leave to appeal sentence and vary the sentence to the global term
    of four years. The probation term would be deleted.  If necessary, a warrant
    for the arrest of the respondent would issue.

Released: A.H. July 15, 2015

M.L. Benotto J.A.

I agree Alexandra
    Hoy A.C.J.O.

I agree Doherty
    J.A.


