



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ellis, 2013 ONCA 739

DATE: 20131209

DOCKET: C52475

Laskin, Gillese and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Stevan Ellis

Appellant

Mark Halfyard and Lance Beechener, for the appellant

Nick Devlin and Stephen Dawson, for the respondent

Heard: July 17, 2013

On appeal from the conviction entered on April 21, 2010 and
    from the sentence imposed on July 29, 2010, by Justice Thea P. Herman of the
    Superior Court of Justice, sitting without a jury, with reasons for conviction
    reported at 2010 ONSC 2390.

Strathy J.A.:

[1]

The appellant was a member of the Refugee Protection Division of the
    Immigration and Refugee Board (IRB). In this position he was responsible for deciding
    refugee claims. He was convicted of breach of trust in connection with his
    office, contrary to s. 122 of the
Criminal Code
, R.S.C. 1985, c. C-46,
    by suggesting to a refugee claimant that he would approve her application if
    she engaged in intimate relations with him.
[1]
He was sentenced to 18 months imprisonment.

[2]

The appellant appeals his conviction and sentence. He also brings an
    application for leave to adduce fresh evidence on his sentence appeal.

[3]

For the reasons that follow, I would dismiss the fresh evidence
    application and dismiss the appeal from conviction. I would grant leave to
    appeal the sentence, but dismiss the appeal.

A.

The Facts

[4]

There is no real dispute about the facts, because the key interaction between
    the appellant and the complainant  a forty-five minute meeting on the patio of
    a Starbucks café  was surreptitiously audio- and video-recorded by the
    complainant and her boyfriend. The following is a summary.

[5]

On July 17, 2006, the appellant conducted a hearing to determine a refugee
    claim by the complainant, Ms. Ji Hye Kim. Ms. Kim was 25 years old. She had
    come to Canada from South Korea, and claimed that she was afraid to return because
    she had been abused by her father and threatened by gang members seeking to
    recover her fathers debts. Her counsel argued that she would receive no
    protection from the state if she were forced to return to Korea.

[6]

At the conclusion of the hearing, the appellant reserved his decision. He
    said he would release his reasons as soon as possible. As Ms. Kim was leaving
    the hearing room, the appellant asked her where she worked. She told him she
    worked at a Korean restaurant at Jarvis and Front streets in Toronto. He said
    that he liked Korean food and that he might drop in.

[7]

About eight weeks later, on September 13, 2006, the appellant went to
    the restaurant at lunch time. Ms. Kim did not initially recognize him. When she
    realized who he was, she asked whether he had reached a decision on her case.
    He told her that he had not. They had a short discussion, during which the
    appellant told her that he had visited the restaurant twice since the hearing,
    but had not seen her.

[8]

The appellant returned to the restaurant nine days later, on September
    22, 2006. At his request, Ms. Kim seated the appellant in her section. She told
    him that she had been unable to sleep and asked whether he had decided her
    case. He said he had not yet made his decision. She asked whether she could ask
    him some questions. He replied that they should not discuss her case in the
    restaurant and suggested that they meet for coffee. It was agreed that they
    would meet the following Tuesday, September 26, at 7:00 p.m.

[9]

After discussing the matter with her boyfriend, who was angry because he
    thought the appellant wanted to have sex with her, Ms. Kim and her boyfriend
    decided to record the next meeting. On September 26, she was fitted with an
    audio recorder. Her boyfriend borrowed a video camera, rented a car, and parked
    across from a Starbucks patio on Bloor Street.

[10]

Ms.
    Kim was seated at a table on the patio when the appellant arrived. After some
    preliminary small talk, during which the appellant said he had been at a wine
    tasting where he had a lot to drink, he asked Ms. Kim some questions about her
    refugee claim, including questions about the physical abuse by her father.

[11]

The
    appellant had brought Ms. Kims immigration file with him. He took a draft of
    his decision from his briefcase. He told her that when he first wrote his
    decision, he was not able to decide in her favour: I got no. Not, not a
    person that needs protection.

[12]

He
    said that after thinking more about it, and seeing her, he thought, youre too
    nice. He continued, Ive been trying to find, trying to find a way to say yes
    for you  Its no right now. But I havent issued it yet.  He was thinking
    about changing his decision, he said, and had not completely made up his mind.

[13]

The
    appellant asked Ms. Kim about her marital status. She said she was separated
    from her husband. He mentioned her evidence at the hearing that her husband had
    been abusive:  he was bad to you too right. He beat you and stuff, he was
    very bad. Ms. Kim agreed.

[14]

The
    appellant told Ms. Kim that he might be able to help her get a job at a resort
    in Huntsville, because she had a diploma in hotel management. He said he would
    help her to get work: I know you had a hard life and I want to help you.

[15]

At
    this point, the appellant explained that while he had initially said no to
    her application, he was going to try to say yes, because he would not be able
    to sleep if he said no.  He said he was going to work on it, because he
    really wanted to be friends with her. Ms. Kim expressed gratitude, saying that
    he was saving [her] life. He also noted that he was going to have to write
    [the decision] really well for [her] because Korea has got a good
    government.

[16]

As
    the conversation continued, the appellant stated that he really liked Ms. Kim
    and wanted to be friends with her. He told her that he had to go to a meeting
    at 7:30 p.m., but said he should have the decision finished by the following
    Wednesday. He told her that as a result of the information he had obtained from
    her he was going to be able to change things around. He suggested that they
    meet the day before he finished his decision, the following Tuesday, and have
    a big celebration.

[17]

The
    appellant then asked Ms. Kim whether she had a boyfriend. She replied that she
    was kind of living with her boyfriend. The following conversion ensued:

Mr. Ellis: Thats okay. You know what, Ive got a wife too, so
    its okay.

Ms. Kim: Okay.

Mr. Ellis: So it doesnt matter, so we can be secret on this
    too. Okay?

Ms. Kim: Okay.

[18]

The
    appellant explained to Ms. Kim that he had a terrible marriage, so he had a
    girlfriend, but that he was going to break up with her because she want[ed]
    [him] to leave [his] wife. He was not looking for a steady girlfriend. He said
    he needed someone on the side. The following exchange then occurred:

Mr. Ellis: Yeah, but you know I'm a good person but yeah so,
    the long and short of it, I, you know,
I want to be good friends with you,
    and I know you've got a boyfriend, I've got a wife, so I mean, if we do things
    together on the side, that's okay, that's fine, but I don't want to be, you
    know, don't worry I'm not going to be demanding, I'm not going ask you to move
    in with me or anything like that.

Ms. Kim: Oh okay!

Mr. Ellis: I'm not going to fall in love with you, don't worry
    about that.

Ms. Kim: Oh okay.

Mr. Ellis: I just legitimately uhm, you know, legitimately want
    to help you. Okay?

Ms. Kim: Thanks very much. [Emphasis added.]

[19]

The
    appellant emphasized the need for secrecy. After discussing Ms. Kims
    relationship with her boyfriend, the appellant told her not to tell him about their
    discussion:

Mr. Ellis: Don't talk to him either. Yeah, cause, cause. If you
    go talk to him now, and tell him oh yeah, I had coffee with, you know my judge,
    and he's going to help me next thing you know if I say yes, and if you ever
    break up with him he might try to make trouble, he'll say oh yeah, you know
    that guy, she you know, fucked with the judge, fucked him and that's why, she's
    fucking him that's why he said yes, you know what I mean, because people have,
    peoples minds do funny things, particularly when they break up and stuff, I
    don't want that to happen.
[2]


[20]

The
    appellant then cautioned her not to tell her lawyer about their discussions:

And certainly, dont tell your, certainly dont, dont tell
    your lawyer  you know, I shouldnt be doing this, I know I mean I shouldnt be
    meeting you without him.

[21]

He
    explained that he had to go to his meeting:

I wish I had more time, but this guy called me today and I
    was hoping to go for dinner with you, and like spend a couple of hours with you
    and doing stuff.

[22]

He
    repeated that they would meet the following Tuesday, and said:

So, why dont we uhm, why dont we meet next Tuesday, around
    the same time, and, but definitely its going towards you, so please sleep
    good, okay?

Ms. Kim replied that this was okay with her.

[23]

The
    appellant repeated that he was going to try to have his decision signed by the
    following Wednesday, and confirmed they would meet Tuesday night.

[24]

The
    day after the Starbucks meeting, Ms. Kims boyfriend sent a composite audio and
    video recording of the meeting to the Chair of the IRB. The appellant was
    suspended from his position at the IRB on September 28 and on October 2, 2006,
    the Chair of the IRB issued a press release confirming the suspension pending
    internal review. On October 3, 2006, the recording was delivered to the RCMP.
    The next day, Ms. Kim gave a videotaped, sworn statement to the RCMP,
    consistent with the requirements in
R. v. B. (K.G.)
, [1993] 1 S.C.R.
    740 (the 
KGB
statement).

[25]

In
    the meantime, the media got hold of the story, which was widely publicized. The
    appellants wife learned of the story from the reporting. Shortly thereafter he
    sought psychiatric help. He was arrested and charged on October 12, 2006.

[26]

The
    video and audio recording of the meeting at Starbucks was introduced in
    evidence at trial. Ms. Kim testified at trial and was cross-examined at
    considerable length. The trial judge found her to be a credible witness and
    rejected the defence attack on her credibility.  The appellant did not testify.

B.

The CONVICTION APPEAL

(1)

The Trial Judges Reasons

[27]

The
    central issue at trial was whether the Crown had established beyond a
    reasonable doubt that the appellant had offered to give Ms. Kim a positive
    decision on her refugee claim in exchange for engaging in intimate relations.
    The defence conceded that if he had done so, the offences were made out.

[28]

After
    hearing the evidence, the trial judge concluded that there was no reasonable
    doubt that the appellant had suggested to the complainant that he would give
    her a positive decision in exchange for
something
from her. While he
    never said so directly, the words he spoke and the circumstances in which he
    spoke them left no reasonable doubt about his meaning. The trial judge stated,
    at paras. 165-68:

Mr. Ellis never directly told Ms. Kim that he would change his
    decision from no to yes if she had a relationship with him. Rather, he
    repeatedly said he was thinking of changing his decision and he repeatedly said
    he wanted a relationship with her, without explicitly saying that one was in
    exchange for the other.

This was not a conversation between two equals, freely
    discussing and agreeing to a relationship. Rather, it was a situation of one
    person with considerable power over the other proposing a relationship, while
    dangling the prospect of a positive decision. Mr. Ellis did not have to make
    the link between a relationship and a positive decision explicit. In these
    circumstances, the link was implicit.

Ms. Kims only role in the discussion was to indicate whether
    she agreed to the relationship. It was not a free choice. Ms. Kim knew that had
    she not agreed, she risked a negative decision.

In considering the circumstances in which the discussion took
    place, the particular words that were spoken and the conversation as a whole,
    it is my opinion that there is no reasonable doubt that when Mr. Ellis met with
    Ms. Kim on September 26, 2006, he suggested to her that he would give her a
    positive decision in exchange for something from her.

[29]

The
    trial judge then considered whether the
something
was an intimate
    relationship  that is, whether the appellant suggested that he would give a
    positive decision on the refugee claim in exchange for intimate relations with
    Ms. Kim. She found that the Crown had established beyond a reasonable doubt
    that he had done so, at paras. 170-78:

Mr. Ellis first reference to what he wanted from Ms. Kim did,
    indeed, begin with being friends and learning Korean. The discussion, however,
    changed over the course of the meeting to suggest a far more intimate
    relationship. That part of the discussion began when Mr. Ellis asked Ms. Kim if
    she had a boyfriend. When she said that she did, he indicated that it was not a
    problem because he had a wife.

Mr. Ellis said he also had a girlfriend, but he thought he was
    going to break up with her. He went on to say that he needed a girlfriend on
    the side because he had a terrible marriage.

In my opinion, he made his intentions clear when he stated:

... the long and short of it, I, you know, I want to be good
    friends with you, and I know youve got a boyfriend, Ive got a wife, so I
    mean, if we do things together on the side, thats okay, thats fine, but I dont
    want to be, you know, dont worry I'm not going to be demanding, Im not going
    to ask you to move in with me or anything like that ... Im not going to fall
    in love with you, dont worry about that.

Ms. Kim understood that when Mr. Ellis said these words, he was
    suggesting a physical relationship.

Doing things together on the side is a euphemism for a sexual
    relationship. Mr. Ellis used the same expression when he said he needed a
    girlfriend on the side. The fact that Mr. Ellis assured Ms. Kim he was not
    going to ask her to move in with him and was not going to fall in love with
    her, further supports this interpretation. Tellingly, he did not tell her that
    he was not going to ask her to have sex with him.

In my opinion, Mr. Ellis meaning is clear. He was breaking up
    with his girlfriend. Because of the state of his marriage, he needed to have a
    girlfriend. He wanted Ms. Kim to be that girlfriend. However, given that Ms.
    Kim had a boyfriend, Mr. Ellis wanted to assure her that she did not have to
    worry about him being overly-demanding or falling in love with her.

During the course of their conversation, Mr. Ellis repeatedly
    told Ms. Kim not to tell her boyfriend. His concern with her boyfriend finding
    out further supports the conclusion that he was suggesting more than a mere
    friendship.

I consider, as well, the overall circumstances. The meeting on
    September 26 was not a matter of impulse or happenstance. It was pre-arranged.
    Mr. Ellis came to the meeting with Ms. Kims immigration file, prepared to
    discuss her case. He knew that what he was doing was wrong. He knew, as well,
    that he was placing his career at risk. It does not make sense that he would
    have assumed this risk just for the pleasure of having coffee or the occasional
    dinner and learning Korean.

In considering the circumstances of the meeting and what Mr.
    Ellis did and said, I conclude that the Crown has established beyond a
    reasonable doubt that Mr. Ellis suggested to Ms. Kim that she have intimate
    relations with him in exchange for a positive decision in her case.

(2)

Grounds of Appeal

[30]

The
    appellant advanced two grounds of appeal.
[3]
First, he submitted that the trial judge misapprehended Ms. Kims evidence.  He
    submitted that her evidence, properly understood, was that she did not
    understand the appellant to be proposing a sexual relationship. Second, he submitted
    that the verdict was unreasonable, because the proposition of an intimate
    relationship was not the only available inference from the appellants words
    and conduct. He argued that the evidence concerning his intent was
    circumstantial and was consistent with the exploration of the
possibility
of a relationship with the complainant  even a platonic relationship.

[31]

We
    did not find it necessary to call on the Crown to argue the conviction appeal.
    I will explain why.

Misapprehension of the Evidence

[32]

The
    appellant submitted that the trial judge misapprehended the evidence. That is,
    her reasoning was based on a failure to consider evidence relevant to a
    material issue, a mistake as to the substance of the evidence, or a failure to
    give proper effect to the evidence:
R. v. Morrissey
(1995), 22 O.R.
    (3d) 514 (C.A.), at p. 538. He relied on the principles expressed by Doherty
    J.A. in
Morrissey
,

at p. 541:

When will a misapprehension of the evidence render a trial
    unfair and result in a miscarriage of justice? The nature and extent of the
    misapprehension and its significance to the trial judge's verdict must be
    considered in light of the fundamental requirement that a verdict must be based
    exclusively on the evidence adduced at trial. Where a trial judge is mistaken
    as to the substance of material parts of the evidence and those errors play an
    essential part in the reasoning process resulting in a conviction then, in my
    view, the accused's conviction is not based exclusively on the evidence and is
    not a true verdict. Convictions resting on a misapprehension of the substance
    of the evidence adduced at trial sit on no firmer foundation than those based
    on information derived from sources extraneous to the trial. If an appellant
    can demonstrate that the conviction depends on a misapprehension of the
    evidence then, in my view, it must follow that the appellant has not received a
    fair trial, and was the victim of a miscarriage of justice. This is so even if
    the evidence, as actually adduced at trial, was capable of supporting a
    conviction.

[33]

The
    appellant submitted that while the audio/video recording was a central piece of
    evidence, the trial judge also relied on Ms. Kims understanding of his words
    to conclude that he was proposing a physical relationship. He argued that the
    trial judge misapprehended portions of Ms. Kims evidence concerning her
    interpretation of his intention and that the finding that the appellant was
    proposing an intimate relationship therefore cannot stand.

[34]

At
    trial, Ms. Kim was referred in examination-in-chief to the appellants
    statement, quoted above, that he wanted to be good friends, but that he was not
    going to fall in love with her. She was asked what she understood by the
    statement. She said:

I understood as that ah um that me become his girlfriend, and
    then he said that he doesnt want fall in love with me so that part I
    interpreted as a physical relationship that he doesnt want.

[35]

In
    cross-examination, the defence put to Ms. Kim a portion of the
KGB
statement,
    in which she had said that the appellant did not say anything about sex. The
    questions and answers in that statement were as follows:

Det. Sean Devine [SD]:    So theres a good chunk of it that I
    missed hum, and, and from what I understand there was hum, some talk of hum,
    sexual hum, some sort of sexual talk

Ms. Kim [JK]:  Huh uh.

SD: in that conversation. Is that correct? Cause I, cause I
    havent seen it?

JK: Not exactly. Hum, hum no.

SD:    There was no sexual talk at all. So basically there was
    hum, favours hum, he had thought that you were gonna be friends.

JK:     Yes, girlfriend like...

SD:    A girlfriend, why do you say that?

JK:     Its because he said hum, hes breaking up with hum,
    his girlfriend, and he will be leaving his family in two years and he said I
    need a girlfriend, and, he really liked me, he said that five times, he really
    liked me he wanted to be friends...

SD:    Yup, no,

JK:     he was not my boyfriend,

SD:    Yep, its just I havent seen the tape so I just.

JK:     Thats why I read an article saying he wanted to change
    refugee status with sex.  But he didnt say that...

SD:    Yeah.

JK:     He didnt say about the sex.

SD:    Okay.

JK:     But...I didnt, but if I see him yesterday, next
    Tuesday, [inaudible, not transcribed] hed probably, Im not sure, but it would
    of happened yet but...

SD:    What, what do you believe him to be, like do you, what
    do you think, he is his title his job?

JK:     [inaudible, not transcribed] all this conversation, Im
    not sure, he didnt ask me to have sex with him, in the way that you, he didnt
    say that directly but, hes, he was really friendly nice talking to me, like
    Oh I really like you, I dont want you to go back to Korea so just friend
    with me, but, I have...therefore hes using his position.

[36]

The
    appellant submitted that Ms. Kims evidence, read in conjunction with her
    statement, disclaimed any understanding of a proposition for a sexual
    relationship and that the trial judge misapprehended her evidence when she
    found that Ms. Kim understood that he was suggesting a physical relationship. He
    argued that in light of the trial judges misapprehension of this evidence, and
    the central role it played in her reasons, it would be unsafe to found a
    conviction on it  even if the court were to conclude that the audio/video
    evidence, standing alone, would be sufficient for a conviction.

[37]

The
    trial judge found that Ms. Kims evidence was credible and that her evidence at
    trial was consistent with the
KGB
statement  although the appellant
    did not directly state that he wanted a sexual relationship with her, he
    suggested it indirectly.  The trial judge made specific findings about what Ms.
    Kim concluded from the appellants words, at paras. 144-45:

Ms. Kim testified that Mr. Ellis never directly said to her
    that he would give her a positive decision on her refugee claim in return for
    an intimate or sexual relationship. However, she understood that this is what
    he was referring to indirectly.

Ms. Kim said she felt uncomfortable when Mr. Ellis began to
    talk about them being friends. When he told her he wanted to be good friends
    with her and said they would do things together on the side but he would not
    be demanding, she thought he was referring to having a physical relationship
    with her. She believed she had to decide between having her refugee claim
    rejected and having a relationship with Mr. Ellis.

[38]

The
    trial judges conclusion was based on Ms. Kims evidence taken as a whole. Part
    of her evidence-in-chief might have been open to the interpretation that, in
    relation to one specific phrase the appellant had used, she did not understand him
    to be speaking of a physical relationship. But, there were other parts of her
    evidence where she confirmed that that she understood that the appellant was
    either directly or indirectly suggesting a physical relationship. In
    cross-examination, it was put to her that there was no discussion of sex during
    the conversation. Ms. Kim replied:

When he mentioned that I have my boyfriend and hes married,
    and when he mentioned about being boyfriend/girlfriend between him and I, I
    could understand the physical relationship.

[39]

When
    it was put to Ms. Kim that in her
KGB
statement she had said that the
    appellant had not asked to exchange sex for refugee status, she said:

He didnt mention the actual word sex. Thats what I meant.

[40]

Counsel
    then put to her in cross-examination:

Q. No, but I understand that, but more than that he didnt say
    that he was going to exchange refugee status with sex, did he?

Ms. Kim: He didnt say exactly what you said --

Q. Mm-hm?

Ms. Kim: But what I meant was that indirectly he suggested,
    thats what I mean.

[41]

Having
    listened to and watched the recording of the conversation at Starbucks, and having
    heard Ms. Kims evidence, including her explanation of the alleged
    inconsistencies in her
KGB
statement, the trial judge found that the
    appellant suggested that he would give Ms. Kim a positive decision on her
    refugee claim  he would change the no to a yes  if she engaged in sexual
    relations with him. He was not simply suggesting a friendship.

[42]

Viewed
    in isolation from the rest of the evidence, the statements to which the
    appellant refers might be capable of benign interpretation. However, viewing
    the evidence as a whole, there was ample support for the trial judges
    conclusion that he was proposing an intimate relationship. The trial judge did
    not misapprehend the evidence.

[43]

Accordingly,
    I would reject this ground of appeal.

Unreasonable Verdict

[44]

The
    test to determine whether a verdict of a jury or a trial judge is reasonable
    has been set out in a number of cases in the Supreme Court of Canada, including
R. v. Biniaris
, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36. It is
    whether the verdict is one that a properly instructed jury, acting judicially,
    could reasonably have rendered. In
Biniaris
, the Supreme Court noted
    that in the case of a judgment of a judge sitting without a jury, the appellate
    court may be able to identify a flaw in the evaluation of the evidence or in
    the analysis that will explain the unreasonable conclusion. Justice Arbour stated,
    at para. 37:

in trials by judge alone, the court of appeal often can and
    should identify the defects in the analysis that led the trier of fact to an
    unreasonable conclusion. The court of appeal will therefore be justified to
    intervene and set aside a verdict as unreasonable when the reasons of the trial
    judge reveal that he or she was not alive to an applicable legal principle, or
    entered a verdict inconsistent with the factual conclusions reached. These
    discernable defects are themselves sometimes akin to a separate error of law,
    and therefore easily sustain the conclusion that the unreasonable verdict which
    rests upon them also raises a question of law.

[45]

The
    appellant submitted that this case did not turn on credibility and that the
    issue was one of the sufficiency of the evidence. He submitted that the trial
    judge failed to consider whether guilt was the only reasonable inference that
    flowed from the evidence. He argued that an equally available inference was
    that he had not yet formed the necessary intent and that his discussions with
    the complainant were at the exploratory stage. His words and conduct, he says,
    were consistent with those of a lonely and unhappy man, who wanted to pursue
    some form of personal relationship with the complainant, whether platonic,
    sexual, or yet-to-be-determined. While his conduct was unethical and offensive,
    it was not unlawful.

[46]

The
    appellant pointed to  four circumstances in support of this submission:

·

there
    was no explicit reference to a sexual relationship, and at various points in
    the conversation he referred to his desire to be friends;

·

the complainant herself was unclear about his intentions, and at
    one point, referred to above, interpreted his words to mean that he did not
    want a physical relationship;

·

his references to secrecy were consistent with an acknowledgment
    that his conduct was not ethical;

·

no
    inference can be drawn from the fact that he was putting his job at risk by
    meeting with her  he may simply have wanted to help her, and it cannot be
    concluded that he was meeting with her for his personal benefit.

[47]

In
    sum, the appellant argued that his conduct was consistent with wanting to get
    to know the complainant better and not having formed an intention to propose a
    sexual relationship.

[48]

The
    trial judge was alive to this issue. She noted that while the meeting at
    Starbucks began with a casual discussion about being friends and learning
    Korean, it changed over the course of the meeting to a discussion of a more
    intimate relationship, in which the appellant said that he needed a girlfriend
    on the side because he had a terrible marriage. The trial judge also found
    that on the evidence as a whole Ms. Kim understood the appellant was proposing
    a physical relationship. His reference to keeping a secret, while potentially
    ambiguous in the abstract, loses its ambiguity when considered in the context
    of his other words and contact. The same is true with respect to his expressed
    desire to be friends.

[49]

I
    have set out the critical portions of the trial judges reasons above. She
    found that the surrounding circumstances and the words used by the appellant at
    the meeting were consistent with a proposal for sex and inconsistent with any
    other rational conclusion.

[50]

The
    trial judges findings were fully supported by the evidence  not only the
    evidence of what transpired at Starbucks, but all the surrounding
    circumstances. The trial judges conclusions were also consistent with common
    sense and human experience. A 47-year-old refugee adjudicator who proposes to a
    25-year-old female refugee claimant that he will change his decision in her
    favour if she will be his girlfriend on the side is not suggesting that he
    wants a platonic relationship. As the trial judge noted, it was telling that
    the appellant made no attempt to reassure Ms. Kim that he was
not
proposing
    a sexual relationship.

[51]

I
    agree as well with the Crowns submission that in considering the
    reasonableness of the verdict, I am entitled to treat the appellants failure
    to testify as an inability to provide an innocent explanation for his conduct:
R.
    v. Dell
(2005), 194 C.C.C. (3d) 321 (Ont. C.A.), leave to appeal to S.C.C.
    refused, [2005] S.C.C.A. No. 524, at para. 35.

[52]

In
    short, I see no flaw in the trial judges understanding or evaluation of the
    evidence that would permit this court to intervene. Her conclusion was the only
    reasonable one on the evidence. Accordingly, I would dismiss the conviction
    appeal.

C.

THE SENTENCE APPEAL

[53]

At
    trial, the Crown sought a sentence in the range of three to three and a half years.
    The defence asked for a sentence of less than two years, to be served in the
    community by a conditional sentence. The trial judge concluded that a
    conditional sentence would not be appropriate, as it was not consistent with
    the fundamental purpose and principles of sentencing set out in s. 718 of the
Code.
She held that, notwithstanding the presence of significant mitigating
    factors, including the appellants bipolar disorder, the principles of general
    deterrence and denunciation required a period of imprisonment. She therefore
    imposed a sentence of 18 months incarceration.

[54]

The
    appellant acknowledged that the offence was serious and that, in the absence of
    his bipolar disorder, a period of imprisonment would have been appropriate. He
    submitted, however, that the trial judge minimized the scope of his disorder
    and the causative role it played in the commission of the offence. In the
    result, he submitted, the trial judge gave undue emphasis to denunciation and
    deterrence, inadequate consideration to his rehabilitation and erred in
    sentencing him to a term of incarceration, rather than imposing a conditional
    sentence.

[55]

I
    will begin by reviewing some of the evidence at the sentencing hearing. Other
    aspects of the evidence will be discussed later. I will then summarize the trial
    judges reasons in more detail, explaining how she addressed the issues raised
    by the appellant. I will next consider the fresh evidence application. After
    setting out the positions of the parties on sentencing, I will analyze the
    issues on the sentence appeal.

(1)

The Evidence on the Sentencing Hearing

[56]

The
    appellant was 47 years old at the time of the offence and 51 when he was
    sentenced. He was married, with two children, ages 20 and 15. He had practised
    as a lawyer for four years, and then served two terms as a Toronto City
    councillor. After being defeated in the election of 1997, he returned to the
    practice of law. He was appointed to the IRB in 2000 and was reappointed in
    2002 for a five year term.

[57]

He
    was suspended from his position with the IRB after being charged and he
    subsequently resigned. The IRB conducted a review of all the cases he had
    adjudicated and found no matters of concern.

[58]

In
    early October, 2006, the appellant saw a psychiatrist and has been in treatment
    since that date. He voluntarily reported the matter to the Law Society and was
    required to work under supervision, pending disciplinary proceedings.

[59]

At
    the sentencing hearing, Ms. Kim read a victim impact statement in which she
    noted that the appellant, the man who was deciding her future and whether she
    could stay in Canada, tried to take advantage of her. As a result of the
    offence, she was left with the feeling that she could not trust him, the IRB,
    or anyone else in Canada. She was subjected to a second IRB refugee hearing,
    investigations by the IRB and the RCMP and media attention. She had trouble
    sleeping and stayed away from work for a month. Her refugee application was
    ultimately granted.

[60]

The
    appellants wife, Ruth Neal-Ellis, testified on his behalf. She filed a letter
    in which she described her husband as having had bouts of depression and
    moodiness, followed by reckless and very impulsive behaviour, especially around
    the time of the offence. She said his behaviour was out of character between
    December 2005 and the summer of 2006. He acted impulsively at times and pursued
    a frenetic lifestyle. She described how he became obsessed with his work and was
    irritable and short-tempered at home. He drove recklessly and behaved
    impulsively and erratically on family vacations. He had an extra-marital
    affair, but she did not become aware of it until after his arrest.

[61]

In
    cross-examination, Ms. Neal-Ellis described her husband as being controlling at
    times, high energy, domineering and behaving frenetically, to the extent
    she barely recognized him. She acknowledged that, in spite of all this, she did
    not seek medical help for him. She also acknowledged that she did not observe
    any unusual behaviour during the week of September 26th, when the Starbucks
    meeting had occurred.

[62]

The
    Crown tendered an affidavit of Lois Figg, Assistant Deputy Chair of the Refugee
    Protection Division of the IRB, and defence counsel cross-examined her on it.
    The records of the IRB showed that during the year ending September 2006, Mr.
    Ellis completed 196 claims, tying with one other adjudicator for the highest
    number of claims processed. She indicated that his case load was generally
    consistent with the IRBs scheduling norms, except for six particular weeks,
    centred around the summer of 2006, when he was scheduled to complete a greater
    number of cases than normal. There were other times during the year when he had
    fewer cases than normal.

[63]

It
    appeared to Ms. Figg that, but for the holiday he took in August 2006, he was
    working a regular schedule in the period July to September 2006. He made no
    claims for stress leave or workplace illness, other than normal sick leave.

[64]

The
    trial judge also heard expert evidence from two psychiatrists, Dr. Hill and Dr.
    Parikh. Medical reports of two other psychiatrists, Dr. Rootenberg and Dr.
    Ozersky, were filed in evidence as part of the information relied upon by Dr.
    Hill in the preparation of his report. To put the evidence of Dr. Hill and Dr.
    Parikh in perspective, I will briefly summarize the reports of Dr. Rootenberg
    and Dr. Ozersky.

[65]

Dr.
    Rootenberg was a forensic psychiatrist who assessed the appellant at the
    request of his lawyer. He interviewed the appellant twice in September 2007 and
    again in February 2009. He concluded that the appellant met the diagnostic
    criteria for Bipolar Affective Disorder, manifesting both depressive and manic
    symptoms. Another possible diagnosis was Bipolar II disorder, which includes
    depressive and hypomanic episodes. He concluded that the appellants conduct
    during the material time was markedly influenced by his mood instability and
    impulsivity, which impacted adversely on his judgment. Dr. Rootenberg noted
    that the appellant reportedly consumed more wine than usual on the date in
    question at a social event, which was uncharacteristic for him and may have
    disinhibited his conduct further.

[66]

Dr.
    Ozersky was the Senior Psychiatric Consultant to the Mood Disorders Clinic at
    the University Health Network. He conducted a psychiatric evaluation of the
    appellant in October 2007. He diagnosed the appellant as suffering from Bipolar
    II Disorder, rapid cycling type, and Attention Deficit Hyperactivity
    Disorder. It was Dr. Ozerskys opinion that the appellant was hypomanic at
    the time of his meeting with Ms. Kim at Starbucks.

[67]

Dr.
    Ozersky opined that during the time preceding the offence the appellant
    displayed other hypomanic behaviour, such as excessive spending (buying
    twenty-five silk ties), going on a European vacation that he could not afford,
    and requesting that his workload be increased. Dr. Ozersky regarded this last
    behaviour as an example of grandiosity. He also noted that the appellant had
    been conducting an extra-marital affair around the time of the offence and
    observed that although this could be an expression of very normal human
    behaviour, taken with his other behaviours it was an atypical expression of
    his underlying Bipolar Disorder. He concluded:

I believe at the time of the index incident, the bipolar
    disorder impaired his [judgment], made him impulsive, and he was grandiose
    enough to think he was the helpful saviour.

[68]

These
    last comments as to impulsivity and grandiosity must be understood in the
    context of the appellant having told Dr. Ozersky that he had accidentally met
    Ms. Kim at the café and had told her that he would be willing to be her
    friend and was willing to help her. He had denied any sexual intent. In
    other words, in recounting the events to his psychiatrist, the appellant had minimized
    the considerable and protracted planning and preparation that went into his
    meeting with Kim and did not disclose that his conduct was directed towards
    personal gratification.

[69]

Dr.
    Hill was a practicing psychiatrist who treated the appellant for four years
    after his arrest. He acknowledged that the Crowns expert, Dr. Parikh was an
    expert in the study and research of mood disorders and conceded that his own involvement
    in the area was limited to the clinical care of people with mood disorders. He
    said that he might at the time have 10 or 15 patients with bipolar disorder serious
    enough to require medication in his private practice. He diagnosed the
    appellant as having bipolar disorder.

[70]

He
    reviewed the medical reports of Dr. Ozersky and Dr. Rootenberg, as well as the
    recording of the meeting at Starbucks and the letters of support from the
    appellants colleagues and friends. It was Dr. Hills opinion that prior to and
    at the time of the offence the appellant was showing signs of mental illness
    consistent with Bipolar II disorder with hypomanic episodes. He described this
    disorder as: a clinical course that is characterized by the occurrence of one
    or more major depressive episodes[,] accompanied by at least one [h]ypomanic [e]pisode.
    He characterized a hypomanic episode as a distinct period during which there
    is an abnormally and persistently elevated, expansive, or irritable mood that
    lasts at least four days that is clearly different from the persons usual
    mood. During that period, at least three of these symptoms will have occurred:
    (a) inflated self-esteem or grandiosity; (b) decreased need for sleep; (c)
    excessive talkativeness; (d) flights of ideas; (e) distractibility; (e)
    increase in goal-directed activity; (f) excessive involvement in pleasurable
    activities that have a high potential for painful consequences, such as buying
    sprees, sexual indiscretions or foolish investments.

[71]

In
    his evidence, Dr. Hill expressed the opinion that he was quite comfortable in
    saying that [bipolar disorder] did play a part [in the appellants involvement
    in the offence]. The illness had a deleterious effect on his behaviour,
    causing him to act in an erratic and undisciplined way.

[72]

Dr.
    Parikh filed a report on behalf of the Crown. He also testified at trial. Dr.
    Parikh was the Deputy Psychiatrist-in-Chief at the University Health Network
    and a Professor of Psychiatry at the University of Toronto. He specialized in
    mood disorders, particularly bipolar disorder. He had served as head of the
    Bipolar Clinic at the Clarke Institute of Psychiatry (later CAMH) from 1994 to
    2002 and had written extensively on mood disorders. He had personally treated
    thousands of people with bipolar disorder and trained many hundreds of physicians
    on the diagnosis and management of bipolar disorder.

[73]

Having
    read the medical reports, including Dr. Hills, and having viewed the recording
    of the Starbucks meeting, Dr. Parikh concluded that the appellants behaviour
    at the time of the meeting at Starbucks could not be adequately explained by
    bipolar disorder. He concluded:

In summary, Mr. Ellis reports a number of unusual symptoms
    suggestive of some difficulties in mental health. However, the specific
    constellation of symptoms and signs, together with the context of the
    behaviours potentially demonstrating a hypomanic state, are only slightly
    supportive of the possibility that Mr. Ellis was in a bipolar 2 hypomanic state
    at the time of the offence. Furthermore, Mr. Ellis is noted to have approached
    Ms. Kim for further contact on July 17th at the end of the IRB hearing, on
    September 13th, September 22nd and on September 26th. Individuals in a
    hypomanic state might have made impulsive or poor decisions or behaviours on
    one or several closely timed occasions, but the persistence of behaviour from
    July through September suggests that hypomania would not be the reason for such
    behaviour. As such, bipolar 2 disorder does not adequately explain the
    behaviour of Mr. Ellis on September 26th.

In the body of his report, Dr. Parikh noted that it is
    unusual for hypomanic episodes to last more than a few weeks.

[74]

In
    addition to this evidence, the appellant filed 56 supportive reference letters at
    the sentencing hearing. The letter writers came from all walks of life, and
    included people who knew him in his public and private lives, lawyers who had
    appeared before him at the IRB, family members, co-workers and community
    leaders. All spoke highly of him, his excellent work at the IRB, his
    professionalism, integrity and strong work ethic. Many described his conduct in
    this case as entirely out of character. Some spoke of the suffering he and his
    family had endured as a result of the charges and conviction. Several indicated
    that his behaviour around the time of the offence seemed erratic, anxious and
    distracted.

[75]

I
    now turn to the trial judges reasons for sentence.

(2)

The Trial Judges Reasons for Sentence

[76]

After
    reviewing the facts and the general principles applicable to sentencing, the
    trial judge considered the aggravating and mitigating circumstances. The
    aggravating factors included:

·

the abuse of the appellants quasi-judicial position;

·

the abuse of a power imbalance, aggravated by the fact that Ms.
    Kim was young, female, and, to his knowledge, had been the victim of abuse by
    her husband and father;

·

his knowledge, as a lawyer and an IRB member, that his conduct
    was wrong;

·

the act was not impulsive, having been the culmination of two prior
    meetings; and

·

the fact that the appellants actions undermined the integrity of
    the IRB and of the refugee determination system in Canada.

[77]

The
    judge also considered the mitigating factors, including:

·

the appellants unblemished career and his otherwise positive
    record as an IRB adjudicator;

·

the impact of the offence on his wife and children, including the
    emotional and financial impacts flowing from the loss of his job;

·

the numerous letters in support of the appellant from friends,
    relatives and lawyers, who spoke to his competence, diligence, integrity and
    dedication to public service;



·

reference by some of the letter writers to their own observations
    of the appellants agitation, distress and fatigue in the months before the
    incident; and

·

the appellant had apologized to the complainant, and to his
    family and the community, for the harm he had done to them.

[78]

The
    trial judge found that although Dr. Hill was not an expert on bipolar disorder,
    he had been treating the appellant for almost four years on a regular basis,
    and his diagnosis of Bipolar II disorder was supported by Dr. Ozersky and Dr.
    Rootenberg. She therefore concluded that the appellant had bipolar disorder,
    and that it may have affected his judgment at the time of the offence. She found
    this was also a mitigating factor.

[79]

She
    noted, however, that his conduct was not impulsive. He first expressed interest
    in Ms. Kim after the hearing on July 17, 2006, when he asked where she worked
    and said he might come by. He went to her place of work twice, before actually
    meeting her on September 13, 2006. On his last visit to the restaurant, he
    suggested that they meet somewhere else so that they could talk about her case.
    This led to the meeting at Starbucks. On that occasion, as the trial judge noted,
    he arrived at the meeting, with her file in hand, prepared to discuss her
    case (at para. 52).

[80]

The
    trial judge concluded on this point, at para. 85:

I note, however, that Mr. Ellis conduct was not impulsive  it
    occurred over a period of time and was well planned. Mr. Ellis was otherwise
    functional at work during that period of time. Furthermore, while the hypomania
    may have affected Mr. Ellis judgment, he was, nonetheless, aware that what he
    was doing was wrong, and that he was placing both himself and Ms. Kim at
    significant risk.

[81]

The
    trial judge then turned to the determination of the appropriate sentence. The
    principal issue was whether a conditional sentence would be appropriate. In
    order to impose such a sentence:

(a)

the offence must be
    one that does not carry a  maximum term of 10 years or more, or a minimum term;

(b)

the court must impose
    a custodial sentence of less than two years;

(c)

service in the
    community would not endanger the safety of the community; and

(d)

a conditional sentence
    would be consistent with the fundamental purpose and principles of sentencing.

(
R. v. Proulx
, 2000 SCC 5, [2000] 1 S.C.R.
    61, at para. 46.)

[82]

The
    first requirement was satisfied because the offence carried a maximum term of
    five years imprisonment and there was no minimum sentence.

[83]

In
    considering the second factor  whether  a sentence of less than two years was
    appropriate  the trial judge reviewed a number of cases involving breach of
    trust by public officials, including cases in which mental illness may have
    played a part in the offenders conduct:
R. v. Bournbonnais
(28 June
    2006), unreported (Que. S.C.);
R. v. Ramsay
, 2004 BCSC 756, 22 C.R.
    (6th) 76;
R v. Bispo
, 2004 ONCJ 331, 67 W.C.B. (2d) 346;
R. v.
    Davies
(2005), 199 C.C.C. (3d) 389 (Ont. C.A.);
R. v. Power
, 2009
    BCSC 1514, [2009] B.C.J. No. 2194, varied, 2010 BCCA 21, 281, B.C.A.C. 152;
[4]

R. v. Gagnon
, [2003] O.J. No. 5583 (S.C.).

[84]

The
    trial judge took from these authorities that the overriding principles to be
    applied in breach of trust cases are general deterrence and denunciation (at
    para. 91). She noted that in many breach of trust cases, the offenders, like
    the appellant, had no prior criminal record, were upstanding members of the
    community and they and their families had paid a significant price for their
    offence.

[85]

Having
    considered all the aggravating and mitigating factors, including that the
    appellants judgment may have been impaired by his bipolar disorder, she
    concluded that a sentence of less than two years would be appropriate. Thus,
    the second criterion for a conditional sentence was met.

[86]

The
    third requirement was also met. The trial judge found that the appellant was
    aware of the consequences of his conduct and she accepted his psychiatrists opinion
    that he was at minimal risk to re-offend.

[87]

The
    final question was whether a conditional sentence would be consistent with the
    fundamental purpose and principles of sentencing. The trial judge considered
    whether the sentencing objectives of denunciation and general deterrence could
    be met by serving the sentence in the community.  She noted that there were
    breach of trust cases falling on either side of the issue.

[88]

In
    some cases, courts had concluded that a conditional sentence could adequately
    serve the objective of denunciation and deterrence:
R. v. Bunn
, 2000
    SCC 9, [2000] S.C.R. 183;
R. v. Lawson
, [2001] O.J. No. 1562 (S.C.);
R.
    v. Moore
(27 July 2007), unreported (Ont. S.C.);
Bispo
.

[89]

In
    other cases, courts had found that denunciation and deterrence would not be
    satisfied by a conditional sentence:
R. v. Shoniker
, [2006] O.J. No.
    5368 (S.C.);
Davies
.

[90]

Ultimately,
    the trial judge concluded that the blameworthiness of the appellants conduct,
    the gravity of his breach of trust, and the impact of the offence on the
    justice system, demanded a period of imprisonment to satisfy the requirements
    of general deterrence and denunciation. Her reasons, at paras. 105-110, bear repeating
    in full:

It is my opinion, however, that Mr. Ellis conduct was of
    comparable blameworthiness [to cases involving fraud or sexual assault by
    persons in a position of trust]. Mr. Ellis had enormous power over Ms. Kim: her
    entire future rested on his decision. She told Mr. Ellis that a positive
    decision was like saving my life. Any consent that she might have given to a
    sexual relationship in these circumstances could hardly have been voluntary.

Not all breaches of trust are equally grave. The position that
    Mr. Ellis had is an important factor in determining the seriousness. As an
    adjudicator in a quasi-judicial position, he stood near the top of the spectrum.
    While it is arguable that a breach of trust offence committed by an adjudicator
    should be treated more leniently than an offence committed by a judge, the
    decisions that Mr. Ellis made had a far more significant impact on the lives of
    the people who appeared before him than many of the decisions that judges make.

Mr. Ellis held a position of prestige, privilege and power. His
    acts not only harmed Ms. Kim. Individuals appearing before the IRB and members
    of the public are entitled to expect only the highest standards of conduct. In
    particular, they are entitled to expect that decisions will be rendered fairly
    and impartially, without reference to any extraneous considerations.

Mr. Ellis breached the significant trust that had been placed
    in him and the obligations that he bore to the people who appeared before him
    and to the Canadian public. His actions undermined public confidence in the
    integrity of the Canadian immigration and refugee system and in the
    administration of justice.

The justice system is one of the pillars of the free and
    democratic society that we, as Canadians, enjoy. The cornerstone of that
    justice system is the rule of law and the values of fairness, integrity and
    respect. Mr. Ellis actions struck at the core of those values. They call for
    denunciation in the strongest terms.

In my opinion, in these circumstances, and notwithstanding the
    significant mitigating factors, the principles of general deterrence and
    denunciation require a period of imprisonment.

[91]

In
    the result, the trial judge imposed a sentence of 18 months imprisonment.

(3)

Fresh Evidence Application

[92]

The
    appellant brought an application for leave to introduce fresh evidence on the
    appeal. The evidence consisted of his affidavit dated July 11, 2013, attaching
    five exhibits: (a) a second report of Dr. Ozersky, dated April 23, 2009; (b) a
    report of the appellants psychotherapist, dated July 11, 2013, concerning his
    treatment, his prognosis and the impact of incarceration on his mental health;
    (c) a letter from the appellants employer, dated July 11, 2013, stating that
    if given house arrest he would be offered full-time employment; (d) a letter
    from the appellants pastor, dated July 11, 2013; and (e) a reference letter
    from the Cabbagetown Youth Centre, dated July 10, 2013, where the appellant
    volunteered.

[93]

The
    test for the admission of fresh evidence is set out in
R. v. Palmer,
[1980]
    1 S.C.R. 759, at p. 775:

(1) The evidence should generally not be admitted if, by due
    diligence, it could have been adduced at trial provided that this general
    principle will not be applied as strictly in a criminal case as in civil cases:
    see
McMartin v. The Queen
.

(2) The evidence must be relevant in the sense that it bears
    upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is
    reasonably capable of belief; and

(4) It must be such that if believed it could reasonably, when
    taken with the other evidence adduced at trial, be expected to have affected
    the result. [Citation Omitted.]

(See also,
R. v. Phillion
, 2009 ONCA 202, 241
    C.C.C. (3d) 193, at paras. 160-62;
Truscott (Re)
, 2007 ONCA 575, 225
    C.C.C. (3d) 321, at paras. 92-93.)

[94]

The
    key piece of fresh evidence the appellant seeks to rely upon is an additional
    report of Dr. Ozersky, which was written before the sentencing hearing. Dr.
    Ozersky did not testify at the sentencing hearing, nor was his report put in
    evidence by the defence. His original report was simply filed, with the agreement
    of counsel, as one of the reports Dr. Hill had considered in the preparation of
    his own report. As I have noted, that report had a serious weakness  namely,
    the appellant had told Dr. Ozersky that he had accidently met Ms. Kim at a
    coffee shop, offered to be her friend, was willing to help her and that he had
    denied any sexual intent. It appears that Dr. Ozersky had not seen the video
    recording at the time of his original report and he was unaware that the
    meeting was a carefully planned attempt to procure sex in exchange for a
    favourable ruling on Ms. Kims refugee application.

[95]

It
    appears, therefore, that the decision not to introduce Dr. Ozerskys original
    report in evidence, or to call him as a witness at trial, was a deliberate
    tactical decision made by defence counsel. Moreover, I am not satisfied that
    defence counsel was unaware of the existence of the second report or could not
    have become aware of it through the exercise of reasonable diligence. Nor has
    the appellant established that Dr. Hill considered Dr. Ozerskys second report
    in the preparation of his own report, with the result that the second report
    would not be admissible on the same limited basis as the first report.

[96]

The
    appellant chose not to testify at trial and at the sentencing hearing. Having
    made a tactical decision not to do so, his evidence concerning the events
    surrounding the incident, and between the incident and his sentencing, should
    not be admitted.

[97]

The
    balance of the proposed fresh evidence is of the same tenor as the evidence
    adduced on the sentencing hearing and would not have affected the result.

[98]

For
    these reasons, I would dismiss the fresh evidence application.

[99]

I
    turn to the parties submissions on appeal.

(4)

The Submissions on Appeal

[100]

The appellant acknowledged
    in the court below and in this court that breach of trust by a judicial officer
    will normally require a sentence that emphasizes denunciation and deterrence.
    He submitted, however, that these principles are attenuated when the offender
    has a mental illness.

[101]

He made two
    principal submissions.  First, he submitted that the trial judge minimized the extent
    of his bipolar disorder. He argued that hypomania could last for weeks or
    months if not treated and that he was hypomanic in weeks before and during the
    September 26 meeting. The trial judge failed to appreciate that his hypomanic
    state diminished his culpability, and this error undermines her decision to
    impose a term of incarceration.

[102]

The appellants
    second submission was that the trial judge erred in principle by relying almost
    exclusively on denunciation and deterrence and giving insufficient weight to
    the need for treatment and rehabilitation. While she treated his bipolar
    disorder as a mitigating factor, she failed to account for it when she
    considered the appropriate sentence.

[103]

The Crown
    submits that the trial judge displayed a balanced and fair approach to the
    issue of the appellants mental illness. She concluded that the appellants
    illness played a causal role in the commission of the offence. It was for her to
    determine the extent of that role.

[104]

The Crown says
    that having heard the evidence of the psychiatrists, and having read their
    reports, the trial judge concluded that although the appellant had a mental
    illness that may have affected his judgment, his conduct was planned, occurred
    over a considerable period of time, he knew it was wrong and knew he was taking
    a risk. She took into account that the appellant had attempted to mislead his
    psychiatrist about the circumstances of his encounter with Ms. Kim, making his
    conduct appear accidental and altruistic. These findings were within her domain
    and were available to her on the evidence.

(5)

Analysis

[105]

A sentencing
    judge is entitled to deference, as to both the sentence imposed and the
    underlying facts regarding the offence: see
R. v. Majnoon
, 2009 ONCA
    876, 257 O.A.C. 108, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 288,
per
Feldman J.A., dissenting on another issue, at para. 14, referring
to
R. v. M. (C.A.)
,
[1996] 1
    S.C.R. 500
, at para. 91.
In
R.
    v. L.M.,
2008 SCC 31, [2008] 2 S.C.R. 163, at paras. 14-15, the Supreme
    Court confirmed the applicable principles:

In its past decisions, this Court has established that
    appellate courts must show great deference in reviewing decisions of trial
    judges where appeals against sentence are concerned. An appellate court may not
    vary a sentence simply because it would have ordered a different one. The court
    must be "convinced it is not fit", that is, "that ... the
    sentence [is] clearly unreasonable" (
R. v. Shropshire
,
[1995] 4 S.C.R. 227
,
    at para. 46, quoted in
R. v. McDonnell
,
[1997] 1 S.C.R. 948
,
    at para. 15). This Court also made the following comment in
R. v. M. (C.A.)
,
[1996] 1 S.C.R. 500
,
    at para. 90:

... absent an error in principle, failure to consider a
    relevant factor, or an overemphasis of the appropriate factors, a court of
    appeal should only intervene to vary a sentence imposed at trial if the
    sentence is demonstrably unfit.

(See also
R. v. W. (G.)
,
[1999] 3 S.C.R. 597
,
    at para.
19; A. Manson,
The Law of Sentencing
(2001),
    at p. 359; and F. Dadour,
De la détermination de la peine: principes et
    applications
(2007), at p. 298.)

Owing to the profoundly contextual nature of the sentencing
    process, in which the trier of fact has broad discretion, the standard of
    review to be applied by an appellate court is one based on deference. The
    sentencing judge has "served on the front lines of our criminal justice
    system" and possesses unique qualifications in terms of experience and the
    ability to assess the submissions of the Crown and the offender (
M. (C.A.)
,
    at para. 91). In sum, in the case at bar, the Court of Appeal was required -
    for practical reasons, since the trier of fact was in the best position to
    determine the appropriate sentence for L.M. - to show deference to the sentence
    imposed by the trial judge.

[106]

I approach the
    sentence appeal having regard to these principles. Did the trial judge commit
    an error in principle, fail to consider a relevant factor or overemphasize
    appropriate factors? If not, is the sentence nevertheless demonstrably unfit?

[107]

The trial judge
    found that the appellants mental illness was a mitigating factor, reducing the
    sentence he would otherwise have received to a sentence of less than two years.
    The issue then before her was whether his culpability for the offence was
    sufficiently attenuated by his mental illness to adjust the balance of the
    sentencing principles in favour of his rehabilitation and away from
    denunciation and deterrence.

[108]

The appellant
    did not testify at the sentencing hearing. It was left to the trial judge to
    determine, having regard to all the evidence, including the circumstances of
    the offence and the expert evidence, the extent to which his culpability may
    have been reduced by his mental illness.

[109]

In this regard, the
    trial judge made findings of fact that are grounded in the evidence and are
    entitled to deference:

·

the appellant knew what he was doing was wrong;


·

he was aware of the significant risk he was taking, and was
    willing not just to assume that risk for himself, but also to place Ms. Kim at
    risk;

·

the offence was not an impulsive act; rather, it occurred over a
    period of time and was well planned (at para. 85); and

·

he was otherwise functional at work during the relevant time
    period.

[110]

There was ample support
    for the conclusion that the appellants actions were well planned. From the day
    of the hearing to the day of the meeting at Starbucks, he pursued her. He went
    to the restaurant where she worked on four separate occasions in an eight week
    period. He escalated the level of engagement at each of his three meetings with
    her, after evaluating her vulnerability, her degree of concern and securing her
    confidence. On the day of the third meeting, at Starbucks, he called her twice
    to make the arrangements. Both times he used public pay phones, rather than his
    cell phone. The trial judge found that this was to avoid leaving an evidentiary
    trail.

[111]

These findings
    were central to the trial judges conclusion. While the appellants bipolar
    disorder may have affected his judgment at the time of the offence, it did not
    reduce his culpability to the point that a focus on his rehabilitation
    outweighed the need for a sentence consistent with denunciation and deterrence
    that would normally result from the abuse of his position of trust.

[112]

Having seen and
    heard the expert psychiatric evidence, the trial judge was aware that the
    diagnosis of Bipolar II Disorder was based on the presence of depressive
    episodes accompanied by hypomanic episodes. Hypomania does not mean extreme
    mania; it means less than mania. Dr. Hill described hypomania as a milder
    form of mania. He said that in a hypomanic episode:

Sociability is usually increased, and there may be an increase
    in sexual activity or interest. There may be impulsive activity such as buying
    sprees, reckless driving or foolish business investments. However, such
    activities are usually organized, are not bizarre
and do not result in the
    level of impairment that is characteristic of a manic episode.
[Emphasis
    added].

[113]

Similarly, Dr.
    Parikh, who was an acknowledged expert in mood disorders, particularly bipolar
    disorder, had this to say:

Individuals with bipolar 2 disorder have an episodic illness.
Most
    of the time between episodes, individuals have no symptoms and can function
    normally
. When in a depressive episode, individuals often function poorly,
    with problems dependent on the severity of the depression. When hypomanic,
    however, functioning may be improved. For example, individuals often experience
    increased energy, increased creativity, and increased productivity during a
    hypomanic episode. Some areas of functioning, such as getting along with
    people, may be worsened during hypomania if the individual shows impatience,
    irritability, or inappropriateness towards others.
If there are
    inappropriate behaviours with others, it [sic] would be mild and within a
    persons understanding of right and wrong, analogous to a person with mild
    alcohol intoxication who says or does something inappropriate. By definition,
    hypomanic episodes are mild and do not result in any major disability
.
    [Emphasis added].

[114]

The trial
    judges conclusions on the impact of the offence on the appellants culpability
    are consistent with these opinions.

[115]

As well, the trial
    judge was entitled to consider the fact that the appellants condition had
    never reached a level that he or his wife considered treatment (prior to his
    suspension from the IRB). Moreover, most of his symptoms were self-reported
    and, as the trial judge noted, he was not always forthright with his
    psychiatrist. Both the appellant and his wife had an interest in exaggerating
    his symptoms. In fact, the evidence was that he was performing normally at
    work.

[116]

The authorities,
    some of which were referred to by the trial judge, indicate that it is not
    enough to determine that the offender had a mental illness at the time of the
    offence. The trial judge must also determine the extent to which that illness
    contributed to the conduct in question and the impact of that finding on the
    appropriate sentence. The trial judge will consider whether there a causal
    connection between the offenders mental illness and the commission of the
    offence and, if so, whether it diminished the offenders culpability.

[117]

There is no
    doubt that an offenders mental illness is a factor to be taken into account in
    sentencing. Where mental illness plays a role in the commission of the offence,
    the offenders culpability may be diminished, punishment and deterrence may be
    ineffective or unnecessary and treatment and rehabilitation of the offender may
    be paramount considerations. As this court explained in
R. v. Batisse
,

2009 ONCA 114, 93 O.R. (3d) 643, at para. 38:

here the appellant's mental health problems played a central
    role in the commission of the offence. In such circumstances, deterrence and
    punishment assume less importance. 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), 194 Nfld. &
    P.E.I.R. 184
(Nfld. C.A.), at paras. 18-19.

[118]

In
Batisse
,
    Gillese J.A. found that the appellants mental health issues played a central
    role in the commission of the offence. She was described as having serious
    mental health challenges, which were the product of an atrocious childhood and
    an abusive early adulthood (at para. 39). The court found that these mental
    health challenges led to the commission of the offence. The appellant was
    remorseful and pleaded guilty.

[119]

This courts
    decision in
Davies
, one of those considered by the trial judge, also illustrates
    the point well. A crown attorney pleaded guilty to four offences involving
    fraud and breach of trust, two of which related to the performance of his
    duties. He had a history of bipolar disorder and had been treated with
    medication for some seven years prior to the offences. The sentencing judge
    concluded that his behavior was not attributable to his mental illness and
    sentenced him to a total of two years less a day imprisonment.

[120]

In varying the sentence,
    this court concluded that the sentencing judge misconstrued the evidence
    concerning the relationship between the offenders mental illness and the
    crimes he had committed and failed to consider certain other evidence.
    Specifically, in finding the offenders medication was always in the
    therapeutic range, the sentencing judge ignored the uncontested evidence of one
    of his physicians that his medications were not sufficient to prevent a manic
    episode. Second, the same physicians opinion was that during the relevant time
    the offender was in an uncontrolled state of hypomania (at para. 30). In the
    circumstances, Blair J.A. substituted a blended sentence of twelve months less
    a day in custody plus a 12 month conditional sentence, to run consecutive with
    the term of incarceration.

[121]

R. v.
    Dickson
, 2007 BCCA 561, 228 C.C.C. (3d) 450, is another example. The
    appellant, a book-keeper, forged cheques for her personal benefit. She had
    undiagnosed and untreated bipolar disorder at the time of the offence. Her
    psychiatrist opined that there was a direct causal connection between her
    mental illness and the commission of the offences. In allowing an appeal from a
    sentence of twelve months imprisonment, and substituting a conditional
    sentence, Finch C.J.B.C. stated, at para. 70:

In my respectful opinion, a sentence of imprisonment is unfit
    in these circumstances. It cannot be necessary in the interests of general
    deterrence for serious theft, to incarcerate someone who is mentally ill when
    the offences were committed, whose mental illness was a cause of her committing
    the offences, who pleads guilty, who makes restitution, and who undertakes an
    appropriate course of medical treatment. To the extent that public opinion is
    relevant to the principle of general deterrence, I am satisfied that reasonable
    citizens informed of all the relevant circumstances in this case would consider
    that the provisions of the
Criminal Code
and the ends of justice are
    met by a conditional sentencing order.

[122]

In contrast to
    these cases, in my view, the sentence here was fit and the trial judge made no
    error to warrant this courts intervention. The trial judge took a balanced,
    insightful and fair approach to the appellants mental illness. She found it
    mitigated the sentence that he would otherwise receive, but that it did not
    result in such a reduced culpability to displace the need for a denunciatory
    and deterrent sentence. This balanced approach was entirely within her domain.
    In applying this approach, she understood the evidence and gave appropriate
    consideration to the relevant sentencing principles.

[123]

Absent
    significantly reduced culpability, the circumstances required a denunciatory
    and deterrent sentence. As a refugee claim adjudicator, the appellant
    represented Canada. He held Ms. Kims future in his hands. He used his office
    and power to offer her a choice: Have sex with me and stay in Canada, or dont
    have sex with me and you will be sent back to Korea. Knowing that she had been
    abused by men  her father in Korea and her husband in Canada  and knowing she
    had no status in Canada and feared returning to Korea, he exploited her
    vulnerability so that he could abuse  her himself.

[124]

The appellants
    plan was conceived at the hearing in mid-July, pursued on his visits to the
    restaurant where Ms. Kim worked, solidified with the invitation to coffee on
    the visit on September 22, and the trap was sprung at Starbucks on September
    26.

[125]

The appellants
    conduct at Starbucks demonstrates the extent of his planning. As the trial judge
    noted, he brought his draft decision with him and, like a salesman, dangled the
    bait in front of her, showing how she could help him change the no to a yes:
    she would be his girlfriend and they would do things together on the side.
    Even then, he was making no promises, except that they would meet on the day
    before he finalized his decision to have a celebration. Plainly, he was going
    to see whether she was prepared to submit to him before he considered changing
    his decision on her refugee claim.

[126]

Equally planned
    was the appellants exploitation of Ms. Kims vulnerability and fear of
    deportation, not only to extort sex, but to procure her silence. The clear
    implication was, if you tell anyone about this, I will be in trouble, but you
    will go back to Korea.

[127]

In doing these
    things, the appellant not only betrayed Ms. Kim, he betrayed his duty to his
    office and to his country.

D.

CONCLUSION

[128]

The appellant
    tried to obtain a sexual relationship in exchange for a favourable decision. He
    held the complainants future in his hands and breached the trust inherent in
    his position. The appropriate sentence for this conduct is a difficult matter.
    While his mental illness played some role in his actions, I cannot conclude
    that the trial judge erred in sentencing him to a term of imprisonment.

[129]

For the
    foregoing reasons, I would dismiss the appeal from conviction. I would grant
    leave to appeal the sentence and dismiss the appeal.

G.R. Strathy J.A.

I agree.  E.E. Gillese J.A.




Laskin J.A. (Dissenting in part):

[130]

I have read the thorough reasons of Strathy J.A.  I agree that Ellis
    conviction appeal should be dismissed, for the reasons given by my colleague. 
    However, I do not agree with his proposed disposition of Ellis sentence appeal. 
    In my opinion, a conditional sentence of 18 months on strict terms, including
    house arrest, would be fit and would be consistent with the fundamental purpose
    and principles of sentencing.

A.

overview

[131]

Ellis was convicted of breach of trust by a public officer, contrary to
    s. 122 of the
Criminal Code
.  The trial judge accepted that judges can
    and have imposed a conditional sentence for breach of trust.  Nonetheless, she
    rejected a conditional sentence and imposed a custodial sentence of 18 months. 
    In her view, because of the seriousness of the offence, the principles of
    general deterrence and denunciation required a term of incarceration.  Strathy
    J.A. has concluded that she made no error warranting this courts
    intervention.  I disagree.  In my view, the following three considerations
    justify this courts intervention and the imposition of a conditional
    sentence:  the impact of Ellis mental illness; his rehabilitation; and the
    collateral consequences of his conviction.

[132]

First, the impact of Ellis mental illness
. 
    The trial judge accepted that Ellis suffered from Bipolar II Disorder, which is
    characterized by depression and hypomanic behaviour.  However, she minimized
    its impact by concluding that it may have affected his judgment only at the
    time of the offence on September 26, 2006.  In my view, the medical and other
    evidence shows that Ellis mental illness impaired his judgment over the entire
    course of his dealings with Ms. Kim.  Case law from this court and other
    appellate courts affirm that where, as in this case, mental illness contributes
    to the commission of an offence, vindicating general deterrence and
    denunciation becomes less important.

[133]

Second, Ellis rehabilitation
.  The trial
    judge did not take into account Ellis rehabilitation.  Up to and at the time
    of the incident, Ellis mental illness was undiagnosed and therefore
    untreated.  Since the incident, it has been diagnosed and successfully
    treated.  For the past seven years, he has been under the care of a
    psychiatrist and a psychotherapist, and taking medication for his illness.  To
    now incarcerate him would be inconsistent with his rehabilitation, a
    fundamental principle of our sentencing regime.

[134]

Third, the collateral consequences of Ellis
    conviction
.  These consequences have been severe:  Ellis and his family
    have been publicly humiliated; his involvement in the life of the community 
    so central to his personal and professional life for so many years  has ended;
    his licence to practice law was suspended; and, of course, his position as an
    adjudicator with the Immigration and Refugee Board was terminated.  In
    rejecting a conditional sentence, the trial judge did not give weight to these
    collateral consequences.  Yet these consequences, coupled with a conditional
    sentence, sufficiently denounce and deter Ellis offending conduct.

B.

background

[135]

Strathy J.A. has thoroughly reviewed the facts giving rise to Ellis
    conviction.  I need not repeat them here.  Without question, Ellis committed a
    very serious breach of trust.  I accept my colleagues characterization of the
    offence:  In doing these things, the appellant not only betrayed Ms. Kim, he
    betrayed his duty to his office and to his country.

[136]

Ellis is now in his mid-50s.  Apart from this incident, he has led an
    exemplary and unblemished professional life, devoted to public service.  He
    served two terms as a member of Toronto City Council, did volunteer work with
    several charitable organizations, and then in 2000, accepted a position as an IRB
    adjudicator, where for six years he was one of the Boards hardest workers and
    top producers.

[137]

The numerous letters filed by the defence at the sentencing hearing 
    from community workers, colleagues, other practicing lawyers and family members
     speak to Ellis integrity, fairness and dedication.  He assisted people who
    were marginalized or less fortunate, he gave generously of his time, and he was
    highly regarded as a lawyer, politician and adjudicator.

[138]

For example, one lawyer who knows Ellis wrote: I have always been
    deeply impressed by Mr. Ellis integrity and dedication to public service.  Mr.
    Ellis tireless efforts on behalf of his constituents when he was a City
    Councillor was exemplary.  An immigration lawyer who appeared before Ellis at
    the IRB said of him: His decisions were respected; his impartiality and his
    competence were unquestioned.  Another immigration lawyer who appeared before
    him said:

In my role as counsel, Mr. Ellis was always fair-minded and
    reasonable to deal with and I can truly say that his reputation amongst my
    colleagues in the immigration/refugee bar was that of a professional,
    reasonable and fair Board Member who ensured that natural justice prevailed in
    his hearing room.  I know that every client of mine who appeared before him was
    treated with respect, dignity and sensitivity and walked out of the hearing
    room knowing that they had been treated fairly by Mr. Ellis.  This is much more
    than I can say for many of the other hundreds of Board Members I have appeared
    before over the years.

[139]

A theme of many of the supporting letters was that Ellis offence was
    completely out of character  inconsistent with the qualities of the member
    that determines so many of my cases, said one refugee lawyer; this was
    completely out of character for him as we knew him on the Board, said another
    lawyer.

[140]

At the end of the sentencing hearing, Ellis spoke of his remorse for
    what he had done.  At para. 66 of her reasons, the trial judge noted:

At the conclusion of the sentencing hearing, Mr. Ellis spoke of
    the shame he feels for his conduct.  He recognizes the harm that he has done
    and the pain he caused to Ms. Kim, his wife, his children and the community. 
    He apologized to them.

[141]

The trial judge also found that Ellis met three of the four criteria
    under s. 742.1 of the
Criminal Code
for the imposition of a
    conditional sentence:  the offence under s. 122 of the
Code
does not
    have either a minimum term of imprisonment or a maximum term of 10 years or
    more; the appropriate sentence would be less than two years; and serving the
    sentence in the community would not endanger the safety of the community.

[142]

The choice between incarceration and a conditional sentence turned on
    the fourth criterion:  whether a conditional sentence would be consistent with the
    fundamental purpose and principles of sentencing.  I disagree with the trial
    judges conclusion that it would not be.

C.

discussion

[143]

This court and other courts have said that in breach of trust cases, the
    two most important sentencing principles are general deterrence and
    denunciation. To put in context my opinion that neither calls for a jail term
    for Ellis, I make two points.

[144]

First, a conditional sentence with appropriate conditions can provide
    ample deterrence and denunciation:  see
R. v. Proulx
, 2000 SCC 5,
    [2001] 1 S.C.R. 61 at paras. 102-107.

[145]

Second, as the Supreme Court of Canada and this court have said many
    times, sentencing is an individualized process; the sentence for Ellis must
    take proper account of his mental illness, his rehabilitation and the
    collateral consequences of his conviction.  These considerations justify a
    conditional sentence for Ellis.

(1)

Ellis Mental Illness

(a)

The Medical Evidence

[146]

Four medical reports were before the sentencing judge  three filed by
    the defence and one by the Crown.

[147]

The main defence report was by Dr. Wood Hill, an experienced general and
    forensic psychiatrist, who at the time was a consultant psychiatrist at the
    Whitby Mental Health Centre, and had been treating Ellis for nearly four years.

[148]

Dr. Hill appended to his report two other psychiatric reports, which he
    reviewed in giving his opinion:  a report from Dr. Sam Ozersky, the Senior
    Psychiatric Consultant to the Mood Disorders Clinic at the University Health
    Network; and a report from Dr. Jonathan Rootenberg, a staff psychiatrist in the
    Law and Mental Health Program at the Centre for Addiction and Mental Health,
    and a faculty member in the Faculty of Medicine at the University of Toronto. 
    Both Dr. Ozersky and Dr. Rootenberg independently examined and evaluated Ellis.

[149]

In addition, Dr. Hill gave oral evidence at the sentencing hearing and
    was cross-examined by the Crown.  I see no indication in the record that the
    Crown asked to examine either Dr. Ozersky or Dr. Rootenberg.

[150]

The Crown filed the report of Dr. Sagar Parikh, a Professor of
    Psychiatry at the University of Toronto and Deputy Psychiatrist-in-Chief for
    the University Health Network.  Although my colleague refers to Dr. Parikhs
    report in his reasons, the trial judge discounted his opinion, appropriately in
    my judgment, because Dr. Parikh never met with Ellis and never spoke to any of
    the three psychiatrists who examined Ellis.

(b)

The Nature of Ellis Mental Illness

[151]

In considering Ellis mental illness, I will focus on the medical
    evidence filed by the defence as did the trial judge.  She accepted this
    evidence and concluded that Ellis had shown on a balance of probabilities that
    he has a bipolar disorder, which may have affected his judgment at the time of
    the offence.  However, to fairly assess the impact of Ellis mental illness on
    his culpability, it becomes important to examine more precisely what Drs. Hill,
    Ozersky and Rootenberg said.  I will do so in this section and the following
    section of my reasons.

[152]

In Dr. Ozerskys opinion, Ellis suffers from Bipolar II Disorder as
    specified in the DSM-IV.  Dr. Rootenberg generally concurred, calling Ellis
    mental illness a Bipolar Affective Disorder (formerly known as manic depressive
    illness).  Dr. Hill agreed with the diagnoses and opinions of Dr. Ozersky and Dr.
    Rootenberg.

[153]

Bipolar II Disorder or Bipolar Affective Disorder is characterized by
    episodes of depression and episodes of hypomania.  According to Dr. Hill, a
    hypomanic episode is defined as a distinct period during which there is an
    abnormally and persistently elevated, expansive or irritable mood that lasts at
    least four days that is clearly different from the persons usual mood.

(c)

The Impact and Duration of Ellis Mental Illness

[154]

The critical issues on which I disagree with the trial judge and my
    colleague concern the impact of Ellis mental illness on his behaviour and
    especially the duration of that impact.

[155]

The relevant time frame to assess the impact of Ellis mental illness is
    approximately 10 weeks.  Ms. Kims IRB hearing was on July 17, 2006; Ellis went
    to the Ninth Gate Restaurant on September 13, 2006 and then on September 22,
    2006; the meeting at Starbucks took place on September 26, 2006.

[156]

The trial judge accepted that Ellis mental illness may have affected
    his judgment but only at the time of the offence.  She said:

Ellis conduct was not impulsive  it occurred over a period of
    time and was well planned.  Mr. Ellis was otherwise functional at work during
    that period of time.

[157]

Strathy J.A. has concluded that [t]here was ample support for the
    conclusion that the appellants actions were well planned.  At para. 110 of
    his reasons, he writes:

From the day of the hearing to the day of the meeting at
    Starbucks, he pursued her.  He went to the restaurant where she worked on four
    separate occasions in an eight week period.  He escalated the level of
    engagement at each of his three meetings with her, after evaluating her
    vulnerability, her degree of concern and securing her confidence.  On the day
    of the third meeting, at Starbucks, he called her twice to make the
    arrangements.  Both times he used public pay phones, rather than his cell
    phone.  The trial judge found that this was to avoid leaving an evidentiary
    trail.

[158]

In these passages, the trial judge and my colleague make two important
    points about the impact of Ellis mental illness.  Their first point is to draw
    a distinction between impulsive conduct and planned conduct; they suggest that
    the former may be characteristic of hypomania, but that the latter is not. 
    Their second point flows from the first:  because Ellis seemed to plan many of
    his interactions with Ms. Kim, he was not hypomanic much of the time he dealt
    with her.

[159]

I disagree with both points.  First, the medical evidence does not
    support the distinction drawn by the trial judge and my colleague.  The
    behaviour of persons suffering from hypomania may be impulsive and erratic, or
    it may be productive and planned.  That is evident from the recognized symptoms
    of the disease.  Dr. Hill listed these symptoms of a hypomanic episode:

During this period of mood disturbance, three or more of the
    following symptoms will have persisted (four if the mood is only irritable) and
    will have been present to a significant degree:

(a)

Inflated self-esteem or
    grandiosity;

(b)

Decreased need for sleep (e.g.,
    feels rested after only three hours of sleep);

(c)

More talkative than usual or
    pressure to keep talking;

(d)

Flight of ideas or subjective
    experience that thoughts are racing;

(e)

Distractibility (e.g., attention
    too easily drawn to unimportant or irrelevant external stimuli);

(f)

Increase in goal-directed
    activity (either socially, at work or school, or sexually) or psychomotor
    agitation;

(g)

Excessive involvement in
    pleasurable activities that have a high potential for painful consequences
    (e.g., the person engages in unrestrained buying sprees, sexual indiscretions,
    or foolish business investments).

[160]

Some of these symptoms may reflect conduct that is impulsive (for
    example, an unrestrained buying spree); other symptoms may reflect conduct that
    is seemingly well planned (for example, goal-directed activity at work). 
    Indeed, Dr. Hill testified that persons suffering from hypomanic episodes are
    often highly functional and productive during these periods.  Yet these
    individuals typically lack insight into their emotions, and may be hostile to
    any suggestion that they need medical help.  According to Dr. Hill, poor
    judgment, an inability to reflect, and an inability to act in a sensible way
    are absolutely features of this mental illness.

[161]

Second, Ellis was hypomanic in the months leading up to the offence in
    September 2006.  He exhibited most, if not all, of the recognized symptoms of
    hypomania.  At times, his behaviour was erratic, grandiose and impulsive.  He
    bought 25 silk ties all at once.  In August, he took his family on an unplanned
    trip to Europe that he could not afford.  He had an affair.  All of this
    behaviour was highly uncharacteristic.

[162]

At times, however, Ellis behaviour was functional, productive and
    planned.  He took on an enormous workload at the Board, and became one of its
    hardest workers and highest producers.  And he orchestrated his meetings with
    Ms. Kim.  This seemingly well planned behaviour is consistent with the actions
    of a person whose judgment is impaired by hypomania.  Although a person who engages
    in this kind of behaviour is not necessarily hypomanic, Drs. Hill, Ozersky and
    Rootenberg were uniformly of the opinion that from the time he first met Ms.
    Kim to the time he committed the offence in September 2006, Ellis was suffering
    from hypomania, and that his hypomania impaired his judgment.

[163]

Dr. Hill, the psychiatrist who knew Ellis best, was of the opinion that
    for the bulk of 2006, and probably earlier, Mr. Ellis was not mentally well. 
    Dr. Hill elaborated:

In my opinion, Mr. Ellis was showing signs of mental illness
    consistent with the above-listed criteria for Bipolar II Disorder with
    Hypomanic Episodes prior to and at the time of the offence.  The illness was
    such that it deleteriously affected his judgment.  His behaviour and thinking
    around the time of the offences was not typical of his usual prior functioning.

Mr. Ellis reported that, for a considerable period leading up
    to the offences, he was subjectively anxious, worrying and ruminating about the
    fate of immigration applicants who appeared before him daily.  He was
    evidencing sleep disturbance and experiencing nightmares in which violence with
    political backdrops were prominent.

Over the course of the spring and summer of 2006, Mr. Ellis
    became more irritable and erratic in his behaviour, and was showing severe
    fluctuations of mood.  He developed an extramarital relationship, which had
    never occurred during his long relationship with his wife who he met while they
    were both in school.  He became obsessed with helping others, even outside of
    his professional obligations as an IRB hearing officer.

His impulsivity and excessive energy caused him to engage in
    erratic and undisciplined behaviour.  An example provided by Mrs. Ellis was his
    organizing and mandating a family trip to Europe in August 2006, which saw him
    radically changing the itinerary almost daily, being argumentative and profane
    with his family, and showing excessive energy and poor social judgment.

[164]

Dr. Hill concluded:  I am of the opinion that Mr. Ellis was showing
    thinking, behaviour and mood fluctuations indicative of mental illness at the
    relevant time.  By relevant time Dr. Hill meant the entire period in which
    Ellis had contact with Ms. Kim.  In his oral evidence at the sentencing
    hearing, Dr. Hill maintained his opinion that Ellis mental illness played a
    part in his involvement in this offence:

Q:      And so to what extent, if any, can you tell us whether
    the bipolar disorder that youve diagnosed played a part in his involvement in
    this offence?

A:      Well, from my perspective, Im quite comfortable in
    saying that it did play a part.  To repeat somewhat, this is behaviour that has
    been seen in different aspects of his life, variations of it with this more
    agitated behaviour, behaviour showing poor judgment, failure to reflect, and
    its behaviour that is out of keeping with the way he had usually been
    functioning in his role at the IRB and the  given there is the long history of
    this erratic behaviour, which Im terming an illness, coming up on regular
    occasions, its certainly my opinion that it was certainly part and parcel of
    what was going on in his life at that time.

[165]

Dr. Ozersky was of the same opinion:  because of his bipolar disorder,
    Ellis was hypomanic during the time of his dealings with Ms. Kim.  Dr. Ozersky
    put it this way in his report:

Conducting an affair can be an expression of hypomanic
    behavior, or it could be an expression of very normal human behavior.  However,
    in the context of all the other behaviors that he exhibited in the 6 months
    before the offense, I believe this was an atypical expression of his underlying
    Bipolar Disorder.

I believe at the time of the index incident, the bipolar
    disorder impaired his judgement, made him impulsive, and he was grandiose
    enough to think he was the helpful saviour.

[166]

Dr. Rootenberg gave essentially the same opinion.  After outlining in
    detail Ellis mood instability and erratic behaviour in the eight months
    leading up to the material time, Dr. Rootenberg concluded that Ellis conduct
    was markedly influenced by his mood instability and impulsivity, which
    impacted adversely on his judgment.

[167]

What is evident from all three psychiatric reports is that Ellis
    conduct toward Ms. Kim, described by the trial judge and my colleague as well
    planned, was as much a consequence of his hypomania as was his mood
    instability, his grandiosity and his impulsivity.  His impaired judgment
    influenced his thinking and his behaviour, whether impulsive or planned, from
    at least the time that he first met Ms. Kim in July 2006 until he committed the
    offence in September 2006.

[168]

The medical evidence does not stand alone.  Other evidence of Ellis
    behaviour in the months leading up to the meeting at Starbucks shows that he
    was hypomanic throughout the period of his dealings with Ms. Kim.  This
    evidence includes the evidence from lawyers who appeared before him at the
    Board and from his wife:

·

One
    immigration and refugee lawyer wrote: in fact, in weeks leading to his final
    days at the Board, it appeared to me and the other lawyers in my office that
    Mr. Ellis was overly anxious and appeared to be under stress.

·

Another
    lawyer said:  The pressure of standing alone in the face of systemic pressure
    to adopt the official chair guidelines became evident in the last few months
    of his time at the board.  He appeared highly stressed and exhausted.  The
    events under consideration are inconsistent with the qualities of the member
    that determined so many of my cases.  There was never a hint of impropriety in
    any of those cases.  He was genuinely concerned with the welfare of the
    claimants above any partisan or political consideration.  This is a rare
    quality in my experience at the RPD.

·

Yet
    another lawyer wrote:  Steve has always been a very high energy person.  I
    have often wondered how he can manage to fit everything into his schedule.  I
    recall bumping into Steve in the time period prior to the charges being laid
    against him and noting that he seemed frenzied and distracted.  I was concerned
    about him.  I wish, in retrospect, that I had said something or done
    something.  Unfortunately, I did not.

·

Ellis
    wife, Mrs. Neal-Ellis, said that from the fall of 2005 until the incident in
    September 2006, her husband was running himself raggedhe basically was work
    obsessedhis activity level kept increasing.  She described his behaviour
    during this time as frenetic and his appearance as increasingly unkempt.  In
    her letter submitted at the sentencing hearing, Mrs. Neal-Ellis said:

By the summer of 2006, Steve became even more irritable and
    shot-tempered at home.  He was constantly wired, and seemed to drive himself
    for no apparent reason.  He would often come home late either from work or from
    some public event.  Once he was home, he was unable to fall asleep.  Often he
    would get up in the middle of the night and either leave the house or stay up
    playing video games until he fell asleep out of sheer exhaustion.

During this time I noticed that Steves behaviour became more
    and more erratic.  He constantly changed his plans.   He wanted to travel
    excessively and argued with me if I contradicted him on anything.  His driving
    became reckless.  He insisted on texting messages or talking on his cell phone
    while driving regardless of who else was in the car.  He received numerous
    traffic violations for speeding, for not stopping at stop signs, for improper
    parking and for not wearing his seat belt.  He did not bother with grooming
    himself.  His hair grew long and tangled, his suits were rumpled and dirty, and
    he always looked untidy and dishevelled.



In August, 2006, matters appeared to become critical.  Despite
    being beyond our financial means, Steve insisted that we take a family trip to
    Europe, again at the last minute.  While on the trip, Steve argued constantly
    with me and our daughter and used profane language, which was totally out
    character for him.  He changed our itinerary several times without notice and
    without regard for my wishes or the wishes of the children.  At one point, he
    announced that we were going to visit the United Nations offices in Geneva,
    even though this was significantly off our planned route.  Steve drove the
    entire two weeks in Europe at a frenetic pace, claiming to be pushing us hard
    to see as much as we could while being indifferent the [
sic
]

needs
    or wishes of his family.

[169]

This evidence, taken together, shows, undeniably in my opinion, that
    Ellis was mentally ill, suffering from hypomania, in the period from July to
    September 2006. His mental illness impaired his judgment, and his impaired
    judgment contributed to his breach of trust.

[170]

If there can be any doubt about these conclusions, that doubt is put to
    rest by the proposed fresh evidence, mainly a second report from Dr. Ozersky.

(d)

The Proposed Fresh Evidence

[171]

In this second opinion letter, dated April 23, 2009, Dr. Ozersky
    affirmed his earlier opinion that Ellis was in a hypomanic state when he met
    Ms. Kim at Starbucks on September 26, 2006, and, significantly, that Ellis was
    probably hypomanic for at least six months before the meeting at Starbucks. 
    The following are the relevant portions of Dr. Ozerskys opinion:

After reviewing the DVD and your examination of Steve
    Ellis, and reviewing collateral information, in your professional opinion was
    it substantially probable that Mr. Ellis was in a mentally disordered state
    which was a result of his psychiatric disorder and a hypomanic or manic episode
    at the time of his meeting with Ms. Kim at the Starbucks?
I believe that
    after reviewing the video that he is clearly in a hypomanic state probably
    exacerbated by alcohol abuse and that he was hypomanic at the time of meeting
    Ms. Kim.

On the basis of your experience how long could such an
    episode last?  On the basis of your evaluation of Steve Ellis and the
    collateral history you obtained was it more likely than not that he was having
    the same episode for a few weeks prior to the incident at Starbucks?
On
    the basis of his history and the history provided by his wife, he was probably
    hypomanic for at least 6 months before the incident at Starbucks.

[172]

Dr. Ozerskys second report was available before the sentencing hearing
    and the Crown objected to its admissibility on appeal.  Strathy J.A. agrees
    with the Crowns objection and would refuse to admit the fresh evidence.  I
    take a different view.

[173]

The test for admitting fresh evidence on an appeal from conviction or
    sentence is the same, but the test tends to be applied less rigorously on
    sentence appeals: see
R. v. Jarvis
(2006), 214 OAC 189 at para. 16. 
    Moreover, the overriding criterion remains the interests of justice, and, in my
    view, it is in the interests of justice to have Dr. Ozerskys opinion before
    the court to ensure that Ellis receives a fit sentence: see
R. v. Lévesque
,
    2000 SCC 47, [2000] 2 S.C.R. 487.

[174]

Strathy J.A. would refuse to admit Dr. Ozerskys second report for
    several reasons.  He notes that when Dr. Ozersky gave his first report he had
    not watched the video of the Starbucks meeting and Ellis had not accurately
    told him the circumstances of his initial meeting with Ms. Kim, apparently
    saying that they met accidentally.  My colleague then suggests that the defence
    made a tactical decision not to put Dr. Ozerskys report in evidence, other
    than as a part of Dr. Hills report, or to call him as a witness at trial. 
    Finally, my colleague says that he is not satisfied defence counsel was unaware
    of the existence of Dr. Ozerskys second report or could not have become aware
    of it by exercising due diligence.

[175]

Respectfully, I do not find my colleagues reasons persuasive.  There is
    no evidence at all that the defence made a tactical decision not to tender Dr.
    Ozerskys report directly or have him testify.  The defence treated his first
    report in the same way as it treated Dr. Rootenbergs report; in effect, it was
    an appendix to Dr. Hills report.  And there could be no suggestion Ellis
    misstated the circumstances of his meeting with Ms. Kim either to Dr.
    Rootenberg or to Dr. Hill.  Indeed, Dr. Hill expressly testified that Ellis
    accurately recited the facts of his meeting with Ms. Kim.

[176]

Equally important, nothing in the material suggests that Dr. Ozerskys
    opinion about Ellis mental illness was influenced by the misstatement of how
    his first meeting with Ms. Kim came about.  Indeed, when he gave his second
    opinion, Dr. Ozersky had watched the video and could be under no
    misapprehension about how Ellis met Ms. Kim.  I might find the Crowns
    objection to the admissibility of the fresh evidence more compelling if it had
    asked to examine Dr. Ozersky, either on his first or second opinion, or both,
    and the defence had refused to produce him.  But the Crown made no such
    request.

[177]

Finally, Ellis filed an affidavit in support of his fresh evidence
    application and gave a plausible reason for why Dr. Ozerskys second report was
    not before the trial judge.  The report was prepared for Ellis counsel at the
    time, but shortly after the report was delivered, Ellis changed counsel.  Dr.
    Ozerskys second report was not in the file materials transferred to his new
    counsel.  Ellis was not cross-examined on his affidavit, and therefore his
    explanation for why Dr. Ozerskys second report was not before the trial judge
    stands uncontradicted.  Even if it could be said that with due diligence the
    second report could have been produced, lack of due diligence has never been a
    bar to admitting fresh evidence in criminal appeals.

[178]

I would admit Dr. Ozerskys second report for two reasons.  First, it
    shows that the opinion Dr. Ozersky gave in his first report was not affected by
    Ellis misstatement of how he met Ms. Kim.  Second, it reaffirms in unequivocal
    language the central point about Ellis hypomania that is demonstrated by the
    evidence at trial  it existed and impaired his judgment throughout his
    dealings with Ms. Kim.

(e)

The Case Law

[179]

On my assessment of the evidence, Ellis bipolar disorder  undiagnosed
    and untreated  manifested itself in hypomania from at least July to September
    2006.  In other words, he was hypomanic during all of his dealings with Ms. Kim
     at the IRB, at the restaurant, and at Starbucks.  Ellis hypomania impaired
    his judgment, and his impaired judgment contributed to his breach of trust. 
    Therefore, Ellis mental illness should reduce his culpability or his moral
    blameworthiness. Indeed, I find it hard to conceive why Ellis would engage in
    such obviously self-destructive behaviour but for his mental illness.

[180]

The trial judge imposed a jail term because in her view, incarceration
    was needed to denounce and deter Ellis conduct.  However, as Gillese J.A. said
    in
R. v. Batisse
, 2009 ONCA 114, 93 O.R. (3d) 643 at para. 38, when an
    offenders mental illness contributes to the commission of an offence,
    deterrence and punishment assume less importance.

[181]

Yet, the trial judge wrote at para. 85 of her reasons:

I note, however, that Mr. Ellis conduct was not impulsive  it
    occurred over a period of time and was well planned.  Mr. Ellis was otherwise
    functional at work during that period of time.  Furthermore, while the
    hypomania may have affected Mr. Ellis judgment, he was, nonetheless, aware
    that what he was doing was wrong, and that he was placing both himself and Ms. Kim
    at significant risk.

[182]

I disagree with the inferences drawn from this paragraph for two
    reasons.  My first disagreement is factual.  As I have already discussed,
    though some of Ellis conduct may have seemed well planned, his hypomania
    existed throughout his dealings with Ms. Kim.  Thus, his mental illness
    impaired his judgment, not just on September 26, 2006, but at least from July
    2006 onwards.

[183]

My second disagreement is legal.  Even though Ellis was aware of right
    from wrong  in other words, he could not be found not criminally responsible 
    his mental illness still contributed to his breach of trust.  Because it did,
    for the purpose of sentencing, denunciation and deterrence become less
    important and rehabilitation becomes more important.  Green J.A. made this
    point in
R. v. Peters,
2000 NFCA 55, 194 Nfld & P.E.I.R. 184, a
    decision Gillese J.A. cites with approval in
Batisse
.  Green J.A.
    wrote at paras. 18-19:

Deterrence and punishment assume less importance in cases of
    mentally ill offenders.  This decreased emphasis on punishment and deterrence
    in these circumstances is consistent with the proportionality principle in s.
    718.1 of the
Criminal Code
.

Thus, the mental illness of an offender will often be
    considered a mitigating factor in sentencing even though it is not of the sort
    that would establish a verdict of not criminally responsible on account of
    mental disorder at the time of the commission of the offence.  The focus in
    sentencing such offenders may properly therefore be placed on mechanisms that
    will promote rehabilitation and treatment, rather than on punishment

[184]

A case that is similar to this case is the sentencing decision of the
    British Columbia Court of Appeal in
R. v. Dickson
, 2007 BCCA 561, 228
    C.C.C. (3d) 450.  There, the appellant was a bookkeeper, and she defrauded her
    employer by forging numerous cheques.  She pleaded guilty to theft and was
    sentenced to 12 months in jail.  The British Columbia Court of Appeal allowed
    her appeal and substituted a conditional sentence.  Like Ellis, Ms. Dickson
    suffered from a bipolar disorder that was not diagnosed when she committed the
    offence for which she was sentenced.  Although Ellis did not plead guilty,
    Finch C.J.B.C.s reasons otherwise apply to him.  At para. 67 and 70, The Chief
    Justice wrote:

In my opinion, the appellants mental condition at the time of
    these offences is the most important of the many considerations in this case. 
    The offences were committed when the appellants bipolar disorder was
    undiagnosed and untreated.  Dr. Dryer drew a direct causal connection between
    the mental illness and the commission of the offences

a sentence of imprisonment is unfit in these circumstances. 
    It cannot be necessary in the interests of general deterrence for serious
    theft, to incarcerate someone who is mentally ill when the offences were
    committed, whose mental illness was a cause of her committing the offences, who
    pleads guilty, who makes restitution, and who undertakes an appropriate course
    of medical treatment

[185]

In contrast to
Batisse
and
Dickson
stands the decision
    of this court in
R. v. Davies
(2005)
,
    199 C.C.C. (3d) 389, which is relied on both by the trial judge and Strathy
    J.A.  In that case, the accused, a Crown Attorney, pleaded guilty to two counts
    of serious fraud and two counts of egregious breaches of trust.  Like
    Ellis, Davies suffered from a bipolar affective disorder, which caused
    hypomania and depression.  Nonetheless, the trial judge rejected a conditional
    sentence and instead imposed a jail sentence of two years less a day.  This
    court varied the sentence in part, imposing a jail sentence of one year less a
    day for the breaches of trust but a conditional sentence of one year for the
    fraud charges.

[186]

The three features distinguishing Davies circumstances from Ellis
    are:  first, Davies bipolar disorder was diagnosed and was being treated long
    before he committed the offences; second, Davies committed at least one major
    fraud when he was neither hypomanic nor depressed; and third, Davies committed
    numerous offences over a prolonged period of time.  Even taking these features
    of Davies offence and his position as a Crown Attorney into account, this
    court still saw fit to convert part of his sentence into a conditional
    sentence.

(f)

Conclusion on Ellis Mental Illness

[187]

The evidence shows that Ellis mental illness impaired his judgment
    throughout his dealings with Ms. Kim, and therefore contributed to his breach
    of trust.  The case law shows that where an offenders mental illness
    contributes to the commission of an offence, the sentencing judge should give
    less weight to denunciation and general deterrence.  In my opinion, in
    sentencing Ellis, the trial judge over-emphasized the need to give effect to
    these two sentencing principles and under-emphasized the principle of
    rehabilitation.

(2)

Ellis Rehabilitation

[188]

Because of Ellis mental illness, promoting his rehabilitation becomes a
    primary consideration.  The trial judge did not advert to this consideration at
    all in her reasons for sentence.

[189]

Ellis bipolar disorder was diagnosed after his breach of trust was
    discovered.  Over seven years have now elapsed since Ellis and Ms. Kim met at
    Starbucks.  For this entire period, Ellis has been under the care of a
    psychiatrist and a psychotherapist, and has been taking lithium and other
    medication for his bipolar disorder.

[190]

According to Dr. Hill, a bipolar disorder has a natural history of
    recurrence.  However, Dr. Hill went on to say (in his written report dated May
    11, 2010) that Mr. Ellis has benefited well from his current course of treatment
    for almost four years, and will continue to benefit from continuing treatment
    to which he is committed.

[191]

Dr. Hill also testified at the sentencing hearing that Ellis is now much
    more aware of how his illness affects his behaviour.  In Dr. Hills view, Ellis
    has made great strides in managing his disorder.

[192]

The report of his psychotherapist, Dr. Mark Smolkin, which was filed as
    fresh evidence, speaks to the effect of Ellis treatment and the possible
    effect of his incarceration.  Dr. Smolkin focuses on the past three years, and
    therefore his report is truly fresh  it would not have been available at the
    sentencing hearing.

[193]

Dr. Smolkin states that [o]verall, in the last three years Mr. Ellis
    has been coping very well.  However, Dr. Smolkin raises concerns about the
    possible adverse impact of putting Ellis in jail.

Incarceration presumably is difficult and odious for anyone. 
    For Mr. Ellis, it would pose particular challenges.  As an ex-IRB adjudicator,
    Mr. Ellis will surely wind up in protective custody  with scant physical,
    interpersonal or intellectual stimulation.  He has ADHD  Attention Deficit
    Disorder  which is essentially a condition of chronic under-stimulation. 
    (Those with ADHD crave
external
stimulation as this compensates for
    their
internal
under-stimulation.).  For this reason I believe that he
    would probably suffer more than the average inmate.

I am also concerned that incarceration could precipitate a
    severe depressive episode in this man, who is more vulnerable due to his
    underlying bipolar mood disorder.

[194]

I conclude that promoting Ellis rehabilitation is an important reason
    for imposing a conditional sentence.

(3)

Collateral Consequences

[195]

When determining the appropriate sentence for an individual offender, a
    court may take into account the collateral consequences of the sentence or the
    underlying conviction.  As long as the sentence imposed is proportionate to the
    gravity of the offence and the degree of responsibility of the offender,
    collateral effects may figure in the imposition of a fit sentence.  The Supreme
    Court of Canada recently discussed the significance of collateral consequences
    in
R. v. Pham
, 2013 SCC 15, 357 D.L.R. (4th) 1, a case that dealt with
    the impact of a sentence on the immigration status of the offender.  At para.
    11, Wagner J., writing for the court, described the relevance of collateral
    consequences in sentencing:

In light of these principles, the collateral consequences of a
    sentence are any consequences for the impact of the sentence on the particular
    offender.  They may be taken into account in sentencing as personal
    circumstances of the offender.  However, they are not, strictly speaking,
    aggravating or mitigating factors, since such factors are by definition related
    only to the gravity of the offence or to the degree of responsibility of the
    offender (s. 718.2(a) of the
Criminal Code
).  Their relevance flows
    from the application of the principles of individualization and parity.  The
    relevance of collateral consequences may also flow from the sentencing
    objective of assisting in rehabilitating offenders (s. 718(d) of the
Criminal
    Code
).  Thus, when two possible sentences are both appropriate as regards
    the gravity of the offence and the responsibility of the offenders, the most
    suitable one may be the one that better contributes to the offenders
    rehabilitation.

[196]

Wagner J. also cited with approval the following passage from Alan
    Manson,
The Law of Sentencing
(Toronto:  Irwin Law, 2001) at pp.
    136-137, in which the author makes the point that collateral consequences can
    mitigate the need for denunciation, and implicitly for general deterrence.

As a result of the commission of an offence, the offender may
    suffer physical, emotional, social, or financial consequences.  While not
    punishment in the true sense of pains or burdens imposed by the state after a
    finding of guilt, they are often considered in mitigation



The mitigating effect of indirect consequences must be
    considered in relation both to future re-integration and to the nature of the
    offence.  Burdens and hardships flowing from a conviction are relevant if they
    make the rehabilitative path harder to travel.  Here, one can include loss of
    financial or social support.  People lose jobs; families are disrupted; sources
    of assistance disappear.  Notwithstanding a need for denunciation, indirect
    consequences which arise from stigmatization cannot be isolated from the
    sentencing matrix if they will have bearing on the offenders ability to live
    productively in the community.  The mitigation will depend on weighing these
    obstacles against the degree of denunciation appropriate to the offence.

[197]

Here Ellis conviction has caused severe collateral consequences: 
    public humiliation, loss of his involvement in community life, loss of his
    position as a public official, and loss of his ability to practice his chosen
    profession, law.  Yet in sentencing Ellis, the trial judge did not give proper
    weight to these collateral consequences.

[198]

I accept that Ellis offence made these consequences inevitable.  Their
    inevitability makes their bearing on Ellis sentence less compelling than
    otherwise: see
Manson
at p. 137.  Still, they are entitled to some
    weight.  When considered alongside Ellis reduced culpability because of his
    mental illness, these collateral consequences of Ellis conviction support the
    appropriateness of a conditional sentence.

[199]

In
R. v. Bunn
, 2000 SCC 9, [2000] 1 S.C.R. 183, the Supreme
    Court of Canada upheld a conditional sentence because it, together with the
    collateral effects of the conviction, provided sufficient deterrence and
    denunciation.  In that case, a lawyer was convicted of six counts of breach of
    trust for diverting clients money from his trust account to his general
    account.  He was sentenced to two years in jail.  When the conversions were
    discovered, his right to practice law was suspended; he was later disbarred.

[200]

After
Bunns
trial, but
    before his appeal, Parliament enacted the conditional sentencing regime.  The
    Manitoba Court of Appeal allowed Bunns sentence appeal and substituted a
    conditional sentence of two years less a day.  This sentence was upheld by the
    majority of the Supreme Court of Canada.  Lamer C.J.C. wrote at para. 23:

Turning to a consideration of the principles of sentencing, the
    court reasonably concluded that the ruin and humiliation that Mr. Bunn had
    brought down upon himself and his family, together with the loss of his
    professional status, could provide sufficient denunciation and deterrence when
    coupled with a conditional sentence of two years less a day with house arrest

The Supreme Court thus upheld a conditional sentence in
    part because of the collateral consequences of Bunns convictions for breach of
    trust, even if those consequences were an inevitable result of his offences.

[201]

Similarly, I conclude that the collateral consequences of Ellis
    conviction for breach of trust, coupled with a conditional sentence, would
    provide sufficient denunciation and deterrence.

D.

conclusion

[202]

I would dismiss Ellis conviction appeal.  No sentencing objective would
    be achieved by incarcerating Ellis that could not also be achieved by a
    conditional sentence.  Moreover, incarceration would undermine Ellis
    rehabilitation.  I would therefore grant leave to appeal his sentence, allow
    his sentence appeal, and impose a conditional sentence on strict terms,
    including house arrest.  I assume counsel will be able to agree on those terms.

Released: December 9, 2013 (JL)                        John
    Laskin J.A.





[1]
The appellant was charged under both s. 122 of the
Code
and with
    knowingly agreeing to accept a bribe or other benefit, contrary to s. 129(1)(a)
    of the
Immigration and Refugee Protection Act
, S.C. 2001, c. 27 (
IRPA
).
    The indictment charged the appellant with suggesting to Ji Hye Kim, a refugee
    claimant, that he  would approve her refugee application if Kim would engage
    in intimate relations with [him]. Following his conviction on both counts, the
IRPA

charge was stayed, pursuant to
Kienapple v. R.
, [1975]
    1 S.C.R. 729.



[2]
The defence position
is that there is an error in the
    transcription and that Mr. Ellis said "people's minds they do funny
    things".



[3]
The appellant abandoned his ground of appeal based on self-induced
    intoxication. It had not been raised at trial and there was no evidence
    concerning the amount of alcohol he had consumed at the wine-tasting before the
    Starbucks meeting on September 26, 2006.



[4]
The British Columbia Court of Appeal varied the conditions of the appellants
    probation, but refused to impose a conditional sentence, as he had requested.


