



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Chang, 2019 ONCA 924

DATE: 20191125

DOCKET: C65349

Feldman, Gillese and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Yen (Alec) Chang

Appellant

David Butt and David M. Reeve, for the appellant

Katie Doherty, for the respondent

Heard: November 19, 2019

On appeal from the conviction entered on January 29, 2018,
    and the sentence imposed on May 9, 2018, by Justice John McInnes of the Ontario
    Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of two counts arising from his attempt to
    purchase sexual services from a young person. The offences came to light
    through Project Raphael, an undercover York Regional police investigation aimed
    at combatting juvenile prostitution by means of a sting operation. He was sentenced
    to eight months in jail, two years of probation, and a series of orders. He
    appeals against conviction and seeks leave to appeal against sentence.

[2]

The court announced at the close of oral argument that the appeal
    against conviction would be dismissed, leave to appeal sentence would be
    granted, the sentence appeal allowed and the sentence reduced to six months
    less one day, with reasons to follow.  These are the reasons.

The Conviction Appeal

[3]

At trial, the appellant argued that the police had breached ss. 8 and 9
    of the
Charter of Rights and Freedoms
by arresting him without grounds
    and conducting a search incident to arrest. He applied to have the evidence
    arising out of the arrest excluded under s. 24(2). The appellant conceded that the
    arresting officers had the necessary subjective belief to arrest him. The issue
    was whether their subjective belief was objectively reasonable. The trial judge
    found that it was.

[4]

On appeal, the appellant submits that, in reaching this determination, the
    trial judge failed to consider exculpatory factors that pointed away from the
    appellant as the person communicating with the undercover agent who was posing
    as the underage girl. He points to two such factors. First, in the
    communications between the undercover agent and the target, the girl told the
    target to attend at a particular McDonalds restaurant. The appellant was told to
    purchase a Happy Meal when he arrived. However, the appellant bought a drink
    when he arrived, not a Happy Meal. Second, the appellant left the McDonalds before
    the girl had arrived.

[5]

We do not accept this submission. The trial judge applied the correct
    legal test and principles and considered the evidence. We see no basis to
    interfere with his conclusion that the arresting officers subjective belief that
    there were grounds to arrest was objectively reasonable.

[6]

While the undercover agent originally told the target to purchase a
    Happy Meal, the target responded that he had purchased a drink, not a Happy
    Meal. The information that was communicated to the arresting officers on the
    scene at the McDonalds was that the target had purchased a drink. The
    appellant in fact had purchased a drink while he was inside the McDonalds.
    Thus, the fact he bought a drink rather than a Happy Meal is not exculpatory
    evidence.

[7]

The fact that the appellant walked out of the McDonalds before the
    girl arrived does not undermine the probative value of the evidence before
    the trial judge. The appellant attended at the McDonalds, as directed by the girl
    he was there to have sex with, either inside the washroom (which the girl
    said she did not want) or in his car; he arrived at the specific McDonalds
    where the meet had been set, at the time the police expected the target to
    arrive; he was driving a car, as anticipated; he was observed on his cellphone
    as he approached the McDonalds (the target had been corresponding through text
    messages with the undercover agent); and he exited the McDonalds after buying
    a drink there, just as the target indicated he had done, by way of a text
    communication to the undercover agent.

[8]

The appellant also submits that he was convicted under an
    unconstitutional presumption of law which relieved the Crown of the burden of
    proving his guilt beyond a reasonable doubt. The presumption provision had been
    struck as unconstitutional before the trial and played no part in the
    proceedings.

[9]

At trial, the appellant conceded his substantive guilt on the charges, if
    the evidence were admitted. This includes his belief that the person he was
    corresponding with was under the age of 16. The text messages made it abundantly
    clear that the person with whom he was communicating was 15 years of age. In
    the face of this clear messaging, he persisted, actively communicating with her
    and arranging to meet up with her for sex.

The Sentence Appeal

[10]

The appellant submits that the sentencing judge erred in principle by
    failing to consider the serious immigration consequences to the appellant of imposing
    a sentence of over six months imprisonment.

[11]

There was a very brief exchange during sentencing submissions which
    touched on the fact that a sentence of over six months imprisonment
might
result in the appellant losing his appeal rights and being deported. However,
    that matter was not pursued. The focus of the submissions on the appellants
    status related to the potential effects on his citizenship.

[12]

When the reasons for sentence were delivered some weeks later, imposing
    an eight month sentence followed by probation, there was no mention of the
    potential immigration consequences to the appellant. We are satisfied that through
    inadvertence, this relevant factor was not considered. In the circumstances,
    appellate intervention is warranted:
R. v. Pham
,
2013 SCC 15,
    [2013] 1 S.C.R. 739,

at para. 24.

[13]

Because the appellant is a permanent resident and a prison sentence of
    longer than six months was imposed, on the fresh evidence, if he is found
    inadmissible to Canada on the grounds of serious criminality, he will have no right
    of appeal to the Immigration Appeal Division (IAD) and, almost certainly, be
    deported:
Immigration and Refugee Protection Act
, S.C. 2001, c. 27,
    ss. 36(1)(a), 64. If deported, the appellant will be returned to Taiwan, where
    he has no connection and has not lived since he was a very young child. He has
    lived in Canada for virtually his whole life. His family, employment and
    support systems are here in Canada.

[14]

Reducing the sentence from eight months to six months less a day will
    preserve the appellants right to appeal to the IAD for consideration of the
    humanitarian and compassionate grounds of his case. It will not render the
    sentence demonstrably unfit, having regard to all the circumstances of the
    offence and this youthful first offender.

Disposition

[15]

The appeal against conviction is dismissed. Leave to appeal sentence is
    granted and the sentence appeal is allowed. A prison sentence of six months
    less a day is substituted for the eight-month jail sentence; all other
    conditions and orders in the sentence imposed remain unchanged. The victim fine
    surcharge order is set aside.

K.
    Feldman J.A.

E.E.
    Gillese J.A.

B.W.
    Miller J.A.


