



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sohal, 2017 ONCA 425

DATE: 20170525

DOCKET: C61936

Rouleau, Trotter and
    Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Airdamanjeet Sohal

Appellant

Mark Halfyard and Breana Vandebeek, for the appellant

Andrew Hotke, for the respondent

Heard: May 17, 2017

On appeal from the order of Justice Irving André of the
    Superior Court of Justice, dated March 22, 2016, sitting as a summary
    conviction appeal court, dismissing the appeal from the sentence imposed on
    October 15, 2014 by Justice Paul Currie of the Ontario Court of Justice.

REASONS FOR DECISION

Introduction

[1]

Mr. Sohal was convicted of assaulting his girlfriend, contrary to s. 265
    of the
Criminal Code
. He received a suspended sentence. He appealed
    his conviction and sentence to the Summary Conviction Appeal Court. Both
    appeals were dismissed. Mr. Sohal now seeks leave to appeal his sentence.

The Circumstances of the Offence and the Offender

[2]

The case arose from an incident that occurred on a sidewalk in Brampton.
    Several motorists witnessed the applicant and the complainant (his girlfriend)
    in an altercation. The witnesses saw the applicant grab the complainants arm
    and then strike her. Some of them pulled over to assist the complainant.

[3]

The applicant was 22 years old at the time of sentencing. He had no
    prior criminal record. The applicant came to Canada from India in 2012 on a
    student visa. As a result of the
Immigration and Refugee Protection Act
,
    S.C. 2001, c. 27, his conviction makes him inadmissible based on criminality. We
    are advised that the applicant will be deported on May 31, 2017.

[4]

The sentencing judge was aware of the applicants immigration status. He
    was not persuaded that a discharge, which would avoid the immigration problems
    accompanying a conviction, was a fit sentence for this incident of domestic
    violence. He entered a conviction and imposed a suspended sentence with nine
    months of probation. The Summary Conviction Appeal Court Judge (SCACJ) agreed
    and dismissed the appeal against sentence.

Analysis

[5]

The applicant argues that leave to appeal should be granted because the
    SCACJ erred in: (1) relying on aggravating factors that were not relied upon by
    the sentencing judge; and (2) misapplying the law as it relates to the
    immigration consequences faced by the appellant. Applying the principles in
R.
    v. R.R.

(2008), 90 O.R. (3d) 641, we would not grant leave to
    appeal on either ground.

(1)

Aggravating Factors

[6]

In his reasons for dismissing the appeal, the SCACJ mentioned that the
    offence occurred in a public space and ceased only after the intervention of a
    few Good Samaritans. The SCACJ also mentioned that one of the witnesses said
    that, in the aftermath of the assault, the applicant attempted to justify his
    actions on the basis of his own cultural beliefs. He considered this to be an
    additional aggravating factor.

[7]

In referring to the Good Samaritans, the language used by the SCACJ may
    have been imprecise. The trial judge did not find that the assault stopped
    because others physically intervened or restrained the applicant. However, it
    is clear that those who responded to what they saw did so with the purpose of
    assisting the complainant and preventing further problems.

[8]

We agree that the SCACJ erred in relying upon an imputed cultural
    justification as an aggravating factor. The Crown did not rely upon it as an
    aggravating factor. The trial judge did not find that the applicant said these
    words. He did not consider this factor in sentencing the applicant.

[9]

In all of the circumstances, these references in the reasons of the
    SCACJ were inconsequential. They had no tangible impact on his review of the
    fitness of the sentence that was imposed. The trial judges reasons for sentence
    show that he applied the proper principles and the sentence imposed is owed
    deference. There was simply no basis for the SCACJ to intervene, nor is there
    any basis for this court to interfere. Consequently, leave is denied on this
    ground.

(2)

Immigration Consequences

[10]

The applicant argues that the SCACJ misapplied the law relating to the
    impact of the applicants immigration status on the fitness of the sentence. We
    disagree.

[11]

Although the SCACJ failed to mention
R. v. Pham
, 2013 SCC 15,
    [2013] 1 S.C.R. 739, which had been referred to during submissions, he
    considered a number of earlier cases that addressed this issue. One of the
    authorities he relied on was
R. v. Hamilton
(2004), 71 O.R. (3d) 1 (C.A.).
    The reasoning in that case that was expressly adopted by the Supreme Court in
Pham
,
    at para. 19.

[12]

The failure to cite
Pham
was inconsequential. The SCACJ was
    satisfied that the sentencing judge gave appropriate consideration to the
    applicants immigration status. The applicants immigration consequences were
    given serious consideration by both judges: see
R. v. McKenzie
, 2017
    ONCA 128, 35 C.R. (7th) 216, para. 35. Neither judge was persuaded that it
    ought to have resulted in a more lenient disposition. We see no basis to intervene.

Disposition

[13]

Leave to appeal is denied.

Paul Rouleau J.A.

G.T. Trotter J.A.

David
    Paciocco J.A.


