Ontario Criminal


Sentence

SEXUAL OFFENCES

Cultural norms that condone or tolerate conduct contrary to Canadian law must not be considered mitigating

Crown appealed 18-month custodial sentence accused received for sexual assault and four counts of assault. Accused regularly assaulted his wife and their children. Accused sexually assaulted his wife several times per month. Accused was convicted of sexual assault and four counts of assault for crimes that occurred in Canada. Sentence included 18 months for sexual assault, and 30 days for one count of assault and four months for each other count of assault to be served concurrently. Trial judge credited accused for unspecified amount of time for his pre-trial house arrest and took into account “cultural impact” of family’s move from Iran to Canada. Trial judge accepted that there was pattern of domestic violence reflecting longstanding and ongoing abuse. Trial judge found that aggravating factors included that there was domestic violence, breach of trust and involvement of minor children. Mitigating factors included that accused did not have criminal record, medical help had never been sought, there were no injuries and there had been stringent bail conditions. Trial judge ruled that difference in culture was factor in his considerations. Appeal allowed; sentence varied to 44 months’ for sexual assault and sentence for assault was left at four months but ordered to be served consecutively. Sentence was demonstrably unfit. Trial judge made number of errors that cumulatively led to unfit sentence. Consideration of cultural issue was wrong as trial judge appeared to have given it weight in mitigation. Accused never took position that cultural differences impacted his conduct. Cultural norms that condone or tolerate conduct contrary to Canadian law must not be considered mitigating. Trial judge’s finding there were no injuries was misapprehension of evidence as medical attention is not required for finding there was no injuries. Trial judge’s conclusion there was no risk of re-offending was contrary to evidence in pre-sentence report which showed accused lacked remorse and was ashamed of his predicament and not his behaviour. There was no evidence on which trial judge could make that finding. Specific deterrence was relevant. Trial judge’s imposition of concurrent sentences was inappropriate as assaults on children were separate and distinct from sexual assault on their mother and sentences should have been consecutive. Given that accused had raped his wife repeatedly for several years and terrorized his family, denunciation and deterrence were paramount. Accused was in position of trust to his family. Accused expressed no remorse. Accused was entitled to one-year credit for time served on parole.

R. v. E. (H.) (Jul. 15, 2015, Ont. C.A., Alexandra Hoy A.C.J.O., Doherty J.A., and M.L. Benotto J.A., File No. CA C59048) 123 W.C.B. (2d) 200.   

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