IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         In September 2018, J.S. arrived in Canada, on a student Visa, to study at [omitted for publication], BC. He is from Kerala, a state in India, and his first language is Malayalam. He required an interpreter throughout these proceedings.

[2]         As a result of events on April 28 and April 29, 2019, he was charged with criminal offences and subsequently pleaded guilty to unlawful confinement of S.H. on April 29, 2019, contrary to s. 279 (2)(a) Criminal Code. That provision states:

[3]         Counsel agreed that the facts relating to events on April 28, 2019 would be part of the circumstances provided to the court during this sentencing hearing.

[4]         Crown counsel says that an appropriate sentence is in the range of a suspended sentence with probation up to a conditional sentence order of two months. Either of these options will leave J.S. with a criminal record.

[5]         J.S.’s counsel says that the appropriate sentence in all the circumstances is a conditional discharge that would have him serve an appropriate period on probation with conditions. Upon successful completion, this disposition would not leave him with a criminal record.

[6]         The imposition of a criminal record is the key issue in this case because that would very likely jeopardize J.S.’s ability to remain in Canada.

[7]         Turning to the circumstances that bring J.S. into court, the first event occurred on April 28, 2019. J.S. was travelling on a city bus and was initially the only passenger. At some point in the ride, a fifteen-year-old girl, C.D., boarded the bus and sat in the front row a number of seats ahead of J.S. The bus departed and after a few seconds, J.S. got up from his seat and moved to sit beside C.D. He asked her where she was walking to after the bus, where she went to school and whether she had a boyfriend. He placed his arm around her on the back of the seat during this conversation. He then placed his other hand on her breast and said “please” which caused C.D. to immediately react. She said “No” and was visibly upset.

[8]         J.S. went back to his seat and a short while later C.D. got off the bus. The next day she went to a school counsellor and relayed what had occurred. She also gave a statement to the police. Before this hearing, C.D. spoke with Crown counsel and told him that she no longer takes the bus due to this incident. She was crying as she spoke to crown counsel.

[9]         The next day, April 29, 2019, J.S. interacted with S.H. who was seventeen years of age and this is the basis for the charge to which he pleaded guilty. On that day, at approximately 6 p.m., J.S. placed an order for pizza with a local pizza business. The pizza was delivered by S.H. who arrived at J.S.’s residence in her car with the pizza and a debit machine. J.S. lived in a basement suite and they met outside the suite. J.S. told S.H. that he did not have his card, walked back to his suite and invited her to come inside. Throughout this time, J.S. repeatedly asked S.H. to come inside his residence asking her if she wanted some water or wanted to come inside. She ignored his invitation and waited outside the basement door until he returned with his card and she passed the debit machine to him.

[10]      J.S. appeared to be struggling with the transaction on the debit machine. S.H. reached out her hand to take the debit machine to assist him, but he suddenly grabbed her wrist and tried to pull her into his residence. S.H. screamed as much as she could while trying to break free of what she described as a death grip on her wrist which lasted about ten seconds. She used all her force to break away from J.S.’s grip and ran to her vehicle. J.S. followed trying to give back the debit machine.

[11]      S.H. reported this incident to the police and, in her statement, described J.S. as being full of anger and rage. J.S. was interviewed by police and provided a statement. He was co-operative, told the officer that he was sorry and that it would not happen again. He told the officer that he had not intended to do what he did but his feelings changed when he saw the female delivery driver. His explanation for his behaviour, as described by Crown counsel, was that he had been looking for some companionship.

[12]      J.S. was arrested, charged and released on bail. When, a few days later, the events of April 28, 2019 became known, he was arrested again and released on a much more stringent form of bail that required a cash deposit. Conditions included a curfew between 10 p.m. and 7 a.m. each day, he had to reside at a residence approved of in advance by his bail supervisor, he was required to surrender his travel documents including his passport and he was not allowed to have any visitors to his resident except with prior permission of his bail supervisor. J.S. was held in custody for a total of seventy-four days, the time needed for him to have a bail hearing and perfect bail.

[13]      The conditions of J.S.’s bail allowed him to attend at [omitted for publication] but only during regularly scheduled classes and he could not loiter or stop at any common areas. He was required to go directly to the class and then leave. However, [omitted for publication] did not permit J.S. to attend classes in person or access campus services. Instead, he was required to take his courses online.

[14]      J.S. was twenty-four years old at the time of these incidents. He is from the village of Kallettumkara, in the state of Kerala, India. He completed a Bachelor of Commerce-Finance Degree at the College of Advanced Studies in India in 2017. He wished to pursue further studies in Canada and took out a student loan to do so. He plans to remain in Canada after completion of his studies to look for employment with the hopes of eventually sponsoring his mother and father to come to Canada.

[15]      I had the benefit of reading supportive letters from people in Canada and India. They describe a young man who was an only child and raised by his parents in the Catholic faith. The former Parish Priest in his village wrote that J.S. “bears good moral character” and described him as dependable, honest, peace loving and hardworking. When J.S. arrived in Canada, he connected with a local church, which he attends regularly. The Deacon of that church wrote a letter saying that he had known J.S. since his arrival in Canada. He described J.S. as a devoted Catholic man and active in the parish. He advises that J.S. has struggled with the language and customs in Canada but is determined to adjust to Canadian life. The Deacon stated that he would continue to help and support J.S.

[16]      I heard from individuals with whom J.S. has lived with in [omitted for publication]. One writer observed that J.S. wants to do his best and make his parents proud. She found that he needed “a few instructions on conduct at first and he followed them without argument”. She did not elaborate on what that conduct was. Most of the individuals who have known J.S. in Canada and India, were disappointed to hear about his conduct and the charges, but were ready to stand by and support him.

[17]      Mr. J.S.’s cousin has known him, and the family, since childhood stating that she was surprised to hear about this offence and understood how serious it was. She indicated that J.S. has always been very responsible, ambitious and of good moral character. She advised that he wanted a better future so, after taking a student loan, he travelled to Canada for higher studies. According to her, J.S.’s family is completely reliant on him.

[18]      J.S. provided a letter to the court, translated from Malayalam to English. In writing about the events that bring him to court, he stated:

[19]      Counsel for J.S. asks this court to consider the impact of cultural transition on his behaviour and this offence. Counsel highlighted the importance of understanding the environment and culture from which J.S. came. She referred to legal literature that examined the cultural landscape endured by women in India and emphasized that a consideration of J.S.’s circumstances must take into account the difficulty he experienced with the English language but particularly new cultural norms and expectations.

[20]      At paragraph 19 of her written submissions, counsel summarizes portions of the literature and articles written about the plight of women in India:

[21]      Shalini Ghosh, in The Treatment of Sexual Violence in India, 3 Warwick Student L. Rev. 41 (2013) at para. 43, refers to the:

[22]      Counsel’s submission, while certainly not condoning J.S.’s actions, is that cultural context is a factor that the court must consider when assessing a fit sentence. She says that J.S. is young, was a recent arrival in Canada before the offence (I estimate seven months) and experienced a pronounced shift in his cultural framework which, she says, he has “largely endured alone”.

[23]      The role of cultural factors was considered in R. v. H.E., [2015] ONCA 531. The defendant was convicted of assault of his wife and children and sexual assault of his wife that took place over a number of years. The family was from Iran and the husband’s behaviour was acceptable in that country. The sentencing judge, in his reasons, appeared to regard the “significant cultural gap” and the “cultural impact” of moving from Iran to Canada as a mitigating factor although not expressly stated. This was an error. On appeal, the court had this to say at para. 33:

[24]      It is suggested that J.S. has endured a cultural and linguistic shift, and in large part, alone. I accept that a move to a new country is not easy. However, I also accept that J.S. has had a great deal of support, including from members of his church, his Deacon and from the people with whom he has lived. He participated in church and college activities before the events in April 2019. I was not provided with J.S.’s school records or a transcript of his marks, but was advised that he has been able to achieve passing grades in his business studies courses, which are in English. His studies in secondary school included English. His certificates from those schools in India are in English. I conclude that he is able to have a social conversation and successfully complete College level coursework in English. It is noteworthy that he had no difficulty conversing, in English, to C.D. and S.H.

[25]      In India, women are frequently regarded and treated in a manner absolutely contrary to right thinking members of Canadian society. I understand that counsel referred to cultural differences to place J.S.’s behaviour in context and asks the court to recognize the impact that cultural transition has had in his offending.

[26]      In assessing a fit sentence, particularly in cases involving violence against women or children, in my view, it is not appropriate to consider the contribution of the offender’s previous cultural milieu to explain why the offence occurred. To do so, even in a minimal or peripheral way, places women and children at much higher risk of violence if individuals believe they can use cultural context to escape, or reduce, the consequences of engaging in conduct deemed acceptable elsewhere but that is criminal in Canada.

[27]      J.S. is a visitor to Canada pursuant to a Student Visa and is considered a “foreign national” under the IRPA. The relevant sections of the IRPA contain the following language:

[28]      A person convicted of an offence under s. 279 (2) (a) of the Criminal Code is liable to imprisonment for a maximum term of ten years. It is an indictable offence.

[29]      Counsel for J.S. says that a conviction for this offence will likely result in a finding that he is inadmissible to Canada. A conditional discharge is not considered a conviction and would not trigger these sections of the IRPA.

[30]      Hybrid offences, like the current offence, are treated under the IRPA as indictable even if they were prosecuted summarily and an offence that is classified as less serious by criminal law will automatically be deemed as more serious for immigration purposes: Collateral Immigration Consequences in Sentencing: a Six-Year Review, Sasha Baglay, (2019), 82 Sask L Rev 47-73.

[31]      Pursuant to s. 44 of the IRPA, if an immigration officer believes that a foreign national is inadmissible on any of these grounds, a report is sent to the Minister’s delegate who may refer the matter to the Immigration and Refugee Board for an inadmissibility hearing to determine if a removal order should be made. In the meantime, the individual may be detained or required to post security.

[32]      At para. 16 of her paper, Ms. Baglay writes:

[33]      A foreign national is any person who is not a Canadian citizen or a permanent resident, and has the most precarious immigration status. A single criminal conviction for any hybrid offence under an Act of Parliament (such as the Criminal Code), even if prosecuted summarily, will mean that J.S., as a foreign national, is inadmissible for criminality and subject to potential deportation. In addition, a conviction may also prevent J.S. from sponsoring his parents to come to Canada: Peter Edelmann, “Remedies in Canadian Criminal Law to Inadmissibility Under IRPA”, Prepared for the Legal Education Society of Alberta’s “Intersection of Immigration and Criminal Law”, 2019.

[34]      The primary purpose of sentencing is to contribute to a just, peaceful and safe society by imposing just sanctions that will serve one or more of the following objectives: denunciation; deterrence; removal of an offender from the community where necessary; rehabilitation of an offender; reparation to victims and the community; promotion of responsibility on the part of the offender and acknowledgment of the harm to victims and the community.

[35]      A sentence must be proportional to the seriousness of the offence and not be excessive or unduly harsh. All available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm to a victim or the community must be considered.

[36]      Mitigating and aggravating circumstances are also considered.

[37]      The common law test for granting a discharge was established in R. v. Fallofield, [1973] WWR 472, BCCA:

[38]      This is reflected in the language of s. 730 (1) of the Criminal Code.

[39]      It is also clear that conditional discharges are not restricted to a particular type of offence and are not limited to trivial or technical offences.

[40]      The first branch of the test is usually very easy to establish. It also presupposes that the accused is of good character and it is not necessary to enter a conviction in order to deter him from further offending. In this case, it is very clearly in J.S.’s best interests to receive a conditional discharge. He has no previous record, and by all accounts, is of good character. A criminal record would have significant consequences in respect of his ability to obtain employment, engage in volunteer activity and travel. Moreover, a criminal record for this offence will have an impact on his status as a foreign national and his ability to remain in Canada.

[41]      The second branch of this test is not always easy to articulate and it is this that has caused me the greatest difficulty, particularly in the circumstances of this case. In Fallofield, the only reference to what might be considered as contrary to the public interest is contained at para. 21:

[42]      Other jurisprudence defines the public interest as involving the need to warn others, such as prospective employers, that a person has a record for dishonesty. This is a narrow circumstance and does not always fit within the broader categories of offences prevalent in the courts. Just what “contrary to the public interest” encompasses or means, has been infrequently discussed or analysed.

[43]      A helpful discussion of the factors that may inform a determination of the second branch is found in R. v. Li, 2019 BCSC 648. At para. 28 Justice Brundett said this:

[44]      An assessment of the public interest requires a nuanced and contextual assessment of a variety of factors, not focussed on any one particular objective of sentencing. It would be an error, for example, to place an undue amount of weight on the need for general deterrence without also considering and assessing the circumstances of the offender and the offence. Moreover, a judge will err if she does not fully consider public interest: Li, (supra) para. 29.

[45]      Mr. Li was convicted of assaulting his wife by choking and shaking her. He appealed the suspended sentence and probation order imposed by the sentencing judge. In allowing the appeal, the Court found that the sentencing judge had placed too much weight on the seriousness of domestic assault and not enough on the many mitigating factors present.

[46]      The Court noted that conditional discharges have been given in cases where the assaultive conduct was at the lower end, coupled with the presence of significant mitigating circumstances. In Li, there were a number of mitigating factors that persuaded the Court to replace the suspended sentence with a conditional discharge:

[47]      The Court recognized the seriousness of domestic assault as well as the need for deterrence and imposed a two-year period of probation to allow for a longer period of supervision, contribute to his rehabilitation and provide a longer period during which his discharge could be revoked.

[48]      The considerations that inform a determination of the public interest have been the subject of a number of cases across Canada. The following principles can be distilled from those cases:

[49]      Immigration consequences faced by an offender may be considered in a determination of the suitability of a conditional discharge. This issue has been considered in courts across Canada and several useful principles can be taken from those:

[50]      In summary, a review of the case authorities suggests that a variety of considerations may be distilled into the following factors that can inform the determination of whether a discharge is contrary to the public interest:

[51]      All these factors underlie the broader consideration of public interest, which encompasses enhanced safety and reduction in offending. This must be balanced with other factors such as the rehabilitation of an offender including that person’s ability to contribute through gainful employment or otherwise.

[52]      In my view, in determining what is contrary to the public interest, the question is not whether the public would be “offended” by a sentence, but whether or not, after a consideration of all the circumstances, the sentence is one that would undermine public safety or other important community objectives. Those objectives must include the public interest in sentences that uphold the principles and objectives of sentencing and that are just.

[53]      I have reviewed the cases provided by counsel for J.S. in which conditional discharges were imposed in the following circumstances:

[54]      Crown counsel provided a case in which the offender sat beside an eighteen-year-old woman on a bus, raised her skirt and touched her. It was not clear in the reasons for judgment where he touched her. He was not remorseful and denied responsibility for his actions. He had a prior sexual offence with a conditional discharge and had a diagnosed sexual disorder although as long as he avoided public transportation he was at low risk to re-offend. The sentencing judge stated that a conditional discharge would be “contrary to the public interest and that the public would “be offended by the granting of a discharge in the circumstances.” The sentence of six months imprisonment plus two years’ probation was overturned on appeal and a suspended sentence and two years’ probation was substituted: R. v. Hilan, [2015] O.J. No. 2384.

[55]      There are a number of mitigating factors. J.S. was co-operative with the police, has pleaded guilty to the offence and spared the complainant from having to testify in court. He is young and has no prior criminal record. He has been involved in his church and is supported by a number of members of this community.

[56]      I considered whether I could rely on remorse as a mitigating factor. I am not persuaded that J.S. truly understands the impact his behaviour has had on the two young women involved in these incidents. His letter to the court expresses no regret for the trauma they experienced, but is focused upon his need to continue studies in Canada so he can obtain employment, repay his student loan and support his family.

[57]      J.S. is very sorry for what occurred, but it appears to me that, in particular, he regrets how this has affected him and how his parents regard these events. Nevertheless, I do consider that he has some remorse.

[58]      It is mitigating that J.S. has been on very strict bail conditions for well over a year and he has complied with those conditions.

[59]      It is aggravating that, in both incidents, J.S.’s actions were deliberate. During the first incident, J.S. deliberately got up from his bus seat and sat beside C.D. During the second incident, he tried repeatedly to entice S.H. inside his suite and when that did not work, used the ruse of having trouble with the debit machine to allow him to grab her wrist in an attempt to forcefully pull her inside.

[60]      The young age of the women involved is aggravating: C.D. was only fifteen years old; S.H. seventeen years old. J.S. was about nine years older than C.D. and seven years older that S.H. These were young vulnerable women. S.H. worked as a pizza delivery driver and worked alone and, in my view, is in that class of employees whose employment makes them more vulnerable and any sentence imposed must emphasize deterrence, denunciation and protection of the public: R. v. Nohr, [2013] BCSC 2145, para. 37.

[61]      Assessing a fit and just sentence is one of the most difficult and challenging tasks facing a judge. A sentencing judge must weigh many factors to ensure that a sentence achieves the objectives set out in our Criminal Code. A judge must consider the unique characteristics of the person convicted of an offence, the person or community harmed by the offender’s actions, and the circumstances of the offence. A just sentence cannot be based upon anger or community outrage and cannot be based on sympathy for the person before the court. A fit and just sentence ensures that sentences for similar offences in similar circumstances are consistent and based upon the law.

[62]      Here, the issue I have grappled with is whether a conditional discharge would be contrary to the public interest.

[63]      The public interest includes the safety of its citizens, particularly those more vulnerable. The public interest also includes the successful rehabilitation and re-integration of an offender.

[64]      In this case, J.S. is a young man who has travelled to Canada to pursue further education. He has a number of mitigating factors including community support from people with whom he was living as well as from the Deacon of his church. While I am concerned that he does not yet fully realize the impact that his conduct had on the two young women, I observed him closely in court and believe that he is very aware of the seriousness of his actions and the consequences if he engages in this kind of behaviour again or is charged with another offence.

[65]      It is significant that he was incarcerated on remand for seventy-four days, has suffered the stigma of these charges, the criminal investigation and the loss of his ability to attend classes at the college in person. He has had to explain these events to the very people who supported his coming to Canada as well as to his family in India.

[66]      I have considered the serious impact of his actions upon C.D. and S.H.

[67]      The case authorities provided by counsel for J.S. to support a conditional discharge are factually different. The behaviour in the majority of those cases, consisting of inappropriate kissing and touching, was not to the same level of aggressive behaviour as in this case and, in one decision, the moral blameworthiness of the offender was attenuated due to a mental health disorder (Hartman). The case provided by Crown counsel in which a suspended sentence was given, had additional features that were more concerning than the facts here – a diagnosis of a deviant sexual disorder.

[68]      Deterrence of others who may be inclined to behave in the same manner is an important consideration in imposing a sentence under these circumstances. A conditional sentence with appropriate conditions can serve a deterrent effect: Li, (supra) para. 39. It subjects the individual to conditions and if those are breached or if there are further offences, the discharge can be revoked.

[69]      I am satisfied that the significant time J.S. spent in jail, coupled with the shame and stigma of these proceedings, the strict conditions of bail he has been subject to for over a year, coupled with a lengthy period of probation, will satisfy the objectives of denunciation and deterrence.

[70]      J.S. is young and appears to be doing well in his studies here. He hopes to find employment and become a productive member of the community. He has been having difficulty adjusting in a new country. However, he can, indeed must, learn that in Canada, violence against women and girls, indeed all children, undermines the very fabric of our society, which values equality, autonomy and dignity for both men and women. That being said, I acknowledge that domestic violence and abuse of children is a serious problem in our society and that we all, newcomers included, have a responsibility to speak out against it and end it.

[71]      I have also considered the significant collateral immigration consequences of a criminal conviction when I weigh all the factors in assessing whether a conditional discharge is contrary to the public interest.

[72]      In this case, I am satisfied that a conditional discharge with appropriate conditions is not contrary to the public interest. It will ensure continued oversight of J.S. to minimize any risk that a similar offence may occur again and will thus enhance public safety. It is a sentence that will have a denunciatory and deterrent effect as well as a rehabilitative focus designed to hold J.S. accountable for his actions and help him learn the skills he will need to live successfully in Canada and this community. I also expect that his unique perspective as an individual from another country will allow him to help others and become a contributing member of this community.

[73]      J.S. will be conditionally discharged following completion of probation for twenty-four months. The conditions will assist him in successfully integrating into this community, help him learn about Canadian values, particularly as they relate to treatment of women and girls, and will allow him an opportunity to show the community that he is the good man that many others have described in their letters of support.

[74]      He must keep the peace and be of good behaviour and the other mandatory statutory conditions apply.

[75]      J.S. will be required to report to a probation officer. I am aware that he has some difficulty with language, but he is capable of studying in English and I am sure that he will manage. I believe that having discussions with a probation officer who can help him understand his actions and Canadian values will assist him in the longer term. This will also provide oversight to ensure that J.S. does not engage in this behaviour again.

[76]      The suggestion by his counsel that he attend at the [omitted for publication] is excellent, and he will be subject to a condition that he is required to attend initially by telephone and thereafter under the direction of his probation officer. I add that if he is regularly attending and obtaining counselling services and other assistance there, he may not be required to see his probation officer as frequently as he otherwise would.

[77]      He is to have no contact or communication with C.D. or S.H. except, and if they are willing to accept one, for writing letters of apology to the satisfaction of his probation officer. He is not to attend at the residence, workplace or school of C.D. or S.H.

[78]      I am not certain that the Respectful Relationship program will be beneficial to J.S. particularly if he obtains counselling or similar assistance from the [omitted for publication], the Deacon or others at his church. However, I will leave this to discretion of his probation officer and he is to complete any counselling or programs directed by his probation officer.

[79]      During the first year of probation, he must complete fifty hours of community work service, for the benefit of his church, the City of [omitted for publication] or the [omitted for publication]. I believe that J.S. will personally benefit by providing assistance to others in the community.

[80]      He must not possess any weapon as defined in s. 2 of the Criminal Code.

[81]      This is a primary designated DNA offence and he is to provide a sample of his DNA for registration in the national DNA databank.

[82]      Finally, I wish to acknowledge and express my appreciation to Ms. Sharla Johnson, Law Intern, for her invaluable research assistance.