R. v. N.A., 2017 ONCJ 665

CITATION : R. v. N.A., 2017 ONCJ 665 DATE : June 27, 2017 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. N.A. ********** REASONS FOR SENTENCE BEFORE THE HONOURABLE JUSTICE P.F. MONAHAN on June 27, 2017, at brampton , Ontario ********** INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO

SECTION 486.4(1)OF THE CRIMINAL CODE OF CANADA BY ORDER OF THE HONOURABLE JUSTICE P.F. MONAHAN DATED March 16, 2017 APPEARANCES : T. Sferruzzi Counsel for the Crown P. Mota Agent for M. Worsoff Counsel for N.A.

ONTARIO COURT OF JUSTICE TABLE OF CONTENTS WITNESS Exam. In-Ch. Cr- Exam. Re- Exam. - - - - ********** REASONS FOR SENTENCE PAGE 1 ********** EXHIBITS ********** EXHIBIT NO. PAGE NO. - - - INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO

SECTION 486.4(1)OF THE CRIMINAL CODE OF CANADA BY ORDER OF THE HONOURABLE JUSTICE P.F. MONAHAN DATED March 16, 2017 Transcript Ordered July 11, 2017 Transcript Completed September 11, 2017 Ordering Party Notified September 11, 2017

TUESDAY, JUNE 27, 2017 REASONS FOR SENTENC E MONAHAN J . (Orally): INTRODUCTION AND OVERVIEW: These are my reasons for sentencing in this case. By way of background I found N.A. guilty of assault, which assault was contrary to

Section 266 of the Code, and which assault I found to have taken place on October 31 st , 2014. I also found him guilty of human trafficking, contrary to

Section 279.01 of the Code, and receiving a financial or other material benefit related to the human trafficking contrary to

Section 279.02 of the Code . CIRCUMSTANCES OF THE OFFENCES : I delivered reasons for judgment on March 16 th , 2017, explaining the basis for the convictions and I have had regard to those reasons for judgment in arriving at the sentence to be imposed in this case. I also note, as mentioned in my reasons for judgment, that N.A. was charged with various prostitution type offences under

Section 286.3 and 286.2 of the Code . N.A. was arraigned on those charges and the trial proceeded on those charges. After six days of trial, and final argument the Crown withdrew the 286.2 and 286.3 charges when it was recognized that these provisions were not in force as at the time of the offences which were alleged to have occurred. I mention this point as, in my view, it is of some significance for sentencing purposes that N.A. has been found guilty of the human trafficking charges and no prostitution related offences.

That is not to minimize the serious nature of the offences that he has been found guilty of. The point is only that in many of the sentencing cases put before the court, they are either entirely prostitution cases or are prostitution and human trafficking cases, and this must be recognized when considering the application or the potential application of the sentences in those cases to the sentence to be imposed in the case at bar.

Returning to the facts of this matter, as my reasons for judgment outlined, N.A., whose date of birth is […], 1992, was approximately 21 years of age when he met G.S. when she was approximately the same age. They met in or about December 2013 or January 2014, when she began buying cocaine from him. She had become addicted to cocaine after her mother’s death in 2012, and certainly well before she met N.A. N.A. and G.S. became friendly in May 2014. He told her that he thought she was pretty and he suggested to her that she should consider working at a “strip club” as a dancer.

He told her that she could give him some of her money that she would earn and that he could double it for her and soon she would have a condominium and a new car. She was reluctant at first, but later she approached him and told him that she would like to start dancing as he had suggested. The relationship between N.A. and G.S. evolved over time.

I found as a fact that from July 2014 to the end of October 2014, N.A. exercised control, direction or influence over the movements of G.S., and I found that while he did not force her to work at the strips clubs (and a spa which she also worked at in September 2014) he strongly encouraged her to do so and played a direct role in causing her to work at the various strip clubs and at the spa. (See my reasons for judgment at paragraph 101). The second requirement of the human trafficking provision under

Section 279.01 of the Code , namely whether the conduct of N.A. was for the purpose of exploiting G.S. was dealt with separately in my reasons. I found that this requirement was made out but not until the last week of October, namely the week of October 27 th , 2014. I expressed the view that

Section 279.01 was probably contravened earlier but that it was not proved beyond a reasonable doubt until the week of October 27 th and continued until G.S. was able to sneak away from N.A. on or about October 31 st , 2014. My detailed reasons for judgment explained the facts as I have found them. By way of overview only, the following was proved beyond a reasonable doubt to be the circumstances as of October 27 th , 2014, and established a contravention of

Section 279.01 by N.A. at that time and 279.02.

Again, as I said by way of overview only, and referring and relying largely on paragraphs 105, 106 and 107, and paragraphs 22 to 29 of my reasons for judgment I note the following: 1 . By October 27 th , 2014 N.A. was having a significant influence on G.S.’s movements to and from the strip clubs so that she could work and give him the majority of the money, as I’ve already indicated. He knew she was a vulnerable person who had struggled with drug issues. 2 .

Also by this point in time he had made statements to her to the effect that she better “pray to God” that she was not hiding money from him, which she understood, reasonably in my view, to be a threat to beat her up if she hid money. 3 . By this point in time he had said to her in connection with when she should go to work, “You want me to act like a pimp, I’ll act like a pimp,” which she understood, reasonably in my view, as a threat to beat her up if she did not come home with what he thought was enough money from dancing. By this point in time she was scared of violence from him.

As she said in the November 2014 statements, he “scares the hell out of me”. This was a reasonably held view in my opinion. 4 . On October 29 th , 2014, N.A. and a friend of his were driving G.S. to work at one of the strip clubs. N.A. began to berate her over the possibility that she was hiding money, he told her to stop “playing childish games” and he grabbed her hair and smashed her face down on to the middle console causing her mouth to bleed. They stopped at Panera Bread so that she could clean the blood off herself.

The same day as that incident, namely on about October 29 th , 2014, N.A. picked her up at the club after her work. They were in another person’s car and N.A. was in the front seat. They were giving a ride to another friend of G.S.’s. G.S. had passed out on her friend. They were going to drop G.S. off alone at a hotel and she did not want to waste her money on a hotel and she wanted to be dropped off at her car. This led to N.A. grabbing G.S. and “whaling on her head” and pushing her out of the car in front of Tim Hortons. He came back later and apologized to her and took her to a hotel. 5 .

On October the 30 th , 2014, he was at the strip club, N.A. that is, was at the strip club that she was working at and she had made only $250 that night, and he was “pissed” as he thought she was not working hard enough. She tried to hug him and he told her that he was “strapped”, meaning that he was carrying a gun, so he said. 6 . During the last week of October 2014, he continued to demand and received the majority of her earnings from her work at the strip clubs, as he had always done. He did not get the money she earned on October 30 th , which led to the October 31 st , 2014 violence. 7 .

On October 31 st , 2014, a further assault occurred; it occurred in the vehicle which N.A. was driving. There was an argument with G.S. over how much money she had made the night before and how much he was going to get. She had apparently made $250 and he wanted $200 and she did not want to give it to him. She got out of the car and walked away. He came back an hour later and she was in the car with him again, an argument ensued. He grabbed her hair with one hand and he punched her in the head with the other at least five times.

He referred to her as a “stupid dumb bitch” and told her she was going to regret talking to other men. He said “you should be kissing my feet right now”. The argument was over some dispute about her talking to other men and her asking him about other women, and some alleged failure by her to assist him in some unrelated court proceeding against him. This assault also involved ramming her head against the middle console. Right after the October 31, 2014 assault described above, N.A. drove with G.S. and they picked up a friend of N.A.’s.

He said to that friend in the presence of G.S. “stupid dumb bitch thinks she can talk to other guys”. They drove to a mechanic’s shop where N.A. and his friend got out of the car. G.S. walked away by pretending to be dealing with something to do with her phone. She called two different friends and made arrangements for one of her friends to come and get her. She said she was afraid of N.A. and that he would find her. She stayed at a girlfriend’s house for two nights, namely November the 1 st and November the 2 nd , 2014, and her parents came on November the 2 nd to try to persuade her to come home.

She stayed at a different girlfriend’s house on November the 2 nd . Her eye was swollen and she was sleeping a lot. She was concerned that she had a concussion and she sought medical treatment. She went to Credit Valley Hospital on November the 2 nd , but it was going to take too long to get a CT Scan and an x- ray so she left. She then went to her on doctor on November the 3 rd . 8 . On November the 3 rd , 2014, N.A. messaged her and she spoke to him the next day, which was November the 4 th , or thereabouts. She had N.A. on the speaker phone with her stepmother present.

She told him she was leaving the country and he said, “no, no, no”. He said you’re going to give me $5,000 within 10 days and that if he did not get it there would be consequences.

9 . By on or about the week of October 27 th , 2014, I consider that G.S. did herself fear N.A. and felt that her safety was threatened if she stopped dancing. She had to sneak away from him on October the 31 st . She was afraid he would find her.

The only reasonable inference to be drawn by the facts is that by the week of October 27 th N.A.’s purpose was to cause G.S. to continue to dance at the strip clubs and to pay him the majority of her earnings, and if she failed to continue to provide the services and give him the money, a reasonable person in the position of G.S. would believe that her safety was threatened, and they would be right. 10 .

I have estimated in my reasons for judgment that during that week of October 27 th he was provided with approximately $600 to $800 of money that she had earned, and that the requirements for an offence under 279.02 were made out. I note that G.S. did seek medical attention on or about November 3 rd , as indicated above. The medical records disclose a trauma to her left side of her head and left cheek swelling and neck pain. No concussion was determined to have occurred, although she was examined in this regard. POSITION OF THE PARTIES : The Crown submits that the court on count one, namely the

Section 279.01 offence should sentence N.A. to 36 to 42 months, and that on count two, namely the

Section 279.02 offence that it should attract a 4 to 6 month consecutive sentence, and that the assault should attract and a 9 to 12 months consecutive sentence. Accordingly the Crown seeks a sentence of 49 to 60 months. The defence did not put forth a specific sentence as being the correct one. The defence does submit that N.A. is eligible for a suspended sentence, and that in any event his overall sentence, having regard to the collateral immigration consequences, should be less than six months.

I note at this point the defence submits that this case falls on the low end of the spectrum of the 279.01 and 279.02 offences. On consent we heard submissions from an immigration lawyer named Ron Poulton on behalf of N.A. on the sentencing, and the Crown and the defence agreed to the key points from Mr. Poulton’s submissions forming part of the evidence on the sentencing. I’ll return to those in the course of these reasons. CIRCUMSTANCES OF THE OFFENDER: N.A. was born in […] 1992, making him 25 years of age later this year. His parents both testified on the sentencing.

Let me begin by noting that N.A. has no criminal record. He was born in Macedonia, and as I understand it is a citizen of that country. He moved to the United States with his family when he was approximately six years of age. He moved to Canada in 2008, when he was approximately 16 years of age. He finished his high school in Canada. He has had part-time jobs while he was in school and he has worked with his father in the construction business full time in recent years and currently still works there. He has two younger siblings.

According to his parents, who both testified, he was a good student who stayed out of trouble. His mother said that in the last few years she had seen a change in his attitude and his behaviour. She said among other things that he no longer told his parents everything, as he had in the past. As I understand it, he is not a Canadian citizen; he is a permanent resident of Canada and, as indicated above, a citizen of Macedonia. SENTENCING PRINCIPLES AND CASE LAW: The fundamental principle of sentencing requires that I arrive at a fit sentence.

The sentencing must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The court arrives at a fit sentence by considering the aggravating and mitigating factors relating to both the offence and the offender, bearing in mind the established principles of sentencing. The sentencing objectives suggested by this inquiry are set out in

Section 718 of the Code and are to be identified. Bearing in mind the objectives of sentencing in this case and always mindful of the principles of restraint set out in

Section 718.2(

c) to (e), the court selects a fit sentence. ( See R. v. Casselman, 2014 ONCJ 1983 at paragraph 3 per Paciocco J., as he then was.)

I note that collateral immigration consequences may be taken into account in sentencing. I will return to this point below. Suffice it tosay that collateral immigration consequences can be considered, but they cannot be used to circumvent the principles and objectives ofsentencing. The sentence imposed must still be a fit one. When two sentences are appropriate, the one that better contributes to theoffender’s rehabilitation may be the most appropriate one. (See R. v. Pham,2013 SCC 15 , [2013] 1 SCR 739).

In arriving at a fit sentence the court should consider other sentences handed down by other courts for similar offences. In this case the court has been assisted by the Crown who has provided a number of different cases, some of which involve prostitution,some of which involve human trafficking and some of which involve both. No case law was put before the court on sentencing by thedefence. I will briefly review some of the relevant cases. In R. v.

A.A.,[2012] O.J. 6256, a decision of Justice Wein of the Superior Court, she considered a case in which two charges had beenmade out, one human trafficking charge under 279.01, and a material benefit human trafficking charge under 279.02. The charges weremade out after a trial, not a plea of guilt. In that case she sentenced the offender to 36 months less 9 months pre-sentence custody, for anet sentence of 27 months. She structured it in a way to avoid the immigration consequences. The accused in that case had a lengthycriminal record and the offence had taken place over a short period of time.

The violence in that case involved slapping the victim andthrowing a dryer at her. In the case of R. v. Estrella,[2011] O.J. No. 6616, a decision of Justice D.L. Corbett of the Superior Court, that case involved one countof trafficking and one count of procuring to be a prostitute. A finding of guilt occurred on both charges after a trial, not a plea of guilty. The victim in that case was 16 years of age and the defendant was a first offender and was not the primary offender in that case, althoughthey were the “lead hand” of another person who was said to be a pimp.

It is not clear how long the offence took place or over whatperiod of time it took place in the Estrella case, but the court did say that the operation was at its very beginning. In that case, the courtsaid that the range of sentence was two to four years for the offence of the nature covered in that case. In that case Justice Corbett gavea sentence of 2.5 years plus 60 days concurrent on an assault charge. In R. v. St. Vil, [2008] O.J. No. 6023, a decision of Justice Durno of the Superior Court, that case involved one count of humantrafficking and one count of living off the avails.

There was a plea of guilty and a joint submission for 37 months, which was acceptedby the court. The offender in that case was 24 years of age and had a youth record. The offence had taken place over 3 months and$20,000 had been handed over by the victim to the offender. In R. v. Nakpangi, [2008] O.J. No. 6022, a decision of the Ontario Court of Justice (per Atwood J.), the case involved three offences: oneoffence of human trafficking; one offence of living off the avails; and one offence of possession of a counterfeit mark. The traffickinghad taken place over 26 months and involved 2 victims.

One victim had handed over $360,000 to the defendant, and a second victim hadhanded over $65,000 to the accused or the defendant in that case. One of the two victims was under the age of 15 years old. In that casethe court handed down a sentence on a plea of five years. There are a number of other sentencing cases referred to by the Crown, which I will simply briefly summarize. They are not humantrafficking cases, they are largely prostitution cases, and I will simply briefly turn to those and summarize them. R. v. Nelson is a Superior Court decision being reported at 2004 O.J.

No. 5532, a decision of Justice Roy of the Superior Court. The caseinvolved charges of prostitution, living off the avails of prostitution, assault and sexual assault. The trial court imposed a sentence offour years for the prostitution offences and four years consecutive on the sexual assault for a total sentence of eight years. Theprostitution itself had taken place only over an eight day period. The treatment of the victim was said to be horrific. The accused in thatcase obviously had a long record as he was ultimately declared to be a long term offender. In R. v. Bennett, (ON CA), [2004] O.J.

No. 1146, a decision of the Ontario Court of Appeal, the Court of Appealconsidered a case involving prostitution offences with three female victims under the age of 18. It did not involve human trafficking. An8 year sentence was ultimately reduced to 6.5 years. I note as well that the factors considered in the prostitution cases are appropriate to be considered in human trafficking cases as modifiedfor human trafficking cases. This approach was taken by Justice Wein in R. v. A.A., [2012] O.J. No. 6256, which I have describedabove.

In particular, see paragraph 40 where she had regard to the so-called “Tang Factors”, which were derived from the Alberta Court

of Appeal’s decision in a prostitution related offence case called R. v. Tang (1997), 1997 ABCA 174 , 51 Alberta Law Reports(3d) 23 at paragraph 11. The point here is that the so-called “Tang factors” used in prostitution cases can and should be considered inhuman trafficking cases, provided they are properly modified to reflect the nature of the human trafficking case. ANALYSIS AND APPLICATION OF THE LAW TO THE FACTS IN THIS CASE: As I have indicated above, the “Tang factors” can and should be adapted and considered in human trafficking cases.

Consideration ofthose factors in this case leads me to conclude the following, as it concerns to the “Tang factors”: Tang factor number one, degree of coercion or control imposed by the offender. In this case there was a moderate degree of controlused. Violence was used to impose that control, but I note that G.S. was not held captive or anything of that nature. I do note that at theend of the piece, at the end of October, when she wanted to leave, she felt she had to sneak away from him, which she was able to do. However, he was not watching her at all times or anything of that nature.

Tang factor number two, the amount of money received by the offender. Here the amount of money received was low, $600 to $800, inreference to the last week of October only. He took the majority of money she earned, but not all of it, as per past practice, and asindicated the offence was only over that one week time as I found. So in this case the amount of money received was low. Tang factor number three, the age of the victim. The victim was 21 years of age at the time. She was a relatively young person, but shewas an adult.

That fact, namely the fact that she was a young adult, distinguishes this case from many of the prostitution cases involvingvictims under the age of 18. Accordingly, this case is not as bad as those cases involving younger victims. Tang factor number four, the question of special vulnerability. I consider that G.S. was moderately vulnerable by reason of her history ofdrug addiction, which he knew about. Tang factor number five, working conditions. There was nothing out of the ordinary. If anything, the working conditions were betterthan in some cases.

She was working in a strip club, which was a legal place of business. That is not to say it was a pleasant place towork. It is simply observing that when compared to some of the other cases it was not as bad or nothing out of the ordinary. Tang factors number six and seven, the degree of planning and sophistication and the size of the operation. In this case there was little“planning and sophistication”. N.A. used G.S.; he lived off of her. He clearly saw her as somebody he could take advantage of, and hedid so. There was a relationship that he had with her which he exploited.

There was no “operation” to speak of. Tang factor number eight, the duration of the exploitive conduct. I have found that the exploitive conduct, namely the human trafficking was only over a short period of time, namely five days, from October 27th to 31st. As I have said, it may well have been longer, but thathas not been proved beyond a reasonable doubt. Tang factor number nine, the degree of violence, if any, apart from that inherent in the trafficker’s parasitic activities.

I have found that N.A. is guilty of assault on October the 31st, and I have also found that two other assaults occurred on or about October the 29th. Theseassaults were part of the evidence supporting the 279.01 charge. These assaults were specifically linked to the exploitation of G.S. Hewas intimidating her with violence to get her to give him the majority of her earnings from the strip club work. A reasonable personwould consider that if she failed to continue to provide the strip club services and give him most of her money her safety would be atrisk.

Tang factor number 10, the extent to which inducements such as drugs and alcohol were employed by the offender. As I have indicatedabove, G.S. was a drug addict, but N.A. apparently did not want her taking drugs at the clubs. Accordingly, this factor was not anaggravating one in this case and in some ways assists the defendant on sentencing, as he did not directly use drugs or alcohol to influenceG.S. in the provision of the strip club services.

Having said that, I do not resile from my observation made above that he knew she wasvulnerable by reason of her drug addiction and he did use this to his advantage, namely her vulnerability. Tang factor number 11, the effect on the victim. I note that G.S. chose not to file a victim impact statement. Much of her trial testimonywas aimed at backing off her statements to the police. I rejected most of her trial evidence and accepted that the substance of the

November 2014 police statements were a truthful account by her of the relationship between her and N.A. In my view, there clearly wassome impact on G.S. She felt fear for herself and her family. She also suffered some physical injuries at the hands of N.A. for whichmedical attention was sought. I note, however, that once she was free of N.A., she herself chose to return to stripping shortly after thattime and shortly after the November 2014 statements. (See paragraph 59 of my reasons for judgment.) This suggests to me that theimpact of N.A. on her was significant, but was less than in some other cases.

Tang factor number 12, the extent to which the offender demanded or compelled sexual favours. This did not occur in this case. It is acircumstance of the offence that distinguishes it from the other cases. Let me summarize my conclusions with respect to the law as applied to the facts of this case: 1. The cases that most clearly resemble this case are R. v. A.A., the decision of Justice Wein described above, in which the sentencehanded out was 3 years, and R. v. Estrella, in which the sentence handed out was 2.5 years.

The A.A. case is distinguishable from thecase at bar in that N.A. has no record and A.A. had a lengthy one. I recognize that the violence in the A.A. case was less than in the caseat bar, but the degree of control in A.A. was greater. I note in this regard that in A.A. the court said, “she was forced to remain in one ofthe bedrooms.” (See paragraph 14 of the reasons for sentence in that case [2012] O.J. No. 6256. In my view the Estrella case was alsoworse than the case at bar in that it involved a prostitution related offence and a human trafficking offence and a 16-year-old victim.

Irecognize that the accused in that case was not the primary offender, but they were the lead hand. The accused in that case had no recordand Justice Corbett said that the appropriate range of sentence was 2 to 4 years and imposed a 2.5 year sentence. 2. The range of sentence sought by the Crown in this case of 49 to 60 months is far too high, in my view, to be a fit sentence and fails todistinguish the case at bar from the prostitution cases relied on by the Crown.

To be clear, I consider that the actions of N.A. in this casewere despicable and repugnant, but on the spectrum of degree of exploitation they were not nearly as bad as in the prostitution cases suchas Nelson and Bennett, for example. 3.

In the case at bar the Tang factors indicate a moderate degree of control; exploited conduct of a short duration; an adult victim closein age to the offender; an adult victim who was vulnerable due to drug addiction; significant violence; the exploitation itself involvedstrip dancing and not sexual activity; and in this case while still offensive and serious, the degree of exploitation was not as great as theprostitution in other cases where the victim was compelled to provide sexual services.

In this case, N.A. did not want the victim toprovide “extras”, meaning sexual services, and this assists N.A. in situating this case at the lower end of the human trafficking cases. Letme be clear and repeat the point, the offences here were serious, but they were towards the lower end of the spectrum of humantrafficking cases, in my view. 4. Significantly, N.A. has no criminal record. He has worked for his father and apparently has been a good worker. Generally the courtshould consider individual deterrence and rehabilitation as important objectives in sentencing. (See R. v.

Priest, (ONCA), [1996] 110 C.C.C. (3d) 289 at paragraph 17.) I do say that the Priest case is distinguishable as Priest talks about cases which didnot involve significant violence, and this case did involve significance violence. My only point here is that while N.A. is a young personrelatively speaking, the court needs to consider general deterrence, specific deterrence, as well as rehabilitation. 5. I am concerned that N.A. really has no remorse for what he did or any insight into the wrongfulness of his conduct.

When asked bythe court if he wished to say anything, he said words to the effect that he “apologized for everything” and that he never used G.S. andwanted “nothing out of her”. He said he viewed her as a “girlfriend” and “things just went wrong”. In my view, N.A. does not get it. Iwill not re-state the case against N.A., but I will say that a man does not treat a “girlfriend” like N.A. treated G.S. A man does not beatand threaten his “girlfriend” when she fails to hand over earnings to him from work in a strip club, and he does not demand money fromher and threaten her.

In my view, a fit sentence in this case is 18 months on the 279.01, and 18 months concurrent on the 279.02. The assault which was partof my analysis in arriving at the fit sentence for the 279.01 and 279.02 offences should be 90 days concurrent to the 279.01 and 279.02. This sentence of 18 months overall fairly balances all of the factors in this case, including the seriousness of the offence and theparticular circumstances of N.A., a young man with no criminal record. It sends a message of specific deterrence to N.A. that hisconduct was wrong and repugnant.

It sends a message of general deterrence to the community that this conduct will not be tolerated, butat the same time it seeks to promote N.A.’s potential for rehabilitation. Further, it properly situates this case on the spectrum of humantrafficking and prostitution cases. This was a serious case, but as I have said, it was towards the lower end of the spectrum and did notinvolve prostitution among other things. I have considered the potential immigration consequences for N.A. and I will return to that in a moment.

I do wish to speak briefly about the potential for a conditional sentence. No party, the Crown or defence raised the question of a conditional sentence. I note that a conditional sentence is not available for a 279.02 offence, and I consider that it would not be appropriate for a 279.01 offence. A conditional sentence is only appropriate where, among other things, it would be in accordance with the principles of sentencing as set out in 718 to 718.2. In my view, a conditional sentence in this case would not be in accordance with those sentencing principles.

It would not send a message of specific and general deterrence and denunciation as is required in this case. As I say, nobody put forward the proposition of a conditional sentence, but I have dealt with it nonetheless. I return now to the question of immigration consequences. I have considered the potential immigration consequences for N.A. The immigration evidence and the statutory provisions may be summarized as follows. This is based on the information obtained from Mr. Ron Poulton, which was agreed on by the Crown and the defence to be as follows: Based on the provisions of

Section 36 of the Immigration and Refugee Protect Act S.C. (2001) c.27 as amended, if convicted of an offence where the maximum term of imprisonment is at least 10 years or a sentence of more than 6 months is imposed, then a permanent resident is inadmissible on the grounds of serious criminality. This applies because 279.01 provides for a sentence of up to 14 years, so therefore it would apply in this case. As a result, there will very likely be a removal order based on the 279.01 conviction alone, apart from the question of the sentence.

There is a discretion in the officer not to refer the matter to the Minister, but the discretion is very limited. N.A. has no right of appeal from a removal order to the Immigration Appeal Division unless the sentence is under six months. To be clear, if he is sentenced to six months or more he will have no right of appeal of any removal order. If N.A. is subject to a removal order which he cannot appeal because the sentence is more than six months, then N.A.’s remedies would potentially be three-fold. One, a refugee claim, which would not be applicable here.

Two, a Pre-Removal Risk Assessment “(PRRA)” which has very limited chance of success in which a Minister’s delegate decides; and three, a

Section 25 humanitarian application to the Minister under

Section 25 of the Immigration and Refugee Protection Act . This too has a very limited chance of success, according to Mr. Poulton. Accordingly, any sentence of six months or more will eliminate any right of appeal from a removal order made where that right of appeal would otherwise lie to the Immigration Appeal Division. A removal order will likely be made on the sentence I have imposed, because it is more than six months, and in any event a 279.01 offence provides for a sentence of up 14 years, and that in and of itself regardless of the sentence would provide for a removal order in all likelihood.

As I have indicated because the sentence I am saying is the fit sentence, namely 18 months overall, he will have no appeal to the Immigration Appeal Division. Notwithstanding that N.A. is likely to be subject to a removal order and will have no right of appeal, in my view I could not possibly impose a sentence of anything close to under six months on the facts of this case. The immigration consequences cannot be used to lead to an imposition of an unfit sentence. Anything in the six month range in this case would be unfit, in my view, on the facts and on the law.

To summarize, on the immigration consequences they change nothing, in my view, in this case. As the Court of Appeal noted in R. v. Multani, 2010 ONCA 305 at paragraph five, like the defendant Multani, N.A. can still apply for humanitarian relief to the Minister under

Section 25 if he is subject to a removal order. I recognize that his chances of success here are “very limited” as indicated by Mr. Poulton, but nevertheless the humanitarian option is the proper avenue for N.A. on the immigration consequences. CONCLUSION : There will be an 18 month sentence on the 279.01 offence. There will be 18 months concurrent on the 279.02 and there will be 90 days on the assault, also concurrent. In my view, there should be a DNA sample provided in this case, and there should be a 10 year no weapons under

Section 109. THE COURT: Neither party made any submissions on probation. It’s my view that there should be a period of probation. I’ll hear from counsel for the parties as to the length of probation and it’s terms, but I appreciate that neither counsel were the counsel involved. I have to say that my inclination would be to do a one year probation, but I'm open to – I have not heard from anyone and Mr. – Mr. Sferruzzi I know that you have not been counsel on the case. ...SUBMISSIONS BY MR. SFERRUZZI ...SUBMISSIONS BY MR.

MOTA THE COURT: Well, I am going to order 12 months of probation, no contact with G.S. during that 12 months. The 12 months of probation is going to be after he completes his custody. He will have to report within two working days of his release from custody. Twelve months probation, counselling as directed, no contact with G.S., not to attend any place you know her to be.

On the

Section 109 it is going to be 10 years on the first part of 109(2), which is firearm other than a prohibited firearm or restricted weapon and any crossbow, restricted weapon, ammunition and explosive device. That is 10 years. Then on a prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition that is a lifetime prohibition under Section 109(2) (b). So that is going to be the sentence of the court. ...DISCUSSION REGARDING PRE-TRIAL CUSTODY – THREE DAYS PRE-TRIAL CUSTODY THE COURT: Five hundred and forty less three days, you get five hundred and thirty-seven days.

Report within two working days to probation after he is released. No contact with G.S. Not to attend any place he knows her to be. Other standard forms of probation. Counselling as directed. Sign any releases concerning performance of any other requirements of the probation. ...WHEREUPON THESE PROCEEDINGS WERE CONCLUDED