Hadni v HMTK, 2023 ABKB 194

Court of King’s Bench of Alberta Citation: Hadni v HMTK, 2023 ABKB 194 Date: 20230403 Docket: 200890564S1 Registry: Edmonton Between: Mohamed Amine Hadni Appellant - and - His Majesty the King Respondent

Reasons for Judgment of the Honourable Justice Avril B. Inglis I. INTRODUCTION [1] The Offender pleaded guilty to sexually assaulting two of his neighbours. He now appeals the sentenced imposed – asuspended sentence followed by 12 months probation, see: R v Hadni, 2022 ABPC 195 [Hadni]. He seeks a conditional dischargearguing that the Sentencing Judge made an error of principle in failing to consider the immigration consequences to the Offender, hismoral blameworthiness and his remorse: see R v Lacasse, 2015 SCC 64 [Lacasse] and R v Friesen, 2020 SCC 9 [Friesen]. [2]

Section 730 of the Criminal Code, RSC 1985, c C-46 (Criminal Code), allows for the imposition of an absolute orconditional discharge where it is in the best interests of the offender and not contrary to the public interest. In Alberta, whether adischarge is in the public interest is determined by assessing the factors outlined by the Court of Appeal in R v MacFarlane, 1976ALTASCAD 6 [MacFarlane]. II.

ISSUES [3] The issues on this appeal are: • Did the Sentencing Judge make an error in principle in sentencing the offender? • If yes, did that error have a material impact on the sentence? • If yes, are the conditions for a discharge met in this case and should a discharge be substituted for the suspended sentence? [4] Having reviewed the Sentencing Judge’s decision, I find that an error was made when considering the Offender’s remorse,but that the error did not make a material difference to the sentence.

Further, the Sentencing Judge’s assessment of the immigrationconsequences do not amount to an independently reviewable error. A conditional discharge is not appropriate in this case. The appeal isdismissed, and the suspended sentence confirmed. III. FACTS [5] The Offender was charged with two counts of sexual assault upon two separate complainants stemming from incidents onAugust 1, 2020, and August 23, 2020. At the disposition hearing, one charge was withdrawn and the other amended to include theassaults on both victims. The Offender pleaded guilty to the single amended charge.

[ 6 ] At the sentencing hearing, an agreed statement of facts set out the circumstances of the assaults and is summarized at paragraph 1 of Hadni . In brief, on two separate occasions the Offender entered unrelated neighbours’ condominium units on his own initiative. When inside, he embraced the victim, touched her, tried to kiss her, and told her he loved her. Each victim rebuffed the advances and the Offender left. On each occasion, the Offender returned some 15 minutes later and tried to kiss the same victim again. On the later offence date, he grabbed the victim by the back of the neck and tried to kiss her.

She managed to push him out of her unit and lock the door. [ 7 ] In March 2020, the Offender came to Canada on a temporary work permit with his wife and now seven-year-old child. As a consequence of the charges, he has been unable to work. His work permit expired March 30, 2022. He submitted a permanent residency application under the humanitarian and compassionate consideration class on July 26, 2021.

That application remains outstanding. [ 8 ] At the sentencing hearing, the Defence sought a conditional discharge and submitted a psychological assessment, a document outlining the medication the Offender had been prescribed following the charges, and a letter from the Offender’s immigration attorney setting out the immigration consequences of a criminal record. The Crown sought a suspended sentence followed by 24 months probation.

One of the victims also provided the Court her victim impact statement. [ 9 ] The Sentencing Judge reviewed all the evidence submitted by the Defence and considered whether a discharge was an appropriate sentence according to the MacFarlane analysis.

The Sentencing Judge held that the factors did not support a discharge, that the Offender showed signs of not appreciating the consequences of his actions, that the Offender’s mental health did not reduce his moral blameworthiness, and that the immigration consequences were overstated by the immigration attorney. [ 10 ] The Sentencing Judge imposed a suspended sentence followed by 12 months probation and the mandatory DNA and 10-year SOIRA orders. IV.

STANDARD OF REVIEW [ 11 ] A sentencing judge’s discretion to impose the sentence they consider appropriate within the limits of the established law is entitled to deference: Lacasse at para 39 . Appellate intervention on a sentence appeal is only warranted when an error in principle, the failure to consider a relevant factor, or the erroneous consideration of an aggravating or mitigating factor impacted the sentence imposed. Not all errors will warrant appellate intervention: Lacasse at para 43 . An appeal court may only intervene where the sentence imposed is demonstrably unfit: Lacasse at para 41 . V.

ANALYSIS [ 12 ] The Defence submits that the Sentencing Judge made an erroneous consideration of mitigating and aggravating factors, which Friesen identifies as an error in principle: para 26. Specifically, the Defence takes issue with the Sentencing Judge’s findings on the Offender’s remorse and the way his mental health should reduce his moral blameworthiness. Further, the Defence argues that the Sentencing Judge improperly addressed the immigration consequences of the sentence she imposed. [ 13 ] The first two errors that the Defence identifies relate to the Sentencing Judge’s

interpretation of the Offender’s psychological assessment. The psychological assessment was conducted in March of 2021, roughly seven months after the offences. The assessment report was finalized and dated September 14, 2021. The sentencing hearing was on July 15, 2022, almost 23 months after the offences, and more than a year after the assessment was conducted.

A) Remorse [ 14 ] The Sentencing Judge’s assessment of the mitigating factor of remorse, including the Offender’s understanding of his responsibility for his actions and therefore his likelihood to change his behaviour was not borne out by the evidence on which she relied. [ 15 ] At the hearing, the Offender, through an interpreter, testified to his remorse saying: “I am very sorry for what took place. This was not my intention whatsoever to hurt anyone in the process. I really ask for your forgiveness.

If I could turn back time, none of this would have happened.” The Sentencing Judge took note of the Offender’s remorse and appropriately identified it as a mitigating factor. However, the Sentencing Judge seemed concerned that the reasons remorse is mitigating do not apply to the offender. [ 16 ] In assessing the Offender’s risk of recidivism, the Sentencing Judge was particularly struck by a comment in the psychological assessment. When the Offender spoke to the psychologist about the offences in March of 2021, the Offender said he felt

“misunderstood and misread, and believed no one was interested in his version of what happened.” The Sentencing Judge reasoned that if the Offender feels misunderstood, he is less likely to alter his own behaviour. [ 17 ] The mitigating nature of remorse is a function of the recognition that the absence of remorse indicates a higher risk of reoffending. Lack of remorse can be connected to a failure to take responsibility for the offence and lack of insight into the seriousness of the offence.

These factors can be indicative of future risk: R v A(RK), 2006 ABCA 82 . [ 18 ] The Defence correctly argued that a person’s remorse is not fixed in time. It is not uncommon for an offender to adamantly assert their innocence only to eventually come to understand the consequences of their actions and take responsibility for them. As such, the inference that the Offender was unlikely to change his behaviour because of comments he made more than a year prior to his sentencing hearing, should bear less weight than the statement of remorse offered in court at sentencing.

Furthermore, in other parts of the psychological assessment, the psychologist noted that the Offender has immature and depressed personality traits – both of which tend to manifest in a person feeling misunderstood; the offender’s statement that he was misunderstood may not reflect lack of remorse. As such, the sentencing judge’s finding that the Offender is more likely to reoffend is an error.

B) Mental Health Factors [ 19 ] The Sentencing Judge made no error in her conclusions about the impact of the Offender’s mental health challenges on his moral blameworthiness. [ 20 ] The Defence argues that the Offender’s mental health challenges contributed to his “unexplainable” actions and therefore reduced his moral blameworthiness.

The Defence points to the Offender’s acute depression, brought on by the culture shock of settling in a new country, and chronic depression, that the Offender must have experienced long before he was prescribed medication after the offence date. [ 21 ] The Sentencing Judge found that there was nothing in the psychological assessment referring to these as contributing factors.

There is no error in that finding. [ 22 ] The Defence relies heavily on one line at the end of the psychological assessment that refers to services that can help the Offender “recover from his acute and chronic conditions.” It is unclear what conditions are being referred to and which ones are acute and which are chronic. The psychological assessment does not clearly state that the Offender suffers from chronic depression.

The Offender’s “low average intellectual functioning” is the only condition that the psychological assessment identifies as pre-dating the offences. [ 23 ] The psychological assessment noted that the Offender’s intellectual functioning may not have been an obstacle in familiar environments, but that it likely made him less adaptable in new environments.

It further suggested that the Offender would benefit from “cognitive skill training for better decision making and reasoning.” While “low average intellectual functioning” is not properly described as a mental health condition, I do accept that a person’s moral blameworthiness can be reduced because of their lower intellect. [ 24 ] However, as the Sentencing Judge noted, the Offender did not leave either victim’s home when they asked him to and he continued his offending behaviour despite being told to stop.

The Offender also repeated nearly the exact same pattern of behaviour less than a month after the first assault. Up until the point when the victims asked the Offender to leave and told him they did not want to be touched, the Offender’s actions may be somewhat less morally blameworthy on account of his lower intellectual functioning.

However, there is no indication in the psychological assessment that the Offender cannot understand simple and direct statements such as “no” or “stop.” Once the victims had clearly rebuffed the Offender, his moral blameworthiness cannot be said to be lower because of his intellectual functioning.

C) Immigration Consequences [ 25 ] The Defence argues that the Sentencing Judge inadequately addressed the immigration consequences of the sentence she imposed, and that she relied on a misstatement of the law from R v Pham , 2013 SCC 15 [ Pham ] found in R v Chugh , 2020 ABPC 247 . [ 26 ] There is no reliance on a misstatement of law. The Sentencing Judge accurately summarized and applied the principles that have emerged in Alberta caselaw on the impact of immigration consequences in determining a fit sentence.

The Sentencing Judge was aware of the possible immigration consequences and conducted the MacFarlane analysis to assess if a discharge was a fit sentence. She determined it was not. That decision is owed deference. [ 27 ] Where the possibility of immigration consequences is brought to a sentencing judge’s attention, and the sentencing judge applies the proper sentencing principles but nonetheless decides on a sentence that triggers those consequences, deference is owed to that decision: Pham at para 23 .

Immigration consequences cannot take a sentence out of the appropriate range: Pham , para 17 ; R v Bandesha , 2013 ABCA 255 [ Bandesha ] ; R v Gittens , 2019 ABCA 406 . The difference between a discharge and a conviction is significant: Bandesha at para 8 . [ 28 ] The Sentencing Judge undertook a thorough analysis of the immigration consequences of this sentencing.

She considered the letter submitted by the Offender’s immigration attorney, probed the issue with the Defence during the hearing, allowed the Defence an adjournment to research the issue further, and gave the Defence leave to write to the Court with further submissions. There is nothing on the Court file to indicate that further submissions were made.

[ 29 ] The Sentencing Judge acknowledged that the letter from the Offender’s immigration attorney advised that “unless granted special permission to remain in Canada,” the Offender and his wife and child would be deported immediately and be unable to reapply for entry to Canada for five years. However, the Sentencing Judge concluded that the immigration consequences for the Offender were not as severe as the immigration attorney represented.

The Sentencing Judge reviewed the relevant sections of the Immigration and Refugee Protection Act , SC 2001, c 27 ( IRPA ), and found that the immigration attorney’s representations were contradicted by the IRPA .

Based on her reading of the IRPA as a whole, the Sentencing Judge determined that the Offender’s permanent residency application was not barred from consideration on account of a criminal conviction alone. [ 30 ] The limited evidence and process before the Sentencing Judge could not have allowed her to draw conclusions about the practical immigration consequences that the Offender and his family would face if the Offender received a criminal record. However, the Defence’s submission that this was in essence a deportation hearing was overstated and, in any event, irrelevant.

It is an error for a sentencing judge to find that a particular sentence will undoubtedly result in deportation: R v Faulkner , 2019 ABCA 352 at para 14 . [ 31 ] Despite the Sentencing Judge’s possible overreach in her analysis of the Offender’s immigration consequences, there is nothing in the facts of this case that invites appellate intervention to protect the Offender’s immigration application.

D) Impact of errors on sentence [ 32 ] Having found that the Sentencing Judge erred in her assessment of the Offender’s remorse, and misapprehension of the possible immigration consequences on the Offender and his family, this court must determine if those errors had a material impact on the sentence imposed. They did not. [ 33 ] The Offender’s remorse has no bearing on the MacFarlane analysis so the Sentencing Judge’s error on that issue is immaterial.

I must therefore consider if the Sentencing Judge’s error with regards to the collateral immigration consequences affected her analysis of the MacFarlane factors and her determination that a conditional discharge is not in the range of fit sentences for this Offender and this offence in these circumstances. [ 34 ] The MacFarlane test is used to determine what is in the public interest. The collateral impact of the public record of the Offender’s conviction on the Offender’s immigration status engages the Offender’s interest, not the public’s.

The sentencing judge’s misapprehension on the immigration issue does not amount to an independently reviewable error. [ 35 ] Since there are no errors that had material impact on the sentence, it is not open to this Court to engage in a fresh sentencing analysis. V. CONCLUSION [ 36 ] The Sentencing Judge’s original sentence of a suspended sentence with 12 months probation is upheld and the

summary conviction appeal is dismissed. Heard on the 2 nd day of February 2023. Dated at the City of Edmonton, Alberta this April 3, 2023. Avril B. Inglis J.C.K.B.A. Appearances: Y Rory Ziv

for the Appellant Rayne Thompson for the Respondent