R. v. Rai, 2018 ONCJ 949

CITATION: R. v. Rai , 2018 ONCJ 949 DATE: November 7, 2018 Information No. 998-18-725 ONTARIO COURT OF JUSTICE

HER MAJESTY THE QUEEN v. GURJOT SINGH RAI R E A S O N S F O R S E N T E N C E BEFORE THE HONOURABLE JUSTICE D.A. HARRIS on November 7, 2018, at MILTON, Ontario APPEARANCES : E. O'Marra Counsel for the Crown T. Majeed Counsel for Gurjot Rai

WEDNESDAY, NOVEMBER 7, 2018 R E A S O N S F O R S E N T E N C E HARRIS, J. (Orally): On the last occasion, Mr. Rai entered a guilty plea with respect to the charge. I heard submissions from both sides. The Crown's position was the Crown wanted probation. The defence requested a discharge. The Crown indicated that, if I was to grant a discharge, the Crown's position was that probation should be lengthened. The reasons given with respect to the discharge were that I should take into account all of the circumstances of the sexual assault. I should note that Mr.

Rai was one month past his eighteenth birthday and could be described as "very immature". Further, he had been in the country for less than one month. He is on a student permit and, if a conviction is registered in this case, he will almost certainly be deported. I believe I had indicated I was inclined to grant the conditional discharge. Both counsel took the position that the provisions of the Sex Offender Information Registration Act , do not apply if I grant a discharge.

I think I was the one in the room in that was having difficulty with that position and the matter was put over so that counsel could make submissions in that regard. In the meantime, I have been provided with a factum prepared by Ms. O'Marra and a case book setting out all of the cases cited by her, as well as, copies of provisions in Christopher's Law and in SOIRA . If it assists you, you have convinced me on that regard and I am in position to impose sentence, if you wish. Gurjot Singh Rai entered a guilty plea to a charge of sexually assaulting V.R.G. Crown counsel elected to proceed summarily. Mr.

Rai is before me today to be sentenced. Crown counsel suggested that probation was appropriate in this case. Counsel for Mr. Rai suggested that a conditional discharge was appropriate. Crown counsel then indicated that, if I chose to grant a discharge, her request was that the probation be for a lengthy period. I am satisfied that a conditional discharge is appropriate here. The conditions will run for a period of three years. I will also be making ancillary orders in the form of a weapons prohibition for five years pursuant to

Section 110 of Criminal Code . And I will be

making an order for the taking of DNA. I will not be making an order pursuant to the Sex Offender Information Registration Act and I will give my reasons for that in a moment. I have taken into account the law with regard to conditional discharges.

Section 730(1) of the Criminal Code provides that where an accused is found guilty of an offence where there is no minimum punishment or punishment for 14 years or life, the Court can direct that the accused be discharged absolutely or on conditions prescribed in a probation order, if I am satisfied that it is in the best interest of the accused and not contrary to public interest. There is no minimum sentence in this case. The offence is not punishable by imprisonment for 14 years or life. So I can grant Mr.

Rai a conditional discharge if I consider it to be in his best interests and not contrary to the public interest. The cases that have been determined, both in British Columbia and in Ontario, make it clear that discharges are not limited to technical or trivial violations.

Generally, the requirement that a discharge would be in the best interest of the accused, would presuppose that he is a person of good character, without previous conviction, and that it is not necessary to enter a conviction against him in order to deter him from future offences, or to rehabilitate him, and that the entry of a conviction against him may have significant adverse repercussions. Finally, I note that, while the public interest in the deterrence of others, must be given due to weight, it does not preclude the judicious use of the discharge provision.

I have taken into account the fundamental purpose and principles of sentencing in this case as set out in Sections 718 through 718.2 of the Criminal Code . I do not intend to repeat them here. I can indicate the facts of the case were that Mr. Rai approached Ms. R.G. at the Burlington Public Library. He spoke to her. She tried to dissuade any conversation. He persisted. She gave him a name and a telephone number to get him to go away. The name and the telephone number were not hers. Later, when she left the library and was heading towards her car, Mr. Rai followed her and ran up to her.

He pressed up behind her to such a degree that she could not open the door. He spun her around and tried to kiss her. She resisted and turned her head. He placed his hand on her breast. She pushed him away and managed to get into her vehicle. She locked the door. She drove away. She had his phone number. Her mother called that phone number and, ultimately, police were called

and Mr. Rai was arrested. I have been provided with an apology letter that was written by him during the police interview. As far as the impact of the offence, I was not provided with a victim impact statement; but I was told that Ms. R.G. found the incident to be quite upsetting. I am not at all surprised to hear that. If anything, I suspect that she has engaged in understatement. I am noting, in this particular case, that Mr. Rai is a young man. He had no prior criminal record. He gives every impression of being immature and that immaturity played a

part in what happened here. There was also suggestion that he was not fully in tune with local, i.e. Canadian rules, with regard to relationships. Following the incident, he has expressed intense remorse. He appears to have learned from this and it is unlikely that he will reoffend. Further, the consequences of a conviction being registered would be drastic. He would be removed from the country and have no opportunity to pursue his education here. I will indicate that, in imposing the sentence, I am not taking a position on whether or not he should be allowed to remain in the country.

That is a decision for someone other than myself. However, I am taking that into account in finding that a conditional discharge would be in his best interest. I also find that it would not be contrary to the public interest. I will note that the Court of Appeal and the Supreme Court of Canada have both made it clear that I can take such immigration consequences into account in determining the appropriate sentence so long as I am not using it to make an otherwise inappropriate sentence into an appropriate one. I am satisfied that is not the case here. Mr. Rai, if you would stand, please.

You will be granted a conditional discharge. You will be placed on probation for a period of three years. During that time, you will keep the peace and be of good behaviour. You will appear before the court when required to do so. You will notify the court or the probation officer, in advance, of any change of name or address; and properly notify the court or the probation officer of any change in employment or occupation.

You will report, in person, to a probation officer immediately and, after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision. Your reporting requirement ends when you have satisfied your probation officer that you have completed all of your counselling. You will

cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance; and you must provide proof of compliance with any condition of this order to your probation officer, on request. Do not contact or communicate, in any way, either directly or indirectly, by any physical, electronic, or other means, with V.R.G.; do not be within 20 metres of any place where you know her to live, work, go to school, frequent, or any place you know her to be. You will not attend at the Burlington Public Library at 3040 Tim Dobbie Drive, Burlington, Ontario.

You will attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer, including any counselling with regard to relationships and sexual assault. You will make reasonable efforts to seek and maintain suitable work or attend school, or an educational or training program approved of by your probation officer. I am making an order, pursuant to

Section 110 of the Criminal Code and, for the next five years, you are prohibited from owning, possessing, or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance. This offence is a primary designated offence and I am making an order authorizing the taking of any number of samples of one or more bodily substances, including blood, that are reasonably needed for forensic DNA analysis.

On the last occasion, I raised the issue of the Sex Offender Information Registration Act and its applicability in cases where discharges are granted because of the following. If it was applicable, such an order would be mandatory. If it is not applicable, such an order would be beyond my jurisdiction. It was essential that I answer the question as to its applicability under those circumstances. I will indicate that counsel have convinced me that it is not applicable. I will indicate that I still have some difficulties with that. I will set out why I have the difficulties.

Section 490.012(1) of the Criminal Code indicates that: When a court imposes a sentence on a person for...certain designated offences...it shall make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act The Criminal Code does not specify that this is limited to cases where I have convicted the person. It indicates I am to make the order where I sentence the person.

The difficulty arises because of what appears to be potentially sloppy legislative drafting.

Section 490.012(1) of the Criminal Code talksabout a court imposing a sentence. And Section 4(1) of the Sex Offender Information Registration Act sets out the obligations on aperson if they are convicted of an offence or, if certain other things have happened, which are not applicable in this case. As I indicated, before,

Section 490.012(1) of the Criminal Code indicates that I am to make an order in Form 52, ordering the person tocomply. Form 52 starts out by directing the person that they have been convicted of a criminal offence, or found not criminallyresponsible on account of mental disorder, for that criminal offence. It does not make reference to receiving a conditional orabsolute discharge. There is no question in my mind that, if I grant a conditional discharge, there is no conviction registered. The law is clear on that. My difficulty was whether or not a conditional discharge qualified as a sentence.

I will indicate that the reason why I thought that aconditional discharge qualified as a sentence is because

Section 730 is in the sentencing

section of the Criminal Code. Logic tells me that something like that set out in the sentencing

section is, in fact, a sentence. The above statutoryreference and the content of the form suggest that might not be the case. I was provided with a number of cases by Crown counsel. I am essentially disregarding the ones from outside of Ontario. There areOntario cases saying that, at least, one of them from Quebec is wrong. And the Ontario cases that have been provided to me go the otherway. I note, however, that most of the references qualify as obiter. Further, I will point out that R. v.

Dyck, 2008 ONCA 309, a decisionof the Ontario Court of Appeal, is dealing with Christopher's Law, not the Sex Offender Information Registration Act. Christopher's Lawquite clearly uses the word "convicted". R. v. Troutlake, [2002] O.J. No. 5978, an Ontario Court of Justice decision, is also dealing withChristopher's Law. However, in R. v. Devidin, 2008 ONCA 868 , [2008] O.J. No. 5219, the Ontario Court of Appeal makes a statement, atparagraph 44, as to the conditions precedent in

Section 490.012(1) of the Criminal Code being met and describes them as "an applicationby the prosecutor and conviction of a designated offence". That is one of the obiter statements that are before me. There is no analysis of how they reached that conclusion, but it is about the only clear cut statement by the Ontario Court of Appealdirectly on point. Similarly, in R. v. Senthamilselvan, [2018] O.J. No. 2990, Justice Brown, of the Ontario Superior Court of Justice, also makes an obiterstatement suggesting that a conviction is a prerequisite to making the order under SOIRA. On the other hand, in R. v.

Jayswal, [2011] O.J. No. 432, Justice Dean, of the Ontario Court of Justice, addresses this issue head on andconcludes that a conditional discharge is not a sentence within the meaning of

Section 490.012(1) of the Criminal Code; JusticeFairgrieve, of this court, reaches the same conclusion in R. v. Mwamba, 2006 ONCJ 374 , [2006] O.J. No. 4023. Taking all of these into account, I am satisfied that I do not have the jurisdiction to make an order under the Sex Offender InformationRegistration Act provisions and I am not doing so in this case.

Mr. Rai will be given eight months in which to pay the victim fine surcharge.