R. v. Xiao, 2017 ONCJ 721

CITATION: R. v. Xiao , 2017 ONCJ 721 DATE: October 20, 2017 Information No. 17-7856 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN V. JIE XIAO **************** REASONS FOR SENTENCE **************** HEARD BEFORE THE HONOURABLE MADAM JUSTICE J. BOURGEOIS On Friday, October 20, 2017, at OTTAWA, Ontario ****************

APPEARANCES : A. Kortenaar Counsel for the Crown K. Stein Counsel for J. Xiao (

i) Table of Contents ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S **************** REASONS FOR SENTENCE Page 1

Transcript Order Received: October 24, 2017 Transcript Completed: October 25, 2017 FRIDAY, OCTOBER 20, 2017 ...COMMENCEMENT OF COURT ...INTERPRETATION – English/Mandarin REASONS FOR SENTENCE Bourgeois, J. (Orally) On June 27, 2017, Mr. Xiao pled guilty to having assaulted Mr. Georges Karam on March 8, 2017. The Crown proceeded by way of

summary conviction. A pre-sentence report was ordered, and counsel presented their submissions on September 21, 2017. These are the Court’s reasons for sentence. The circumstances of the offence were captured on a video surveillance camera the family had installed in the room of Mr. Karam. Mr. Karam is an elderly person in the late stages of dementia. His family made the difficult decision in August 2015 to place him in a private room at the Garry J. Armstrong long-term care home in Ottawa. Mr. Karam is wheelchair-bound and mainly non-verbal, but primarily Arabic, when he does speak.

As a result of unexplained injuries to Mr. Karam, the family, with the permission of the management of the residence, installed a video camera in Mr. Karam’s room. It was not hidden, but clearly visibly installed on a wall. On Wednesday evening, March 8, 2017, Mr. Daniel Nassrallah, Mr. Karam’s grandson, was home reviewing the surveillance video from his cell phone, and what he viewed caused him great concern and upset. He called the police and attended the retirement home immediately.

The video reveals that at 6:20 p.m. the accused, a personal support worker employed by the residence and trained to work with dementia patients, entered the room while Mr. Karam was in bed. He pulls the blankets off, removes the pants, and changes the victim’s diaper, yanking Mr. Karam back and forth. These actions can be characterized as less than delicate and even as rough.

The victim, Mr. Karam, appears to react to such treatment by making gestures, with his arms and hands partially closed, towards the accused on three occasions. None of those gestures or attempts to strike actually connect with Mr. Xiao. It is subsequent to these gestures that the accused strikes the victim with a closed hand or a backhand motion, a total of 11 times, to the right side of Mr. Karam’s face. It is not clear that each one made contact with the victim’s facial area, but, nevertheless, all of those gestures meet the definition of an assault as per

section 265 of the Criminal Code , and the accused admits that. This entire transaction is relatively brief. The victim remains lying in bed, while the accused speaks to him neither in French, English, or Arabic. Mr. Xiao then points and gestures at the victim, covers him with the blankets, attempts to close his eyes, and motions to keep silent or quiet, with his finger to his lips. He then exits the room. Mr. Karam was taken from the residence to the Ottawa Hospital to be assessed. No injuries were noted, and he was returned to the retirement home that night.

The circumstances of the offender are captured partly in the pre-sentence report. Mr. Xiao is a 44-year-old family man with no prior criminal history. He had the benefit of a positive upbringing in China. He is now married, with two young children. He came to Canada in 2003, after successfully completing university studies in mechanics, and came to Canada to pursue a better life. In Canada, he commenced a vocational cooking program and supported himself as a chef. In 2011, he graduated, with a cumulative average of 3.94 out of 4 from a local college program, as a personal support worker.

In the fall preceding these events, his wife began full-time studies to complete her Ph.D. He became the exclusive financial support for his family and the main caregiver to his children. He was not a full-time employee at the retirement residence, but had been working there for seven years. He had never worked on the floor that Mr. Karam was housed and, as such, he had never cared for Mr. Karam either. He was concerned about the precarious state of his employment, but had not addressed the situation with his employer for fear of reprisal by not receiving further work shifts.

As a result of this situation, his personal situation, family situation, and work situation, the level of stress was high. After his arrest and while facing this charge, he made efforts through his family doctor and the employee assistance program to get counselling. Such counselling was denied as the offence was considered an isolated incident. As a result of this incident, Mr. Xiao’s employment at the retirement home was terminated. He was able to secure minimum-wage employment in two different convenience stores, securing approximately 36 hours of work per week.

The Crown is seeking a period of incarceration of three months, followed by 18 months’ probation. Ancillary orders sought are DNA and a firearm prohibition for five years. Counsel on behalf of Mr. Xiao is asking the Court to consider a conditional sentence order of six months less one day, to consider the immigration consequences for the accused. In the alternative, counsel suggests a period of incarceration of 90 days to be served intermittently, allowing Mr. Xiao to maintain his employment and continue to support his family financially.

Defence counsel agrees with the probation period, but argues that the ancillary orders are unnecessary. From the position of the parties, it is clear that everyone agrees and understands that jail is required. The only issue is the length and means by which the sentence will be served.

Section 718 of the Criminal Code provides the purposes and principles of sentencing. All agree that the primary sentencing principles in this case are denunciation and deterrence.

Section 718 (

a) and (

b) read as follows: “The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the

law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences.” A strong way to address these principles is by imposing a period of custody. In this particular case, the media coverage this matter received locally within this community, but, ultimately, nationally and, as learned through the victim impact statement of Mr. Nassrallah, even internationally, is certainly a factor this Court considers in the application of the principles of denunciation and deterrence. Such important and widespread public attention certainly allows for a strong denunciatory and deterrent effect on Mr.

Xiao personally, but also on anyone else tempted to behave similarly. Also of consideration is the fact that Mr. Xiao lost his employment as a result of this charge. Following his conviction, he will not be eligible to work as a personal support worker or in any vulnerable sector population. Identifying these primary principles does not mean the other enumerated purposes are ignored, but they do take a secondary role in this case. These principles are

section 718 : “(

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community.” A custodial sentence certainly has the effect of separating the offender from society, but it is not the primary purpose of this sentencing exercise. Indeed, as indicated, these principles serve a secondary role in the purpose of this sentence. A probation order is the means to assist an offender in his rehabilitation. In this case, Mr. Xiao already acknowledged the harm done to Mr. Karam and his family. As such, the sentence does not need to primarily focus on this purpose.

In determining the appropriate sentence, the Court considers the aggravating and mitigating factors in this case. The predominant aggravating factor is found at

section 718.2(a)(iii) of the Criminal Code . That paragraph specifically provides that: “A court that imposes a sentence shall also take into consideration: (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim.” Mr. Karam is one of our most vulnerable members of our community. He was not in a position to defend himself, not even to express himself to denounce the situation.

Indeed, viewing the offence as captured by the surveillance camera is disturbing not only because of the criminal nature of the behaviour, but also because of its highly morally reprehensible nature. To quote Mr. Antoine Karam, the victim’s son, in his victim impact statement: “Vulnerable individuals must be protected.” The impact this offence had on Mr. Karam and his family is also an important factor to consider. Both Mr. Daniel Nassrallah and Mr. Antoine Karam, on behalf of the victim and their family, read their victim impact statements before this Court. They explained the hurt

and the shock suffered as a result of this offence. Quoting from Mr. Nassrallah’s victim impact statement, he described the painstakingly difficult decision to place Mr. Georges Karam in what had been determined to be the ideal facility to address Mr. Karam’s needs. Mr. Nassrallah now suffers from anxiety and insomnia, fearing recurrent abuse suffered by his grandfather at the long-term care home. Mr.

Georges Karam is certainly described as a beautiful man, inside and out, through the photograph provided by his grandson depicting a young Georges in the 1950s as a law enforcement agent serving as a staff sergeant in the traffic circulation division in Beirut, Lebanon, but also as a caring and loving grandpa considered as a father to Daniel. The Court needs to also consider the mitigating factors in this case. Mr.

Xiao’s early guilty plea and, therefore, not only sparing the anguish of a trial and offering an expedited conclusion for the family, but it is also a public recognition of wrongdoing and, ultimately, taking responsibility for it, and, secondly, Mr. Xiao’s genuine expression of remorse and sincere apology to Mr. Karam and his family, publicly in open court and through his pre-sentence report. As expressed by Mr. Nassrallah through his victim impact statement, forgiveness is also one of the emotions attached to such a process.

The accused’s acknowledgement of guilt and responsibility, accompanied by a heartfelt apology, certainly assists in this difficult process. Finally, his insight into his offence and his attempt to seek counselling without being ordered by this Court, through his family doctor and the employee assistance program, is to be noted. The principles of parity and restraint also have to be applied, and they are found at paragraph 718.2 (

b) and (

d) of the Criminal Code . Parity means that a similar sentence ought to be imposed to a similar offender having committed a similar offence. Restraint means that an offender ought not to be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances. In a case such as this one, it can also mean exactly what Mr. Nassrallah indicated. We cannot let emotions rule the day. Emotions cannot get in the way of sentencing principles. The Court is also guided by other similar cases decided by other Courts. Counsel provided helpful cases, but R. v.

Foubert , [2009] OJ 5024 , decided by Justice McKinnon of the Superior Court of Justice here in Ottawa, is particularly convincing. At paragraph 29, Justice McKinnon said: “Fundamental to my decision is the recognition that Canada has an aging population.

Each year increasing numbers of elderly persons are being placed in long term care facilities.” At the end of that same paragraph, he indicates: “Studies filed by the Crown demonstrate that elder abuse is a growing problem in our society that must be seriously addressed.” At paragraphs 31 and 32, Justice McKinnon indicates: “Caregivers must know that if they abuse their position of trust and authority over vulnerable individuals, the court shall deal with them harshly. Caregivers often work in environments where witnesses are not present.

As such, they must deal with those entrusted to their care in the utmost good faith. Families who entrust their aged parents to institutions often do so with a sense of overwhelming guilt and desperate resignation. They have the absolute right to expect that those entrusted with the care of their aged parents will at all times act professionally, and within the bounds of the law.” Paragraph 32: “In my view, the only way to ensure that this bond of trust remains intact is for the courts to determine that caregivers who breach that

trust will be sent to jail. In my view, incarceration is the only reasonable alternative to ensure a safe and secure environment for those extremely vulnerable individuals who are at the mercy of their caregivers.” I am satisfied that the service of a conditional sentence order by Mr. Xiao, pursuant to

section 742.1 (

a) of the Criminal Code , would not endanger the safety of the community. However, in this case, it would be inconsistent with the fundamental purposes and principles of sentencing set out in sections 718 and 718.2 of the Criminal Code . A sentence to be served in the community would not adequately emphasize the primary principles of denunciation and deterrence applicable in this case. Again, to quote from Justice McKinnon’s decision, R. v.

Foubert, at paragraph 33: “In my view, jail is the only reasonable option to deter individuals in [the accused’s] position who might be tempted to act in the manner that he did. While [the accused] is not likely to repeat the deplorable conduct to which he has pleaded guilty and for which he has assumed responsibility, the overarching principle engaged in his sentencing must be the deterrence of others.” In conclusion, upon considering the sentencing principles, the aggravating and mitigating factors, a sentence of 90 days jail is the appropriate sentence. This sentence is meant to apply to Mr.

Xiao for the offence he committed and not to his wife and children. As such, the sentence is to be served intermittently to allow him to maintain his employment and continue to support his family financially. A period of 18 months’ probation concurrent to this jail sentence will also be imposed.

The terms of that probation order are as follows: 1 .1 You must appear at the jail to serve your intermittent sentence on time, in a sober condition with a blood alcohol concentration of zero, and not under the influence of or in possession of any controlled substance, unless you are taking that controlled substance pursuant to a lawfully obtained prescription. 2 .1 Report in person to a probation officer within two working days of your release from custody 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. 3 .1 Live at a place approved of by the probation officer and do not change that address without obtaining the consent of the probation officer in advance. 8.1 Do not associate or communicate in any way by any physical, electronic, or other means or be in the company of Mr.

Georges Karam or any members of his family. 9.1 Do not possess any weapons as defined by the Criminal Code . 11.1 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 for anger management and stress management. 11.2 You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessment, counselling, or rehabilitative programs as directed.

There will be a firearm prohibition for a period of five years, pursuant to

section 110 of the Criminal Code . After considering the factors set out in

section 487.05(3), I determine that a DNA is not required in this case.

THE COURT: Addressing the intermittent aspect of the sentence. MS. STEIN: Yes, thank you, Your Honour. I have spoken with my client and he advised me, if the intermittent sentence was a possibility, given his work schedule, if he could serve the sentence on Wednesday and Thursday during the week, as he works on the weekend. THE COURT: Yes. MS. STEIN: So I would expect that he could enter the facility probably Tuesday night, but I’ll verify that with him, and I guess be released Friday morning, but I’ll just double-check with him. THE COURT: Okay. He will have to attend today for administrative purposes. MS.

STEIN: He has to go today. I’ve explained that to him, yes. THE COURT: Okay, perfect. MS. STEIN: So he’s aware he’ll be going into custody today to be processed and will be released from the jail. THE COURT: Okay. MS. STEIN: If I could just have a moment, Your Honour? THE COURT: Yes, certainly. ...COUNSEL CONFERS WITH MR. XIAO MS. STEIN: Your Honour, I have spoken with him about the timing of things, and he is able to go into custody Tuesday afternoon around 5:00. The difficulty may be when he would be released.

It seems that if he were to be released early Friday morning, it may create difficulties for him getting to work. So I wonder if he could be released Thursday evening. THE COURT: Certainly. MS. STEIN: So he would still do 48 hours in a week, but it would be the Tuesday to the Thursday. THE COURT: In fact, what that means is he will have to return more often to complete his sentence. MS. STEIN: Yes. THE COURT: Okay. So, Mr. Xiao, you will be transported to the jail today for processing. You will then return on October 24 th at five o’clock and be released on Thursday, October 26 th .

What time would the release be? MS. STEIN: I guess, five o’clock, as well. That would make sense. THE COURT: In the afternoon. MS. STEIN: Yes. THE COURT: Okay. At five o’clock in the afternoon and, after that, on each consecutive week from Tuesday to Thursday, until your sentence is served. MS. STEIN: I take it, Your Honour, should there be any change in his work

schedule that would accommodate a change to that schedule, and I could come back before you. THE COURT: Either that or discuss that with the jail authorities, as they are responsible for the administration of the sentence, but coming back before me is also another option. MS. STEIN: Right, thank you. THE COURT: This leaves us with the victim fine surcharge. One count by

summary conviction in this case represents $100. The legislation allows for 30 days.

MS. STEIN: I would ask, Your Honour, given the financial concerns of the family, if he could have perhaps three months to pay that. MS. KORTENAAR: I’ll take no position on that. THE COURT: Okay. So I will grant three months for the victim surcharge to be paid to ensure that the funds are made available. I want to thank both counsel for their high level of professional presentation of this matter, but I also want to thank the family for their attendance and their victim impact statements as they provided those to the Court. Thank you. MS. STEIN: Thank you, Your Honour. THE COURT: Mr. Xiao, good luck to you, sir. ****************