R v Ganesan, 2017 NUCA 7

In the Court of Appeal of Nunavut Citation: R v Ganesan, 2017 NUCA 7 Date: 20171024 Docket: 08-16-007-CAS Registry: Iqaluit Between: Her Majesty the Queen Respondent - and - Dushyenth Ganesan Appellant _______________________________________________________ Reasons for Decision of The Honourable Madam Justice Frederica Schutz _______________________________________________________ Appeal from the Sentence by The Honourable Madam Justice B. Tulloch Dated the 16th day of September, 2016 Filed the 14th day of November, 2016 (Docket: 08-15-261)

_______________________________________________________ Reasons for Decision of The Honourable Madam Justice Schutz _______________________________________________________ [1] The appellant pled guilty to assaulting his spouse, contrary to s 266 of the Criminal Code, RSC 1984, c C-46. [2] At the sentencing hearing, the Crown submitted that a suspended sentence would be an appropriate disposition. Theappellant contended that a conditional discharge was appropriate because it was in his best interests, and not contrary to the publicinterest.

The primary issue before the sentencing judge was whether the assault ought to be recorded as a criminal conviction. [3] The sentencing judge determined that a 9 month suspended sentence was the appropriate disposition. [4] For the reasons that follow, the sentence imposed does not warrant appellate intervention. Standard of Review [5] As with most appeals from sentence, some other sentence could have been imposed.

This Court may only interfere, however,if a sentence discloses an error in principle, fails to consider a relevant factor, or over-emphasizes the appropriate factors, or the sentenceimposed is demonstrably unfit: R v CAM, (SCC), [1996] 1 SCR 500 at paras 89-90, 105 CCC (3d) 327; R v LM, 2008SCC 31 at para 14, [2008] 2 SCR 163; R v Lacasse, 2015 SCC 64. [6] In the context of appellate review of a sentencing judge’s exercise of discretion to grant, or not grant, a conditional orabsolute discharge, it must be borne in mind that sentencing is an exceedingly difficult task.

Parliament explicitly vests sentencing judgeswith a discretion to determine the appropriate degree and kind of punishment under the Criminal Code: ss 718-718.2. This Court ispermitted to interfere with the exercise of this discretion only when legally necessary.

Analysis Proportionality [7] R v Safarzadeh-Markhali, 2016 SCC 14 at paras 70-71, [2016] 1 SCR 180, reiterates that proportionality “in the sensearticulated at s 718.1 of the Code - that a sentence be proportionate to the gravity of an offence and an offender’s degree of responsibility- is a fundamental principle of sentencing . . . proportionality is “the sine qua non of a just sanction”.

It is grounded in elemental notionsof justice and fairness, and is indispensable to the public’s confidence in the justice system.” Sentencing Decision Below [8] There is no dispute that the sentencing judge correctly summarized the agreed facts giving rise to the appellant’s guilty plea,as follows: On March 25th, 2015, the accused was drinking and an argument took place between him and his wife. At some point Mr. Ganesan toldhis wife that he was going to commit a double murder-suicide.

She became understandably concerned and called her husband’s friendwho came to her assistance and removed the accused from the home. On May 9, 2015, the accused was again drinking and a further argument took place. At the time Mr. Ganesan pushed his wife against awall. The next day, on May 10, 2015, the accused was again drinking. He was also smoking inside their home. His wife was upset about thisand tried to pour his drink down the sink. He punched her on the head, three or four times.

The accused’s step-son suffers from adebilitating disease which is getting progressively worse. [The Child] has muscular dystrophy which, among other things, affects hisrespiratory abilities. By smoking in the home, Mr. Ganesan is clearly impacting his step-son’s health. After the punching, the accused’s wife called a friend by the name of Angela McPherson, who came to the home and confronted theaccused. Eventually Ms. McPherson left and Mr. Ganesan continued to be angry with his wife. At one point he grabbed a chair andthreatened to hit her with it. He did not do so, but he did push her and she slapped him.

She went to the phone to call Mr. Ganesan’sfriend for assistance. The accused was angry that she was calling for help. He spat on her four or five times while she was on the phoneand told her that she was a whore, that she was stupid and illiterate, and that he only married her to get the money - whatever that meant. The accused also told his wife that he had killed a man before, but the police had not caught him yet. Eventually, the friend came and removed the accused’s wife from the home. She reported the incident to the police. In her statement shesaid that he broke things in the home and pushed her around.

She also disclosed that the abuse took place in front of their disabled son. [9] While the Crown sought a suspended sentence, the sentencing judge stated that “[o]n these facts alone it would not have

been unreasonable for the crown in this case to seek a period of custody”. I agree. [10] The sentencing judge correctly noted that violence against an intimate partner is statutorily aggravating. She further found thatthe facts were not limited to a “single incident of family violence”, but rather involved of a “number of incidents” that were notimpulsive: These facts support a finding that the accused deliberately and intentionally abused his spouse. He did so physically and also verbally.His humiliating and degrading comments were meant to hurt.

The threat to commit a double murder-suicide is particularly disturbing andaggravating. Further, his comments about him killing another man and getting away with it were clearly meant to seriously intimidate thevictim. It is also aggravating that this behavior occurred in front of the couple’s disabled son. There is no way that this wheelchair-bound fifteen-year-old boy could not have been impacted by what he witnessed, and he was completely powerless due to his medical condition to doanything about it. The facts do not speak to just one incident on one day, this is also aggravating. The fact that Mr.

Ganesan was smoking inside the home when he knows his son is negatively impacted by that behavior is alsoaggravating.

These findings are entitled to a high degree of deference and do not warrant appellate intervention. [11] The sentencing judge went on to discuss, in a balanced manner, the complainant’s comparative vulnerability and socialisolation in a northern community far from her birth country of India, and noted the complainant’s dependency on the appellant to assisther with the substantial needs of caring for their profoundly disabled teenage child. [12] The sentencing judge also took particular note of significant mitigating circumstances, including the appellant’s mature age,his lack of a criminal record, his exemplary work record, and his guilty plea and remorse.

She further noted the appellant’s attendance atcounselling and his acknowledgement that counselling taught him how to react more appropriately to situational stressors, both withinthe household and in his relationship with the complainant.

Also noted was the fact that the appellant was very involved with theongoing care of his step-son, was a good father who loved his stepson, and that both the appellant and the complainant faced a verydifficult and stressful situation knowing that “their son will not get better . . . is in considerable pain and his prospects for the future arelimited”. [13] The sentencing judge further summarized the evidence of two witnesses, each of whom voluntarily attended to confirm theirsupport for the complainant and the appellant. [14] Although initially advised that the appellant had no intention of leaving Nunavut, the sentencing judge fairly confirmed thatlate in the proceedings she was informed that, in fact, the appellant had outstanding applications for employment opportunities outside ofNunavut. [15] Section 730(1) of the Criminal Code provides that an absolute or conditional discharge may be ordered where there is nomandatory minimum sentence for the offence, it is in the best interests of the accused and not contrary to the public interest. [16] R v MacFarlane (1977), 1976 ALTASCAD 6 , 3 Alta LR (2d) 341 (CA) sets out some of the criteria that asentencing judge should consider when exercising their discretion under s 730(1) of the Criminal Code; the sentencing judge well-recognized these factors and they need not be repeated here. [17] The sentencing judge determined that granting a conditional discharge in cases of spousal assault should occur only inexceptional and rare cases.

This is because such offences generally require a sentence of general deterrence that is inconsistent withgranting a discharge.

There is ample support in the case law for this proposition: see for example R v Brown, 1992 ABCA 132 at paras 18-22, 125 AR 150; R v Bonneteau, 1994 ABCA 327 at paras 21, 24, 34, 157 AR 138; R v Heavyrunner, 2004 ABCA 15 at para 4, 346 AR 74; R v Pudlat, 2005 NUCA 3 at para 6, 404 AR 389; R v Koval (1991), 110 AR 51 at paras 10-13. [18] In the circumstances of this case, the sentencing judge decided that granting a conditional discharge would be in theappellant’s best interests, because it would alleviate any concerns about whether a criminal record may narrow future employmentopportunities, or may affect (there was no conclusive evidence on that issue) any future travel plans outside of Canada, including seekingmedical treatment for their son in the United States.

She found that the combination of these two advantages would alleviate any addedstress on the relationship between the complainant and the appellant, and in the household, that might arise from these future situations. [19] The sentencing judge ultimately determined, however, that granting a conditional discharge in this matter would be contrary tothe public interest: The test is whether or not the general public would look at these facts and the circumstances of this offender and find that it is uniqueenough to allow Mr. Ganesan to escape from the registering of a criminal record for spousal assault.

There is no doubt that this accused was under some stress when he committed this offence. Stress is a key ingredient in almost everyspousal assault. There are many kinds of stress and although the court sympathizes a great deal with the circumstances of this case andthis couple, I cannot grant a discharge when balancing the facts and the circumstances of this offender. . . . As in the case . . . MacFarlane, I must consider whether the circumstances that an accused has committed the offence is somethingwhich should be a matter of record for the public, and, in this case I find that it is.

I am encouraged by the accused’s efforts since the incident to participate in counselling. I do very much believe that he is remorseful and I hope that he is committed to change, but it is clear from the evidence that his journey is not over.

There is still more work to be done. [ 20 ] Read in the context of the entire decision, in my view the sentencing judge’s use of the phrase “unique enough” is essentially synonymous with the language used in MacFarlane at page 345, wherein the appellate court having decided that the appellant “deserves a criminal record” went on to say that “there are no exceptional circumstances which exist in this case which do not exist in the case of any young man who, while gainfully employed and otherwise a useful citizen, turns for the first time to crime”, and that would otherwise render a discharge a fit disposition merely because of previous or present “good behaviour”. [ 21 ] More recently, R v Shortt , 2002 NWTSC 47 at para 26 , cited dicta from MacFarlane that notes that offences involving violence are generally not amenable to the granting of a discharge, and went on to say that “[i]n particular, cases of domestic violence, since they engage considerations of general deterrence, and because of the prevalence of such crimes in all communities and the vulnerability of its victims, are ordinarily unsuitable for the use of the discharge option”.

As Shortt states, this is “simply a recognition that a greater emphasis on the need for general deterrence will usually mean the discharge is contrary to the public interest.” [ 22 ] In my view, although this is not to suggest that there is any offence-specific presumption that takes domestic assault offences out of consideration for a discharge, nonetheless a sentencing judge’s exercise of discretion not to impose a discharge in such circumstances is entitled to a high degree of appellate deference. [ 23 ] The sentence imposed in this matter does not warrant appellate intervention because the reasons disclose no errors in principle, or failures to consider relevant factors.

Nor were appropriate factors over-emphasized, or under-emphasized; all aggravating and mitigating factors were fairly and appropriately weighed.

And, the sentence imposed is not demonstrably unfit. [ 24 ] This Court of Appeal has repeatedly said in the clearest terms, that violence against intimate partners is anathema to Canadian values, and that denunciation and deterrence are paramount sentencing objectives in cases such as this. [ 25 ] In my view, the ordinary, reasonable, fair-minded member of Canadian society, informed about the circumstances of the case and the relevant principles of sentencing, would believe that the recording of a conviction is necessary to maintain public confidence in the administration of justice.

Disposition [ 26 ] The appeal is dismissed. Reasons filed at Iqaluit, Nunavut this 24 th day of October, 2017 Schutz J.A. Appearances: J. Montgomery for the Respondent A. Crowe for the Appellant