R. v. Ellis
Between
Her Majesty the Queen, Respondent, and
Stevan Ellis, Appellant
Her Majesty the Queen, Respondent, and
Stevan Ellis, Appellant
[2013] O.J. No. 5583
2013 ONCA 739
Docket: C52475
Ontario Court of Appeal
Toronto, Ontario
J.I. Laskin, E.E. Gillese and G.R. Strathy JJ.A.
Heard: July 17, 2013.
Judgment: December 9, 2013.
Docket: C52475
Ontario Court of Appeal
Toronto, Ontario
J.I. Laskin, E.E. Gillese and G.R. Strathy JJ.A.
Heard: July 17, 2013.
Judgment: December 9, 2013.
(202 paras.)
Criminal law --
Criminal Code offences -- Offences against the administration of law and
justice -- Corruption and disobedience -- Breach of trust -- Appeal by accused
from conviction for breach of trust and from sentence imposed dismissed --
Accused was member of Refugee Protection Division of Immigration and Refugee
Board who conducted hearing into refugee claim -- Prior to issuing decision, he
suggested to claimant that he would give positive decision in exchange for
intimate relationship with her -- Trial judge did not misapprehended evidence
which supported conclusion that accused sought sexual relationship with
claimant in exchange for positive decision -- Criminal Code, s. 122.
Criminal law -- Sentencing -- Criminal Code offences -- Offences against the administration of law and justice -- Corruption and disobedience -- Breach of trust -- Particular sanctions -- Imprisonment -- Sentencing considerations -- Aggravating factors -- Mitigating factors -- Deterrence -- Denunciation -- Rehabilitation -- Health (incl. mental health) -- Appeal by accused from conviction for breach of trust and from sentence imposed dismissed -- Accused was member of Refugee Protection Division of Immigration and Refugee Board who conducted hearing into refugee claim -- Prior to issuing decision, he suggested to claimant that he would give positive decision in exchange for intimate relationship with her -- Accused sentenced to 18 months' incarceration -- Accused's bipolar disorder did not reduced his culpability such that rehabilitation outweighed denunciation and deterrence -- Sentence was not unfit.
Criminal law -- Sentencing -- Criminal Code offences -- Offences against the administration of law and justice -- Corruption and disobedience -- Breach of trust -- Particular sanctions -- Imprisonment -- Sentencing considerations -- Aggravating factors -- Mitigating factors -- Deterrence -- Denunciation -- Rehabilitation -- Health (incl. mental health) -- Appeal by accused from conviction for breach of trust and from sentence imposed dismissed -- Accused was member of Refugee Protection Division of Immigration and Refugee Board who conducted hearing into refugee claim -- Prior to issuing decision, he suggested to claimant that he would give positive decision in exchange for intimate relationship with her -- Accused sentenced to 18 months' incarceration -- Accused's bipolar disorder did not reduced his culpability such that rehabilitation outweighed denunciation and deterrence -- Sentence was not unfit.
Appeal by the accused from a conviction for breach
of trust and from the sentence imposed. The accused was a member of the Refugee
Protection Division of the Immigration and Refugee Board. It was his job to
conduct hearings and decide whether the individuals appearing before him were
refugees or in need of protection. A 25-year-old South Korean applied for
refugee status in August 2005, claiming that her father had physically abused
her and people were after her to collect her father's gambling debts. The
accused was assigned to hear her claim and he conducted a hearing on July 17,
2006. At the conclusion of the hearing, the accused reserved his decision,
claiming that he did not have a chance to review all the documents on state
protection. As the refugee claimant was leaving the room, the accused asked her
where she worked and when she told him she was working at a Korean restaurant,
he indicated that he might drop in. The accused went to the restaurant where
the claimant worked on two occasions and engaged in conversation with her. He
advised her that he could not discuss her matter, but arranged to meet her for
coffee. At the meeting, the accused told the claimant that he had originally
denied her claim, but was thinking about changing his decision and had not made
up his mind, and he implied that he was interested in a sexual relationship
with her. In three draft versions of his decision, the accused concluded that,
although he believed the claimant's allegations, she was neither a Convention
refugee nor a person in need of protection. The trial judge convicted the accused
of both counts. She found that the accused suggested to the claimant that he
would give her a positive decision in exchange for an intimate relationship
with her. As a result, the trial judge concluded that a breach of trust was
established because the accused intended to use his public office and his
considerable power over the claimant to have an intimate relationship with her,
and not for the benefit of the public or based on the merits of the case. In
addition, she found that the accused agreed to accept a benefit in respect to a
matter under the act as he agreed to accept a benefit from the claimant, being
an intimate relationship with her, in exchange for a positive decision in her
case. Following his conviction, the charge under the Immigration and Refugee
Protection Act was stayed and the accused was sentenced to 18 months'
imprisonment for breach of trust. At the time of the offence, the accused was
47 years of age. He was married and had two children. Following his arrest, he
was suspended from his position and subsequently resigned. He saw a
psychiatrist and was believed to suffer from bipolar disorder, for which he
continued to receive treatment. The accused sought to appeal his conviction on
the basis that the trial judge misapprehended the evidence and that the verdict
was unreasonable. The accused sought to appeal his sentence on the basis that
the trial judge gave undue emphasis to denunciation and deterrence and
inadequate consideration to rehabilitation. The accused also argued that the
judge erred in sentencing him to a term of incarceration rather than imposing a
conditional sentence.
HELD: Appeals dismissed. The trial judge did not
misapprehend the evidence. There was ample evidence to support the finding that
although the accused did not directly state that he wanted a sexual
relationship with the claimant, he suggested it indirectly. The trial judge's
findings were fully supported by the evidence and were consistent with common
sense and human experience. The judge's conclusion was the only reasonable one
on the evidence. As the accused knew what he was doing was wrong, was aware of
the risk he was taking, the offence was not impulsive and he was otherwise
functional at work, his bipolar disorder did not reduce his culpability to the
point that a focus on rehabilitation outweighed the need for a sentence
consistent with denunciation and deterrence that would normally result from the
abuse of his position of trust. Sentence: 18 months' imprisonment -- Criminal
Code, s. 122.
Statutes, Regulations and Rules Cited:
Statutes, Regulations and Rules Cited:
Criminal Code, R.S.C. 1985, c. C-46, s. 122, s.
718, s. 742.1
Immigration and Refugee Protection Act, S.C. 2001,
c. 27, s. 129(1)(a)
Appeal From:
Appeal From:
On appeal from the conviction entered on April 21,
2010 and from the sentence imposed on July 29, 2010, by Justice Thea P. Herman
of the Superior Court of Justice, sitting without a jury, with reasons for
conviction reported at 2010 ONSC 2390.
Reasons for judgment were delivered by G.R.
Strathy J.A. and E.E. Gillese J.A. Separate dissenting reasons were delivered
by J.I. Laskin J.A.
1 G.R. STRATHY J.A.:-- The appellant was a
member of the Refugee Protection Division of the Immigration and Refugee Board
(IRB). In this position he was responsible for deciding refugee claims. He was
convicted of breach of trust in connection with his office, contrary to s. 122
of the Criminal Code, R.S.C.
1985, c. C-46, by suggesting to a refugee claimant that he would approve her
application if she engaged in intimate relations with him.1 He was sentenced to 18 months' imprisonment.
2 The
appellant appeals his conviction and sentence. He also brings an application
for leave to adduce fresh evidence on his sentence appeal.
3 For
the reasons that follow, I would dismiss the fresh evidence application and
dismiss the appeal from conviction. I would grant leave to appeal the sentence,
but dismiss the appeal.
A. THE FACTS
4 There
is no real dispute about the facts, because the key interaction between the
appellant and the complainant - a forty-five minute meeting on the patio of a
Starbucks café - was surreptitiously audio- and video-recorded by the
complainant and her boyfriend. The following is a summary.
5 On
July 17, 2006, the appellant conducted a hearing to determine a refugee claim
by the complainant, Ms. Ji Hye Kim. Ms. Kim was 25 years old. She had come to
Canada from South Korea, and claimed that she was afraid to return because she
had been abused by her father and threatened by gang members seeking to recover
her father's debts. Her counsel argued that she would receive no protection from
the state if she were forced to return to Korea.
6 At
the conclusion of the hearing, the appellant reserved his decision. He said he
would release his reasons as soon as possible. As Ms. Kim was leaving the
hearing room, the appellant asked her where she worked. She told him she worked
at a Korean restaurant at Jarvis and Front streets in Toronto. He said that he
liked Korean food and that he might drop in.
7 About
eight weeks later, on September 13, 2006, the appellant went to the restaurant
at lunch time. Ms. Kim did not initially recognize him. When she realized who
he was, she asked whether he had reached a decision on her case. He told her
that he had not. They had a short discussion, during which the appellant told
her that he had visited the restaurant twice since the hearing, but had not
seen her.
8 The
appellant returned to the restaurant nine days later, on September 22, 2006. At
his request, Ms. Kim seated the appellant in her section. She told him that she
had been unable to sleep and asked whether he had decided her case. He said he
had not yet made his decision. She asked whether she could ask him some
questions. He replied that they should not discuss her case in the restaurant
and suggested that they meet for coffee. It was agreed that they would meet the
following Tuesday, September 26, at 7:00 p.m.
9 After
discussing the matter with her boyfriend, who was angry because he thought the
appellant wanted to have sex with her, Ms. Kim and her boyfriend decided to
record the next meeting. On September 26, she was fitted with an audio recorder.
Her boyfriend borrowed a video camera, rented a car, and parked across from a
Starbucks patio on Bloor Street.
10 Ms.
Kim was seated at a table on the patio when the appellant arrived. After some
preliminary small talk, during which the appellant said he had been at a wine
tasting where he had a lot to drink, he asked Ms. Kim some questions about her
refugee claim, including questions about the physical abuse by her father.
11 The
appellant had brought Ms. Kim's immigration file with him. He took a draft of
his decision from his briefcase. He told her that when he first wrote his
decision, he was not able to decide in her favour: "I got 'no'. Not, not a
person that needs protection".
12 He
said that after thinking more about it, and seeing her, he thought,
"you're too nice". He continued, "I've been trying to find,
trying to find a way to say 'yes' for you ... It's 'no' right now. But I
haven't issued it yet." He was thinking about changing his decision, he
said, and had not completely made up his mind.
13 The
appellant asked Ms. Kim about her marital status. She said she was separated
from her husband. He mentioned her evidence at the hearing that her husband had
been abusive: "... he was bad to you too right. He beat you and stuff, he was
very bad." Ms. Kim agreed.
14 The
appellant told Ms. Kim that he might be able to help her get a job at a resort
in Huntsville, because she had a diploma in hotel management. He said he would
help her to get work: "I know you had a hard life and I want to help
you".
15 At
this point, the appellant explained that while he had initially said
"no" to her application, he was going to try to say "yes",
because he would not be able to sleep if he said "no". He said he was
going to work on it, because he really wanted to be friends with her. Ms. Kim
expressed gratitude, saying that he was "saving [her] life". He also
noted that he was going to "have to write [the decision] really well for
[her]" because "Korea has got a good government".
16 As
the conversation continued, the appellant stated that he really liked Ms. Kim
and wanted to be friends with her. He told her that he had to go to a meeting
at 7:30 p.m., but said he should have the decision finished by the following
Wednesday. He told her that as a result of the information he had obtained from
her he was going to be able to "change things around". He suggested
that they meet the day before he finished his decision, the following Tuesday,
and "have a big celebration".
17 The
appellant then asked Ms. Kim whether she had a boyfriend. She replied that she
was "kind of" living with her boyfriend. The following conversion
ensued:
· Mr. Ellis: That's okay. You know what, I've got a wife too, so its
okay.
· Ms. Kim: Okay.
· Mr. Ellis: So it doesn't matter, so we can be secret on this too.
Okay?
· Ms. Kim: Okay.
18 The
appellant explained to Ms. Kim that he had a "terrible marriage," so
he had a girlfriend, but that he was "going to break up with her"
because "she want[ed] [him] to leave [his] wife". He was not looking
for a steady girlfriend. He said he needed someone "on the side". The
following exchange then occurred:
· Mr. Ellis: Yeah, but you know I'm a good person but yeah so, the long
and short of it, I, you know, I want to be good friends
with you, and I know you've got a boyfriend, I've got a wife, so I mean, if we
do things together on the side, that's okay, that's fine, but I don't want to
be, you know, don't worry I'm not going to be demanding, I'm not going ask you
to move in with me or anything like that.
· Ms. Kim: Oh okay!
· Mr. Ellis: I'm not going to fall in love with you, don't worry about
that.
· Ms. Kim: Oh okay.
· Mr. Ellis: I just legitimately uhm, you know, legitimately want to
help you. Okay?
· Ms. Kim: Thanks very much. [Emphasis added.]
19 The
appellant emphasized the need for secrecy. After discussing Ms. Kim's
relationship with her boyfriend, the appellant told her not to tell him about
their discussion:
· Mr. Ellis: Don't talk to him either. Yeah, cause, cause. If you go
talk to him now, and tell him oh yeah, I had coffee with, you know my judge,
and he's going to help me next thing you know if I say yes, and if you ever
break up with him he might try to make trouble, he'll say oh yeah, you know
that guy, she you know, fucked with the judge, fucked him and that's why, she's
fucking him that's why he said yes, you know what I mean, because people have, people's
minds do funny things, particularly when they break up and stuff, I don't want
that to happen.2
20 The
appellant then cautioned her not to tell her lawyer about their discussions:
· And certainly, don't tell your, certainly don't, don't tell your
lawyer ... you know, I shouldn't be doing this, I know I mean I shouldn't be
meeting you without him.
21 He
explained that he had to go to his meeting:
· ... I wish I had more time, but this guy called me today and I was
hoping to go for dinner with you, and like spend a couple of hours with you and
doing stuff.
22 He
repeated that they would meet the following Tuesday, and said:
· So, why don't we uhm, why don't we meet next Tuesday, around the same
time, and, but definitely it's going towards you, so please sleep good,
okay?
Ms. Kim replied that this was okay with her.
23 The
appellant repeated that he was going to try to have his decision signed by the
following Wednesday, and confirmed they would meet "Tuesday night".
24 The
day after the Starbucks meeting, Ms. Kim's boyfriend sent a composite audio and
video recording of the meeting to the Chair of the IRB. The appellant was
suspended from his position at the IRB on September 28 and on October 2, 2006,
the Chair of the IRB issued a press release confirming the suspension pending
internal review. On October 3, 2006, the recording was delivered to the RCMP.
The next day, Ms. Kim gave a videotaped, sworn statement to the RCMP,
consistent with the requirements in R. v. B. (K.G.), [1993] 1 S.C.R. 740 (the "KGB statement").
25 In
the meantime, the media got hold of the story, which was widely publicized. The
appellant's wife learned of the story from the reporting. Shortly thereafter he
sought psychiatric help. He was arrested and charged on October 12, 2006.
26 The
video and audio recording of the meeting at Starbucks was introduced in
evidence at trial. Ms. Kim testified at trial and was cross-examined at
considerable length. The trial judge found her to be a credible witness and
rejected the defence attack on her credibility. The appellant did not testify.
B. THE CONVICTION APPEAL
The Trial Judge's
Reasons
27 The
central issue at trial was whether the Crown had established beyond a
reasonable doubt that the appellant had offered to give Ms. Kim a positive
decision on her refugee claim in exchange for engaging in intimate relations.
The defence conceded that if he had done so, the offences were made out.
28 After
hearing the evidence, the trial judge concluded that there was no reasonable
doubt that the appellant had suggested to the complainant that he would give
her a positive decision in exchange for something from her. While he never said so directly, the words he spoke and
the circumstances in which he spoke them left no reasonable doubt about his
meaning. The trial judge stated, at paras. 165-68:
· Mr. Ellis never directly told Ms. Kim that he would change his
decision from no to yes if she had a relationship with him. Rather, he
repeatedly said he was thinking of changing his decision and he repeatedly said
he wanted a relationship with her, without explicitly saying that one was in
exchange for the other.
· This was not a conversation between two equals, freely discussing and
agreeing to a relationship. Rather, it was a situation of one person with
considerable power over the other proposing a relationship, while dangling the
prospect of a positive decision. Mr. Ellis did not have to make the link
between a relationship and a positive decision explicit. In these
circumstances, the link was implicit.
· Ms. Kim's only role in the discussion was to indicate whether she
agreed to the relationship. It was not a free choice. Ms. Kim knew that had she
not agreed, she risked a negative decision.
· In considering the circumstances in which the discussion took place,
the particular words that were spoken and the conversation as a whole, it is my
opinion that there is no reasonable doubt that when Mr. Ellis met with Ms. Kim
on September 26, 2006, he suggested to her that he would give her a positive
decision in exchange for something from her.
29 The
trial judge then considered whether the something was an intimate relationship - that is, whether the appellant
suggested that he would give a positive decision on the refugee claim in
exchange for intimate relations with Ms. Kim. She found that the Crown had
established beyond a reasonable doubt that he had done so, at paras. 170-78:
· Mr. Ellis' first reference to what he wanted from Ms. Kim did,
indeed, begin with being friends and learning Korean. The discussion, however,
changed over the course of the meeting to suggest a far more intimate
relationship. That part of the discussion began when Mr. Ellis asked Ms. Kim if
she had a boyfriend. When she said that she did, he indicated that it was not a
problem because he had a wife.
· Mr. Ellis said he also had a girlfriend, but he thought he was going
to break up with her. He went on to say that he needed a girlfriend "on
the side" because he had a terrible marriage.
· In my opinion, he made his intentions clear when he stated:
· ... the long and short of it, I, you know, I want to be good friends
with you, and I know you've got a boyfriend, I've got a wife, so I mean, if we
do things together on the side, that's okay, that's fine, but I don't want to
be, you know, don't worry I'm not going to be demanding, I'm not going to ask
you to move in with me or anything like that ... I'm not going to fall in love
with you, don't worry about that.
· Ms. Kim understood that when Mr. Ellis said these words, he was
suggesting a physical relationship.
· "Doing things together on the side" is a euphemism for a
sexual relationship. Mr. Ellis used the same expression when he said he needed
a girlfriend "on the side." The fact that Mr. Ellis assured Ms. Kim
he was not going to ask her to move in with him and was not going to fall in
love with her, further supports this interpretation. Tellingly, he did not tell
her that he was not going to ask her to have sex with him.
· In my opinion, Mr. Ellis' meaning is clear. He was breaking up with
his girlfriend. Because of the state of his marriage, he needed to have a
girlfriend. He wanted Ms. Kim to be that girlfriend. However, given that Ms.
Kim had a boyfriend, Mr. Ellis wanted to assure her that she did not have to
worry about him being overly-demanding or falling in love with her.
· During the course of their conversation, Mr. Ellis repeatedly told
Ms. Kim not to tell her boyfriend. His concern with her boyfriend finding out
further supports the conclusion that he was suggesting more than a mere
friendship.
· I consider, as well, the overall circumstances. The meeting on
September 26 was not a matter of impulse or happenstance. It was pre-arranged.
Mr. Ellis came to the meeting with Ms. Kim's immigration file, prepared to
discuss her case. He knew that what he was doing was wrong. He knew, as well,
that he was placing his career at risk. It does not make sense that he would
have assumed this risk just for the pleasure of having coffee or the occasional
dinner and learning Korean.
· In considering the circumstances of the meeting and what Mr. Ellis
did and said, I conclude that the Crown has established beyond a reasonable
doubt that Mr. Ellis suggested to Ms. Kim that she have intimate relations with
him in exchange for a positive decision in her case.
Grounds of Appeal
30 The
appellant advanced two grounds of appeal.3 First, he
submitted that the trial judge misapprehended Ms. Kim's evidence. He submitted
that her evidence, properly understood, was that she did not understand the
appellant to be proposing a sexual relationship. Second, he submitted that the
verdict was unreasonable, because the proposition of an intimate relationship
was not the only available inference from the appellant's words and conduct. He
argued that the evidence concerning his intent was circumstantial and was
consistent with the exploration of the possibility of a relationship with the complainant - even a platonic
relationship.
31 We
did not find it necessary to call on the Crown to argue the conviction appeal.
I will explain why.
Misapprehension of the Evidence
32 The
appellant submitted that the trial judge misapprehended the evidence. That is,
her reasoning was based on "a failure to consider evidence relevant to a
material issue, a mistake as to the substance of the evidence, or a failure to
give proper effect to the evidence": R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 538. He relied on the
principles expressed by Doherty J.A. in Morrissey, at p. 541:
· When will a misapprehension of the evidence render a trial unfair and
result in a miscarriage of justice? The nature and extent of the
misapprehension and its significance to the trial judge's verdict must be
considered in light of the fundamental requirement that a verdict must be based
exclusively on the evidence adduced at trial. Where a trial judge is mistaken
as to the substance of material parts of the evidence and those errors play an
essential part in the reasoning process resulting in a conviction then, in my
view, the accused's conviction is not based exclusively on the evidence and is
not a "true" verdict. Convictions resting on a misapprehension of the
substance of the evidence adduced at trial sit on no firmer foundation than
those based on information derived from sources extraneous to the trial. If an
appellant can demonstrate that the conviction depends on a misapprehension of
the evidence then, in my view, it must follow that the appellant has not
received a fair trial, and was the victim of a miscarriage of justice. This is
so even if the evidence, as actually adduced at trial, was capable of
supporting a conviction.
33 The
appellant submitted that while the audio/video recording was a central piece of
evidence, the trial judge also relied on Ms. Kim's understanding of his words
to conclude that he was proposing a physical relationship. He argued that the trial
judge misapprehended portions of Ms. Kim's evidence concerning her
interpretation of his intention and that the finding that the appellant was
proposing an intimate relationship therefore cannot stand.
34 At
trial, Ms. Kim was referred in examination-in-chief to the appellant's
statement, quoted above, that he wanted to be good friends, but that he was not
going to fall in love with her. She was asked what she understood by the
statement. She said:
· I understood as that ah um that me become his girlfriend, and then he
said that he doesn't want fall in love with me so that part I interpreted as a
physical relationship that he doesn't want.
35 In
cross-examination, the defence put to Ms. Kim a portion of the KGB statement, in which she had said that the
appellant did not say anything about sex. The questions and answers in that
statement were as follows:
· Det. Sean Devine [SD]: So there's a good chunk of it that I missed
hum, and, and from what I understand there was hum, some talk of hum, sexual
hum, some sort of sexual talk...
· Ms. Kim [JK]: Huh uh.
· SD: in that conversation. Is that correct? Cause I, cause I haven't
seen it?
· JK: Not exactly. Hum, hum no.
· SD: There was no sexual talk at all. So basically there was hum,
favours hum, he had thought that you were gonna be friends.
· JK: Yes, girlfriend like...
· SD: A girlfriend, why do you say that?
· JK: It's because he said hum, he's breaking up with hum, his
girlfriend, and he will be leaving his family in two years and he said I need a
girlfriend, and, he really liked me, he said that five times, he really liked
me he wanted to be friends...
· SD: Yup, no,
· JK: he was not my boyfriend,
· SD: Yep, it's just I haven't seen the tape so I just.
· JK: That's why I read an article saying he wanted to change refugee
status with sex. But he didn't say that...
· SD: Yeah.
· JK: He didn't say about the sex.
· SD: Okay.
· JK: But...I didn't, but if I see him yesterday, next Tuesday,
[inaudible, not transcribed] he'd probably, I'm not sure, but it would of
happened yet but...
· SD: What, what do you believe him to be, like do you, what do you
think, he is his title his job?
· JK: [inaudible, not transcribed] all this conversation, I'm not sure,
he didn't ask me to have sex with him, in the way that you, he didn't say that
directly but, he's, he was really friendly nice talking to me, like "Oh I
really like you, I don't want you to go back to Korea" so just friend with
me, but, I have...therefore he's using his position.
36 The
appellant submitted that Ms. Kim's evidence, read in conjunction with her
statement, disclaimed any understanding of a proposition for a sexual relationship
and that the trial judge misapprehended her evidence when she found that Ms.
Kim understood that he was suggesting a physical relationship. He argued that
in light of the trial judge's misapprehension of this evidence, and the central
role it played in her reasons, it would be unsafe to found a conviction on it -
even if the court were to conclude that the audio/video evidence, standing
alone, would be sufficient for a conviction.
37 The
trial judge found that Ms. Kim's evidence was credible and that her evidence at
trial was consistent with the KGB
statement - although the appellant did not directly state that he wanted a
sexual relationship with her, he suggested it indirectly. The trial judge made
specific findings about what Ms. Kim concluded from the appellant's words, at
paras. 144-45:
· Ms. Kim testified that Mr. Ellis never directly said to her that he
would give her a positive decision on her refugee claim in return for an
intimate or sexual relationship. However, she understood that this is what he
was referring to indirectly.
· Ms. Kim said she felt uncomfortable when Mr. Ellis began to talk
about them being friends. When he told her he wanted to be good friends with
her and said they would "do things together on the side" but he would
not be demanding, she thought he was referring to having a physical
relationship with her. She believed she had to decide between having her
refugee claim rejected and having a relationship with Mr. Ellis.
38 The
trial judge's conclusion was based on Ms. Kim's evidence taken as a whole. Part
of her evidence-in-chief might have been open to the interpretation that, in
relation to one specific phrase the appellant had used, she did not understand
him to be speaking of a physical relationship. But, there were other parts of
her evidence where she confirmed that that she understood that the appellant
was either directly or indirectly suggesting a physical relationship. In
cross-examination, it was put to her that there was no discussion of sex during
the conversation. Ms. Kim replied:
· When he mentioned that I have my boyfriend and he's married, and when
he mentioned about being boyfriend/girlfriend between him and I, I could
understand the physical relationship.
39 When
it was put to Ms. Kim that in her KGB statement she had said that the appellant had not asked to exchange
sex for refugee status, she said:
· He didn't mention the actual word sex. That's what I meant.
40 Counsel
then put to her in cross-examination:
No, but I understand
that, but more than that he didn't say that he was going to exchange refugee
status with sex, did he?
Ms. Kim: He didn't say exactly what you said --
Q. Mm-hm?
· Ms. Kim: But what I meant was that indirectly he suggested, that's
what I mean.
41 Having
listened to and watched the recording of the conversation at Starbucks, and
having heard Ms. Kim's evidence, including her explanation of the alleged
inconsistencies in her KGB
statement, the trial judge found that the appellant suggested that he would
give Ms. Kim a positive decision on her refugee claim - he would change the
'no' to a 'yes' - if she engaged in sexual relations with him. He was not
simply suggesting a friendship.
42 Viewed
in isolation from the rest of the evidence, the statements to which the
appellant refers might be capable of benign interpretation. However, viewing
the evidence as a whole, there was ample support for the trial judge's conclusion
that he was proposing an intimate relationship. The trial judge did not
misapprehend the evidence.
43 Accordingly,
I would reject this ground of appeal.
Unreasonable Verdict
44 The
test to determine whether a verdict of a jury or a trial judge is reasonable
has been set out in a number of cases in the Supreme Court of Canada, including
R. v. Biniaris, 2000 SCC 15,
[2000] 1 S.C.R. 381, at para. 36. It is "whether the verdict is one that a
properly instructed jury, acting judicially, could reasonably have
rendered." In Biniaris, the
Supreme Court noted that in the case of a judgment of a judge sitting without a
jury, the appellate court may be able to identify a flaw in the evaluation of
the evidence or in the analysis that will explain the unreasonable conclusion.
Justice Arbour stated, at para. 37:
· ... in trials by judge alone, the court of appeal often can and
should identify the defects in the analysis that led the trier of fact to an
unreasonable conclusion. The court of appeal will therefore be justified to
intervene and set aside a verdict as unreasonable when the reasons of the trial
judge reveal that he or she was not alive to an applicable legal principle, or
entered a verdict inconsistent with the factual conclusions reached. These discernable
defects are themselves sometimes akin to a separate error of law, and therefore
easily sustain the conclusion that the unreasonable verdict which rests upon
them also raises a question of law.
45 The
appellant submitted that this case did not turn on credibility and that the
issue was one of the sufficiency of the evidence. He submitted that the trial
judge failed to consider whether guilt was the only reasonable inference that
flowed from the evidence. He argued that an equally available inference was
that he had not yet formed the necessary intent and that his discussions with
the complainant were at the exploratory stage. His words and conduct, he says,
were consistent with those of a lonely and unhappy man, who wanted to pursue
some form of personal relationship with the complainant, whether platonic,
sexual, or yet-to-be-determined. While his conduct was unethical and offensive,
it was not unlawful.
46 The
appellant pointed to four circumstances in support of this submission:
· * there was no explicit reference to a sexual relationship, and at
various points in the conversation he referred to his desire to be
"friends";
· * the complainant herself was unclear about his intentions, and at
one point, referred to above, interpreted his words to mean that he did not
want a physical relationship;
· * his references to secrecy were consistent with an acknowledgment
that his conduct was not ethical;
· * no inference can be drawn from the fact that he was putting his job
at risk by meeting with her - he may simply have wanted to help her, and it
cannot be concluded that he was meeting with her for his personal
benefit.
47 In
sum, the appellant argued that his conduct was consistent with wanting to get
to know the complainant better and not having formed an intention to propose a
sexual relationship.
48 The
trial judge was alive to this issue. She noted that while the meeting at
Starbucks began with a casual discussion about being friends and learning
Korean, it changed over the course of the meeting to a discussion of a more
intimate relationship, in which the appellant said that he needed a girlfriend
"on the side" because he had a terrible marriage. The trial judge
also found that on the evidence as a whole Ms. Kim understood the appellant was
proposing a physical relationship. His reference to keeping a secret, while
potentially ambiguous in the abstract, loses its ambiguity when considered in
the context of his other words and contact. The same is true with respect to
his expressed desire to be "friends".
49 I
have set out the critical portions of the trial judge's reasons above. She
found that the surrounding circumstances and the words used by the appellant at
the meeting were consistent with a proposal for sex and inconsistent with any
other rational conclusion.
50 The
trial judge's findings were fully supported by the evidence - not only the
evidence of what transpired at Starbucks, but all the surrounding
circumstances. The trial judge's conclusions were also consistent with common
sense and human experience. A 47-year-old refugee adjudicator who proposes to a
25-year-old female refugee claimant that he will change his decision in her
favour if she will be his girlfriend "on the side" is not suggesting
that he wants a platonic relationship. As the trial judge noted, it was telling
that the appellant made no attempt to reassure Ms. Kim that he was not proposing a sexual relationship.
51 I
agree as well with the Crown's submission that in considering the
reasonableness of the verdict, I am entitled to treat the appellant's failure
to testify as an inability to provide an innocent explanation for his conduct: R. v. Dell (2005), 194 C.C.C. (3d) 321 (Ont.
C.A.), leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 524, at para. 35.
52 In
short, I see no flaw in the trial judge's understanding or evaluation of the
evidence that would permit this court to intervene. Her conclusion was the only
reasonable one on the evidence. Accordingly, I would dismiss the conviction
appeal.
C. THE SENTENCE APPEAL
53 At
trial, the Crown sought a sentence in the range of three to three and a half
years. The defence asked for a sentence of less than two years, to be served in
the community by a conditional sentence. The trial judge concluded that a
conditional sentence would not be appropriate, as it was not consistent with
the fundamental purpose and principles of sentencing set out in s. 718 of the Code. She held that, notwithstanding the
presence of significant mitigating factors, including the appellant's bipolar
disorder, the principles of general deterrence and denunciation required a
period of imprisonment. She therefore imposed a sentence of 18 months'
incarceration.
54 The
appellant acknowledged that the offence was serious and that, in the absence of
his bipolar disorder, a period of imprisonment would have been appropriate. He
submitted, however, that the trial judge minimized the scope of his disorder
and the causative role it played in the commission of the offence. In the
result, he submitted, the trial judge gave undue emphasis to denunciation and
deterrence, inadequate consideration to his rehabilitation and erred in
sentencing him to a term of incarceration, rather than imposing a conditional
sentence.
55 I
will begin by reviewing some of the evidence at the sentencing hearing. Other
aspects of the evidence will be discussed later. I will then summarize the
trial judge's reasons in more detail, explaining how she addressed the issues
raised by the appellant. I will next consider the fresh evidence application.
After setting out the positions of the parties on sentencing, I will analyze
the issues on the sentence appeal.
The Evidence on the
Sentencing Hearing
56 The
appellant was 47 years old at the time of the offence and 51 when he was
sentenced. He was married, with two children, ages 20 and 15. He had practised
as a lawyer for four years, and then served two terms as a Toronto City
councillor. After being defeated in the election of 1997, he returned to the
practice of law. He was appointed to the IRB in 2000 and was reappointed in
2002 for a five year term.
57 He
was suspended from his position with the IRB after being charged and he
subsequently resigned. The IRB conducted a review of all the cases he had
adjudicated and found no matters of concern.
58 In
early October, 2006, the appellant saw a psychiatrist and has been in treatment
since that date. He voluntarily reported the matter to the Law Society and was
required to work under supervision, pending disciplinary proceedings.
59 At
the sentencing hearing, Ms. Kim read a victim impact statement in which she
noted that the appellant, the man who was deciding her future and whether she
could stay in Canada, tried to take advantage of her. As a result of the
offence, she was left with the feeling that she could not trust him, the IRB,
or anyone else in Canada. She was subjected to a second IRB refugee hearing,
investigations by the IRB and the RCMP and media attention. She had trouble
sleeping and stayed away from work for a month. Her refugee application was
ultimately granted.
60 The
appellant's wife, Ruth Neal-Ellis, testified on his behalf. She filed a letter
in which she described her husband as having had bouts of depression and
moodiness, followed by "reckless" and "very impulsive" behaviour,
especially around the time of the offence. She said his behaviour was out of
character between December 2005 and the summer of 2006. He acted impulsively at
times and pursued a "frenetic lifestyle". She described how he became
obsessed with his work and was irritable and short-tempered at home. He drove
recklessly and behaved impulsively and erratically on family vacations. He had
an extra-marital affair, but she did not become aware of it until after his
arrest.
61 In
cross-examination, Ms. Neal-Ellis described her husband as being controlling at
times, "high energy", "domineering" and behaving
"frenetically", to the extent she barely recognized him. She
acknowledged that, in spite of all this, she did not seek medical help for him.
She also acknowledged that she did not observe any unusual behaviour during the
week of September 26th, when the Starbucks meeting had occurred.
62 The
Crown tendered an affidavit of Lois Figg, Assistant Deputy Chair of the Refugee
Protection Division of the IRB, and defence counsel cross-examined her on it.
The records of the IRB showed that during the year ending September 2006, Mr.
Ellis completed 196 claims, tying with one other adjudicator for the highest
number of claims processed. She indicated that his case load was generally
consistent with the IRB's scheduling norms, except for six particular weeks,
centred around the summer of 2006, when he was scheduled to complete a greater
number of cases than normal. There were other times during the year when he had
fewer cases than normal.
63 It
appeared to Ms. Figg that, but for the holiday he took in August 2006, he was
working a regular schedule in the period July to September 2006. He made no
claims for stress leave or workplace illness, other than normal sick leave.
64 The
trial judge also heard expert evidence from two psychiatrists, Dr. Hill and Dr.
Parikh. Medical reports of two other psychiatrists, Dr. Rootenberg and Dr.
Ozersky, were filed in evidence as part of the information relied upon by Dr. Hill
in the preparation of his report. To put the evidence of Dr. Hill and Dr.
Parikh in perspective, I will briefly summarize the reports of Dr. Rootenberg
and Dr. Ozersky.
65 Dr.
Rootenberg was a forensic psychiatrist who assessed the appellant at the
request of his lawyer. He interviewed the appellant twice in September 2007 and
again in February 2009. He concluded that the appellant met the diagnostic
criteria for Bipolar Affective Disorder, manifesting both depressive and manic
symptoms. Another possible diagnosis was Bipolar II disorder, which includes
depressive and hypomanic episodes. He concluded that the appellant's
"conduct during the material time was markedly influenced by his mood
instability and impulsivity, which impacted adversely on his judgment".
Dr. Rootenberg noted that the appellant "reportedly consumed more wine
than usual on the date in question at a social event, which was
uncharacteristic for him and may have disinhibited his conduct further."
66 Dr.
Ozersky was the Senior Psychiatric Consultant to the Mood Disorders Clinic at
the University Health Network. He conducted a psychiatric evaluation of the
appellant in October 2007. He diagnosed the appellant as suffering from Bipolar
II Disorder, "rapid cycling type," and Attention Deficit
Hyperactivity Disorder. It was Dr. Ozersky's opinion that the appellant was
"hypomanic" at the time of his meeting with Ms. Kim at Starbucks.
67 Dr.
Ozersky opined that during the time preceding the offence the appellant
displayed other hypomanic behaviour, such as excessive spending (buying
twenty-five silk ties), going on a European vacation that he could not afford,
and requesting that his workload be increased. Dr. Ozersky regarded this last
behaviour as an example of "grandiosity". He also noted that the
appellant had been conducting an extra-marital affair around the time of the
offence and observed that although this could be an expression of "very
normal human behaviour," taken with his other behaviours it was "an
atypical expression of his underlying Bipolar Disorder." He concluded:
· I believe at the time of the index incident, the bipolar disorder
impaired his [judgment], made him impulsive, and he was grandiose enough to
think he was the helpful saviour.
68 These
last comments as to impulsivity and grandiosity must be understood in the
context of the appellant having told Dr. Ozersky that he had
"accidentally" met Ms. Kim at the café and had told her that he would
be willing to "be her friend" and was "willing to help
her". He had denied any sexual intent. In other words, in recounting the
events to his psychiatrist, the appellant had minimized the considerable and
protracted planning and preparation that went into his meeting with Kim and did
not disclose that his conduct was directed towards personal gratification.
69 Dr.
Hill was a practicing psychiatrist who treated the appellant for four years
after his arrest. He acknowledged that the Crown's expert, Dr. Parikh was an
expert in the study and research of mood disorders and conceded that his own
involvement in the area was limited to the clinical care of people with mood
disorders. He said that he might at the time have 10 or 15 patients with
bipolar disorder serious enough to require medication in his private practice.
He diagnosed the appellant as having bipolar disorder.
70 He
reviewed the medical reports of Dr. Ozersky and Dr. Rootenberg, as well as the
recording of the meeting at Starbucks and the letters of support from the
appellant's colleagues and friends. It was Dr. Hill's opinion that prior to and
at the time of the offence the appellant was showing signs of mental illness
consistent with Bipolar II disorder with hypomanic episodes. He described this
disorder as: "a clinical course that is characterized by the occurrence of
one or more major depressive episodes[,] accompanied by at least one
[h]ypomanic [e]pisode." He characterized a hypomanic episode as "a
distinct period during which there is an abnormally and persistently elevated,
expansive, or irritable mood that lasts at least four days that is clearly
different from the person's usual mood." During that period, at least
three of these symptoms will have occurred: (a) inflated self-esteem or
grandiosity; (b) decreased need for sleep; (c) excessive talkativeness; (d)
flights of ideas; (e) distractibility; (e) increase in goal-directed activity;
(f) excessive involvement in pleasurable activities that have a high potential
for painful consequences, such as buying sprees, sexual indiscretions or
foolish investments.
71 In
his evidence, Dr. Hill expressed the opinion that he was "quite
comfortable in saying that [bipolar disorder] did play a part [in the
appellant's involvement in the offence]". The illness had a deleterious
effect on his behaviour, causing him to act in an erratic and undisciplined
way.
72 Dr.
Parikh filed a report on behalf of the Crown. He also testified at trial. Dr.
Parikh was the Deputy Psychiatrist-in-Chief at the University Health Network
and a Professor of Psychiatry at the University of Toronto. He specialized in
mood disorders, particularly bipolar disorder. He had served as head of the
Bipolar Clinic at the Clarke Institute of Psychiatry (later CAMH) from 1994 to
2002 and had written extensively on mood disorders. He had "personally
treated thousands of people with bipolar disorder" and "trained many
hundreds" of physicians "on the diagnosis and management of bipolar
disorder".
73 Having
read the medical reports, including Dr. Hill's, and having viewed the recording
of the Starbucks meeting, Dr. Parikh concluded that the appellant's behaviour
at the time of the meeting at Starbucks could not be adequately explained by
bipolar disorder. He concluded:
· In summary, Mr. Ellis reports a number of unusual symptoms suggestive
of some difficulties in mental health. However, the specific constellation of
symptoms and signs, together with the context of the behaviours potentially
demonstrating a hypomanic state, are only slightly supportive of the
possibility that Mr. Ellis was in a bipolar 2 hypomanic state at the time of
the offence. Furthermore, Mr. Ellis is noted to have approached Ms. Kim for
further contact on July 17th at the end of the IRB hearing, on September 13th,
September 22nd and on September 26th. Individuals in a hypomanic state might
have made impulsive or poor decisions or behaviours on one or several closely
timed occasions, but the persistence of behaviour from July through September
suggests that hypomania would not be the reason for such behaviour. As such,
bipolar 2 disorder does not adequately explain the behaviour of Mr. Ellis on
September 26th.
In the body of his report, Dr. Parikh noted that it
is unusual for hypomanic episodes to last more than a few weeks.
74 In
addition to this evidence, the appellant filed 56 supportive reference letters
at the sentencing hearing. The letter writers came from all walks of life, and
included people who knew him in his public and private lives, lawyers who had
appeared before him at the IRB, family members, co-workers and community
leaders. All spoke highly of him, his excellent work at the IRB, his
professionalism, integrity and strong work ethic. Many described his conduct in
this case as entirely out of character. Some spoke of the suffering he and his
family had endured as a result of the charges and conviction. Several indicated
that his behaviour around the time of the offence seemed erratic, anxious and
distracted.
75 I
now turn to the trial judge's reasons for sentence.
The Trial Judge's
Reasons for Sentence
76 After
reviewing the facts and the general principles applicable to sentencing, the
trial judge considered the aggravating and mitigating circumstances. The
aggravating factors included:
the abuse of the
appellant's quasi-judicial position;
the abuse of a power
imbalance, aggravated by the fact that Ms. Kim was young, female, and, to his
knowledge, had been the victim of abuse by her husband and father;
his knowledge, as a
lawyer and an IRB member, that his conduct was wrong;
the act was not
impulsive, having been the culmination of two prior meetings; and
the fact that the
appellant's actions undermined the integrity of the IRB and of the refugee
determination system in Canada.
77 The
judge also considered the mitigating factors, including:
the appellant's
unblemished career and his otherwise positive record as an IRB
adjudicator;
the impact of the
offence on his wife and children, including the emotional and financial impacts
flowing from the loss of his job;
the numerous letters in
support of the appellant from friends, relatives and lawyers, who spoke to his
competence, diligence, integrity and dedication to public service;
reference by some of the
letter writers to their own observations of the appellant's agitation, distress
and fatigue in the months before the incident; and
the appellant had
apologized to the complainant, and to his family and the community, for the
harm he had done to them.
78 The
trial judge found that although Dr. Hill was not an expert on bipolar disorder,
he had been treating the appellant for almost four years on a regular basis,
and his diagnosis of Bipolar II disorder was supported by Dr. Ozersky and Dr.
Rootenberg. She therefore concluded that the appellant had bipolar disorder,
and that it may have affected his judgment at the time of the offence. She
found this was also a mitigating factor.
79 She
noted, however, that his conduct was not impulsive. He first expressed interest
in Ms. Kim after the hearing on July 17, 2006, when he asked where she worked
and said he might come by. He went to her place of work twice, before actually
meeting her on September 13, 2006. On his last visit to the restaurant, he
suggested that they meet somewhere else so that they could talk about her case.
This led to the meeting at Starbucks. On that occasion, as the trial judge
noted, "he arrived at the meeting, with her file in hand, prepared to
discuss her case" (at para. 52).
80 The
trial judge concluded on this point, at para. 85:
· I note, however, that Mr. Ellis' conduct was not impulsive - it
occurred over a period of time and was well planned. Mr. Ellis was otherwise
functional at work during that period of time. Furthermore, while the hypomania
may have affected Mr. Ellis' judgment, he was, nonetheless, aware that what he
was doing was wrong, and that he was placing both himself and Ms. Kim at
significant risk.
81 The
trial judge then turned to the determination of the appropriate sentence. The
principal issue was whether a conditional sentence would be appropriate. In
order to impose such a sentence:
the offence must be one
that does not carry a maximum term of 10 years or more, or a minimum
term;
the court must impose a
custodial sentence of less than two years;
service in the community
would not endanger the safety of the community; and
a conditional sentence
would be consistent with the fundamental purpose and principles of
sentencing.
(R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 46.)
82 The
first requirement was satisfied because the offence carried a maximum term of
five years' imprisonment and there was no minimum sentence.
83 In
considering the second factor - whether a sentence of less than two years was
appropriate - the trial judge reviewed a number of cases involving breach of
trust by public officials, including cases in which mental illness may have
played a part in the offender's conduct: R. v.
Bournbonnais (28 June 2006), unreported (Que. S.C.); R. v. Ramsay, 2004 BCSC 756, 22 C.R. (6th) 76;
R v. Bispo, 2004 ONCJ 331, 67
W.C.B. (2d) 346; R. v. Davies
(2005), 199 C.C.C. (3d) 389 (Ont. C.A.); R. v. Power, 2009 BCSC 1514, [2009] B.C.J. No. 2194, varied, 2010 BCCA 21, 281,
B.C.A.C. 152;4 R. v. Gagnon,
[2003] O.J. No. 5583 (S.C.).
84 The
trial judge took from these authorities that "the overriding principles to
be applied in breach of trust cases are general deterrence and
denunciation" (at para. 91). She noted that in many breach of trust cases,
the offenders, like the appellant, had no prior criminal record, were
upstanding members of the community and they and their families had paid a
significant price for their offence.
85 Having
considered all the aggravating and mitigating factors, including that the
appellant's judgment may have been impaired by his bipolar disorder, she
concluded that a sentence of less than two years would be appropriate. Thus,
the second criterion for a conditional sentence was met.
86 The
third requirement was also met. The trial judge found that the appellant was
aware of the consequences of his conduct and she accepted his psychiatrist's
opinion that he was at minimal risk to re-offend.
87 The
final question was whether a conditional sentence would be consistent with the
fundamental purpose and principles of sentencing. The trial judge considered
whether the sentencing objectives of denunciation and general deterrence could
be met by serving the sentence in the community. She noted that there were
breach of trust cases falling on either side of the issue.
88 In
some cases, courts had concluded that a conditional sentence could adequately
serve the objective of denunciation and deterrence: R.
v. Bunn, 2000 SCC 9, [2000] S.C.R. 183; R. v. Lawson, [2001] O.J. No. 1562 (S.C.); R. v. Moore (27 July 2007), unreported (Ont.
S.C.); Bispo.
89 In
other cases, courts had found that denunciation and deterrence would not be
satisfied by a conditional sentence: R. v. Shoniker, [2006] O.J. No. 5368 (S.C.); Davies.
90 Ultimately,
the trial judge concluded that the blameworthiness of the appellant's conduct,
the gravity of his breach of trust, and the impact of the offence on the
justice system, demanded a period of imprisonment to satisfy the requirements
of general deterrence and denunciation. Her reasons, at paras. 105-110, bear
repeating in full:
· It is my opinion, however, that Mr. Ellis' conduct was of comparable
blameworthiness [to cases involving fraud or sexual assault by persons in a
position of trust]. Mr. Ellis had enormous power over Ms. Kim: her entire
future rested on his decision. She told Mr. Ellis that a positive decision was
like "saving my life". Any consent that she might have given to a
sexual relationship in these circumstances could hardly have been
voluntary.
· Not all breaches of trust are equally grave. The position that Mr.
Ellis had is an important factor in determining the seriousness. As an
adjudicator in a quasi-judicial position, he stood near the top of the
spectrum. While it is arguable that a breach of trust offence committed by an
adjudicator should be treated more leniently than an offence committed by a
judge, the decisions that Mr. Ellis made had a far more significant impact on
the lives of the people who appeared before him than many of the decisions that
judges make.
· Mr. Ellis held a position of prestige, privilege and power. His acts
not only harmed Ms. Kim. Individuals appearing before the IRB and members of
the public are entitled to expect only the highest standards of conduct. In
particular, they are entitled to expect that decisions will be rendered fairly
and impartially, without reference to any extraneous considerations.
· Mr. Ellis breached the significant trust that had been placed in him
and the obligations that he bore to the people who appeared before him and to
the Canadian public. His actions undermined public confidence in the integrity
of the Canadian immigration and refugee system and in the administration of
justice.
· The justice system is one of the pillars of the free and democratic
society that we, as Canadians, enjoy. The cornerstone of that justice system is
the rule of law and the values of fairness, integrity and respect. Mr. Ellis'
actions struck at the core of those values. They call for denunciation in the
strongest terms.
· In my opinion, in these circumstances, and notwithstanding the
significant mitigating factors, the principles of general deterrence and
denunciation require a period of imprisonment.
91 In
the result, the trial judge imposed a sentence of 18 months' imprisonment.
Fresh Evidence
Application
92 The
appellant brought an application for leave to introduce fresh evidence on the
appeal. The evidence consisted of his affidavit dated July 11, 2013, attaching
five exhibits: (a) a second report of Dr. Ozersky, dated April 23, 2009; (b) a
report of the appellant's psychotherapist, dated July 11, 2013, concerning his
treatment, his prognosis and the impact of incarceration on his mental health;
(c) a letter from the appellant's employer, dated July 11, 2013, stating that
if given house arrest he would be offered full-time employment; (d) a letter
from the appellant's pastor, dated July 11, 2013; and (e) a reference letter
from the Cabbagetown Youth Centre, dated July 10, 2013, where the appellant
volunteered.
93 The
test for the admission of fresh evidence is set out in R.
v. Palmer, [1980] 1 S.C.R. 759, at p. 775:
The evidence should
generally not be admitted if, by due diligence, it could have been adduced at
trial provided that this general principle will not be applied as strictly in a
criminal case as in civil cases: see McMartin v. The
Queen.
The evidence must be
relevant in the sense that it bears upon a decisive or potentially decisive
issue in the trial.
The evidence must be
credible in the sense that it is reasonably capable of belief; and
It must be such that if
believed it could reasonably, when taken with the other evidence adduced at
trial, be expected to have affected the result. [Citation Omitted.]
(See also, R. v. Phillion, 2009 ONCA 202, 241 C.C.C. (3d) 193, at paras. 160-62; Truscott (Re), 2007 ONCA 575, 225 C.C.C. (3d)
321, at paras. 92-93.)
94 The
key piece of fresh evidence the appellant seeks to rely upon is an additional
report of Dr. Ozersky, which was written before the sentencing hearing. Dr.
Ozersky did not testify at the sentencing hearing, nor was his report put in
evidence by the defence. His original report was simply filed, with the
agreement of counsel, as one of the reports Dr. Hill had considered in the
preparation of his own report. As I have noted, that report had a serious
weakness - namely, the appellant had told Dr. Ozersky that he had accidently
met Ms. Kim at a coffee shop, offered to be her friend, was willing to help her
and that he had denied any sexual intent. It appears that Dr. Ozersky had not
seen the video recording at the time of his original report and he was unaware
that the meeting was a carefully planned attempt to procure sex in exchange for
a favourable ruling on Ms. Kim's refugee application.
95 It
appears, therefore, that the decision not to introduce Dr. Ozersky's original
report in evidence, or to call him as a witness at trial, was a deliberate
tactical decision made by defence counsel. Moreover, I am not satisfied that
defence counsel was unaware of the existence of the second report or could not
have become aware of it through the exercise of reasonable diligence. Nor has
the appellant established that Dr. Hill considered Dr. Ozersky's second report
in the preparation of his own report, with the result that the second report
would not be admissible on the same limited basis as the first report.
96 The
appellant chose not to testify at trial and at the sentencing hearing. Having
made a tactical decision not to do so, his evidence concerning the events
surrounding the incident, and between the incident and his sentencing, should
not be admitted.
97 The
balance of the proposed fresh evidence is of the same tenor as the evidence
adduced on the sentencing hearing and would not have affected the result.
98 For
these reasons, I would dismiss the fresh evidence application.
99 I
turn to the parties' submissions on appeal.
The Submissions on
Appeal
100 The
appellant acknowledged in the court below and in this court that breach of
trust by a judicial officer will normally require a sentence that emphasizes
denunciation and deterrence. He submitted, however, that these principles are
attenuated when the offender has a mental illness.
101 He
made two principal submissions. First, he submitted that the trial judge
minimized the extent of his bipolar disorder. He argued that hypomania could
last for weeks or months if not treated and that he was hypomanic in weeks
before and during the September 26 meeting. The trial judge failed to
appreciate that his hypomanic state diminished his culpability, and this error
undermines her decision to impose a term of incarceration.
102 The
appellant's second submission was that the trial judge erred in principle by
relying almost exclusively on denunciation and deterrence and giving
insufficient weight to the need for treatment and rehabilitation. While she
treated his bipolar disorder as a mitigating factor, she failed to account for
it when she considered the appropriate sentence.
103 The
Crown submits that the trial judge displayed a balanced and fair approach to
the issue of the appellant's mental illness. She concluded that the appellant's
illness played a causal role in the commission of the offence. It was for her
to determine the extent of that role.
104 The
Crown says that having heard the evidence of the psychiatrists, and having read
their reports, the trial judge concluded that although the appellant had a
mental illness that may have affected his judgment, his conduct was planned,
occurred over a considerable period of time, he knew it was wrong and knew he
was taking a risk. She took into account that the appellant had attempted to
mislead his psychiatrist about the circumstances of his encounter with Ms. Kim,
making his conduct appear accidental and altruistic. These findings were within
her domain and were available to her on the evidence.
Analysis
105 A
sentencing judge is entitled to deference, as to both the sentence imposed and
the underlying facts regarding the offence: see R. v.
Majnoon, 2009 ONCA 876, 257 O.A.C. 108, leave to appeal
to S.C.C. refused, [2010] S.C.C.A. No. 288, per Feldman J.A., dissenting on another issue, at para. 14, referring to
R. v. M. (C.A.), [1996] 1 S.C.R.
500, at para. 91. In R. v. L.M.,
2008 SCC 31, [2008] 2 S.C.R. 163, at paras. 14-15, the Supreme Court confirmed
the applicable principles:
· In its past decisions, this Court has established that appellate
courts must show great deference in reviewing decisions of trial judges where
appeals against sentence are concerned. An appellate court may not vary a
sentence simply because it would have ordered a different one. The court must
be "convinced it is not fit", that is, "that ... the sentence
[is] clearly unreasonable" (R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 46, quoted in R.
v. McDonnell, [1997] 1 S.C.R. 948, at para. 15). This
Court also made the following comment in R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 90:
· ... absent an error in principle, failure to consider a relevant
factor, or an overemphasis of the appropriate factors, a court of appeal should
only intervene to vary a sentence imposed at trial if the sentence is
demonstrably unfit.
(See also R. v. W. (G.), [1999] 3 S.C.R. 597, at
para. 19; A. Manson, The Law of Sentencing (2001),
at p. 359; and F. Dadour, De la détermination de la
peine: principes et applications (2007), at p. 298.)
para. 19; A. Manson, The Law of Sentencing (2001),
at p. 359; and F. Dadour, De la détermination de la
peine: principes et applications (2007), at p. 298.)
· Owing to the profoundly contextual nature of the sentencing process,
in which the trier of fact has broad discretion, the standard of review to be
applied by an appellate court is one based on deference. The sentencing judge
has "served on the front lines of our criminal justice system" and
possesses unique qualifications in terms of experience and the ability to
assess the submissions of the Crown and the offender (M.
(C.A.), at para. 91). In sum, in the case at bar, the
Court of Appeal was required - for practical reasons, since the trier of fact
was in the best position to determine the appropriate sentence for L.M. - to
show deference to the sentence imposed by the trial judge.
106 I
approach the sentence appeal having regard to these principles. Did the trial
judge commit an error in principle, fail to consider a relevant factor or
overemphasize appropriate factors? If not, is the sentence nevertheless
demonstrably unfit?
107 The
trial judge found that the appellant's mental illness was a mitigating factor,
reducing the sentence he would otherwise have received to a sentence of less
than two years. The issue then before her was whether his culpability for the
offence was sufficiently attenuated by his mental illness to adjust the balance
of the sentencing principles in favour of his rehabilitation and away from
denunciation and deterrence.
108 The
appellant did not testify at the sentencing hearing. It was left to the trial
judge to determine, having regard to all the evidence, including the
circumstances of the offence and the expert evidence, the extent to which his
culpability may have been reduced by his mental illness.
109 In
this regard, the trial judge made findings of fact that are grounded in the
evidence and are entitled to deference:
the appellant knew what
he was doing was wrong;
he was aware of the
significant risk he was taking, and was willing not just to assume that risk
for himself, but also to place Ms. Kim at risk;
the offence was not an
impulsive act; rather, "it occurred over a period of time and was well
planned" (at para. 85); and
he was otherwise
functional at work during the relevant time period.
110 There
was ample support for the conclusion that the appellant's actions were well
planned. From the day of the hearing to the day of the meeting at Starbucks, he
pursued her. He went to the restaurant where she worked on four separate
occasions in an eight week period. He escalated the level of engagement at each
of his three meetings with her, after evaluating her vulnerability, her degree
of concern and securing her confidence. On the day of the third meeting, at
Starbucks, he called her twice to make the arrangements. Both times he used
public pay phones, rather than his cell phone. The trial judge found that this
was to avoid leaving an evidentiary trail.
111 These
findings were central to the trial judge's conclusion. While the appellant's
bipolar disorder may have affected his judgment at the time of the offence, it
did not reduce his culpability to the point that a focus on his rehabilitation
outweighed the need for a sentence consistent with denunciation and deterrence
that would normally result from the abuse of his position of trust.
112 Having
seen and heard the expert psychiatric evidence, the trial judge was aware that
the diagnosis of Bipolar II Disorder was based on the presence of depressive
episodes accompanied by hypomanic episodes. "Hypomania" does not mean
extreme mania; it means "less than mania." Dr. Hill described
hypomania as a "milder form of mania". He said that in a hypomanic
episode:
· Sociability is usually increased, and there may be an increase in
sexual activity or interest. There may be impulsive activity such as buying
sprees, reckless driving or foolish business investments. However, such
activities are usually organized, are not bizarre and do
not result in the level of impairment that is characteristic of a manic episode. [Emphasis added].
113 Similarly,
Dr. Parikh, who was an acknowledged expert in mood disorders, particularly
bipolar disorder, had this to say:
· Individuals with bipolar 2 disorder have an episodic illness. Most of the time between episodes, individuals have no symptoms and
can function normally. When in a depressive episode,
individuals often function poorly, with problems dependent on the severity of
the depression. When hypomanic, however, functioning may be improved. For
example, individuals often experience increased energy, increased creativity,
and increased productivity during a hypomanic episode. Some areas of
functioning, such as getting along with people, may be worsened during
hypomania if the individual shows impatience, irritability, or
inappropriateness towards others. If there are
inappropriate behaviours with others, it [sic] would be mild and within a
person's understanding of right and wrong, analogous to a person with mild
alcohol intoxication who says or does something inappropriate. By definition,
hypomanic episodes are mild and do not result in any major disability. [Emphasis added].
114 The
trial judge's conclusions on the impact of the offence on the appellant's
culpability are consistent with these opinions.
115 As
well, the trial judge was entitled to consider the fact that the appellant's
condition had never reached a level that he or his wife considered treatment
(prior to his suspension from the IRB). Moreover, most of his symptoms were
self-reported and, as the trial judge noted, he was not always forthright with
his psychiatrist. Both the appellant and his wife had an interest in
exaggerating his symptoms. In fact, the evidence was that he was performing
normally at work.
116 The
authorities, some of which were referred to by the trial judge, indicate that
it is not enough to determine that the offender had a mental illness at the
time of the offence. The trial judge must also determine the extent to which
that illness contributed to the conduct in question and the impact of that
finding on the appropriate sentence. The trial judge will consider whether
there a causal connection between the offender's mental illness and the
commission of the offence and, if so, whether it diminished the offender's
culpability.
117 There
is no doubt that an offender's mental illness is a factor to be taken into
account in sentencing. Where mental illness plays a role in the commission of
the offence, the offender's culpability may be diminished, punishment and
deterrence may be ineffective or unnecessary and treatment and rehabilitation
of the offender may be paramount considerations. As this court explained in R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d)
643, at para. 38:
· ... here the appellant's mental health problems played a central role
in the commission of the offence. In such circumstances, deterrence and
punishment assume less importance. As this court emphasized in R. v. Robinson (1974), 19 C.C.C. (2d) 193, at
p. 197, where offenders commit offences while they are out of touch with
reality due to mental illness, specific deterrence is meaningless to them.
Further, general deterrence is unlikely to be achieved either since people with
mental illnesses that contribute to the commission of a crime will not usually
be deterred by the punishment of others. As well, severe punishment is less
appropriate in cases of persons with mental illnesses since it would be
disproportionate to the degree of responsibility of the offender. In such circumstances,
the primary concern in sentencing shifts from deterrence to treatment as that
is the best means of ensuring the protection of the public and that the
offending conduct is not repeated. This is especially so where a lengthy prison
term may be regarded as counterproductive: see also R.
v. Hiltermann (S.G.) (1993), 141 A.R. 223 (C.A.), and R. v. Peters (D.A.) (2000), 194 Nfld. &
P.E.I.R. 184 (Nfld. C.A.), at paras. 18-19.
118 In
Batisse, Gillese J.A. found that
the appellant's mental health issues played a central role in the commission of
the offence. She was described as having serious mental health challenges,
which were the product of "an atrocious childhood and an abusive early
adulthood" (at para. 39). The court found that these mental health
challenges led to the commission of the offence. The appellant was remorseful
and pleaded guilty.
119 This
court's decision in Davies, one
of those considered by the trial judge, also illustrates the point well. A
crown attorney pleaded guilty to four offences involving fraud and breach of
trust, two of which related to the performance of his duties. He had a history
of bipolar disorder and had been treated with medication for some seven years
prior to the offences. The sentencing judge concluded that his behaviour was
not attributable to his mental illness and sentenced him to a total of two
years less a day imprisonment.
120 In
varying the sentence, this court concluded that the sentencing judge
misconstrued the evidence concerning the relationship between the offender's
mental illness and the crimes he had committed and failed to consider certain
other evidence. Specifically, in finding the offender's medication was always
in the therapeutic range, the sentencing judge ignored the uncontested evidence
of one of his physicians that his medications were not sufficient to prevent a
manic episode. Second, the same physician's opinion was that during the
relevant time the offender was in an "uncontrolled state of
hypomania" (at para. 30). In the circumstances, Blair J.A. substituted a
blended sentence of twelve months less a day in custody plus a 12 month
conditional sentence, to run consecutive with the term of incarceration.
121 R. v. Dickson, 2007 BCCA 561, 228 C.C.C. (3d)
450, is another example. The appellant, a book-keeper, forged cheques for her
personal benefit. She had undiagnosed and untreated bipolar disorder at the
time of the offence. Her psychiatrist opined that there was a direct causal
connection between her mental illness and the commission of the offences. In
allowing an appeal from a sentence of twelve months' imprisonment, and
substituting a conditional sentence, Finch C.J.B.C. stated, at para. 70:
· In my respectful opinion, a sentence of imprisonment is unfit in
these circumstances. It cannot be necessary in the interests of general
deterrence for serious theft, to incarcerate someone who is mentally ill when
the offences were committed, whose mental illness was a cause of her committing
the offences, who pleads guilty, who makes restitution, and who undertakes an
appropriate course of medical treatment. To the extent that public opinion is
relevant to the principle of general deterrence, I am satisfied that reasonable
citizens informed of all the relevant circumstances in this case would consider
that the provisions of the Criminal Code and the ends of justice are met by a conditional sentencing
order.
122 In
contrast to these cases, in my view, the sentence here was fit and the trial
judge made no error to warrant this court's intervention. The trial judge took
a balanced, insightful and fair approach to the appellant's mental illness. She
found it mitigated the sentence that he would otherwise receive, but that it
did not result in such a reduced culpability to displace the need for a
denunciatory and deterrent sentence. This balanced approach was entirely within
her domain. In applying this approach, she understood the evidence and gave
appropriate consideration to the relevant sentencing principles.
123 Absent
significantly reduced culpability, the circumstances required a denunciatory
and deterrent sentence. As a refugee claim adjudicator, the appellant
represented Canada. He held Ms. Kim's future in his hands. He used his office
and power to offer her a choice: "Have sex with me and stay in Canada, or
don't have sex with me and you will be sent back to Korea." Knowing that
she had been abused by men - her father in Korea and her husband in Canada -
and knowing she had no status in Canada and feared returning to Korea, he
exploited her vulnerability so that he could abuse her himself.
124 The
appellant's plan was conceived at the hearing in mid-July, pursued on his
visits to the restaurant where Ms. Kim worked, solidified with the invitation
to coffee on the visit on September 22, and the trap was sprung at Starbucks on
September 26.
125 The
appellant's conduct at Starbucks demonstrates the extent of his planning. As
the trial judge noted, he brought his draft decision with him and, like a
salesman, dangled the bait in front of her, showing how she could help him
change the "no" to a "yes": she would be his girlfriend and
they would "do things together on the side". Even then, he was making
no promises, except that they would meet on the day before he finalized his
decision to have a "celebration". Plainly, he was going to see
whether she was prepared to submit to him before he considered changing his
decision on her refugee claim.
126 Equally
planned was the appellant's exploitation of Ms. Kim's vulnerability and fear of
deportation, not only to extort sex, but to procure her silence. The clear
implication was, "if you tell anyone about this, I will be in trouble, but
you will go back to Korea."
127 In
doing these things, the appellant not only betrayed Ms. Kim, he betrayed his
duty to his office and to his country.
D. CONCLUSION
128 The
appellant tried to obtain a sexual relationship in exchange for a favourable
decision. He held the complainant's future in his hands and breached the trust
inherent in his position. The appropriate sentence for this conduct is a
difficult matter. While his mental illness played some role in his actions, I
cannot conclude that the trial judge erred in sentencing him to a term of
imprisonment.
129 For
the foregoing reasons, I would dismiss the appeal from conviction. I would
grant leave to appeal the sentence and dismiss the appeal.
G.R. STRATHY J.A.
E.E. GILLESE J.A.:-- I agree.
E.E. GILLESE J.A.:-- I agree.
130 J.I.
LASKIN J.A. (dissenting in part):-- I have read the thorough reasons of Strathy
J.A. I agree that Ellis' conviction appeal should be dismissed, for the reasons
given by my colleague. However, I do not agree with his proposed disposition of
Ellis' sentence appeal. In my opinion, a conditional sentence of 18 months on
strict terms, including house arrest, would be fit and would be consistent with
the fundamental purpose and principles of sentencing.
A. OVERVIEW
131 Ellis
was convicted of breach of trust by a public officer, contrary to s. 122 of the
Criminal Code. The trial judge
accepted that judges can and have imposed a conditional sentence for breach of
trust. Nonetheless, she rejected a conditional sentence and imposed a custodial
sentence of 18 months. In her view, because of the seriousness of the offence,
the principles of general deterrence and denunciation required a term of
incarceration. Strathy J.A. has concluded that she made no error warranting
this court's intervention. I disagree. In my view, the following three
considerations justify this court's intervention and the imposition of a
conditional sentence: the impact of Ellis' mental illness; his rehabilitation;
and the collateral consequences of his conviction.
132 First, the impact of Ellis' mental illness.
The trial judge accepted that Ellis suffered from Bipolar II Disorder, which is
characterized by depression and hypomanic behaviour. However, she minimized its
impact by concluding that it may have affected his judgment only at the time of
the offence on September 26, 2006. In my view, the medical and other evidence
shows that Ellis' mental illness impaired his judgment over the entire course
of his dealings with Ms. Kim. Case law from this court and other appellate
courts affirm that where, as in this case, mental illness contributes to the
commission of an offence, vindicating general deterrence and denunciation
becomes less important.
133 Second, Ellis' rehabilitation. The trial
judge did not take into account Ellis' rehabilitation. Up to and at the time of
the incident, Ellis' mental illness was undiagnosed and therefore untreated.
Since the incident, it has been diagnosed and successfully treated. For the
past seven years, he has been under the care of a psychiatrist and a psychotherapist,
and taking medication for his illness. To now incarcerate him would be
inconsistent with his rehabilitation, a fundamental principle of our sentencing
regime.
134 Third, the collateral consequences of Ellis' conviction. These consequences have been severe: Ellis and his family have been
publicly humiliated; his involvement in the life of the community - so central
to his personal and professional life for so many years - has ended; his
licence to practice law was suspended; and, of course, his position as an
adjudicator with the Immigration and Refugee Board was terminated. In rejecting
a conditional sentence, the trial judge did not give weight to these collateral
consequences. Yet these consequences, coupled with a conditional sentence,
sufficiently denounce and deter Ellis' offending conduct.
B. BACKGROUND
135 Strathy
J.A. has thoroughly reviewed the facts giving rise to Ellis' conviction. I need
not repeat them here. Without question, Ellis committed a very serious breach
of trust. I accept my colleague's characterization of the offence: "In
doing these things, the appellant not only betrayed Ms. Kim, he betrayed his
duty to his office and to his country".
136 Ellis
is now in his mid-50s. Apart from this incident, he has led an exemplary and
unblemished professional life, devoted to public service. He served two terms
as a member of Toronto City Council, did volunteer work with several charitable
organizations, and then in 2000, accepted a position as an IRB adjudicator,
where for six years he was one of the Board's hardest workers and top
producers.
137 The
numerous letters filed by the defence at the sentencing hearing - from
community workers, colleagues, other practicing lawyers and family members -
speak to Ellis' integrity, fairness and dedication. He assisted people who were
marginalized or less fortunate, he gave generously of his time, and he was
highly regarded as a lawyer, politician and adjudicator.
138 For
example, one lawyer who knows Ellis wrote: "I have always been deeply
impressed by Mr. Ellis' integrity and dedication to public service. Mr. Ellis'
tireless efforts on behalf of his constituents when he was a City Councillor
was exemplary". An immigration lawyer who appeared before Ellis at the IRB
said of him: "His decisions were respected; his impartiality and his
competence were unquestioned". Another immigration lawyer who appeared
before him said:
· In my role as counsel, Mr. Ellis was always fair-minded and
reasonable to deal with and I can truly say that his reputation amongst my
colleagues in the immigration/refugee bar was that of a professional,
reasonable and fair Board Member who ensured that natural justice prevailed in
his hearing room. I know that every client of mine who appeared before him was
treated with respect, dignity and sensitivity and walked out of the hearing
room knowing that they had been treated fairly by Mr. Ellis. This is much more
than I can say for many of the other hundreds of Board Members I have appeared
before over the years.
139 A
theme of many of the supporting letters was that Ellis' offence was completely
out of character - "inconsistent with the qualities of the member that
determines so many of my cases", said one refugee lawyer; "this was
completely out of character for him as we knew him on the Board", said
another lawyer.
140 At
the end of the sentencing hearing, Ellis spoke of his remorse for what he had
done. At para. 66 of her reasons, the trial judge noted:
· At the conclusion of the sentencing hearing, Mr. Ellis spoke of the
shame he feels for his conduct. He recognizes the harm that he has done and the
pain he caused to Ms. Kim, his wife, his children and the community. He
apologized to them.
141 The
trial judge also found that Ellis met three of the four criteria under s. 742.1
of the Criminal Code for the
imposition of a conditional sentence: the offence under s. 122 of the Code does not have either a minimum term of
imprisonment or a maximum term of 10 years or more; the appropriate sentence
would be less than two years; and serving the sentence in the community would
not endanger the safety of the community.
142 The
choice between incarceration and a conditional sentence turned on the fourth
criterion: whether a conditional sentence would be consistent with the
fundamental purpose and principles of sentencing. I disagree with the trial
judge's conclusion that it would not be.
C. DISCUSSION
143 This
court and other courts have said that in breach of trust cases, the two most
important sentencing principles are general deterrence and denunciation. To put
in context my opinion that neither calls for a jail term for Ellis, I make two
points.
144 First,
a conditional sentence with appropriate conditions can provide ample deterrence
and denunciation: see R. v. Proulx, 2000 SCC 5, [2001] 1 S.C.R. 61 at paras. 102-107.
145 Second,
as the Supreme Court of Canada and this court have said many times, sentencing
is an "individualized process"; the sentence for Ellis must take
proper account of his mental illness, his rehabilitation and the collateral
consequences of his conviction. These considerations justify a conditional
sentence for Ellis.
Ellis' Mental Illness
The Medical Evidence
146 Four
medical reports were before the sentencing judge - three filed by the defence
and one by the Crown.
147 The
main defence report was by Dr. Wood Hill, an experienced general and forensic
psychiatrist, who at the time was a consultant psychiatrist at the Whitby
Mental Health Centre, and had been treating Ellis for nearly four years.
148 Dr.
Hill appended to his report two other psychiatric reports, which he reviewed in
giving his opinion: a report from Dr. Sam Ozersky, the Senior Psychiatric Consultant
to the Mood Disorders Clinic at the University Health Network; and a report
from Dr. Jonathan Rootenberg, a staff psychiatrist in the Law and Mental Health
Program at the Centre for Addiction and Mental Health, and a faculty member in
the Faculty of Medicine at the University of Toronto. Both Dr. Ozersky and Dr.
Rootenberg independently examined and evaluated Ellis.
149 In
addition, Dr. Hill gave oral evidence at the sentencing hearing and was
cross-examined by the Crown. I see no indication in the record that the Crown
asked to examine either Dr. Ozersky or Dr. Rootenberg.
150 The
Crown filed the report of Dr. Sagar Parikh, a Professor of Psychiatry at the
University of Toronto and Deputy Psychiatrist-in-Chief for the University
Health Network. Although my colleague refers to Dr. Parikh's report in his
reasons, the trial judge discounted his opinion, appropriately in my judgment,
because Dr. Parikh never met with Ellis and never spoke to any of the three
psychiatrists who examined Ellis.
The Nature of Ellis'
Mental Illness
151 In
considering Ellis' mental illness, I will focus on the medical evidence filed
by the defence as did the trial judge. She accepted this evidence and concluded
that Ellis had shown on a balance of probabilities that he has a bipolar
disorder, which may have affected his judgment at the time of the offence.
However, to fairly assess the impact of Ellis' mental illness on his
culpability, it becomes important to examine more precisely what Drs. Hill,
Ozersky and Rootenberg said. I will do so in this section and the following
section of my reasons.
152 In
Dr. Ozersky's opinion, Ellis suffers from Bipolar II Disorder as specified in
the DSM-IV. Dr. Rootenberg generally concurred, calling Ellis' mental illness a
Bipolar Affective Disorder (formerly known as manic depressive illness). Dr.
Hill agreed with the diagnoses and opinions of Dr. Ozersky and Dr. Rootenberg.
153 Bipolar
II Disorder or Bipolar Affective Disorder is characterized by episodes of
depression and episodes of hypomania. According to Dr. Hill, a hypomanic
episode is "defined as a distinct period during which there is an
abnormally and persistently elevated, expansive or irritable mood that lasts at
least four days that is clearly different from the person's usual mood."
· (c) The Impact and Duration of Ellis' Mental Illness
154 The
critical issues on which I disagree with the trial judge and my colleague
concern the impact of Ellis' mental illness on his behaviour and especially the
duration of that impact.
155 The
relevant time frame to assess the impact of Ellis' mental illness is
approximately 10 weeks. Ms. Kim's IRB hearing was on July 17, 2006; Ellis went
to the Ninth Gate Restaurant on September 13, 2006 and then on September 22, 2006;
the meeting at Starbucks took place on September 26, 2006.
156 The
trial judge accepted that Ellis' mental illness "may have affected his
judgment" but only "at the time of the offence". She said:
· Ellis' conduct was not impulsive - it occurred over a period of time
and was well planned. Mr. Ellis was otherwise functional at work during that
period of time.
157 Strathy
J.A. has concluded that "[t]here was ample support for the conclusion that
the appellant's actions were well planned." At para. 110 of his reasons,
he writes:
· From the day of the hearing to the day of the meeting at Starbucks,
he pursued her. He went to the restaurant where she worked on four separate
occasions in an eight week period. He escalated the level of engagement at each
of his three meetings with her, after evaluating her vulnerability, her degree
of concern and securing her confidence. On the day of the third meeting, at
Starbucks, he called her twice to make the arrangements. Both times he used
public pay phones, rather than his cell phone. The trial judge found that this
was to avoid leaving an evidentiary trail.
158 In
these passages, the trial judge and my colleague make two important points
about the impact of Ellis' mental illness. Their first point is to draw a
distinction between impulsive conduct and planned conduct; they suggest that
the former may be characteristic of hypomania, but that the latter is not.
Their second point flows from the first: because Ellis seemed to plan many of
his interactions with Ms. Kim, he was not hypomanic much of the time he dealt
with her.
159 I
disagree with both points. First, the medical evidence does not support the
distinction drawn by the trial judge and my colleague. The behaviour of persons
suffering from hypomania may be impulsive and erratic, or it may be productive
and planned. That is evident from the recognized symptoms of the disease. Dr.
Hill listed these symptoms of a hypomanic episode:
· During this period of mood disturbance, three or more of the
following symptoms will have persisted (four if the mood is only irritable) and
will have been present to a significant degree:
Inflated self-esteem or
grandiosity;
Decreased need for sleep
(e.g., feels rested after only three hours of sleep);
More talkative than
usual or pressure to keep talking;
Flight of ideas or
subjective experience that thoughts are racing;
Distractibility (e.g.,
attention too easily drawn to unimportant or irrelevant external
stimuli);
Increase in
goal-directed activity (either socially, at work or school, or sexually) or
psychomotor agitation;
Excessive involvement in
pleasurable activities that have a high potential for painful consequences
(e.g., the person engages in unrestrained buying sprees, sexual indiscretions,
or foolish business investments).
160 Some
of these symptoms may reflect conduct that is impulsive (for example, an
unrestrained buying spree); other symptoms may reflect conduct that is
seemingly well planned (for example, goal-directed activity at work). Indeed,
Dr. Hill testified that persons suffering from hypomanic episodes are often
highly functional and productive during these periods. Yet these individuals
typically lack insight into their emotions, and may be hostile to any
suggestion that they need medical help. According to Dr. Hill, poor judgment,
an inability to reflect, and an inability to act in a sensible way are
"absolutely" features of this mental illness.
161 Second,
Ellis was hypomanic in the months leading up to the offence in September 2006.
He exhibited most, if not all, of the recognized symptoms of hypomania. At
times, his behaviour was erratic, grandiose and impulsive. He bought 25 silk
ties all at once. In August, he took his family on an unplanned trip to Europe
that he could not afford. He had an affair. All of this behaviour was highly
uncharacteristic.
162 At
times, however, Ellis' behaviour was functional, productive and planned. He
took on an enormous workload at the Board, and became one of its hardest
workers and highest producers. And he orchestrated his meetings with Ms. Kim.
This seemingly well planned behaviour is consistent with the actions of a
person whose judgment is impaired by hypomania. Although a person who engages
in this kind of behaviour is not necessarily hypomanic, Drs. Hill, Ozersky and
Rootenberg were uniformly of the opinion that from the time he first met Ms.
Kim to the time he committed the offence in September 2006, Ellis was suffering
from hypomania, and that his hypomania impaired his judgment.
163 Dr.
Hill, the psychiatrist who knew Ellis best, was of the opinion that "for
the bulk of 2006, and probably earlier, Mr. Ellis was not mentally well".
Dr. Hill elaborated:
· In my opinion, Mr. Ellis was showing signs of mental illness
consistent with the above-listed criteria for Bipolar II Disorder with
Hypomanic Episodes prior to and at the time of the offence. The illness was
such that it deleteriously affected his judgment. His behaviour and thinking
around the time of the offences was not typical of his usual prior
functioning.
· Mr. Ellis reported that, for a considerable period leading up to the
offences, he was subjectively anxious, worrying and ruminating about the fate
of immigration applicants who appeared before him daily. He was evidencing
sleep disturbance and experiencing nightmares in which violence with political
backdrops were prominent.
· Over the course of the spring and summer of 2006, Mr. Ellis became
more irritable and erratic in his behaviour, and was showing severe
fluctuations of mood. He developed an extramarital relationship, which had
never occurred during his long relationship with his wife who he met while they
were both in school. He became obsessed with helping others, even outside of
his professional obligations as an IRB hearing officer.
· His impulsivity and excessive energy caused him to engage in erratic
and undisciplined behaviour. An example provided by Mrs. Ellis was his
organizing and mandating a family trip to Europe in August 2006, which saw him
radically changing the itinerary almost daily, being argumentative and profane
with his family, and showing excessive energy and poor social judgment.
164 Dr.
Hill concluded: "I am of the opinion that Mr. Ellis was showing thinking,
behaviour and mood fluctuations indicative of mental illness at the relevant
time". By "relevant time" Dr. Hill meant the entire period in
which Ellis had contact with Ms. Kim. In his oral evidence at the sentencing
hearing, Dr. Hill maintained his opinion that Ellis' mental illness
"played a part in his involvement in this offence":
· Q: And so to what extent, if any, can you tell us whether the bipolar
disorder that you've diagnosed played a part in his involvement in this
offence?
· A: Well, from my perspective, I'm quite comfortable in saying that it
did play a part. To repeat somewhat, this is behaviour that has been seen in
different aspects of his life, variations of it with this more agitated
behaviour, behaviour showing poor judgment, failure to reflect, and it's
behaviour that is out of keeping with the way he had usually been functioning
in his role at the IRB and the - given there is the long history of this
erratic behaviour, which I'm terming an illness, coming up on regular
occasions, it's certainly my opinion that it was certainly part and parcel of
what was going on in his life at that time.
165 Dr.
Ozersky was of the same opinion: because of his bipolar disorder, Ellis was
hypomanic during the time of his dealings with Ms. Kim. Dr. Ozersky put it this
way in his report:
· Conducting an affair can be an expression of hypomanic behaviour, or
it could be an expression of very normal human behaviour. However, in the
context of all the other behaviours that he exhibited in the 6 months before
the offense, I believe this was an atypical expression of his underlying
Bipolar Disorder.
· I believe at the time of the index incident, the bipolar disorder
impaired his judgement, made him impulsive, and he was grandiose enough to
think he was the helpful saviour.
166 Dr.
Rootenberg gave essentially the same opinion. After outlining in detail Ellis'
"mood instability and erratic behaviour in the eight months leading up to
the material time", Dr. Rootenberg concluded that Ellis' conduct "was
markedly influenced by his mood instability and impulsivity, which impacted
adversely on his judgment".
167 What
is evident from all three psychiatric reports is that Ellis' conduct toward Ms.
Kim, described by the trial judge and my colleague as well planned, was as much
a consequence of his hypomania as was his mood instability, his grandiosity and
his impulsivity. His impaired judgment influenced his thinking and his
behaviour, whether impulsive or planned, from at least the time that he first
met Ms. Kim in July 2006 until he committed the offence in September 2006.
168 The
medical evidence does not stand alone. Other evidence of Ellis' behaviour in
the months leading up to the meeting at Starbucks shows that he was hypomanic
throughout the period of his dealings with Ms. Kim. This evidence includes the
evidence from lawyers who appeared before him at the Board and from his wife:
· * One immigration and refugee lawyer wrote: "in fact, in weeks
leading to his final days at the Board, it appeared to me and the other lawyers
in my office that Mr. Ellis was overly anxious and appeared to be under
stress".
· * Another lawyer said: "The pressure of standing alone in the
face of systemic pressure to adopt the official "chair guidelines"
became evident in the last few months of his time at the board. He appeared
highly stressed and exhausted. The events under consideration are inconsistent
with the qualities of the member that determined so many of my cases. There was
never a hint of impropriety in any of those cases. He was genuinely concerned
with the welfare of the claimants above any partisan or "political"
consideration. This is a rare quality in my experience at the RPD."
· * Yet another lawyer wrote: "Steve has always been a very high
energy person. I have often wondered how he can manage to fit everything into
his schedule. I recall bumping into Steve in the time period prior to the
charges being laid against him and noting that he seemed frenzied and
distracted. I was concerned about him. I wish, in retrospect, that I had said
something or done something. Unfortunately, I did not".
· * Ellis' wife, Mrs. Neal-Ellis, said that from the fall of 2005 until
the incident in September 2006, her husband was "running himself ragged
... he basically was work obsessed ... his activity level kept
increasing". She described his behaviour during this time as
"frenetic" and his appearance as increasingly unkempt. In her letter
submitted at the sentencing hearing, Mrs. Neal-Ellis said:
· By the summer of 2006, Steve became even more irritable and
shot-tempered at home. He was constantly wired, and seemed to drive himself for
no apparent reason. He would often come home late either from work or from some
public event. Once he was home, he was unable to fall asleep. Often he would
get up in the middle of the night and either leave the house or stay up playing
video games until he fell asleep out of sheer exhaustion.
· During this time I noticed that Steve's behaviour became more and
more erratic. He constantly changed his plans. He wanted to travel excessively
and argued with me if I contradicted him on anything. His driving became
reckless. He insisted on texting messages or talking on his cell phone while
driving regardless of who else was in the car. He received numerous traffic
violations for speeding, for not stopping at stop signs, for improper parking
and for not wearing his seat belt. He did not bother with grooming himself. His
hair grew long and tangled, his suits were rumpled and dirty, and he always
looked untidy and dishevelled.
...
· In August, 2006, matters appeared to become critical. Despite being
beyond our financial means, Steve insisted that we take a family trip to
Europe, again at the last minute. While on the trip, Steve argued constantly
with me and our daughter and used profane language, which was totally out
character for him. He changed our itinerary several times without notice and
without regard for my wishes or the wishes of the children. At one point, he
announced that we were going to visit the United Nations offices in Geneva,
even though this was significantly off our planned route. Steve drove the
entire two weeks in Europe at a frenetic pace, claiming to be pushing us hard
to see as much as we could while being indifferent the [sic] needs or wishes of his family.
169 This
evidence, taken together, shows, undeniably in my opinion, that Ellis was
mentally ill, suffering from hypomania, in the period from July to September
2006. His mental illness impaired his judgment, and his impaired judgment
contributed to his breach of trust.
170 If
there can be any doubt about these conclusions, that doubt is put to rest by
the proposed fresh evidence, mainly a second report from Dr. Ozersky.
The Proposed Fresh
Evidence
171 In
this second opinion letter, dated April 23, 2009, Dr. Ozersky affirmed his
earlier opinion that Ellis was in a hypomanic state when he met Ms. Kim at
Starbucks on September 26, 2006, and, significantly, that Ellis was probably
hypomanic for at least six months before the meeting at Starbucks. The
following are the relevant portions of Dr. Ozersky's opinion:
· After reviewing the DVD and your examination of Steve Ellis, and
reviewing collateral information, in your professional opinion was it
substantially probable that Mr. Ellis was in a mentally disordered state which
was a result of his psychiatric disorder and a hypomanic or manic episode at
the time of his meeting with Ms. Kim at the Starbucks? I
believe that after reviewing the video that he is clearly in a hypomanic state
probably exacerbated by alcohol abuse and that he was hypomanic at the time of
meeting Ms. Kim.
· On the basis of your experience how long could such an episode last?
On the basis of your evaluation of Steve Ellis and the collateral history you
obtained was it more likely than not that he was having the same episode for a
few weeks prior to the incident at Starbucks? On the
basis of his history and the history provided by his wife, he was probably
hypomanic for at least 6 months before the incident at Starbucks.
172 Dr.
Ozersky's second report was available before the sentencing hearing and the
Crown objected to its admissibility on appeal. Strathy J.A. agrees with the
Crown's objection and would refuse to admit the fresh evidence. I take a
different view.
173 The
test for admitting fresh evidence on an appeal from conviction or sentence is
the same, but the test tends to be applied less rigorously on sentence appeals:
see R. v. Jarvis (2006), 214 OAC
189 at para. 16. Moreover, the overriding criterion remains the interests of
justice, and, in my view, it is in the interests of justice to have Dr.
Ozersky's opinion before the court to ensure that Ellis receives a fit
sentence: see R. v. Lévesque,
2000 SCC 47, [2000] 2 S.C.R. 487.
174 Strathy
J.A. would refuse to admit Dr. Ozersky's second report for several reasons. He
notes that when Dr. Ozersky gave his first report he had not watched the video
of the Starbucks meeting and Ellis had not accurately told him the
circumstances of his initial meeting with Ms. Kim, apparently saying that they
met accidentally. My colleague then suggests that the defence made a tactical
decision not to put Dr. Ozersky's report in evidence, other than as a part of
Dr. Hill's report, or to call him as a witness at trial. Finally, my colleague
says that he is not satisfied defence counsel was unaware of the existence of
Dr. Ozersky's second report or could not have become aware of it by exercising
due diligence.
175 Respectfully,
I do not find my colleague's reasons persuasive. There is no evidence at all
that the defence made a tactical decision not to tender Dr. Ozersky's report
directly or have him testify. The defence treated his first report in the same
way as it treated Dr. Rootenberg's report; in effect, it was an appendix to Dr.
Hill's report. And there could be no suggestion Ellis misstated the
circumstances of his meeting with Ms. Kim either to Dr. Rootenberg or to Dr.
Hill. Indeed, Dr. Hill expressly testified that Ellis accurately recited the
facts of his meeting with Ms. Kim.
176 Equally
important, nothing in the material suggests that Dr. Ozersky's opinion about
Ellis' mental illness was influenced by the misstatement of how his first
meeting with Ms. Kim came about. Indeed, when he gave his second opinion, Dr.
Ozersky had watched the video and could be under no misapprehension about how
Ellis met Ms. Kim. I might find the Crown's objection to the admissibility of
the fresh evidence more compelling if it had asked to examine Dr. Ozersky,
either on his first or second opinion, or both, and the defence had refused to
produce him. But the Crown made no such request.
177 Finally,
Ellis filed an affidavit in support of his fresh evidence application and gave
a plausible reason for why Dr. Ozersky's second report was not before the trial
judge. The report was prepared for Ellis' counsel at the time, but shortly
after the report was delivered, Ellis changed counsel. Dr. Ozersky's second
report was not in the file materials transferred to his new counsel. Ellis was
not cross-examined on his affidavit, and therefore his explanation for why Dr.
Ozersky's second report was not before the trial judge stands uncontradicted.
Even if it could be said that with due diligence the second report could have
been produced, lack of due diligence has never been a bar to admitting fresh
evidence in criminal appeals.
178 I
would admit Dr. Ozersky's second report for two reasons. First, it shows that
the opinion Dr. Ozersky gave in his first report was not affected by Ellis'
misstatement of how he met Ms. Kim. Second, it reaffirms in unequivocal
language the central point about Ellis' hypomania that is demonstrated by the
evidence at trial - it existed and impaired his judgment throughout his
dealings with Ms. Kim.
The Case Law
179 On
my assessment of the evidence, Ellis' bipolar disorder - undiagnosed and
untreated - manifested itself in hypomania from at least July to September
2006. In other words, he was hypomanic during all of his dealings with Ms. Kim
- at the IRB, at the restaurant, and at Starbucks. Ellis' hypomania impaired
his judgment, and his impaired judgment contributed to his breach of trust.
Therefore, Ellis' mental illness should reduce his culpability or his moral
blameworthiness. Indeed, I find it hard to conceive why Ellis would engage in
such obviously self-destructive behaviour but for his mental illness.
180 The
trial judge imposed a jail term because in her view, incarceration was needed
to denounce and deter Ellis' conduct. However, as Gillese J.A. said in R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643
at para. 38, when an offender's mental illness contributes to the commission of
an offence, "deterrence and punishment assume less importance."
181 Yet,
the trial judge wrote at para. 85 of her reasons:
· I note, however, that Mr. Ellis' conduct was not impulsive - it
occurred over a period of time and was well planned. Mr. Ellis was otherwise
functional at work during that period of time. Furthermore, while the hypomania
may have affected Mr. Ellis' judgment, he was, nonetheless, aware that what he
was doing was wrong, and that he was placing both himself and Ms. Kim at
significant risk.
182 I
disagree with the inferences drawn from this paragraph for two reasons. My
first disagreement is factual. As I have already discussed, though some of
Ellis' conduct may have seemed well planned, his hypomania existed throughout
his dealings with Ms. Kim. Thus, his mental illness impaired his judgment, not
just on September 26, 2006, but at least from July 2006 onwards.
183 My
second disagreement is legal. Even though Ellis was aware of right from wrong -
in other words, he could not be found not criminally responsible - his mental illness
still contributed to his breach of trust. Because it did, for the purpose of
sentencing, denunciation and deterrence become less important and
rehabilitation becomes more important. Green J.A. made this point in R. v. Peters, 2000 NFCA 55, 194 Nfld &
P.E.I.R. 184, a decision Gillese J.A. cites with approval in Batisse. Green J.A. wrote at paras. 18-19:
· Deterrence and punishment assume less importance in cases of mentally
ill offenders. ... This decreased emphasis on punishment and deterrence in these
circumstances is consistent with the proportionality principle in s. 718.1 of
the Criminal Code.
· Thus, the mental illness of an offender will often be considered a
mitigating factor in sentencing even though it is not of the sort that would
establish a verdict of not criminally responsible on account of mental disorder
at the time of the commission of the offence. The focus in sentencing such
offenders may properly therefore be placed on mechanisms that will promote
rehabilitation and treatment, rather than on punishment...
184 A
case that is similar to this case is the sentencing decision of the British
Columbia Court of Appeal in R. v. Dickson, 2007 BCCA 561, 228 C.C.C. (3d) 450. There, the appellant was a
bookkeeper, and she defrauded her employer by forging numerous cheques. She
pleaded guilty to theft and was sentenced to 12 months in jail. The British
Columbia Court of Appeal allowed her appeal and substituted a conditional
sentence. Like Ellis, Ms. Dickson suffered from a bipolar disorder that was not
diagnosed when she committed the offence for which she was sentenced. Although
Ellis did not plead guilty, Finch C.J.B.C.'s reasons otherwise apply to him. At
para. 67 and 70, The Chief Justice wrote:
· In my opinion, the appellant's mental condition at the time of these
offences is the most important of the many considerations in this case. The offences
were committed when the appellant's bipolar disorder was undiagnosed and
untreated. Dr. Dryer drew a direct causal connection between the mental illness
and the commission of the offences ...
· ... a sentence of imprisonment is unfit in these circumstances. It
cannot be necessary in the interests of general deterrence for serious theft,
to incarcerate someone who is mentally ill when the offences were committed,
whose mental illness was a cause of her committing the offences, who pleads
guilty, who makes restitution, and who undertakes an appropriate course of
medical treatment...
185 In
contrast to Batisse and Dickson stands the decision of this court in R. v. Davies (2005), 199 C.C.C. (3d) 389,
which is relied on both by the trial judge and Strathy J.A. In that case, the
accused, a Crown Attorney, pleaded guilty to two counts of "serious
fraud" and two counts of "egregious breaches of trust". Like
Ellis, Davies suffered from a bipolar affective disorder, which caused hypomania
and depression. Nonetheless, the trial judge rejected a conditional sentence
and instead imposed a jail sentence of two years less a day. This court varied
the sentence in part, imposing a jail sentence of one year less a day for the
breaches of trust but a conditional sentence of one year for the fraud charges.
186 The
three features distinguishing Davies' circumstances from Ellis' are: first,
Davies' bipolar disorder was diagnosed and was being treated long before he
committed the offences; second, Davies committed at least one major fraud when
he was neither hypomanic nor depressed; and third, Davies committed numerous
offences over a prolonged period of time. Even taking these features of Davies'
offence and his position as a Crown Attorney into account, this court still saw
fit to convert part of his sentence into a conditional sentence.
Conclusion on Ellis'
Mental Illness
187 The
evidence shows that Ellis' mental illness impaired his judgment throughout his
dealings with Ms. Kim, and therefore contributed to his breach of trust. The
case law shows that where an offender's mental illness contributes to the
commission of an offence, the sentencing judge should give less weight to
denunciation and general deterrence. In my opinion, in sentencing Ellis, the trial
judge over-emphasized the need to give effect to these two sentencing
principles and under-emphasized the principle of rehabilitation.
Ellis' Rehabilitation
188 Because
of Ellis' mental illness, promoting his rehabilitation becomes a primary
consideration. The trial judge did not advert to this consideration at all in
her reasons for sentence.
189 Ellis'
bipolar disorder was diagnosed after his breach of trust was discovered. Over
seven years have now elapsed since Ellis and Ms. Kim met at Starbucks. For this
entire period, Ellis has been under the care of a psychiatrist and a
psychotherapist, and has been taking lithium and other medication for his
bipolar disorder.
190 According
to Dr. Hill, a bipolar disorder "has a natural history of
recurrence". However, Dr. Hill went on to say (in his written report dated
May 11, 2010) that "Mr. Ellis has benefited well from his current course
of treatment for almost four years, and will continue to benefit from
continuing treatment to which he is committed".
191 Dr.
Hill also testified at the sentencing hearing that Ellis is now much more aware
of how his illness affects his behaviour. In Dr. Hill's view, Ellis has made
great strides in managing his disorder.
192 The
report of his psychotherapist, Dr. Mark Smolkin, which was filed as fresh
evidence, speaks to the effect of Ellis' treatment and the possible effect of
his incarceration. Dr. Smolkin focuses on the past three years, and therefore
his report is truly "fresh" - it would not have been available at the
sentencing hearing.
193 Dr.
Smolkin states that "[o]verall, in the last three years Mr. Ellis has been
coping very well." However, Dr. Smolkin raises concerns about the possible
adverse impact of putting Ellis in jail.
· Incarceration presumably is difficult and odious for anyone. For Mr.
Ellis, it would pose particular challenges. As an ex-IRB adjudicator, Mr. Ellis
will surely wind up in protective custody - with scant physical, interpersonal
or intellectual stimulation. He has ADHD - Attention Deficit Disorder - which
is essentially a condition of chronic under-stimulation. (Those with ADHD crave
external stimulation as this
compensates for their internal
under-stimulation.). For this reason I believe that he would probably suffer
more than the average inmate.
· I am also concerned that incarceration could precipitate a severe
depressive episode in this man, who is more vulnerable due to his underlying
bipolar mood disorder.
194 I
conclude that promoting Ellis' rehabilitation is an important reason for
imposing a conditional sentence.
Collateral Consequences
195 When
determining the appropriate sentence for an individual offender, a court may
take into account the collateral consequences of the sentence or the underlying
conviction. As long as the sentence imposed is proportionate to the gravity of
the offence and the degree of responsibility of the offender, collateral
effects may figure in the imposition of a fit sentence. The Supreme Court of
Canada recently discussed the significance of collateral consequences in R. v. Pham, 2013 SCC 15, 357 D.L.R. (4th) 1, a
case that dealt with the impact of a sentence on the immigration status of the
offender. At para. 11, Wagner J., writing for the court, described the
relevance of collateral consequences in sentencing:
· In light of these principles, the collateral consequences of a
sentence are any consequences for the impact of the sentence on the particular
offender. They may be taken into account in sentencing as personal
circumstances of the offender. However, they are not, strictly speaking,
aggravating or mitigating factors, since such factors are by definition related
only to the gravity of the offence or to the degree of responsibility of the
offender (s. 718.2(a) of the Criminal Code). Their relevance flows from the application of the principles of
individualization and parity. The relevance of collateral consequences may also
flow from the sentencing objective of assisting in rehabilitating offenders (s.
718(d) of the Criminal Code).
Thus, when two possible sentences are both appropriate as regards the gravity
of the offence and the responsibility of the offenders, the most suitable one
may be the one that better contributes to the offender's rehabilitation.
196 Wagner
J. also cited with approval the following passage from Alan Manson, The Law of Sentencing (Toronto: Irwin Law,
2001) at pp. 136-137, in which the author makes the point that collateral
consequences can mitigate the need for denunciation, and implicitly for general
deterrence.
· As a result of the commission of an offence, the offender may suffer
physical, emotional, social, or financial consequences. While not punishment in
the true sense of pains or burdens imposed by the state after a finding of
guilt, they are often considered in mitigation...
...
· The mitigating effect of indirect consequences must be considered in
relation both to future re-integration and to the nature of the offence.
Burdens and hardships flowing from a conviction are relevant if they make the
rehabilitative path harder to travel. Here, one can include loss of financial
or social support. People lose jobs; families are disrupted; sources of
assistance disappear. Notwithstanding a need for denunciation, indirect
consequences which arise from stigmatization cannot be isolated from the
sentencing matrix if they will have bearing on the offender's ability to live
productively in the community. The mitigation will depend on weighing these
obstacles against the degree of denunciation appropriate to the offence.
197 Here
Ellis' conviction has caused severe collateral consequences: public
humiliation, loss of his involvement in community life, loss of his position as
a public official, and loss of his ability to practice his chosen profession,
law. Yet in sentencing Ellis, the trial judge did not give proper weight to
these collateral consequences.
198 I
accept that Ellis' offence made these consequences inevitable. Their
inevitability makes their bearing on Ellis' sentence less compelling than
otherwise: see Manson at p. 137.
Still, they are entitled to some weight. When considered alongside Ellis'
reduced culpability because of his mental illness, these collateral
consequences of Ellis' conviction support the appropriateness of a conditional
sentence.
199 In
R. v. Bunn, 2000 SCC 9, [2000] 1
S.C.R. 183, the Supreme Court of Canada upheld a conditional sentence because it,
together with the collateral effects of the conviction, provided sufficient
deterrence and denunciation. In that case, a lawyer was convicted of six counts
of breach of trust for diverting clients' money from his trust account to his
general account. He was sentenced to two years in jail. When the conversions
were discovered, his right to practice law was suspended; he was later
disbarred.
200 After
Bunn's trial, but before his appeal, Parliament enacted the conditional
sentencing regime. The Manitoba Court of Appeal allowed Bunn's sentence appeal
and substituted a conditional sentence of two years less a day. This sentence
was upheld by the majority of the Supreme Court of Canada. Lamer C.J.C. wrote
at para. 23:
· Turning to a consideration of the principles of sentencing, the court
reasonably concluded that the ruin and humiliation that Mr. Bunn had brought
down upon himself and his family, together with the loss of his professional
status, could provide sufficient denunciation and deterrence when coupled with
a conditional sentence of two years less a day with house arrest...
The Supreme Court thus upheld a conditional
sentence in part because of the collateral consequences of Bunn's convictions
for breach of trust, even if those consequences were an inevitable result of
his offences.
201 Similarly,
I conclude that the collateral consequences of Ellis' conviction for breach of
trust, coupled with a conditional sentence, would provide sufficient
denunciation and deterrence.
D. CONCLUSION
202 I
would dismiss Ellis' conviction appeal. No sentencing objective would be
achieved by incarcerating Ellis that could not also be achieved by a
conditional sentence. Moreover, incarceration would undermine Ellis' rehabilitation.
I would therefore grant leave to appeal his sentence, allow his sentence
appeal, and impose a conditional sentence on strict terms, including house
arrest. I assume counsel will be able to agree on those terms.
J.I. LASKIN J.A.
cp/e/qlcct/qlpxm
1 The appellant
was charged under both s. 122 of the Code and with knowingly agreeing to accept a bribe or other
benefit, contrary to s. 129(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). The indictment charged the appellant with
"suggesting to Ji Hye Kim, a refugee claimant, that he ... would approve
her refugee application if Kim would engage in intimate relations with
[him]". Following his conviction on both counts, the IRPA charge was stayed, pursuant to Kienapple v. R., [1975] 1 S.C.R. 729.
2 The defence
position is that there is an error in the transcription and that Mr. Ellis said
"people's minds they do funny things".
3 The appellant
abandoned his ground of appeal based on self-induced intoxication. It had not been
raised at trial and there was no evidence concerning the amount of alcohol he
had consumed at the wine-tasting before the Starbucks meeting on September 26,
2006.
4 The British
Columbia Court of Appeal varied the conditions of the appellant's probation,
but refused to impose a conditional sentence, as he had requested.
