Cultural Differences Do Not Excuse or Mitigate Criminal Conduct

Update:

Exterior of Osgoode Hall, which houses the Ontario Court of Appeals. In a judgment, published Wednesday, the court overturned an 18-month sentence for an Iranian immigrant convicted of “long-standing and ongoing abuse” of his wife and children.
Exterior of Osgoode Hall, which houses the Ontario Court of Appeals. In a judgment, published Wednesday, the court overturned an 18-month sentence for an Iranian immigrant convicted of “long-standing and ongoing abuse” of his wife and children.

Cultural differences no excuse for domestic violence, judges rule.Court of Appeal overturns light sentence handed down to man from Iran who abused his wife and kids.

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A man who spent six months in jail for assault and sexual assault will be rearrested and sent back behind bars after the Court of Appeal ruled that “cultural differences” can’t be used to justify a light sentence.

The judgment, published Wednesday, overturned an 18-month sentence for an Iranian immigrant convicted of “long-standing and ongoing abuse” of his wife and children.

William Gorewich, a Newmarket judge, cited a “significant cultural gap” while discussing his reasons for imposing the light sentence, which the three-judge appeal panel found to be “manifestly unfit.”

“This was not a sentence that was slightly outside of the appropriate range. It was far outside the range,” wrote Justices Mary Lou Benotto, Alexandra Hoy and David Doherty.

The Court of Appeal for Ontario ruled that the sentence of 18 months for involving forced intercourse with a spouse  was "manifestly unfit" and that the normal sentence for this offence was 21 months to four (4) years in line with the jurisprudence already established across Canada. See R. v. Smith, 2011 ONCA 564, 274 C.C.C. (3d) 34, at para. 87 and R. v. R.(B.S.) (2006), 81 O.R. (3d) 641 (C.A.), R. v. Jackson, 2010 ONSC 3910, R. v. M.(B.), 2008 ONCA 645, R. v. Nolan, 2009 ONCA 727, R. v. Toor, 2011 ONCA 114.
The Court of Appeal for Ontario previously ruled in R. v. Smith, 2011 ONCA 564, 274 C.C.C. (3rd) that the sentence of 18 months for involving forced intercourse with a spouse was “manifestly unfit” and that the normal sentence for this offence was 21 months to four (4) years in line with the jurisprudence already established across Canada. See R. v. Smith, 2011 ONCA 564, 274 C.C.C. (3d) 34, at para. 87 and R. v. R.(B.S.) (2006), 81 O.R. (3d) 641 (C.A.), R. v. Jackson, 2010 ONSC 3910, R. v. M.(B.), 2008 ONCA 645, R. v. Nolan, 2009 ONCA 727, R. v. Toor, 2011 ONCA 114.

“Cultural norms that condone or tolerate conduct contrary to Canadian criminal law must not be considered a mitigating factor on sentencing,” the judges ruled, adding two and a half years to his sentence.

The convicted man, whose identity is protected by a publication ban, moved to Canada with his family in 2009. The judges found he sexually assaulted his wife three to four times a month, forcing her to “have sex with him by hitting her, pulling her hair, pinching her and forcefully removing her clothes.”

“The sex was painful. She cried out quietly so the children would not hear,” the judges wrote.

The proper approach to sentencing an offender for multiple offences is unsettled. The courts of appeal of various provinces have set out two competing approaches. One requires a sentencing judge to fix an appropriate global sentence first and then assign sentences for each individual offence and designate them concurrent or consecutive to fit within the already determined global sentence: see R. v. Jewell (1995), 83 O.A.C. 81 (C.A.). The alternative approach requires a sentencing judge first to assign fit sentences for each offence and designate those sentences as concurrent or consecutive and only then, as a final step, consider the total sentence to ensure it does not offend the principle of totality: see R. v. Adams (2010), 291 N.S.R. (2d) 206 (C.A.), R. v. Wozny, [2011] 2 W.W.R. 630 (C.A.). Here, the trial judge followed the approach set out by this court in Jewell.
The proper approach to sentencing an offender for multiple offences is unsettled. The courts of appeal of various provinces have set out two competing approaches. One requires a sentencing judge to fix an appropriate global sentence first and then assign sentences for each individual offence and designate them concurrent or consecutive to fit within the already determined global sentence: see R. v. Jewell (1995), 83 O.A.C. 81 (C.A.). The alternative approach requires a sentencing judge first to assign fit sentences for each offence and designate those sentences as concurrent or consecutive and only then, as a final step, consider the total sentence to ensure it does not offend the principle of totality: see R. v. Adams (2010), 291 N.S.R. (2d) 206 (C.A.), R. v. Wozny, [2011] 2 W.W.R. 630 (C.A.). Here, the trial judge followed the approach set out by this court in Jewell.
He also violently abused her and their two sons, slapping, kicking and punching them and hitting them with a belt.

“On one occasion he locked them outside on a snowy winter day while they were wearing nothing but shorts and T-shirts. They waited barefoot for 40 minutes until their mother arrived home,” the judges wrote.

The assaults, which began in Iran, continued in Canada and came to light when the youngest son confided in a teacher at his school.

The appeal judges noted that the man did not use his cultural background as a defence for his actions; he denied the violence entirely. Yet Gorewich still referred to cultural issues twice in his sentencing.

After the man’s wife expressed surprise that there were serious consequences for beating your wife and children in Canada, Gorewich wrote that this “suggests a significant cultural gap between what is not accepted in this country, and what is accepted in her native country.”

“In my considerations, I ask how much weight [should] the cultural impact of moving from Iran to Canada be given. [The respondent’s wife] testified in Iran if she complained about any abuse she would be ignored. It is a different culture, it is a different society. As far as I’m able to ascertain from the evidence, those cultural differences moved with them from Iran to Canada,” Gorewich wrote in his judgment.

The Court of Appeal for Ontario, consisting of Justices Mary Lou Benotto, Alexandra Hoy and David Doherty increased the original sentence of 18 months (for a multitude of serious criminal offences) to four (4) years, he would receive credit of around one year for time served.
The Court of Appeal for Ontario, consisting of Justices Mary Lou Benotto, Alexandra Hoy and David Doherty increased the original sentence of 18 months (for a multitude of serious criminal offences) to four (4) years, he would receive credit of around one year for time already served.

Daniel Brown, a Toronto director for the Criminal Lawyers’ Association, doubted that Gorewich actually let cultural factors influence his sentence.

“He’s not saying, ‘This was a factor in my sentencing.’ In fact, he talked about the things that were factors, both aggravating and mitigating, and this wasn’t among them. But because he made reference to it, it appears as though it was, if nothing more, a good opportunity for the Court of Appeal to weigh in on the subject,” said Brown.

The Court of Appeal ruled that Gorewich erred by finding that the wife and children had “no injuries,” the man was at no risk of reoffending, and the sentences should be concurrent. But the judges reserved a page and a half of their 14-page ruling for refuting his use of cultural considerations in sentencing.

The Court of Appeal for Ontario, consisting of Justices Mary Lou Benotto, Alexandra Hoy and David Doherty ruled that “Cultural differences do not excuse or mitigate criminal conduct. To hold otherwise undermines the equality of all individuals before and under the law, a crucial Charter value. It would also create a second class of person in our society — those who fall victim to offenders who import such practices,”
The Court of Appeal for Ontario, consisting of Justices Mary Lou Benotto, Alexandra Hoy and David Doherty ruled that “Cultural differences do not excuse or mitigate criminal conduct. To hold otherwise undermines the equality of all individuals before and under the law, a crucial Charter value. It would also create a second class of person in our society — those who fall victim to offenders who import such practices,”

“Cultural differences do not excuse or mitigate criminal conduct. To hold otherwise undermines the equality of all individuals before and under the law, a crucial Charter value. It would also create a second class of person in our society — those who fall victim to offenders who import such practices,” they wrote.

“This is of particular significance in the context of domestic violence. All women in Canada are entitled to the same level of protection from abusers. The need to strongly denounce domestic violence is in no way diminished when that conduct is the product of cultural beliefs that render women acceptable targets of male violence.

“If anything, cultural beliefs may be an aggravating factor enhancing the need for specific deterrence in cases where the sentencing judge is satisfied that the offender continues to maintain those views at the time of sentencing.”

The man, who operates a carpentry business, was released after serving six months in prison and now lives with another woman and his sons.

He has no insight or awareness of the seriousness of his actions, the appeals court judges wrote, nor is there any evidence of rehabilitation. They ordered that he be arrested and sent back to prison for a total sentence of four years, minus one year’s credit for time and parole already served.

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