R. v. M.S.

2025 BCCA 207 R. v. M.S.

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. M.S., 2025 BCCA 207 Date: 20250606 Docket: CA50424 Between: Rex Respondent And M.S. Appellant Restriction on publication: A publication ban has been imposed under s. 486.4(1)(b) of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify the complainant. This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Mr. Justice Groberman The Honourable Justice Warren The Honourable Justice MacNaughton On appeal from: An order of the Supreme Court of British Columbia, dated January 7, 2025 (sentence) (R. v. M.S., 2025 BCSC 126, Abbotsford Docket 96391-2). Oral Reasons for Judgment Counsel for the Appellant: R. Larmer Counsel for the Respondent: L.A. Chu Place and Date of Hearing: Vancouver, British Columbia June 6, 2025 Place and Date of Judgment: Vancouver, British Columbia June 6, 2025 Summary: In the course of a domestic argument, the appellant threatened his wife. He pleaded guilty to one count of uttering a threat. At sentencing, he argued in favour of a discharge. The Crown argued for a one-year period of probation, but did not take a position on whether the probation should be attached to a conditional discharge or to a suspended sentence. The judge imposed a suspended sentence. The appellant contends that the judge's reasons were

insufficient, and that she failed to properly take into account some factors. He concedes, however, that the sentence was not unfit. Held: Appeal dismissed. The judge's reasons, while brief, were sufficient, and no error has been demonstrated. [1] GROBERMAN J.A.: The appellant appeals from a one year suspended sentence imposed on him following a guilty plea on a single count of uttering a threat to cause death or bodily harm. [2] The complainant was his wife. The couple were married in India in an arranged marriage in 2018. The complainant was the first to come to Canada, and the appellant immigrated in late 2019. Circumstances of the Offence [3] An agreed statement of facts described the circumstances of the offence very briefly. Between June 15, and November 20, 2022, the appellant's mother was visiting the couple. There was considerable tension, as the mother did not get along with the complainant, and the appellant "felt caught in between the two of them". During the visit, an incident occurred in which the appellant and the complainant argued. The appellant became very angry, and threatened her, commanding her, in Punjabi, "Close your mouth or I will cut out your tongue". The appellant did not actually intend to cut out the complainant's tongue, but the complainant was genuinely afraid for her safety. Circumstances of the Offender [4] The appellant was 33 years old at the

time of the offence. He had permanent residency in Canada, but was not a citizen. The appellant and complainant had separated before the trial took place, and had taken steps toward obtaining a divorce. [5] At the time of the trial, the appellant was employed as a truck driver, driving gravel and dump trucks. He advised the judge that he had taken steps toward rehabilitation to avoid future offences. In particular, he had quit drinking (though the judge noted that alcohol did not appear to be a contributing factor in respect of the offence); further, he indicated that he attended a Sikh temple regularly and sought spiritual guidance there. He also participated regularly in community service as part of his faith. [6] The court was told that the appellant had taken two sessions of counselling. After the second session, the counsellor advised him that there was no need for further sessions. The judge noted that it was not clear what sort of counselling was involved, and that it was not apparent that it specifically addressed intimate partner violence. Positions on Sentence [7] At trial, the appellant sought an absolute discharge, or, in the alternative, a conditional discharge. He emphasized his lack of a criminal record, and the fact that the offence occurred at a time of high stress. He also underlined the fact that he did not intend to follow through on his threat. [8] The

appellant also noted the steps that he had taken toward rehabilitation. [9] The Crown sought a one-year probation order but took no position on whether the order should be attached to a conditional discharge or a suspended sentence. It placed some emphasis on the fact that the case involved a serious threat of domestic violence, and that the complainant was a vulnerable person. The Reasons for Sentence [10] The judge's reasons are quite brief. She noted that the appellant had no criminal record. She also mentioned that he was a permanent resident of Canda, and that the sentence she was imposing would not interfere with that status, but could "delay or impact an application for citizenship". [11] The judge, citing s. 730 of the Criminal Code, noted that a discharge may be granted where it is in the best interests of the accused, and not contrary to the public interest. [12] The judge was referred to and cited this Court's decision in R. v. Fallofield (1973), 13 C.C.C. (2d) 450. There, this Court indicated that in evaluating whether a discharge was in the accused's best interests, a judge should generally be satisfied that the accused has no prior criminal record, and that a conviction is not necessary for the purposes of specific deterrence or rehabilitation. In addition, the court should be satisfied that the entry of a conviction might have significant adverse repercussions

for the accused. [13] Fallofield commented further that in deciding whether a discharge is contrary to the public interest, an important consideration will be the need for general deterrence. [14] The judge also referred to a more recent decision of this Court: R. v. Jeremiah, 2018 BCCA 89. [15] The judge was satisfied that it was in the appellant's best interest to receive a discharge but considered that a discharge was contrary to the public interest. She imposed a suspended sentence with one-year probation. Sufficiency of the Reasons for Sentence [16] The appellant does not take the position that the sentence is unfit, but says that the judge's sentencing reasons were insufficient, and that the court should, therefore, refuse to defer to them, and instead approach this case as one in which it, must, itself, determine the appropriate sentence. [17] The approach that should be taken to sufficiency of a judge's reasons was discussed by the Supreme Court of Canada in R. v. G.F., 2021 SCC 20. Justice Karakatsanis, speaking for six members of the Court, said: [74] Legal sufficiency requires that the aggrieved party be able to meaningfully exercise their right of appeal: Sheppard [R. v. Sheppard, 2002 SCC 26] at paras. 64-66. Lawyers must be able to discern the viability of an appeal and appellate courts must be able to determine whether an error has occurred: paras. 46 and 55.

Legal sufficiency is highly context specific and must be assessed in light of the live issues at trial. A trial judge is under no obligation to expound on features of criminal law that are not controversial in the case before them. This stems from the presumption of correct application -- the presumption that "the trial judge understands the basic principles of criminal law at issue in the trial": R.E.M. [R. v. R.E.M., 2008 SCC 51], at para.

45. As stated in R. v. Burns, [1994] 1 S.C.R. 656, at p. 664, "[t]rial judges are presumed to know the law with which they work day in and day out": see also Sheppard, at para.

54. A functional and contextual reading must keep this presumption in mind. Trial judges are busy. They are not required to demonstrate their knowledge of basic criminal law principles. [75] Conversely, legal sufficiency may require more where the trial judge is called upon to settle a controversial point of law. In those cases, cursory reasons may obscure potential legal errors and not permit an appellate court to follow the trial judge's chain of reasoning: Sheppard, at para. 40, citing R. v. McMaster, [1996] 1 S.C.R. 740, at paras. 25-27. While trial judges do not need to provide detailed maps for well-trod paths, more is required when they are called upon to chart new territory. However, if the legal basis of the decision can nonetheless be discerned from the record, in the context of the live issues at trial, then the reasons will be legally sufficient. [18] The legal issues in the appellant's case were limited to the issue of whether he should be given a discharge or a suspended sentence. The law was not complicated. [19] The judge's reasons were brief, but through her references to other cases and her recital of the facts, they are sufficient to explain the factors that she considered, and her reasons for exercising her discretion against granting a discharge. In my view, this Court must, unless error is shown in the judge's approach, give deference to her exercise of

sentencing discretion. Specific Errors Alleged by the Appellant [20] The appellant contends that the judge erred in three specific respects: 1. in failing to treat the appellant's lack of a criminal record as a mitigating factor; 2. in failing to consider the collateral immigration consequences in sentencing the appellant; and 3. in "conflating the [complainant's] status as an immigrant with the [a]ppellant's status as an immigrant". [21] I am not persuaded that the judge failed to understand that the appellant's lack of a criminal record was a mitigating factor in sentencing. She referred to the fact that he had no record, and also referred to Fallofield, a case that emphasized the importance of the absence of a criminal record in considering whether a discharge should be granted. There is no indication in the judgment that the judge failed to appreciate that the appellant's lack of a criminal record was a significant factor in her decision. Further, it is clear from her reasons that she understood that it was an important factor favouring the granting of a discharge. [22] The judge also mentioned the possibility of collateral immigration consequences for the appellant if convicted. In particular, she noted that while his status as a permanent resident would not be affected, any application to become a citizen might be delayed or affected by a conviction. I am satisfied that

she took those consequences into account in determining the appropriate sentence. [23] The appellant speculates, in his written argument, that the judge may have been influenced, in exercising her discretion, by the fact that the appellant faced several more serious counts in the indictment, which counts were stayed when he pleaded guilty to the one count. There is nothing in the sentencing decision that gives credence to that speculation. [24] I am also satisfied that the judge's reference to the complainant's status as an immigrant was appropriate. Her point was simply that the complainant was a vulnerable person, without family supports in this country. That was a proper factor for her to consider in assessing the seriousness of the offence. I see no basis for the suggestion that the judge "conflated" the status of the complainant with that of the appellant. [25] The judge adverted to the prevalence of domestic violence, and to its seriousness. She accepted that a discharge would be consistent with the appellant's own rehabilitation and deterrence but considered that the seriousness of the offence justified the imposition of a suspended sentence for the purposes of marking the gravity of the offence and deterring others. Disposition [26] While the judge's reasons are brief, they are intelligible and the appellant has not succeeded in establishing that the judge made any error in principle or in law. I would dismiss the appeal. [27] WARREN J.A.: I agree. [28] MACNAUGHTON J.A.: I agree. [29] GROBERMAN J.A.: The appeal is dismissed. "The Honourable Mr. Justice Groberman"