In the Court of Appeal of Nunavut

Citation: R v Ganesan, 2017 NUCA 7

Date: 20171024
Docket: 08-16-007-CAS
Registry: Iqaluit

Between:

Her Majesty the Queen

Respondent

- and -

Dushyenth Ganesan

Appellant

_______________________________________________________

Reasons for Decision of

The Honourable Madam Justice Frederica Schutz
_______________________________________________________

Appeal from the Sentence by

The Honourable Madam Justice B. Tulloch
Dated the 16th day of September, 2016
Filed the 14th day of November, 2016
(Docket: 08-15-261)
 _______________________________________________________

Reasons for Decision of

The Honourable Madam Justice Schutz
_______________________________________________________

[1] The appellant pled guilty to assaulting his spouse, contrary to s 266 of the Criminal Code,
RSC 1984, c C-46.

[2] At the sentencing hearing, the Crown submitted that a suspended sentence would be an
appropriate disposition. The appellant contended that a conditional discharge was appropriate
because it was in his best interests, and not contrary to the public interest. The primary issue
before the sentencing judge was whether the assault ought to be recorded as a criminal
conviction.

[3] The sentencing judge determined that a 9 month suspended sentence was the appropriate
disposition.

[4] For the reasons that follow, the sentence imposed does not warrant appellate intervention.

Standard of Review

[5] As with most appeals from sentence, some other sentence could have been imposed. This
Court may only interfere, however, if a sentence discloses an error in principle, fails to consider a
relevant factor, or over-emphasizes the appropriate factors, or the sentence imposed is
demonstrably unfit: R v CAM, [1996] 1 SCR 500 at paras 89-90, 105 CCC (3d) 327; R v LM, 2008
SCC 31 at para 14, [2008] 2 SCR 163; R v Lacasse, 2015 SCC 64.

[6] In the context of appellate review of a sentencing judges exercise of discretion to grant, or
not grant, a conditional or absolute discharge, it must be borne in mind that sentencing is an
exceedingly difficult task. Parliament explicitly vests sentencing judges with a discretion to
determine the appropriate degree and kind of punishment under the Criminal Code: ss 718-718.2.
This Court is permitted to interfere with the exercise of this discretion only when legally
necessary.

Analysis

Proportionality

[7] R v Safarzadeh-Markhali, 2016 SCC 14 at paras 70-71, [2016] 1 SCR 180, reiterates that
proportionality in the sense articulated at s 718.1 of the Code - that a sentence be proportionate to
the gravity of an offence and an offenders degree of responsibility - is a fundamental principle of
sentencing . . . proportionality is the sine qua non of a just sanction. It is grounded in elemental
notions of justice and fairness, and is indispensable to the publics confidence in the justice
system.
 Page: 2

Sentencing Decision Below

[8] There is no dispute that the sentencing judge correctly summarized the agreed facts giving
rise to the appellants guilty plea, as follows:

On March 25th, 2015, the accused was drinking and an argument took place
between him and his wife. At some point Mr. Ganesan told his wife that he was
going to commit a double murder-suicide. She became understandably concerned
and called her husbands friend who came to her assistance and removed the
accused from the home.

On May 9, 2015, the accused was again drinking and a further argument took place.
At the time Mr. Ganesan pushed his wife against a wall.

The next day, on May 10, 2015, the accused was again drinking. He was also
smoking inside their home. His wife was upset about this and tried to pour his drink
down the sink. He punched her on the head, three or four times. The accuseds
step-son suffers from a debilitating disease which is getting progressively worse.
[The Child] has muscular dystrophy which, among other things, affects his
respiratory abilities. By smoking in the home, Mr. Ganesan is clearly impacting his
step-sons health.

After the punching, the accuseds wife called a friend by the name of Angela
McPherson, who came to the home and confronted the accused. Eventually Ms.
McPherson left and Mr. Ganesan continued to be angry with his wife. At one point
he grabbed a chair and threatened to hit her with it. He did not do so, but he did push
her and she slapped him. She went to the phone to call Mr. Ganesans friend for
assistance. The accused was angry that she was calling for help. He spat on her four
or five times while she was on the phone and told her that she was a whore, that she
was stupid and illiterate, and that he only married her to get the money - whatever
that meant.

The accused also told his wife that he had killed a man before, but the police had
not caught him yet.

Eventually, the friend came and removed the accuseds wife from the home. She
reported the incident to the police. In her statement she said that he broke things in
the home and pushed her around. She also disclosed that the abuse took place in
front of their disabled son.

[9] While the Crown sought a suspended sentence, the sentencing judge stated that [o]n these
facts alone it would not have been unreasonable for the crown in this case to seek a period of
custody. I agree.
 Page: 3

[10] The sentencing judge correctly noted that violence against an intimate partner is statutorily
aggravating. She further found that the facts were not limited to a single incident of family
violence, but rather involved of a number of incidents that were not impulsive:

These facts support a finding that the accused deliberately and intentionally abused
his spouse. He did so physically and also verbally. His humiliating and degrading
comments were meant to hurt. The threat to commit a double murder-suicide is
particularly disturbing and aggravating. Further, his comments about him killing
another man and getting away with it were clearly meant to seriously intimidate the
victim.

It is also aggravating that this behavior occurred in front of the couples disabled
son. There is no way that this wheelchair-bound fifteen-year-old boy could not
have been impacted by what he witnessed, and he was completely powerless due to
his medical condition to do anything about it.

The facts do not speak to just one incident on one day, this is also aggravating.

The fact that Mr. Ganesan was smoking inside the home when he knows his son is
negatively impacted by that behavior is also aggravating.

These findings are entitled to a high degree of deference and do not warrant appellate intervention.

[11] The sentencing judge went on to discuss, in a balanced manner, the complainants
comparative vulnerability and social isolation in a northern community far from her birth country
of India, and noted the complainants dependency on the appellant to assist her with the substantial
needs of caring for their profoundly disabled teenage child.

[12] The sentencing judge also took particular note of significant mitigating circumstances,
including the appellants mature age, his lack of a criminal record, his exemplary work record, and
his guilty plea and remorse. She further noted the appellants attendance at counselling and his
acknowledgement that counselling taught him how to react more appropriately to situational
stressors, both within the household and in his relationship with the complainant. Also noted was
the fact that the appellant was very involved with the ongoing care of his step-son, was a good
father who loved his stepson, and that both the appellant and the complainant faced a very difficult
and stressful situation knowing that their son will not get better . . . is in considerable pain and his
prospects for the future are limited.

[13] The sentencing judge further summarized the evidence of two witnesses, each of whom
voluntarily attended to confirm their support for the complainant and the appellant.
 Page: 4

[14] Although initially advised that the appellant had no intention of leaving Nunavut, the
sentencing judge fairly confirmed that late in the proceedings she was informed that, in fact, the
appellant had outstanding applications for employment opportunities outside of Nunavut.

[15] Section 730(1) of the Criminal Code provides that an absolute or conditional discharge
may be ordered where there is no mandatory minimum sentence for the offence, it is in the best
interests of the accused and not contrary to the public interest.

[16] R v MacFarlane (1977), 3 Alta LR (2d) 341 (CA) sets out some of the criteria that a
sentencing judge should consider when exercising their discretion under s 730(1) of the Criminal
Code; the sentencing judge well-recognized these factors and they need not be repeated here.

[17] The sentencing judge determined that granting a conditional discharge in cases of spousal
assault should occur only in exceptional and rare cases. This is because such offences generally
require a sentence of general deterrence that is inconsistent with granting a discharge. There is
ample support in the case law for this proposition: see for example R v Brown, 1992 ABCA 132
(CanLII) at paras 18-22, 125 AR 150; R v Bonneteau, 1994 ABCA 327 at paras 21, 24, 34, 157
AR 138; R v Heavyrunner, 2004 ABCA 15 (CanLII) at para 4, 346 AR 74; R v Pudlat, 2005
NUCA 3 at para 6, 404 AR 389; R v Koval (1991), 110 AR 51 at paras 10-13.

[18] In the circumstances of this case, the sentencing judge decided that granting a conditional
discharge would be in the appellants best interests, because it would alleviate any concerns about
whether a criminal record may narrow future employment opportunities, or may affect (there was
no conclusive evidence on that issue) any future travel plans outside of Canada, including seeking
medical treatment for their son in the United States. She found that the combination of these two
advantages would alleviate any added stress on the relationship between the complainant and the
appellant, and in the household, that might arise from these future situations.

[19] The sentencing judge ultimately determined, however, that granting a conditional
discharge in this matter would be contrary to the public interest:

The test is whether or not the general public would look at these facts and the
circumstances of this offender and find that it is unique enough to allow Mr.
Ganesan to escape from the registering of a criminal record for spousal assault.

There is no doubt that this accused was under some stress when he committed this
offence. Stress is a key ingredient in almost every spousal assault. There are many
kinds of stress and although the court sympathizes a great deal with the
circumstances of this case and this couple, I cannot grant a discharge when
balancing the facts and the circumstances of this offender.

...
 Page: 5

As in the case . . . MacFarlane, I must consider whether the circumstances that an

accused has committed the offence is something which should be a matter of record
for the public, and, in this case I find that it is.

I am encouraged by the accuseds efforts since the incident to participate in

counselling. I do very much believe that he is remorseful and I hope that he is
committed to change, but it is clear from the evidence that his journey is not over.
There is still more work to be done.

[20] Read in the context of the entire decision, in my view the sentencing judges use of the
phrase unique enough is essentially synonymous with the language used in MacFarlane at page
345, wherein the appellate court having decided that the appellant deserves a criminal record
went on to say that there are no exceptional circumstances which exist in this case which do not
exist in the case of any young man who, while gainfully employed and otherwise a useful citizen,
turns for the first time to crime, and that would otherwise render a discharge a fit disposition
merely because of previous or present good behaviour.

[21] More recently, R v Shortt, 2002 NWTSC 47 at para 26, cited dicta from MacFarlane that
notes that offences involving violence are generally not amenable to the granting of a discharge,
and went on to say that [i]n particular, cases of domestic violence, since they engage
considerations of general deterrence, and because of the prevalence of such crimes in all
communities and the vulnerability of its victims, are ordinarily unsuitable for the use of the
discharge option. As Shortt states, this is simply a recognition that a greater emphasis on the
need for general deterrence will usually mean the discharge is contrary to the public interest.

[22] In my view, although this is not to suggest that there is any offence-specific presumption
that takes domestic assault offences out of consideration for a discharge, nonetheless a sentencing
judges exercise of discretion not to impose a discharge in such circumstances is entitled to a high
degree of appellate deference.

[23] The sentence imposed in this matter does not warrant appellate intervention because the
reasons disclose no errors in principle, or failures to consider relevant factors. Nor were
appropriate factors over-emphasized, or under-emphasized; all aggravating and mitigating factors
were fairly and appropriately weighed. And, the sentence imposed is not demonstrably unfit.

[24] This Court of Appeal has repeatedly said in the clearest terms, that violence against
intimate partners is anathema to Canadian values, and that denunciation and deterrence are
paramount sentencing objectives in cases such as this.

[25] In my view, the ordinary, reasonable, fair-minded member of Canadian society, informed
about the circumstances of the case and the relevant principles of sentencing, would believe that
the recording of a conviction is necessary to maintain public confidence in the administration of
justice.
 Page: 6

Disposition

[26] The appeal is dismissed.

Reasons filed at Iqaluit, Nunavut

this 24th day of October, 2017

Schutz J.A.
 Page: 7

Appearances:

J. Montgomery
for the Respondent

A. Crowe
for the Appellant