Far from mitigating violent crime, cultural beliefs leading to violence should, if anything, be an aggravating factor supporting a harsher sentence, the Ontario Court of Appeal ruled yesterday in striking down the inadequate sentence of a lower court.
The ruling in R. v. H.E. involves an Iranian immigrant convicted of raping his wife repeatedly and beating her along with his children. The assaults were routine, occurring three or four times a month, and the wife never thought to contact police because, according to her, such domestic abuse was common in Iran.
Indeed, the victim seemed shocked when it became clear to her that her husband could go to prison. Despite terrible abuse suffered over years, neither she nor her children wanted the man jailed.
The Crown sought a prison term of four years, but Justice William Gorewich of the Ontario Court of Justice handed down a much lighter sentence — 18 months plus probation — reasoning that there was no risk to reoffend and there were “no injuries” requiring medical attention.
Gorewich also took it upon himself to weigh cultural considerations despite the fact that none were offered as a defence: “In my considerations, I ask how much weight [should] the cultural impact of moving from Iran to Canada be given. [The accused’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. It is only a factor in my deliberations, and not a sentencing principle.”
On appeal, Associate Chief Justice Alexandra Hoy, on behalf of a unanimous court, took great exception with the notion that one’s cultural background could excuse violent criminal behaviour. “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,” the decision states.
“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.”
Hoy’s decision also cited errors with the lower court’s explanation that “no injuries” were suffered because medical attention was never sought. “The sentencing judge commented that medical attention was not sought. This does not mean there were no physical injuries.”
Finally, the appeal court found errors with the lower court’s assumption the accused posed no risk to reoffend. Much to the contrary, it found, the convicted man expressed no remorse for his actions and may continue to hold beliefs that his criminal behaviour was acceptable. “Given the lack of remorse, what then was the evidence that there was no risk to reoffend? . . . The respondent, in his late forties, was found guilty of routinely raping his wife over many years, and of physically attacking his own children. These offences were not isolated incidents. By nearly all accounts, the respondent had difficulty controlling his anger. This engaged an inference that the respondent was a risk to re-offend.”
The appeal court decision imposed a sentence of four years with no parole. Counsel for both the Crown and the respondent declined to comment on the decision.
