R. v. Oghieakhe - V. Dolton

This is a recent case out of the Manitoba Provincial Court. The offender in this case, Oghieakhe, has already been found guilty of sexual assault after his initial trial. This trial is to determine an appropriate sentence based on his personal circumstances. The facts of the case are as follows: on March 27, 2017, the victim went over Oghieakhe’s apartment after making plans to do so. The offender emphasized that she should come by taxi, “expressing concern about her driving in an impaired state.” 1 Once she arrived, the two sat on his bed and chatted until eventually the offender “became physically aggressive and initiated unwanted physical contact” 2 with the victim by attempting to kiss her. This led to him forcedly taking off her jeans and raping her. The victim confided in some friends who went with her to the offender’s apartment the next day. She shouted “you raped me- say it” 3 outside of his building as he refused to leave the apartment. There was also a text exchange between the two which included her accusing him directly and him apologising by saying: “I want to deeply and sincerely apologize for what you feel happened between us.” 4

Oghieakhe’s guilt is not at issue during this trial. The focus here is determining a fit sentence based on the circumstances. The Crown is seeking a “penitentiary sentence of three and a half years'', 5 based off the 1985 Alberta Court of Appeal Case, R v Sandercock, 6 which proposed that a three-year sentence is a “fit starting point” 7 for a serious sexual assault committed by a “mature [person]… with previous good character and no criminal record." 8 The defence agrees with this starting point established in Sandercock, but cites several other cases in the hopes of establishing that a lesser sentence should be given based at least in part, on the “potential negative immigration consequences.”9

Issues:

The issues in this trial can be summed up as:

• What is an appropriate sentence for Oghieakhe?

• Should the negative impacts on the offender’s immigration status (particularly, losing his “statutory right of appeal in reference to a ministerial decision to remove him from Canada”10) be considered in determining a fit sentence?

Analysis:

In addressing what an appropriate sentence for Oghieakhe would be in this case, the Court first looks to sentencing framework outlined in the 2015 Supreme Court decision, R v Lacasse, 11 as well as the sentencing principles outline in s. 718 12 of the Code. After outlining the points that must be considered when determining a fit sentence, the Court looks at the mitigating and aggravating factors of this case which will be used to determine Oghieakhe’s sentence. The main mitigating factors are his “relative youth at the time of the offence” 13 and his lack of any criminal record. The aggravating factors in this case or the “devastating impact on the victim” 14 and the violent nature of the attack or “degree of violation of the [victim].” 15 The judge weighs these heavily in determining the sentence. 16

The defence put forward several cases in support of a lesser sentence notwithstanding the starting point established in Sandercock. Ultimately, Corrin Prov. J. rejected these cases as having relevancy because one involved “sentencing factors related to Gladue” 17 and the others because they were “not on point”, 18 meaning the facts differed enough that the conclusions are irrelevant to the case at hand. The defence then applies the cases of R v Pham 19 and R v Azizi 20 in order to highlight the “collateral [immigration] consequences” 21 to be considered during sentencing. Corrin Prov. J. agrees that the impact of any immigration consequences need to be considered as a factor in determining a fit sentence for an offender but should not be considered a “mitigating factor” in the same way that his age or lack of criminal history is considered. 22 The decision of a fit sentence rests on how the judge balances the mitigating and aggravating factors, in conjunction with the negative immigration impacts, against the starting point of a three-year sentence from Sandercock.

Conclusion:

It is ultimately found that a fit sentence is “two years minus one day”, the same sentence given in R v Pham. 23 Corrin Prov. J. states that “this is a significant sentence that will still send a message to society that engaging in non-consensual sexual activity will be taken very seriously by the courts” 24 but notes that it still took into consideration the immigration consequences. While there is no denial of the offender’s moral blameworthiness, 25 he was perceived as being an “excellent candidate for rehabilitation” 26 and rated to be “relatively low risk for reinvolvement” 27 with this type of crime. In addition to his prison sentence, Oghieakhe was ordered a “24-month period of supervised probation” 28 which includes various restrictions on his mobility and requires mandatory counselling. 29

A Brief Reflection:

As illustrated, determining a fit sentence for an offender goes well beyond the enumerated principles outlined in s. 718 of the Code. Considering the various mitigating and aggravating factors of a case within its individual context is paramount, as is considering other factors such as the impact of a sentence on the immigration status of the offender. The guidelines from R v Lacasse highlight that sentencing needs to be an “individualized exercise” 30 and should focus on proportionality. In the case of Oghieakhe, his individual circumstances would have created a punishment far greater than his prison sentence. In the years since his offence, he has had two children and become very involved with his local religious activities and community. 31 A harsher sentence would cause him to lose his home of several years, his children, and his growing sense of community. Removing these “social safety nets” from someone’s life will only serve to alienate them further and make them more likely to reoffend. 32 Ultimately, taking into consideration any detrimental effects to someone’s immigration status (in this case, the right to appeal an inadmissibility ruling pursuant to the Immigration and Refugee Protection Act) 33 is a fundamental consideration in determining a fit and fair criminal sentence.

Table of Authorities

Jurisprudence

R v Azizi, 2017 MBQB 22.

R v Lacasse, 2015 SCC 64.

R. v. Oghieakhe, 2020 MBPC 58.

R v Pham, 2013 SCC 15.

Legislation

Criminal Code, RSC 1985, c C-46.

Immigration and Refugee Protection Act, S.C. 2001, c. 27.

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Endnotes:

1 R. v. Oghieakhe, 2020 MBPC 58 at para 2. [Oghieakhe]

2 Oghieakhe at para 2.

3 Ibid at para 3.

4 Ibid.

5 Ibid at para 10.

6 R v Sandercock, 1985 ABCA 218.

7 Ibid at para 2.

8 Ibid at para 17.

9 Oghieakhe at para 11.

10 Ibid at para 5.

11 R v Lacasse, 2015 SCC 64. [Lacasse]

12 Criminal Code, RSC 1985, c C-46, s 718.

13 Oghieakhe at para 17.

14 Ibid at para 19.

15 Ibid at para 20.

16 Ibid at para 29.

17 Ibid at para 25.

18 Ibid.

19 R v Pham, 2013 SCC 15. [Pham]

20 R v Azizi, 2017 MBQB 22.

21 Oghieakhe at para 26.

22 Ibid.

23 Pham at para 26.

24 Oghieakhe at para 30.

25 Ibid at para 29.

26 Ibid.

27 Ibid.

28 Ibid at 31.

29 Ibid at 31.

30 Lacasse at para 58.

31 Oghieakhe at para 5.

32 Ibid at para 8.

33 Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 64(1).