[29] The sentencing judge’s reasons indicate that he considered the cultural impact in his determination of the appropriate sentence. Although his reasons are unclear, it appears as though he considered culture as a mitigating factor. This is an error for two reasons. First, the respondent never took the position that cultural differences impacted his conduct. On the contrary, in the pre-sentence report he expressly disavowed any suggestion that he felt culturally justified in assaulting his wife and children; his defence was denial of the events. The respondent’s factum in this court took the same position.
[30] Second, and more importantly, cultural norms that condone or tolerate conduct contrary to Canadian criminal law must not be considered a mitigating factor on sentencing.
[31] The Alberta Court of Appeal commented on this issue in R. v. Teclesenbet, 2009 ABCA 389, 469 A.R. 193. In that case, the offender had immigrated to Canada five days before slapping his wife and beating her with a shoe. The wife was hospitalized, and the offender was convicted of assault causing bodily harm. The sentencing judge accepted as a mitigating factor the offender’s claim that, in his home country of Sudan, his behaviour was commonplace. The offender received a conditional discharge and 12 months’ probation. The Crown’s appeal was allowed. McDonald J.A. wrote for the court, at para. 9:
The law of Canada applies equally to all who are in Canada regardless of the length of time they have resided here. To suggest that it might be acceptable to beat one’s wife with a stick elsewhere does not mitigate the seriousness of the offence and is contrary to the purpose of domestic violence laws.
[32] Earlier, in R. v. Brown (1992), 1992 ABCA 132 (CanLII), 125 A.R. 150 (C.A.), the same court wrote, at para. 29:
Even if there were before the court a more articulated submission based on social attitudes within a particular ethnic or religious community to which the accused belongs, the courts of this province and of this country should be alert to the risk of moderating sentencing policy in such a case where to do so would mean that some women in Canadian society would be afforded less protection than others.
[33] A cultural practice that is criminal in Canada does not mitigate the perpetrator’s conduct for sentencing purposes. 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. 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.
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