TORONTO - An Iranian immigrant who regularly raped his wife and beat his children during their 16-year marriage is going back to jail after Ontario's top court on Wednesday increased his sentence.
In doing so, the Court of Appeal said the lower court judge who handed the man an 18-month term was wrong to assume cultural differences were a mitigating factor — even though the defence never raised the issue.
The man, who cannot be identified by court order to protect his now ex-wife and children, will instead have to serve a four-year term, the Appeal Court decided.
"Cultural norms that condone or tolerate conduct contrary to Canadian criminal law must not be considered a mitigating factor on sentencing," the Appeal Court ruled.
"To hold otherwise undermines the equality of all individuals before and under the law."
In fact, the higher court said, cultural beliefs may even be an aggravating factor when it comes to sentencing.
In June last year, Judge William Gorewich of the court of justice in Newmarket, Ont., convicted the man of sexual assault and four counts of assault for offences that occurred after the family's move from Iran to Canada in 2009. The judge accepted there had been "long-standing and ongoing" abuse.
Evidence was that the man forced his wife to have sex with him by hitting her, pulling her hair, pinching her, and forcefully removing her clothes.
"The sex was painful. She cried out quietly so the children would not hear. She suffered painful bruises to her legs and sides," according to court documents.
He also abused their two children — now teenagers — by slapping, kicking, punching or strapping them. He once locked them outside on a snowy day while they were barefoot and wearing only shorts and T-shirts.
The abuse, which only came to light after the younger child talked to a teacher, continued even after he moved in with another woman.
"The younger boy became so terrified that he took to sleeping with a knife," court documents say.
In sentencing him to 18 months, Gorewich referenced the "cultural impact" of the family's immigration. Among other things, he took into account the wife's victim impact statement in which she expressed surprise at the serious legal consequences of her husband's conduct.
Her statement suggested a "significant cultural gap" between what is acceptable in Canada versus in Iran, Gorewich said.
"In Iran if she complained about any abuse she would be ignored — it is a different culture, it is a different society," Gorewich said.
"Those cultural differences moved with them from Iran to Canada."
On appeal, the Crown argued the judge's reasoning was flawed and the sentence manifestly unfit.
In siding with the prosecution, the Appeal Court noted the husband never raised cultural differences in his defence; instead he denied the attacks and blamed his family for his troubles.
The higher court sentenced him to 44 months for sexual assault, and made the four-month sentence for the assaults on the children consecutive rather than concurrent as Gorewich had done.
In the circumstances, the Appeal Court ruled, sending him back to prison — he had already been paroled — was justified.