WARNING

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the victim's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

486.4(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

486.4(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

486.6(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court Information

Ontario Court of Justice

Date: August 29, 2018

Between:

Her Majesty the Queen

— and —

Ahmad Sohail

Reasons for Sentence

Counsel:

• L. Crawford, for the Crown
• S. Hebscher, for the Defendant

Judge: Felix J.

I. Sentencing

A. Introduction

1The defendant was found guilty of sexual assault contrary to s. 271 of the Criminal Code, sexual interference contrary to s. 151 of the Criminal Code, and invitation to sexual touching contrary to s. 152 of the Criminal Code.

2Both the Crown and Defence agree that given the factual findings at trial the convictions for sexual interference and sexual touching should be sustained and the conviction for sexual assault stayed pursuant to R. v. Kienapple, [1974] S.C.J. No. 26. Invitation to sexual touching and sexual interference are subject to a minimum punishment of one year imprisonment, and not more than 14 years in prison when prosecuted by indictment. The prosecution proceeded by way of summary conviction so there is a mandatory minimum punishment of ninety days jail, and a maximum sentence of two years less one day applicable to this case.

3No constitutional challenge has been brought concerning the mandatory minimum sentences. Furthermore, the parties have not provided case law suggesting that there are any binding decisions with respect to the constitutionality of the mandatory minimum sentences (nor am I aware of any binding decisions on point).

B. Position of the Crown

4The Crown seeks a sentence of 12 months jail, two years' probation, SOIRA, DNA, a s. 161 prohibition order, a weapons prohibition pursuant to s. 110 of the Criminal Code for 5 years, and an Order of Non-Communication pursuant to s. 743.21 of the Criminal Code.

C. Position of the Defence

5Defence counsel seeks the minimum applicable sentence of 90 days concurrent on both counts and does not contest the ancillary orders. In the alternative, Defence Counsel requests that the Court consider two consecutive sentences given the collateral immigration consequences.

D. Circumstances of the Offence

6My reasons at trial reported at R. v. Sohail, 2018 ONCJ 566, detail the circumstances of the offences. In sum, the defendant Uber driver touched a 15 year old front seat passenger in a sexual manner. Thereafter the victim performed fellatio on the defendant. Finally, there was an attempt at intercourse which did not occur due to the defendant's premature ejaculation.

E. Background of the Defendant

7The Pre-Sentence Report was admitted as an exhibit without qualification.

8In 2014 the defendant arrived in Canada from Afghanistan where he was raised with his parents and 4 siblings. The defendant enjoyed a positive family life notwithstanding the terrible problems afflicting Afghanistan. His family fled Afghanistan as a result of conflict associated with his father's political career. The defendant has a good relationship with his spouse and has two children. Notwithstanding the circumstances his spouse intends to support him and assist him. The defendant has a good employment background. He has always been self-employed, self-motivated, and a hard worker.

9Overall, the defendant presents as intelligent, polite, and pro-social. In my judgement at trial I detailed why I accepted some of the evidence that he provided concerning the offences before the court.

10While I recognize that rehabilitation is not a paramount sentencing consideration in this case, it should not be completely disregarded. The defendant's antecedents support good prospects for rehabilitation.

F. Impact on the Victim

11The victim was unable to prepare a victim impact statement or address the court. His mother eloquently read her son's victim impact statement to the court. I agree with the defence position that I should not rely upon the statement in the second to last paragraph. Apart from that stipulation the remainder of the statement outlines a very serious impact on the victim.

12In 2016 the victim was a happy student, involved with his school, extra-curricular activities, and family. He was seeking his first part-time job so he could earn some money and he was eagerly anticipating the receipt of his driver's licence. This pin points the development of the victim as a young teen-ager adjusting to greater freedom, greater responsibility, and opportunities in life. After the offences the victim changed. He got in trouble at school and at his extra-curricular activities. He started skipping classes and appointments. He would make excuses to avoid contact with people. He could not sleep at times. At other times he would remain in bed for days. He stopped attending his church. He did not hand in assignments in school. He lost weight.

13The victim devolved into a withdrawn teenager marked with negativity. He suffered emotional and mental health episodes causing his mother to access counselling and mental health professionals. He was even hospitalized for 5 days in a youth psychiatric ward. The victim was ultimately diagnosed with PTSD, Depression, and Anxiety disorder. The victim is now under the care of a psychiatrist, therapists, and other professionals and takes medication for his mental health circumstances. There has been a notable physical toll on the victim. He does not exercise, he does not eat well, and he has started using non-medically proscribed drugs and alcohol. The victim was present in Court when his mother read out the victim impact statement. Recall that his physical stature a matter I had to address at trial so I took careful note of his presentation. I could not help noticing a marked change in his presentation on August 2, 2018.

14The victim's mother has explained how, as the single mother of three boys including one with special needs, the care of the victim is now her highest priority. I cannot adequately summarize the magnitude of the impact on the victim and his mother in his case.

15Context of course is everything. The victim had just turned 15 two weeks prior to the offence. I do not have to receive expert evidence to understand the evidence of this victim. As is not uncommon for teenagers, there are challenges with friends, maturation, and growth. In addition to the everyday challenges around the teen age years, the victim was dealing with his sexuality and was a proud advocate on behalf of the LGBTQ community. It was notable at trial that the victim was defensive about the perspective that a female friend took with respect to the criminal offence. The revival of the "hue and cry" stereotype that criminal law has worked hard to remove was revisited in the evidence and perspective of a close friend of the victim called by the prosecution.

II. Applicable Sentencing Principles

A. Fundamental Purpose of Sentencing

16Section 718 of the Criminal Code states that the fundamental purpose of sentencing is to protect society, prevent crime, promote respect for the law, and maintain a just, peaceful and safe society.

17These aims are achieved by promoting sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

B. The Fundamental Principle of Sentencing

18Section 718.1 of the Criminal Code mandates that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender.

C. Offences involving children

19Section 718.01 of the Criminal Code codifies the primary focus of the protection of children in our society by mandating that the primary sentencing consideration for an offence that involves the abuse of a child under the age of eighteen are the objectives of denunciation and deterrence.

D. Other Sentencing Principles

20Section 718.2 of the Criminal Code requires that a sentence be increased or reduced to address relevant aggravating and mitigating factors. Parliament has chosen to enumerate a non-exhaustive list of aggravating factors. The following are applicable to this case:

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, and,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.

21A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Totality should be applied where consecutive sentences are imposed to ensure proportionality. Finally, the defendant should not be unduly deprived of liberty if appropriate less restrictive sanctions could achieve the aims of sentence. All reasonable and available sanctions, other than imprisonment, should be considered.

III. Mitigating Factors

22I find the defendant's antecedents to be mitigating including:

1. The defendant has no prior criminal record.
2. The defendant has support from his spouse.
3. The defendant appears to be a caring husband and parent to his children.
4. The defendant has a stable employment history.
5. The defendant does not suffer from any substance abuse issues.

23In sum, other than these offences, I find that the defendant is otherwise a productive member of society.

24No request was made for credit for restrictive bail conditions. I have examined the defendant's bail conditions and the bail conditions were not unduly restrictive. The surety amount was modest. There were no terms such as house arrest or a curfew. In my view the terms properly addressed the circumstances: R. v. Adamson, 2018 ONCA 678, at paras. 106-107; R. v. Siconolfi, [2015] O.J. No. 6650 (C.A.); R. v. Ijam, 2007 ONCA 597; and R. v. Downes (2006), 79 O.R. (3d) 321 (C.A.).

IV. Aggravating Factors

25There are several aggravating factors in this case including: (a) the abuse of a person under eighteen years of age; (b) breach of trust; and (c) the significant impact on the victim.

A. Abuse of a person under the age of eighteen years

26The defendant abused a person under the age of eighteen years.

B. Breach of trust

27The Criminal Code does not define "position of trust or authority". Both the crown and defence filed case law on the issue of breach of trust and both submit that given the defendant's employment as an Uber driver he breached a position of trust. I agree. The defendant had sexual contact with a 15 year old passenger who contacted him for the purpose of safe transportation. The sexual contact was initiated by the defendant within minutes of meeting this fifteen year-old stranger. I have received documentary evidence at trial about the Uber service and the contractual terms of the defendant's employment. To be clear, this offence has nothing to do with Uber as a service provider or the terms and conditions of the defendant's contract with Uber. The defendant is solely responsible for his conduct in the vehicle.

C. Significant impact on the victim

28I have addressed the significant impact on the victim earlier in this judgement.

V. Other Factors

29There are several additional factors in this case that require careful explanation and proper characterization including: (a) the absence of a guilty plea; (b) the defendant maintains his innocence; (c) Lack of remorse or empathy; (d) rehabilitation; (e) risk; and (f) de-facto consent.

A. The absence of a guilty plea

30The parties agree that the defendant may not be punished for exercising his constitutional right to a trial. That the defendant did not plead guilty is simply an absent mitigating factor.

B. Maintaining innocence

31The Crown submits that the fact that the defendant maintains his innocence in the Pre-Sentence Report is aggravating. While I understand the rationale for this submission I do not agree. That the defendant maintains his innocence is not an aggravating factor on sentence: (see R. v. C.B., 2008 ONCA 486; and R. v. A. (K.), [1999] O.J. No. 2640 (C.A.)).

C. Lack of remorse and lack of empathy for the victim

32The Pre-Sentence Report was filed on consent without qualification. The report documents some concerning views held by the defendant including:

• That the defendant would never think of committing a crime but it was out of his control
• That the victim should be blamed for not proactively revealing his age
• Since the victim lived in Canada he should have been aware of the rules and the law
• That while the defendant felt sorry for the victim and his family the situation "affected me more than them"

33The defendant exhibits little or no empathy for the victim. He has blamed the victim for the circumstances of the offence. He is not remorseful for what he has done. He has no empathy for the victim or the victim's family. If not remorse, empathy at least informs reasonable persons about other features of character. Empathy is also relevant to rehabilitation. The defendant is focussed on himself and the impact of his conviction on his circumstances.

D. Rehabilitation

34The primary sentencing focus must be denunciation and deterrence in this case. Rehabilitation is a secondary but not absent concern.

35It is clear that the defendant has no empathy for the victim or the victim's mother. He is not remorseful. Notably, he lacks insight into the impact of his conduct.

36The absence of remorse is not an aggravating factor. But the lack of empathy or insight is important when considering specific deterrence and rehabilitation as it may "... indicate a lack of insight into and a failure to accept responsibility for the crimes committed, and demonstrate a substantial likelihood of future dangerousness.": R. v. Shaw, 2017 ONCA 872, [2017] O.J. No. 6141 (C.A.) at paras. 8–9. (Further, see the discussion in R. v. J.S., 2018 ONCA 675, at paras. 74–83 and C.B., at para. 57.)

37The subjective views held by the defendant are not assisted by any sincere effort on the part of the defendant to obtain counselling or treatment. The defendant has not engaged in any counselling or treatment or shown any initiative in that respect. Even a step in this direction would at least show an earnest regard for his rehabilitation on his part. It is not uncommon in sexual offence cases for a convicted person to demonstrate some commitment to counselling or treatment. It is not unusual for a brief letter to be filed confirming that approach without any detailed admissions or acknowledgements of the facts in support of conviction. This does not impair a defendant's ability to appeal a decision. In this case, apart from a slender reference in the PSR to the defendant's willingness to take counselling (a self-report) there is nothing.

38Counselling might provide the defendant with more insight into his behaviour and mitigate his risk to the public. Rehabilitative efforts would involve dealing with the underlying cause of poor behaviour (if any) and facilitate empathy for the wrong perpetuated on an innocent teenager.

E. Risk

39In sexual offences involving children it is not uncommon to have expert opinion evidence addressing the offender's risk. In this case there is no information to assist me with assessing risk. As indicated a moment ago the defendant has not even taken the first step towards rehabilitation. The Crown and Defence counsel disagree on how I should assess risk given these circumstances. The defence position is that the Crown must prove any aggravating factors beyond a reasonable doubt on sentencing. Counsel submits that the Crown has not adduced any expert opinion evidence to prove that there is a risk associated with the defendant's conduct. Thus, the Court has no evidentiary basis to find risk. The Crown position is that the objective facts at trial speak of risk associated with this defendant. The defendant initiated sexual contact with a perfect stranger who happened to be a teenager.

40In my view R. v. D.D., [2002] O.J. No. 1061 (C.A.), at paras. 39-40 is instructive on this issue even though Defence counsel has not gone as far as to suggest it is a mitigating factor. I do not agree with the defence submission that where the Crown has declined to seek an assessment during sentencing in aid of a submission concerning risk the approach of the Court must be that there is no evidence and as such there is no risk. My assessment of risk does not depend on the categorizing the issue as mitigating or aggravating. In the end I am simply left with the objective circumstances as assessed by me based on my experience, common sense, findings at trial, and the submissions of counsel. I have also spent several days now in the presence of the defendant. I have had the advantage of listening to his testimony in court. I evaluated his credibility at trial. I accepted aspects of the defendant's evidence – this, in part, is what lead to a crucial finding in relation to the victim's evidence with respect to his willingness to enter the back seat of the vehicle.

41In the end, in the absence of expert opinion evidence, I must evaluate the circumstances using common sense and experience. I simply note that I have no information concerning the potential risk this defendant poses to the public. For example, I do not know if he has a sexual disorder. I do not know if he has a personality disorder. I do not know if he is a hebephile. I do not know if there are overarching mental health considerations contributing to his behaviour. The extant question is why does he sexually touch a fifteen-year old stranger within minutes of meeting him?

42There is no evidence that the defendant has a predilection towards small children such as toddlers. I do not know why the defendant has blamed the offence on the victim. I do not know if this is a manifestation of narcissism, pride, a serious lack of empathy, or some combination of those factors and other unknown factors. I do not understand why he lacks insight into the impact of his behaviour. I do not understand why he lacks empathy.

43This record challenged the Court's efforts to structure a proportionate sentence, focussed on denunciation and deterrence, but still concerned with rehabilitation. This is a challenge a Court must nevertheless address at times: (See R. v. C.S., 2018 ONSC 226, at para. 12). The defendant's lack of empathy or insight into his behavior is a serious concern meriting consideration in the determination of the appropriate sentence, rehabilitation, and ancillary orders.

F. De-facto Consent

44The victim's position at trial was that he was psychologically encouraged or compelled to participate in the sexual contact that occurred in the back seat of the defendant's vehicle. It is factually true that the victim performed fellatio on the defendant's person. Other sexual contact was initiated but not completed.

45The victim's position at trial was understandably complex. On the one hand he cited conversation topics such as his father's employment as evidence of the manner in which he sought to discourage the continuation of sexual contact. On the other hand, he also cited biological reasons. There is no question that after the fact, the victim was upset and confused about the events. As the victim explained at trial, it was not his goal to have sex with a cab driver that night. Given the submissions in this case and the subjective views held by the defendant, I have a duty to be clear.

46While the circumstances in this case fall just short of de facto consent, the concept of consent is not an important sentencing consideration. Parliament's clear rationale for the consent provisions in the Criminal Code is the protection of children: (See the excellent discussion of consent in R. v. Hajar, 2016 ABCA 222, at paras. 30-44. The rationale for increasing the age of consent is also explained in that case. De facto consent from an underage person is not a mitigating factor on sentence and may even be properly characterized as an aggravating factor: (See R. v. M. (P.), [2002] O.J. No. 644, (C.A.) at para. 19; R. v. Revet, 2010 SKCA 71; and R. v. F. (G.C.), [2004] O.J. No. 3177 (C.A.), at para. 7). This is because de-facto consent does not accord with the legal definition of consent in criminal law. Using the de facto consent as a mitigating factor when a child is simply incapable of providing legal consent is a legal error in my respectful view: See Hajar, at paras. 82–103.

47The absence of physical compulsion or other more intrusive coercion attempts by the defendant is properly characterized as simply the absence of additional aggravating factors.

VI. Application to this Case

48I will now address the impact of the relevant sentencing factors in this case followed by an assessment of the immigration issue as a collateral consequence: R. v. MacKenzie, 2017 ONCA 128, at paras. 30-35.

A. Sentencing Considerations

49In R. v. Woodward, 2011 ONCA 610, at para. 72 the Court of Appeal explained three consequences associated to the sexual abuse of children: (1) the children often suffer physical and psychological harm; (2) the children may have difficulty forming loving relationships when they enter adulthood; and (3) these children are at risk of becoming abusers themselves: (See also D.(D), at para. 37).

50Separate and apart from the statutory emphasis on denunciation and deterrence, the defendant has demonstrated that he requires a strong and specific deterrent sentence to bring home to him the magnitude of his conduct, the impact on the victim and his mother, and to spark in him the need for rehabilitation so that he is never again before a court. In my view this case requires a sentence that exceeds the mandatory minimum sentence. Every case is driven by unique facts but surely the minimum sentence is available for factual scenarios involving less intrusive sexual conduct. In addition, one would expect to find remorse, empathy, and a commitment to rehabilitation in those persons for whom the minimum sentence would suffice. Given the subjective views held by the defendant it is important that I clearly address his behaviour in an effort to help him understand the seriousness of his actions. Indeed, rehabilitation is partly premised on the goal that the defendant gain insight into his actions.

51In my judgment at trial I addressed the fact that the criminal law requires those adults who assume the risk of seeking sexual contact with children to take greater care. The criminal law is specifically interested in making sure that fifteen year olds explore their sexuality with peers rather than exploitive adults. It is precisely the state of mind and confusion articulated by the victim at trial that the law wishes to prevent. Teenagers are protected from exploitive adults for this very reason.

52I am sentencing an offender who expresses no remorse, no sincere empathy for the victim or his family, and no insight into his behaviour. An offender who has the audacity to blame a fifteen-year old teenager for his circumstances. Who says, to the Court, the teenager should know the law. An offender who perceives that he is the victim in this circumstances.

53The defendant must understand the basic premise of the relevant consent provisions in the Criminal Code is to protect children in our society. The rationale for the consent provisions in the Criminal Code is to place the onus on adults, not children, to inform themselves as to age of a potential partner. To make it crystal clear for the defendant, where an adult has sexual contact with a child, de facto consent is not important when determining guilt or innocence.

54Finally, once again, given the comments made in the PSR it is important for the defendant to understand a specific deterrent message. The defendant initiated the sexual contact by reaching out and fondling the victim's penis in the front seat with no factual consent to do so. This conduct on the part of the defendant lead to the further sexual contact in the back seat of the vehicle.

55The defendant must understand that the criminal law perspective is that you should not have sexual contact with other persons without consent. You should particularly refrain from touching someone significantly younger than you in a sexual manner. And further, when you operate a business providing safe transport to customers, it is wise to refrain from sexually touching the customers.

B. Range of Sentence

56Sentencing ranges are merely guidelines, and are just "one tool among others that are intended to aid trial judges in their work" (R. v. Lacasse, 2015 SCC 64, at para. 69): R. v. Suter, 2018 SCC 34, at para. 25. The process by which a proportionate sentence is determined is driven by individual circumstances concerning the offence and the offender: Suter, at para. 46; Lacasse, at para. 54; and R. v. Nasogaluak, 2010 SCC 6, at para. 43. None of the cases provided by counsel provide an authoritative analysis in support of an explicit range of sentence; However, elements of a few of the cases have assisted me in the determination of a proportionate sentence.

57In R. v. Butt, 2012 ONSC 4326, Code J. addressed the appeal of a 14 day sentence imposed for a conviction pursuant to s. 151 of the Criminal Code. The defendant had lured a 12 year old boy into his apartment and performed fellatio on him. The victim impact statement provided by the child's father disclosed a significant impact on the victim. The Pre-Sentence Report disclosed that the defendant was a 40 year old first offender with strong family support. Similar to this case, the defendant minimized his involvement and had limited insight into his behaviour. Unlike this case, the defence had the defendant professionally assessed. The defendant was not suffering from a major mental illness, did not engage in substance abuse, and did not suffer from a personality disorder. That being said, he was found to have a deviant sexual preference – likely pedophilia and/or hebephilia -- and posed a moderate risk to re-offend. Justice Code found that the sentencing Judge failed to properly characterize these facts (and others that I have omitted). It was aggravating that the defendant had no insight into his sexual deviancy and minimized the facts of the offence during the psychiatric assessment: Butt, at para. 18. The Court found that a sentence of between six and twelve months was appropriate. This was notwithstanding the mitigating factor of a guilty plea.

58The summary conviction appeal case of R. v. Reslan, 2016 ONSC 6311, was of some limited assistance as well. The case is distinguishable in that the victim was an adult and the sexual conduct was not as intrusive as the sexual conduct in this case.

59Balancing all of the relevant considerations in this case I find that a custodial sentence of twelve to fifteen months is a fit and proportionate sentence. I will now consider the collateral consequences associated with the imposition of this sentence.

C. Collateral Consequences

60A proportionate sentence may require an examination of the collateral consequences including those consequences that arise from the commission of the offence, the conviction for the offence, or the sentence imposed: Suter, at para. 47. A collateral consequence is not necessarily aggravating or mitigating per s. 718.2 (a) of the Criminal Code as these consequences are not related to the gravity of the offence or the level of responsibility of the offender: Suter, at para. 48. Collateral consequences are integrally connected to the goal of an individualized proportionate sentence as the focus concerns whether the impact of the sentence would have a more significant impact on the offender because of the offender's circumstances: Suter, at para. 48.

61Defence counsel cites the following collateral consequences in this case:

a. the impact on the defendant's employment;

b. the impact on the defendant's ability to support his family;

c. the impact on the defendant's ability to pay the mortgage on his personal residence; and,

d. the impact on his immigration status.

1. Collateral Consequences – Financial

62The first three collateral consequences are circumstances that potentially attach to any defendant being sentenced. I have considered the financial evidence provided by the defendant at sentencing. There is nothing peculiar or particular to the defendant's circumstances of employment or his ability to support his family. While it is important that the defendant continue to support his family and pay for his mortgage, this factor may not become the predominant factor in this sentencing. At the outset of sentencing submissions this court denied a defence request for an adjournment for the purpose of permitting the defendant to arrange mortgage financing for the same reason. The matter of mortgage financing could not take precedence over the criminal sentencing. In addition, the defendant had ample time to address such responsibilities during the post-conviction time frame. Nevertheless, by adjourning from August 2, 2018 to August 29, 2018, the defendant has been afforded the opportunity to address his finances without delaying the sentencing.

2. Collateral Consequences – Immigration Circumstances

63The collateral consequence related to immigration status is a collateral consequence worthy of careful consideration. The defendant is a landed immigrant. Defence counsel filed a letter of opinion from an immigration lawyer detailing the immigration consequences associated with sentencing the defendant given the application of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. Defence counsel submits that if the defendant receives a custodial sentence of 6 months or more the IRPA limits the ability to appeal any deportation order. He submits that if the sentence on any one count is less than 6 months, the defendant enjoys a right of appeal concerning the deportation order. He submits that should the court find that a sentence in excess of 90 days is warranted, consecutive sentences of less than 6 months on each count, would not provoke deleterious immigration consequences. Finally, defence counsel asked the court to keep in mind that the defendant has served two days of presentence custody so that presentence custody should be kept in mind when calculating the sentence.

64The Crown Attorney acknowledges the difficult circumstances but submits that the overarching requirement of a fit and proportionate sentence outweighs the immigration consequences. Further, the prosecution submits that it would not be appropriate to impose consecutive sentences in the manner suggested by defence counsel given the abundant aggravating factors.

D. The use of consecutive sentences to address collateral consequences

65I have determined that a sentence of twelve to fifteen months jail is a fit and proportionate sentence.

66Defence counsel submits that it is appropriate to structure the sentence as two consecutive sentences so as to avoid the deleterious impact of the sentence on the defendant's immigration circumstances. No case law was provided in support of this submission. In my view the issue is more complex than that suggested by counsel and I am required to explain my approach to this issue.

67A number of courts have considered the issue of serial consecutive sentences in circumstances where collateral consequences are at play or other sentencing approaches designed to mitigate the immigration consequences.

68In R. v. Mohammed, 2016 ONCA 678, at paragraph 3, the Court declined to impose seven sentences of six months each as this would be an "... artificial way of avoiding Parliament's intent with respect to serious crimes committed by persons who immigrated to Canada."

69In R. v. Badwar, 2011 ONCA 266, the appellant sought to realign the structure of his sentence on two criminal convictions to circumvent the provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. The Court emphasized that immigration consequences cannot take a sentence out of the appropriate range. The Court noted, at paragraph 44, that "... in his case, somewhat ironically, he seeks to benefit from the fact that he was convicted of two offences and therefore can seek the adjustments he is requesting without interfering with the overall length of his sentence. ..." The Court concluded at paragraph 45 that "Courts ought not to be imposing inadequate or artificial sentences at all, let alone for the purpose of circumventing Parliament's will on matters of immigration".

70In R. v. McKenzie, 2017 ONCA 128, the Court provided guidance concerning the procedural approach to the collateral consequences associated with immigration status and noted that Wagner J. in R. v. Pham cautioned: "that the immigration consequences 'must not lead to a separate sentencing scheme with a de facto if not de jure special range of sentencing options where deportation is a risk'": MacKenzie, at para. 34.

71In R. v. Curry, [2005] O.J. No. 3763 (C.A.), Justice Rosenberg reduced sentence by 20 days to mitigate the immigration consequences and emphasized that this action did no violence to the sentencing Judge's approach and avoided the unintended immigration consequences.

72In R. v. B. (R.), 2013 ONCA 36 the Court provided helpful guidance on this issue in the context of a request by the appellant on the sentence appeal to adjust the sentences to avoid the immigration consequences:

ANALYSIS

23 Generally speaking I think the overall principles and objectives of sentencing would still be addressed and would continue to reflect the objective seriousness of the offences if we were to adopt the appellant's submissions. However, there are also the interests of the Parliament of Canada and existing legal principles from this court that must be considered. Because of these considerations, I believe the Crown's arguments must prevail, and ultimately compel the dismissal of the appeal against sentence.

24 I acknowledge at the outset that the risk of deportation can be a factor to be considered in choosing among the appropriate sentencing responses and tailoring the sentence to best fit the crime and the offender: R. v. Melo (1975), 26 C.C.C. (2d) 510, at p. 516 (Ont. C.A.). However, the loss of a potential remedy against a deportation order is not a mitigating factor on sentence, nor can the sentencing process be used to circumvent the provisions and policies of the Immigration and Refugee Protection Act: Hamilton, at paras. 156 and 157. The Crown submits that circumventing the Act is what results here if the appellant's submissions are accepted. I agree.

26 This court's fairly recent decision in R. v. Badhwar, 2011 ONCA 266 comments on both the Immigration and Refugee Protection Act issue and adjusting the length of sentences where an accused person has been convicted of multiple counts as here. Moldaver J.A. first described the adjustment of the length in counts without interfering with the total length of sentence as amounting to a benefit over someone convicted of a single count. He then goes on in para. 45 to caution that:

No matter how one chooses to come at the issue, the bottom line remains the same. Courts ought not to be imposing inadequate or artificial sentences at all, let alone for the purpose of circumventing Parliament's will on matters of immigration.

27 Without commenting on whether or not there is any benefit to the appellant because of his multi-count convictions, the fact remains, a sentence of 2 years less a day for either of counts 1 or 4 would be patently "inadequate or artificial. . . ."

29 Finally, I want to comment briefly on the principle of totality: i.e. a series of sentences, each properly imposed in relation to the offence to which it relates, is on the whole just and appropriate. When this principle is properly understood and applied to facts of the appellant's case, it will be seen that it does not assist him.

30 The proper approach to applying the principle of totality on sentencing is to first identify the most serious part of the accusations or offences made against the person that resulted in the criminal offenses he or she was charged with. Next, the court is to determine the total sentence to be imposed, and then to impose sentences with respect to each offence that they add up to the total sentence. In doing so, the sentence for each offence must properly reflect the most serious part of the overall criminal conduct and must reflect the proper sentence for that offence. At this stage the court will then decide whether a particular sentence should be consecutive or concurrent to the other sentences imposed: R. v. Jewell; R. v. Gramlick, [1995] O.J. No. 2213 (Ont. C.A.), at para. 27.

31 Once again, in the appellant's case, the most serious part of the offences is the sexual assault of his niece reflected in count 1. And, as I explained, this has a sentencing range that begins at least at 5 years. To accept the appellant's submissions would require the imposition of a sentence that is inadequate or artificial. Although sympathetic to the appellant's concerns to remain in Canada with his family, I believe this court is required to dismiss the appeal against sentence.

73Finally, the Court of Appeal's recent decision in R. v. Regis, 2017 ONCA 848, provides express guidance relevant to this sentencing. In Regis the Court reduced a 14 month jail sentence to two consecutive (six-month less a day) sentences for a global sentence of 12 months minus two days. The Court considered a number of important factors including:

1. The global sentence of 12 months minus two days was not a marked departure from the sentence of 14 months imposed by the sentencing judge;

2. The convictions on the two counts constituted two separate offences and related to two separate situations but were in reality part of the same criminal conduct;

3. It did not offence the principles of sentencing to view the two offences in their overall context in order to give effect to proportionality; and,

4. The fresh evidence satisfied the Court that the defendant was a compelling candidate including his efforts at rehabilitation, his expressed remorse, and his stated commitment to abide by the law and be a positive role model for his daughter: para. 12.

E. Analysis

74I arrive at the following analysis assisted by the case law:

1. Collateral consequences and in particular immigration consequences cannot operate to subvert the court's observance of the fundamental purposes and principles of sentencing and the goal of a proportionate sentence: R. v. Pham, 2013 SCC 15, at paras. 11-20;

2. The sentencing court should not impose unfit, inadequate, or artificial sentences in an effort to evade the immigration consequences;

3. The sentencing court should consider the will of Parliament as expressed in both the IRPA and the Criminal Code;

4. Section 718.3(4)(c)(ii) of the Criminal Code supports the discretionary use of consecutive sentences;

5. There is no statutory barrier prohibiting the use of serial consecutive sentences; and,

6. The sentencing court should not lose sight of the sentencing principles of totality and proportionality.

75I find that I can (just barely) justify the approach recommended by defence counsel in this case. The only concern I have with respect to an artificial sentence is associated with the fact that the defendant is benefiting by having been found guilty of two offences rather than one.

76I believe that I can limit my sentence to the lower end of the range that I find appropriate. Further, I believe that the guidance in Pham and Suter support a modest adjustment to the sentence because of the collateral consequences. Balancing all of these considerations, I am satisfied that imposing serial consecutive sentences would not serve to undermine the goal of proportionality. Nor do I believe that it would result in an unfit, inadequate, or artificial sentence.

VII. Sentence

A. Custodial Sentence

77A fit and proportionate sentence in this case is eleven and one half months in jail on top of presentence custody of 3 days (2 days at 1.5 to 1). I will articulate the sentence in days so that it is very clear. And I will address the use of consecutive sentences. Given there are roughly 30 days in each month, eleven and one half months is 345 days. A six month sentence would be 180 days in jail.

78With respect to the conviction on s. 151 of the Criminal Code, I hereby endorse presentence custody of 3 days (2 days at 1.5 to 1) plus I sentence the defendant to an additional jail sentence of 173 days. The total sentence on that count is 176 days. This is expressly below a six month sentence which is 180 days. With respect to the conviction on s. 152 of the Criminal Code, I hereby sentence the defendant to a consecutive sentence of 173 days incarceration.

79To be absolutely crystal clear for the record, I am structuring the sentences in this fashion to ensure that neither sentence exceeds 6 months thereby mitigating the immigration consequences of this sentence. Section s. 718.3(7) of the Criminal Code does not apply.

B. Non-Communication

80Pursuant to s. 743.21(1) the defendant will not communicate directly or indirectly with the victim or the victim's family.

C. SOIRA

81Pursuant to s. 490.013(2.1) the defendant has been convicted of two designated offences and as such the duration of the mandatory SOIRA order will be for life.

D. DNA

82Pursuant to s. 487.04 both offences are primary compulsory offences. I make the mandatory order in relation to both convictions. The order is to be taken by 1:00 PM today.

E. 161 Prohibition

83With respect to the 161 prohibition the defendant is prohibited:

(a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre unless you are in the immediate physical presence of your spouse or other family member over the age of 25;

(a.1) being within two kilometres, or any other distance specified in the order, of any dwelling-house where the victim identified in the order ordinarily resides or of any other place specified in the order;

(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years;

(c) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless the offender is in the immediate physical presence his spouse of other family member over the age of 25.

F. Victim Fine Surcharge

84There will be a $100.00 victim fine surcharge on each count, one day jail concurrent in default, and 2 years to pay given the sentence imposed.

G. Weapons Prohibition

85On each offence there will be a s. 110 weapons prohibition for ten years.

H. Probation Order

86The defendant is placed on 3 years' probation with the terms I will address at the completion of my judgment.

87This decision has been provided orally today based on my notes. I will forward this written decision to counsel and the institution forthwith and the written decision will be the official record of this decision.

Justice M.S. Felix