minicounsel

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(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).

(2) MANDATORY ORDER ON APPLICATION — 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.

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

ONTARIO COURT OF JUSTICE

DATE: 2022 12 20 COURT FILE No.: Ottawa 19-4451

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

SAMER AL-AKHALI

Before: Justice Jacqueline V. Loignon

Decision on Sentence

Counsel: Ms. H. Shouldice............................................................ counsel for the Crown Mr. A. Duvadie............................... counsel for the Accused, Samer Al-Akhali

LOIGNON J.:

Introduction

1On July 25, 2022, I found the offender guilty of one count of sexual assault against K.G., following a trial. This is the decision on sentence.

Circumstances of the Offence

2On July 15, 2019, K.G. was staying at the Andaz Hotel in Ottawa. She made plans and did in fact meet with a friend, Z., for drinks and food later that night. Following his departure, around 1:00AM or 1:30AM, K.G. went to Dunn’s where she quickly realized she had no money to order food. While leaving, she was intercepted by Mr. Al-Akhali. They spoke in the area in front of the host desk. After grabbing a bottle K.G. had brought in with her and addressing his friend from a distance, he left with K.G.

3Mr. Al-Akhali entered the Andaz Hotel at the same time as K.G. and followed her to her room. She did not object to this as her intent was to retrieve her money and return to Dunn’s. Once in K.G.’s hotel room, Mr. Al-Akhali grabbed K.G. She said no repeatedly. K.G. repeatedly struck the accused with her hands and feet. Despite trying to fight him off, Mr. Al-Akhali had penetrative intercourse with her to the point of ejaculation. Once the accused left, K.G. phoned security to report she had been raped.

4K.G. spoke with police and attended the Civic Hospital where a rape kit was completed. K.G. had bruises to both of her arms, the tops of her feet, her right shin, a scratch to her left arm, a welt on her thigh, scratches to her left side, her right thumb was very sore and bruised and finally there was blood on a vaginal swab. K.G. was required to take a course of drug therapy to deal with sexually transmitted diseases and potential pregnancy given the absence of a condom.

Circumstances of the Offender

5A pre-sentence report was ordered and provided background information about Mr. Al-Akhali. In that regard, he is currently 23 years old, working at an Amazon warehouse. He came to Canada from Yemen in 2015, along with his sister. His father had previously emigrated in 2001 and sponsored them. The offender described his relationship with his father as “strained” in part because of the latter’s absence during his childhood, and in part because he held the offender to a very high standard. Ultimately, the relationship caused he and his sister to leave the home and live together. Since 2016, the offender has been working and supporting his sister, who is enrolled full-time in university.

6Mr. Al-Akhali had a positive home environment growing up and described being very close with his mother. She died in 2021 from cancer, and the author of the pre-sentence report recommends grief counselling for this loss as well as that of his grandmother, who died in 2012.

7Mr. Al-Akali has been in a relationship with Aline Ingabire for over two years. He has not disclosed this relationship to his family, including his sister.

8In terms of schooling, the offender has one more credit to complete his high school diploma. To the author of the report, he expressed having enjoyed school and having chosen fun over his schooling. As of December 6, 2022, he has pre-registered for St-Nicholas Adult High School. As mentioned above, Mr. Al-Akhali currently works at Amazon. He began work as a Fulfillment Associate on November 6, 2022. Prior to this, he worked at a shawarma restaurant for approximately two years. Mr. Al-Akhali has consistently worked, as confirmed by his sister.

9Overall, the author of the report concluded that Mr. Al-Akhali would be a suitable candidate for a term of supervision in the community.

10Mr. Al-Akhali’s sister, Sara Al-Akhali, provided a letter of support, as did a friend, Mr. Hussein Almimar, and the offender’s current partner, Aline Ingabire. Ms. Al-Akhali described her brother as supportive, emotionally and financially, taking on full-time work to meet their needs. The picture she painted was of a hard-working young man with pro-social values. She also wrote of struggles when they arrived in Canada, including a language barrier, culture shock, and the separation from their mother which they overcame. Ms. Al-Akhali wrote that when their mother died, they were unable to travel to Yemen because of the offender’s conditions, stemming from these charges. Having lost her mother, she does not wish to also lose her brother.

11Mr. Almimar described himself as a close friend of Mr. Al-Akhali’s. He has known him since high school, and they have also worked together. Mr. Almimar said that he was surprised to hear about these charges given that he knows the offender to be respectful, helpful, and kind.

12Ms. Ingabire is Mr. Al-Akhali’s current partner. They have been together now for three years and are expecting a child. She describes the offender as caring and affectionate towards other people.

13The offender does not have a criminal record.

Impact on the Victim

14K.G. chose to provide the Court with a Victim Impact Statement, for which I thank her. It was eloquent, vivid, and at the same time, devastating. In it she spoke of the physical illness and the injuries that mostly healed after a period of time. More significant, however, is the psychological impact of the crime. It can be described as profound, long lasting, and on-going.

15K.G. explained to the Court that just prior to the offence, she had accepted her dream job as a fly-in nurse in Northern Alberta where, sometimes, she would be the highest qualified professional in that location. Though she began the two-week orientation phase in the summer of 2019, she was not able to complete it because of triggering fear at the possibility of being alone with men during periods she would be on-call. She described the very thought of this “flooding her mind with paralyzing anxiety and terror”. She had to resign from this position. This was her last paycheck. That was in 2019. It is now 2022. At this juncture, K.G. is having to reassess her career in nursing as a result of her thumb being easily re-injured or strained.

16K.G. also described isolation from family and friends because of the shame of having been the victim of rape. K.G. revealed having turned to alcohol and eating to deal with her trauma. Only now is she starting to mend her broken relationships, though she still cannot speak openly about what happened to her and described it in her Impact Statement as “eating her from the inside out”.

17A further on-going impact on K.G. is the inability to leave her house after dark as well as a refusal to walk in areas she deems high risk, even if there is a high police presence or it is familiar.

18The impact of the offence on the victim can only be described as devastating. The repercussions have been physical, emotional, psychological, and financial. They are all of long duration.

Position of the Parties

19The Crown proceeded by indictment and as a result, the maximum sentence is 10 years. Of note, at the time of the sentencing hearing, Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act had received Royal Assent and was in force as of November 17, 2022. That legislation removed the prohibition against a conditional sentence in s. 742.1(f)(iii) for sexual assault [1].

20The Crown position on sentence is at least 3 years jail and the following ancillary orders: DNA, SOIRA and a 10-year weapon prohibition under s. 109 of the Criminal Code. The Crown acknowledged the Ontario Court of Appeal jurisprudence that sets the range for this type of offence at 3 to 5 years where, as here, there is penetrative intercourse. The position was explained to the Court as based on the offender’s personal characteristics. The Crown observed that a sentence of 4 years would also be appropriate.

21Counsel for Mr. Al-Akhali submits that an appropriate sentence is a 24-month conditional sentence with strict conditions, followed by 3 years of probation, including 150 hours of community service and counselling, including in relation to consent. I observe here that this case is not one about consent as there was none.

Principles of Sentencing

22Section 718 provides that the fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful, and safe society. This is to be accomplished through the imposition of just sanctions that have one or more of several objectives enumerated in section 718(a) to (f) including denunciation, general and specific deterrence, and rehabilitation. Sentencing is a highly individualized process.

23Section 718.1 of the Criminal Code codifies the fundamental principle of sentencing that any sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Put another way, the sentence must not exceed what is just and appropriate given the moral blameworthiness of the offender and the gravity of the offence, while at the same time, the offender must be held accountable for his actions such that the sentence reflects and condemns their role in the offence and harm caused: R. v. Nasogaluak, 2010 SCC 8 at para 41-42.

24The objective gravity of an offence is determined looking at the maximum available sentence. Here it is 10 years. The overall gravity of the offence also looks to the particular circumstances of the case, reflected in consideration of the aggravating factors present, including the harm to the victim. The aspect of moral blame considers the “conscious choice” of the offender.

25When considering these principles, I am mindful of the words of the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9:

89All forms of sexual violence, including sexual violence against adults, are morally blameworthy precisely because they involve the wrongful exploitation of the victim by the offender — the offender is treating the victim as an object and disregarding the victim’s human dignity (see R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, at paras. 45 and 48). As L’Heureux-Dubé J. reasoned in L. (D.O.), “the occurrence of child sexual abuse is one intertwined with the sexual abuse of all women” precisely because both forms of sexual offences involve the sexual objectification of the victim (p. 441). Courts must give proper weight in sentencing to the offender’s underlying attitudes because they are highly relevant to assessing the offender’s moral blameworthiness and to the sentencing objective of denunciation (Benedet, at p. 310; Hajar, at para. 67).

26Though the comments were offered within the context of a review of sentencing authorities and ranges involving sexual offences against children, the comments are relevant here. Indeed, later in that decision the Court emphasized the point saying:

118We would emphasize that nothing in these reasons should be taken either as a direction to decrease sentences for sexual offences against adult victims or as a bar against increasing sentences for sexual offences against adult victims. As this Court recently held, our understanding of the profound physical and psychological harm that all victims of sexual assault experience has deepened (Goldfinch, at para. 37). In jurisdictions that have erroneously equated sexual violence against children with sexual violence against adults, courts should correct this error by increasing sentences for sexual offences against children — not by decreasing sentences for sexual offences against adults.

27On this subject of our improving understanding of the long-lasting impacts of sexual violence on victims and their families, the Court of Appeal put it this way in R. v. AJK, 2022 ONCA 987:

75As the years pass, enlightenment on the implications of sexual violence continues to permeate our conscious minds. In Friesen, the court noted, at para. 118, that “our understanding of the profound physical and psychological harm that all victims of sexual assault experience has deepened” and, I would add, is continuing to deepen: see also R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 37. As Moldaver J. stated in R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 1: “Without a doubt, eliminating ... sexual violence against women is one of the more pressing challenges we face as a society” and “we can – and must – do better” (emphasis in original). This comment encapsulates why these sentencing ranges as they have come to be understood must be reconciled.

28Moving on to other principles of sentencing, there are a number of them at play here, including rehabilitation. Indeed, this is a youthful offender without a criminal record. He has family members who have spoken on his behalf and are still supportive of him despite this offence. Restraint is also at play as this will be the offender’s first period of incarceration. This having been said however, as required by the jurisprudence, denunciation and deterrence are primary sentencing objectives in view of the offence: AJK, para 83; R. v. Garrett 2013 ONCA 734.

29I also note that there are collateral consequences here flowing from the offender’s status as a permanent resident. Under s. 36 of the Immigration and Refugee Protection Act (IRPA), he will have violated the obligation to avoid serious criminality and thus be deemed inadmissible. If he is subject to a removal order, by operation of s. 64 of IRPA, he will lose his right of appeal from that order if I impose a jail sentence greater than six months. A conditional sentence is not viewed as a term of jail for the purposes of immigration proceedings. Tran v. Canada (Public Safety and Emergency Preparedness) 2017 SCC 50.

Range of Sentence and Review of Sentencing Authorities

30The Court of Appeal recently had this to say about sentencing ranges involving offences of sexual assault in AJK:

71The Supreme Court recently reiterated that ranges and starting points are malleable products of their time. They are “historical portraits” that provide insight into the operative precedents of the day, but they are not “straitjackets” and can be departed from as societal understanding of offences and the severity of harm arising from those offences deepens: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 57; R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 108. To that end, it is not unusual “for sentences to increase and decrease as societal and judicial knowledge and attitudes about certain offences change”: R. v. Parranto, 2021 SCC 46, 436 D.L.R. (4th) 389, at para. 22, citing R. v. Smith, 2017 BCCA 112, at para. 36, citing R. v. Nur, 2011 ONSC 4874, 275 C.C.C. (3d) 330, at para. 49; Friesen, at para. 108.

72In some cases, appellate courts are called upon to chart a new course and bring sentencing ranges into “harmony with a new societal understanding of the gravity of certain offences or the degree of responsibility of certain offenders”: Friesen, at para. 35. See also: R. v. Wright (2006), 83 O.R. (3d) 427 (C.A.), at para. 22. That is what we are being asked to do here. It is right to do so.

74All sexual assaults are serious acts of violence. They reflect the wrongful exploitation of the victim whose personal autonomy, sexual integrity, and dignity is harmfully impacted while being treated as nothing more than an object. Whether intimate partners or strangers, victims of sexual violence suffer profound emotional and physical harm and their lives can be forever altered. So too can the lives of their loved ones.

31The Court went on to say that “absent some highly mitigating factor, the forced penetration of another person” will result in a sentence of at least 3 years in the penitentiary. (AJK para 77) That does not mean that such a sentence is automatic. As noted in Friesen, sentencing ranges are starting points and guidelines, not hard and fast rules.

32Crown counsel has put forward that the appropriate range is 3-5 years jail. Counsel relies on a number of authorities, which I have reviewed. Counsel for the offender argues a conditional sentence will appropriately meet all of the goals and objectives of sentencing and has provided me with various cases, which, with the exception of one case, are from 2000, 2005 and 2008. Once case, R. v. Cacdac, [2022] ONCJ 492 is more recent. All of the cases provided are examples of instances where conditional sentences were imposed.

33Regarding Cacdac above, I distinguish it on the basis of the facts which were very different in that there was a guilty plea, and the Crown proceeded summarily, creating a maximum sentence of 18 months. Crown sought 16 months jail while defence argued in favour of a conditional sentence, which was the sentence ultimately imposed. As a result of the distinguishing features, I do not find this decision applicable. As to the other cases, I do not view them as persuasive but rather that they are out of step with today’s societal understanding of the offences and their profound consequences on victims of sexual violence.

34As to other sentencing cases involving a count under s. 271 and penetrative intercourse, I have set out a few below. This is by no means an exhaustive review but is rather a snapshot. I am also mindful that the cases are reflective of their own factors and facts and that no two cases or offenders are the same. Finally, not all were decided with the benefit of the more recent admonitions by the Supreme Court of Canada and the Court of Appeal, reproduced above from Friesen, Barton, and AJK.

35In R. v. McCaw 2019 ONSC 3906, the Court sentenced the offender to 4 years and 3 months imprisonment, relying on R. v. Bradley, 2008 ONCA 179 from the Court of Appeal. This case suggested a range of 3-5 years jail where there is unprotected vaginal penetration. In McCaw, the impact on the victim was described as significant though in that case, the victim’s age increased her vulnerability. The offender there was youthful, without a criminal record, and there was no gratuitous violence.

36In R. v. Mohamed 2021 ONSC 1263, the offender was sentenced to 4 years in custody. The Court accepted the suggested range of 3-6 years. The offence there involved violent and unprotected intercourse. There were other aggravating factors there such as a prior criminal record and taking advantage of the victim’s intoxication.

37In R. v. MM 2017 ONSC 1829, the Court again imposed a sentence of 4 years, citing Bradley and remarking that anything less that 3 years would only be in exceptional circumstances. In that case, there was vaginal penetration of an unconscious victim, while wearing a condom. The offender there had a criminal record.

38In R. v. VL 2020 ONCA 87, cited by the Crown, the Court of Appeal dismissed the appeal from a sentence of 4 years, noting that it was appropriate given the overpowering and rape of the victim in her home. It seems that there was an aspect of planning to that case.

Mitigating and Aggravating Factors

39Mitigating factors include:

The offender’s youth and therefore prospect for rehabilitation;
The absence of a criminal record and strong employment background demonstrating pro-social values; and
The continued support of his family.

40I observe here, that though Mr. Al-Akhali has the support of his family and friends, they do not, it seems, have a full sense of who he is. For example, he has not shared his current relationship with his sister. She did not know he was to become a father. This suggests he is secretive, and she does not fully know him.

41Aggravating factors include:

The lasting emotional and psychological harm to the victim, including the subsequent depression and use of alcohol and food as coping mechanisms;
The physical injuries to the victim including the bruising at the time, vaginal bleeding, and injury to the thumb which continues to be problematic;
The loss of the victim’s professional opportunities and on-going financial hardship;
The assault occurring in the victim’s hotel room – a place where she ought to have felt safe;
The force used by the offender to overcome the victim’s resistance;
The victim’s repeated No’s;
The degradation inherent in this type of assault; and
The risk to the victim of contracting a sexually transmitted disease, or of becoming pregnant.

This sentencing is occurring after trial and therefore there is no mitigation which would flow from a plea. There is similarly no mitigation flowing from an expression of remorse.

Appropriate Sentence

42As to availability of a conditional sentence, I agree that it is not an illegal sentence given Bill C-5 having come into force. Notwithstanding its availability, it still must be appropriate. In my view, the circumstances here, involving a violent, invasive act of rape, ignoring repeated No’s as well as the other aggravating factors above, remove this case from the conditional sentence range. In other words, I am not persuaded that a conditional sentence would be consistent with the fundamental principles of sentencing. Though I appreciate the immigration consequences on the offender, this factor cannot overwhelm all of the others.

43As can be seen above, there are a wealth of aggravating factors. Though there are mitigating ones, they are modest. Rape is a crime of extreme physical violence and emotional degradation in and of itself. Here, in addition, the victim was physically overwhelmed so that the offender could effect his purpose. The victim suffered physical injuries. She was in a place where she ought to have been safe but was not. The impact of the crime can only be described as profound and long-lasting on all fronts: emotionally, psychologically, physically, and financially. The offence is therefore very grave. The moral blameworthiness of the offender is very high given the nature of the crime. He and he alone determined his course of conduct that night.

44I must emphasize denunciation and deterrence, specific to this offender and in general. I accept that as a result of the nature of the offence of penetrative rape, the range of sentence in this case starts at 3 years in the penitentiary. As I mentioned, though there are mitigating circumstances, they are modest. Given the wealth of aggravating factors, I do not view the 3-year baseline as appropriate for this case. While this may not be the case of the worst offender in the worst circumstances, justifying the maximum penalty of 10 years, neither is this one for the lower end.

45This offence is every woman’s nightmare. This offence has stripped an accomplished, professional, independent woman of much. The sentence here must send a strong message of condemnation for having taken advantage of a woman who was alone, playing on or exploiting her trusting nature, only to follow her and rape her. In my view, an appropriate sentence, reflective of the principles and purposes of sentencing, including the gravity of the offence, the moral blame of the offender and the impact on the victim is 5 years in the penitentiary.

Ancillary Orders

46Ancillary orders

DNA
S. 109 for 10 years
SOIRA: 25 years.

Released: December 20, 2022 Justice Jacqueline V. Loignon

1Many Superior Court decisions had previously found the prohibition unconstitutional in any event.

R. v. Al-Akhali, 2022 ONCJ 685

Case Summary

Introduction

Circumstances of the Offence