minicounsel

DATE: November 5, 2025

Info No: 4810-998-23-48122571-00

BEFORE THE HONOURABLE JUSTICE B. BROWN

on September 3 and November 5, 2025

at TORONTO, Ontario

APPEARANCES:

M. Boissonneault Counsel for the Crown (Sept. 3)

S. Aki Counsel for the Crown (Nov. 5)

G. Dorsz Counsel for Omar Elkhodary

Wednesday, September 3, 2025

BROWN, J: (Orally)

Background

The defendant Omar Elkhodary was charged in an information with the offence of assault, contrary to section 266 of the Criminal Code, on Vicki Moscoe, on the 2nd day of November in the year 2023, at the City of Toronto. After a trial when witnesses were called by the Crown and defence, Mr. Elkhodary was found guilty on February 19, 2025. The case has been remanded for preparation of a pre- sentence report, and from time to time since then in order for the parties to put before the court relevant materials.

The matter is now before the court for the imposition of sentence. The Crown takes the position that this offence was motivated by bias, prejudice or hate, based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation or any other similar factor as set out in section 718.2(a)(i) of the Criminal Code. The Crown takes the position that as a result, the sentence that is required needs to emphasize the principles of deterrence and denunciation, and that a conditional sentence is required for this offender and this case. The defence takes the position that a form or discharge should be imposed.

The Facts

A. Circumstances of the offence:

The court has provided lengthy reasons for judgment, setting out the relevant evidence, analysis and findings of fact. In the court’s consideration, the court found that that Mr. Elkhodary was not acting in self defence. Reference should be made to that judgment for the court’s reasons in greater detail. The court summarizes those reasons only for the purpose of sentence below.

The events took place a few weeks after the October 7th, 2023, attack by the Hamas terrorists in Israel. People were killed and injured and many hostages from Israel were taken by the terrorists. A few weeks later, on November 2nd, 2023, at approximately 7:20 p.m., the victim, Vicki Moscoe, had posters of children who had been taken hostage. She was placing the posters of these children on poles on Yonge Street, between Finch and Sheppard, just south of Empress Street, in the City of Toronto. She was doing this to raise awareness about the hostages. One poster was of a little girl, "Aviv", with her mother and little sister. Another poster was of a different little girl (who was not "Aviv"). One poster said “Raz, four years old, Israeli, kidnapped from her home by Hamas”. The second poster said “Aviv, two years old, Israeli, kidnapped from her home by Hamas”. Both posters stated below the images:

“On October 7th, nearly 200 innocent civilians were abducted from Israel into the Gaza Strip. Their whereabouts remain unknown. More than 3,000 women, men and children, ranging in age from three months to 85 years old, were wounded, murdered, beaten, raped and brutally separated from loved ones by Hamas.”

Below the images on each poster, the poster stated, "Take a photo of this poster and share it. Please help bring them...." and then the poster was ripped so you could not read what it had said below that.

The victim, Ms. Moscoe, was approached by Mr. Elkhodary, who approached in a confrontational manner and started tearing down the posters right in front of the victim. He started to tear down the posters she had placed on the poles. As he had his hands up to tear down her posters, Ms. Moscoe put up her hand on the poster to stop him from pulling it down. This was recorded on a video clip in evidence. The video clip also recorded a number of statements made by both parties. The allegation related to events that followed those acts.

This led to a verbal dispute between the two parties as Mr. Elkhodary swore at the complainant, who was in fact the victim. At one point the victim asked Mr. Elkhodary his name and he replied, “none of your fucking business”. As the victim explained during their verbal exchange, that the posters were of hostages, he said, “I don’t give a fuck”. He reached over again to get closer to the posters and he continued to try to remove them in front of the victim.

He continued to take down the posters. At one point he walked away. Then he returned to the area of the victim to continue to take down the posters. He was there with his girlfriend. Ms. Moscoe was outnumbered by the two of them.

Ms. Moscoe did not threaten Mr. Elkhodary, nor did she assault him. While there might have been incidental physical contact as it related to her fingers trying to keep the posters up on the post, he relentlessly tried to rip them down in front of her. She did not assault him. He then pushed her. He did this, the court would find, for the purpose of getting her out of the way, to effectively intimidate her so that she would remove her hands from protecting the posters. His goal and purpose was laser focused; it was to tear down the posters of the children in front of Ms. Moscoe.

The court accepted the evidence of the victim Ms. Moscoe as credible and reliable. She described the assault, the push, as a shove, and also testified that she felt her forehead being knocked by Mr. Elkhodary. She felt the pain of being hit by his hand on her forehead. Mr. Elkhodary had struck her in the forehead. The court accepted her evidence as credible and reliable, and accurate for the findings of fact of this court. Accordingly, the assault consists of the push and striking the victim in the forehead.

The court found that Mr. Elkhodary did not push the victim in self-defence. He acted intentionally, with the goal of intimidating the victim, pushing her out of the way to pursue his goal of taking down the posters.

When another woman who was nearby, who was not with the victim, said to Mr. Elkhodary that he does not have to do that, Mr. Elkhodary asked her “if she has a problem.” He then said, “What the fuck. What the fuck is your problem. Leave.” Mr. Elkhodary continued to remove the posters.

After Mr. Elkhodary assaulted Ms. Moscoe, there were two other women in the area who approached. These women, as indicated, were not known to the victim. They appeared to try to intervene to stop Mr. Elkhodary from doing what he was doing, and the second video clip relates to their involvement. This involvement with the two women is not the subject of any charges under consideration in this case. There was later a physical altercation between Mr. Elkhodary and the two women who had earlier tried to intervene in the dispute between Mr. Elkhodary and the victim. This altercation was not the subject of any charges in this trial.

Mr. Elkhodary testified that his stepfather is Palestinian, and that he has family members “there”. He testified he disagreed with the posters on a fundamental level, and that he disagreed with spreading hateful propaganda and that the posters were fabricated. He testified it was a simple protest of misinformation. Mr. Elkhodary is larger in stature than the victim. He admitted that he pushed the victim but stated that he did so in self-defence. The court found that he was not acting in self-defence, and the court found him guilty of assault.

Overall, having accepted the testimony of the victim, and considering the admission by Mr. Elkhodary that he pushed the victim, the court found Mr. Elkhodary guilty of assault. As noted, the court accepted the evidence of the victim in making its findings, and accordingly, in addition to the push, the court also has found that Mr. Elkhodary struck the victim with his hand to her forehead.

B. Circumstances of the offender:

The court ordered a pre-sentence report which is before the court as an exhibit. Mr. Elkhodary was born on August 6th, 1991. He is currently 34 years of age as of August 6th of this year. It is now one month past that date. He lives with his common law partner, Jo Marie Ortega, who was with him at the time of the assault. He has no dependents and no children.

As a child, Mr. Elkhodary witnessed incidents of physical abuse by his father on his mother. There was also physical abuse by his father on him. His parents separated. Subsequently, he lived with his mother for a period of time, and then with his father for a period of time. Currently he has regular contact with each of his parents.

He completed high school in 2008. In 2015 he enrolled in an online University program and took several courses, but he did not complete the program. He has had employment positions at a fast-food chain, a youth support organization, a call center for a telecommunications company, in restaurants, and in customer service positions.

In 2020 he stopped working, but then returned to work in 2022, in parts management and tech support. He stayed in that position for two years and then left that job. In December of 2024, he started working in customer service with another company, and that position ended in April 2025, when the contract ended. As of the date of the pre-sentence report preparation, he was unemployed. The court has been updated and advised that he is currently not working.

He is in a common law relationship with Jo Marie Ortega, who was a witness in this trial.

Mr. Elkhodary’s alcohol consumption is minimal, and he consumes marijuana about twice a week. He reflected as to how he should have left the area, prior to the offence, and returned to remove the posters later, after the victim left the area.

It is interesting that the mother of Mr. Elkhodary indicated, as reflected in the pre- sentence report, that previously Mr. Elkhodary suffered from anger management issues, but in her view that is no longer the case. As it relates to a need for anger management, the court has reviewed the video clips put in evidence in this trial and finds that there is a clear need for Mr. Elkhodary to take anger management counseling, as it clearly indicated this played a role in committing the subject offence.

The pre-sentence report also reflected positive information from Mr. Elkhodary’s mother Angie Mezher. The court also considered the letter written by Ms. Mezher and filed on behalf of the defence. She considers Mr. Elkhodary to be her hero. She commented on a number of aspects of his background and current situation. This included his stepping into the role of a father figure for his sister given their family situation. She expressed optimism for her son in the future.

The court considers the comments as credited to his common law spouse Jo Marie Ortega, including also not seeing a need for counseling and a view that he communicates well and handles emotions maturely. Again, that is not something that was reflected in the video evidence in this trial that the court reviewed.

She has also written a character reference letter which is before the court, which the court has reviewed carefully, together with all of the character reference letters relating to Mr. Elkhodary. She speaks positively of Mr. Elkhodary within the context of their relationship and her knowledge of him. She made comments about being present during the assault, and for his distress in standing up for himself and defending himself. Again, those are odd comments, given the much earlier findings of this court following the trial.

The court also considered the comments in the pre-sentence report by the author, from Mr. Elkhodary’s friends Stefano di Girolamo and Elizabeth Barker. Mr. di Girolamo also wrote a character reference letter which is before the court, which reflects his positive view of Mr. Elkhodary as a friend, and his surprise to hear of the conviction for assault.

The court also considers the letter from Mr. Elkhodary’s sister, Ms. Aya Elkhodary, and the role that he has played in her life as her older brother.

The court considers the letter by Ben Bongolan, a doctoral student at U of T., who appears to be a friend of Mr. Elkhodary. It is unclear whether the author of that letter is aware of the circumstances of the subject offence. It speaks positively of Mr. Elkhodary.

The defence has also submitted a character reference letter from Mr. Elkhodary’s friend, Harrison Sless, also a member of the Jewish community. He appears to be the close friend of Ms. Ortega, Mr. Elkhodary’s common law spouse. He has known Mr. Elkhodary for six or seven years. He also made comments regarding his deep sadness relating to Mr. Elkhodary having been found guilty of assault.

The author of the pre-sentence report suggests that Mr. Elkhodary might benefit from anger management counseling.

The pre-sentence report also indicates that Mr. Elkhodary was diagnosed with depression at the age of 23 yrs, anxiety in 2022, and ADHD in 2023. He is currently taking medication but only for anxiety.

When asked about the offence, Mr. Elkhodary expressed to the author of the pre-sentence report, “a sense of hindsight”. He stated that “looking back, he believes he should have simply walked away from the situation rather than engaging with the individuals. He recognizes that getting involved in an altercation was not the best course of action and feels that he could have returned at a later time to remove the posters without any confrontation. He expressed a willingness to attend for counselling if deemed necessary”. As indicated, the author of the report recommends anger management counselling.

C. Impact on victim and/or community:

The Criminal Code directs the court to take into account the portions of the victim impact statement that the court consider relevant to “the physical or emotional harm, property damage or economic loss suffered by the victim” as a result of the offence and “the impact of the offence on the victim.” Sections 722(1), 722(4), 722(8), together with section2 as the definition of “victim” in the Criminal Code.

In this case, the victim, Vicki Moscoe, has prepared and the Crown has put before the court in evidence her victim impact statement. Her victim impact statement indicates, in part, as follows:

“Toronto no longer feels like the safe and secure city I grew up in. I was raised in the northwest part of the city. My parents valued the multicultural aspect of our neighbourhood and we were raised feeling safe and secure. We knew antisemitism existed but we didn’t feel any less safe than our non- Jewish friends and neighbours. It was completely different from the antisemitism and discrimination my parents endured growing up here.

However, all that changed for me on November 2nd, 2023, when I was attacked for putting up posters of kidnapped Jewish Israeli children. In that moment, I experienced violence motivated by a hatred for Jews. I now fear I will never again experience living safely. Knowing that there are people living in this city who feel emboldened enough to openly threaten and act violently is something I contend with on a daily basis. I no longer feel hopeful about the future here for myself and my children. I know this shift in me has negatively impacted my children, who now worry about my wellbeing in ways young people should not have to worry about their parents.

I spent the first few days after the attack in a state of shock and confusion. I had never thought of myself as a victim of anyone and it took a few days to fully grasp the significance of what had happened to me. I had come to realize that I had been downplaying the effects the attack had on me so I could remain strong for my children. I told myself I wasn’t knocked unconscious, nor had I been hospitalized, but I was slowly realizing that an attack, even one that didn’t leave lasting scars or injuries, could be as harmful and damaging as one that does. It took a while to realize that I was traumatized and no longer the same person.

After the numbness of the attack, I began to feel anxious and was easily agitated and avoided leaving the house. But later that week there was an important family event I did not want to miss. It was held in a restaurant I had been to many times before, but this time was different. The mall in which the restaurant was located seemed unbearably crowded. I found myself looking at random people and asking myself does this person hate me? Does that person want to see me dead? I started to feel warm and dizzy and my heart was pounding in my chest, a sensation I had never felt before. I was panicking inside but forced to remain calm on the outside so as not to alarm my family. As we made our way through the mall, I found myself feeling repeatedly triggered when I would see men who reminded me of my assailant. My mind was spinning as I tried to keep track of who was around us. It felt like at any moment someone might notice the Hebrew Chai necklace I have proudly worn for decades and attack me again. I remember quickly tucking it under my shirt, feeling shame that I was letting down my Bubby, who had left her Chai necklace to me after she died. I know she would never have imagined I’d ever try to hide my Jewish identity.

The assault taught me that anything can happen to anyone at any time. I had a constant fear of someone hurting me and my children. I found it difficult to fall asleep. When I did, I’d soon be woken from a nightmare. I stayed home much more and even isolated myself from my elderly parents, because talking about this with them was too painful.

When I go out now, I am always hypervigilant. My phone is always in an easily accessible pocket, fully charged and ready to record in case anyone were to approach me with anger or hatred and I can’t leave the house otherwise.

It's been a year and a half since the horrors of October 7th in Israel and the assault on me, yet I continue to feel as anxious and unsafe now as I did then. I can’t help but wonder how I would be today and how the past year and a half would have been if the plaintiff had not attacked me on the basis of my Jewish identity. Would I have been able to be a more productive member of my community and a more present mother for my children. The plaintiff has stolen that time from us.

As my fear continued to intensify, I tried to cope by installing a Ring camera on my front door, taking Uber’s instead of the TTC, and paying for data on my children’s phones so I could know their whereabouts, despite my financial struggles. However, I felt like I couldn’t afford not to invest in these security measures, despite the stress of these added expenses.

I was brought up to speak out and stand up for myself and others in the face of hatred and injustice and I no longer feel as safe and comfortable doing so. I am just one person who has been changed by the growing hatred towards Jewish people in this city, but there are many others, some of whom are here today, who have been equally impacted.”

The victim impact statement is indicative of physical or emotional harm suffered by the victim as a result of the offence, and the impact it has had on the victim. The court considers this impact, which is not trivial, but is significant. The court considers the age and other personal circumstances, including the fact that the victim is a member of the Jewish community, given the nature of this offence, pursuant to section 718.2(a)(iii.1) of the Criminal Code.

In this case, pursuant to sections 722.2(1) and 722.2(2) of the Criminal Code, the court must also consider the community impact statements, which have been filed in this case, in determining the sentence to be imposed or whether to discharge the offender.

Portions of those community impact statements indicate as follows:

The statement on behalf of B’nai brith Canada. This statement indicates in part, “I’m writing to you on behalf of B’nai brith Canada (BBC). BBC, founded in 1875 is Canada’s most senior human rights organization dedicated to eradicating racism, antisemitism and hatred in all its forms. We are the voice of Canada’s grassroots Jewish community, supported by thousands of Canadian families, with diverse backgrounds and interests, empowering the organization to speak to government, media and the public at large on issues of concern to marginalized communities.

On October 7th, 2023, the world changed following an unprecedented, coordinated armed incursion by Harakat al-Muqawama Islamiya (HAMAS) against innocent Israeli citizens.

On this day, Hamas led a terrorist attack in Southern Israel, murdering over 1200 Israelis and injuring over 6900 civilians. During this attack, Hamas terrorists brutally beat, tortured, raped and murdered men, women and children at a music festival, as well as in their homes across southern Israel and took over 200 hostages. At least 44 countries, including Canada, denounced the attack as terrorism. The day was labelled the bloodiest in Israels history and the deadliest for Jews since the holocaust. The widespread global increase in antisemitism that followed has been horrifying and has incited great fear in Jews all over the world.

As representatives of the Jewish community, BBC submits this community impact statement in response to the courts finding of Mr. Omar Elkhodary guilty of assaulting Ms. Vicki Moscoe, a member of our community, whilst tearing down the kidnap posters Ms. Moscoe affixed of the hostages brutally abducted by Hamas on October 7th. The goal in widely spreading these posters around the world bearing the plea “please help bring them home alive” is to invoke public pressure in hopes of bringing the abducted home and to inspire outrage at Hamas. The posters contained no political affiliation or message of endorsement for the Israeli government. The statement reflects a deep concern, fear and harm experienced by members of the Jewish community in the wake of the significant rise in antisemitism and hate motivated crimes against our community.

The Jewish community is disproportionately victimized by hate crimes in Canada. The crime committed by Mr. Omar Elkhodary is not an isolated incident, but a reflection of the growing hostility, prejudice and surge in hatred towards the Jewish community. Mr. Elkhodary’s act of hate driven violence has shaken the Jewish community’s faith in its ability to live freely, without with fear of violence, creating an atmosphere of despair and perpetual worry. No community should have to live like this. No community should have to be the victims of hate and violence. No Canadian should have to fear for their safety while exercising their fundamental rights and freedoms.

The presence of hate driven crimes in Canada is sufficiently substantial to warrant concern. Acts of violence targeting a member of a marginalized community not only harm the individual victim but they also leave the entire community feeling ostracized, intimidated and unwelcome in their own society.

Throughout our history, Jews have been targeted and unfairly subdued. Mr. Elkhodary’s actions caused grave harm not only to the victim, Ms. Vicki Moscoe, but to our entire community. Nonetheless, the Jewish community are and will remain a proud and integral component of Canadian society. We stand in solidarity with the victim and remain dedicated to advocating for a society where all individuals, regardless of identity, can live safely and with dignity.

Statement of James Stocker, on behalf of the CIJA, the advocacy agent of Canada’s Jewish Federations. It states in part, “It is a national, nonpartisan, nonprofit organization representing the perspectives of more than 150,000 Jewish Canadians affiliated through their local federations. As the Canadian affiliate of the World Jewish Congress, representative to the Claims Conference and to the World Jewish Restitution Organization, CIJA is also connected to the organized Jewish community.

Ms. Moscoe was assaulted while attaching posters on poles on Yonge Street to raise awareness about the hostages being held by terrorist organization Hamas. These posters were created to raise visibility for the plight of hostages. Posters share each hostage’s image, name, age and nationality. The posters contained no political affiliation or message of endorsement for the Israeli government. They have been placed around cities globally.

The events of October 7th, 2023, have caused deep pain for the Jewish community in Canada. One of the ways in which they have been dealing with this pain in a peaceful manner is by putting up these posters as a way to ensure these people taken hostage and killed by Hamas are remembered. Mr. Elkhodary’s actions, which were widely reported in the media, have caused fear among the Jewish communities by sending the message that this peaceful act of remembrance will not be tolerated and may well be answered with physical assault on one’s person. This has reiterated the belief among the Jewish community that their safety is at jeopardy, leading to some hiding their Star of David while walking down the street to avoid being a victim of assault.

It is unfortunate that despite living in one of the most diverse and welcoming countries in the world, Canada’s Jewish community is not immune to the alarming and growing threat of antisemitism. According to Statistics Canada, year after year, the Jewish community is the main target of hate crimes in Canada. While the Jewish community accounts for less than one percent of Canada’s population, in 2023 (the last year with available data) 19 percent of all hate crimes were motivated by antisemitism and the Jewish community was the most targeted religious minority, accounting for 70 percent of religiously motivated hate. [Stats Can].

Michael Teper, Vice President of the Canadian Antisemitism Education Foundation. This statement indicates in part that this is a registered Canadian charity, dedicated to eradicating antisemitism in Canada through public education and advocacy. The posters that Vicki Moscoe was installing when she was assaulted by Mr. Elkhodary said nothing or derogatory about Palestinians. They merely called for the release of the hostages and humanized their plight by highlighting their names and photographs.

In the Jewish religion, working towards the release of hostages is an essential religious duty. [The Chevruta Study Texts on Redemption of Captives, Engaging Israel: a Conflict Tool Kit]. By assaulting her as she was carrying out this activity, it is clear and obvious that Mr. Elkhodary was acting out of hate, bias or prejudice against Jews. Since October 7th, 2023, the Jewish community in Canada has suffered assaults on its safety unlike anything in the past 60 or 70 years. Jew haters have firebombed synagogues. [Global News story regarding Montreal Police investigating two firebombs at Jewish institutions]. Jew haters have repeatedly fired their weapons at a Jewish girl’s school in the Toronto area. [Third Shooting at Bais Chaya Mushka School, UJA Federation of Greater Toronto, December 20th, 2024].

Jew haters have broken the windows of Jewish owned delicatessens. [Fire, Graffiti at Jewish-owned business targeted, being probed as hate motivated, Toronto Police, CBC News]. Kosher restaurants [Jewish organizations outraged after Kosher restaurant location office broken into, CBC News, January 3rd, 2024]. And of course synagogues [Windows smashed at two Toronto synagogues, CBC News, June 30th, 2024], time after time.

The 2023 hate crimes statistical report of the Toronto Police Service states that out of the 365 hate motivated criminal occurrences reported, 130 of them, being 36 percent, were directed against Jews. [Toronto Police Service, 2023 Annual Hate Crimes Statistical Report]. By contrast, Jews constituted 4.5 percent of the population of Toronto, as countered in the 2021 census. In brief, we are targeted for a full eight times our demographic share of hate. The assault committed by Mr. Omar Elkhodary against Vicki Moscoe must not be considered in isolation, but against the backdrop of this epidemic of hate crime targeting Jews.

This assault was widely reported, both in the general media [Man charged with assault and hate motivated altercations: Cops, Toronto Sun, November 6th, 2023] and in the Jewish Press [Charges laid against Toronto protestor after suspected “hate motivated” assault over Israeli hostage posters, The Canadian Jewish News, November 6th, 2023]. This assault, along with many other acts of intimidation, both reported and unreported, have caused Jews to have to watch their backs when installing posters about the hostages, holding events to commemorate the hostages, and meeting for any purpose, religious or secular. In this context, many Jews are giving up on life in Canada and it footnotes a story of people leaving Canada.

Anita Bromberg, on behalf of the Canadian Antisemitism Education Foundation states in part:

This offence is part of a pattern of antisemitic crimes that instill fear in the Jewish community of the Greater Toronto area. Jews are fearful of their safety to walk the streets while wearing clothing or jewelry that identify themself as Jewish. They are fearful of their safety when attending synagogue and community events. They are fearful of their safety to assemble in public to advocate for the return of the Israeli hostages.

Jaime Kirzner-Roberts, on behalf of the Friends of Simon Wiesenthal Center. That community impact statement indicates in part:

On that evening, Ms. Moscoe, a Jewish woman, was exercising her right to peaceful expression, hanging posters of Israeli children kidnapped and murdered by Hamas just weeks earlier, during the October 7th, 2023, massacre. This was not a random or isolated act. It was a targeted assault fueled by hatred. Hatred of Jewish people, hatred of what the posters represented, and hatred of a woman standing firm in public space. Mr. Elkhodary’s own testimony included the deeply troubling claim that the hostage posters were fabricated and misinformation, a claim that echoes Holocaust denial and other longstanding forms of antisemitic revisionism. This kind of denial is designed to erase Jewish suffering, vilify Jewish truth-telling and justify violence against Jews who speak out. This case underscores the layered vulnerability experienced by Jewish Canadians when asserting their fundamental rights to express their identity. That the assault took place in a public space has only deepened its impact, sending ripples of fear and unease throughout the broader community. Within Toronto’s Jewish community and especially among Jewish women, this attack has instilled fear, anxiety and sorrow. It has sent the troubling message that bearing witness to Jewish trauma, particularly as a woman, may be met with hostility, disbelief and even violence. In our diverse democratic society, we must ensure that public spaces are safe for all people, especially those from targeted communities, to remember to speak and to be seen.

Eva Waldmann provided a community impact statement to the court, which indicated, in part:

The number of hate crimes against Jews since October 7th causing unrest and disturbance in the Jewish community has been described as “unprecedented”. [Unprecedented: Antisemitism in Toronto has sky-rocketed in the wake of the Israel-Hamas war, Joshua Freeman, CTV News, November 12th, 2023].

The scary experience of a Jewish woman threatened, then assaulted by a stranger is just one example of how hate is being used against Jews today. It is more than disappointing for Jews to be targeted like this, years after trying to heal from the wounds and losses of the Holocaust. It is outrageous, it is unfair and often, deliberately cruel.

I felt fear and indignation when I learned that this man accosted a local citizen, an older Jewish woman, like me, like so many others.

By demanding she rip down hostage posters, he was disparaging the wish of the Jewish community to have loved ones returned home, safely if possible. This utter lack of sympathy for the grief that the Jewish community is experiencing intensifies our pain. It reinscribes the trauma of October 7th. That was the day of a massacre instigated by Hamas; a terrorist organization that has openly announced their intent to eliminate the state of Isreal and all Jews, worldwide.

His choice to threaten Jews and try to impede their right to free speech contributes to a general sense I’ve had that this city is no longer a peaceful one. I’ve always loved Toronto because I’ve experienced it as a place where people generally feel safe. It no longer feels that way due to several instances in which Jewish people have been threatened, interfered with, frightened and even harmed.

After hearing about the way Mr. Elkhodary tried to intimidate a Jewish woman, I feel extremely vigilant when taking a walk. This is because I don’t know if someone like him might try to approach and threaten me. I also feel worried about the safety and well- being of the rest of the Jewish community.

Avi Attali, on behalf of OneGlobalVoice, an organization dedicated to promoting critical thinking, safeguarding individual freedoms, and advancing democratic principles worldwide also provided a community impact statement. This statement indicated in part:

In the Jewish faith, working towards the release of hostages is a sacred duty. By assaulting Ms. Moscoe during this act of profound moral and religious significance, Mr. Elkhodary revealed his actions to be rooted in hate, bias, and prejudice against Jews. This was not an isolated incident, but part of a broader pattern of escalating hostility and intimidation directed at the Jewish community since the Hamas terrorist attack on Israel on October 7th, 2023.

Individuals like Mr. Elkhodary have sought to silence us, screaming their hate and attempting to instill fear in our community. These daily occurrences have created an atmosphere of dread and insecurity for Jews across Canada.

Ena Greengarten, a member of the Jewish community who is a retired elementary school teacher, also voiced comments similar to others filed and considered in the reasons.
Rebecca Holzman, a member of the Jewish community provided a statement and indicated in part as follows:

As a social justice advocate, I too put up stickers of our hostages, looking to raise awareness of the dire situation and any support and assistance to Let Them Go!

Seeing these innocent faces, babies, children, teens, elderly, women and men, having been brutally ripped away from their homes, now being brutally ripped down was heartbreaking and crushing. The use of intimidation tactics from others like verbal assault, photography and being followed, especially against a small, middle aged, defenseless woman, caused great concern.

A number of times I was forced to change my route home as I didn’t want to lead people who I didn’t know what they might do to my home and my family. I had to delay my return by over an hour, using circuitous routes and waiting for long periods of time, constantly looking over my shoulder, to ensure I was alone and safe to return, completely physically, mentally and emotionally drained. It was so surreal that I found myself wondering at times how this could be real life when it was so much like a bad movie. To then only have to once again have another conversation with my children about safety. Not taking the same route to school every day. Being very aware of who was around the house when leaving and arriving back. How to recognize if someone is following you and who to call if something were to happen. Also having to have conversations within our own community with others who also wanted to raise awareness, to keep them safe and deal with rising and intense fears around putting up a sticker to raise awareness about an inhumanity against us. And then to have to inform my synagogue where I regularly attend and do outreach for, about these issues and concerns and discuss an increase of safety measures for there as well. There was a brief moment where I considered not going to synagogue anymore. That was one of the lowest moments, to even have that thought, however briefly. To consider for the safety of my family and community, to have this taken away from me, it is difficult to put into words the feelings that I and so many of us were going through and scarring us through this time.

Lisa Urbach, a member of the Jewish community, stated in part:

When Mr. Elkhodary brazenly tore down hostage posters and brazenly assaulted Ms. Moscoe, he also brazenly communicated a hatred and disdain for the Jewish community.

It's frightening to now live among others who are comfortable publicly manifesting their contempt for us. I no longer feel safe or able to easily trust others. I constantly worry how strangers will react if they knew I was Jewish. Before October 7th, I never questioned if professionals I was involved with were antisemitic, but now it's a constant concern. I'm careful about what public events I attend, which companies I frequent, and which areas of the city I go to and which to avoid. In short, I now feel unwelcome and uncomfortable and unsafe in my own city.

Rita Rusu, a friend of the victim Vicki Moscoe, has made a statement with contents consistent with other community impact statements in evidence. She indicated in part:

The assault committed by Mr. Elkhodary against Ms. Moscoe cannot be viewed in isolation. It is part of an epidemic of hate crimes targeting Jews, an epidemic that has forced our community to live in fear. Jews now hesitate to install posters, hold commemorative events, or even gather for religious or secular purposes without looking over their shoulders. This climate of fear has driven many Jews to reconsider their future in Canada.

Dr. David Mandel, a senior scientist with DND and cross appointed as Professor of Psychology at the University of Waterloo and York University, and a member of the Jewish community, indicated in his community impact statement in part:

Ms. Moscoe was not only peacefully postering, she was carrying out a religious duty that is central to Judaism, her religion. In the Mishneh Torah, Hilchot Matanot Aniyim 8:-11, Maimonides states, “The redeeming of captives takes precedence over supporting the poor or clothing them. There is no greater mitzvah than redeeming captives for the problems of the captive include being hungry, thirsty, unclothed, and they are in danger of their lives too. Ignoring the need to redeem captives goes against these Torah laws: “Do not harden your heart or shut your hand against your needy fellow” (Devarim 15:7). Ms. Moscoe, therefore, was not only assaulted that day. Mr. Elkhodary prevented her from peacefully carrying out her religious duty because of his prejudice, hatred, and callousness toward Jews. In short, Mr. Elkhodary decided to use his physical force to impose fate control over Ms. Moscoe, denying her the ability to freely exercise her Canadian Charter right to freely practice her religious duty, no less at a time of great pain and suffering for the Jewish people, including our Jewish community in Toronto. Mr. Elkhodary sought to increase the pain and suffering our community was already experiencing over the horrific program against Jews in Israel. He sought to deny our community a means of peacefully expressing that grief.

Due to the increasing violence against the Jewish community and normalization of that violence, I no longer feel safe in Toronto. I am not alone. Day in and day out, I hear my fellow Jewish community members express those same fears. Our fears and the very real threats we face are not irrational, they are not phobias. Rather, they stem from actions such as those committed by Omar Elkhodary against Vicki Moscoe. They include his assault, which is widely known about in the Jewish community, as a prime example.

Joanna Salit, a Registered Social Worker and Trauma Therapist, who is a member of the Jewish community, stated in her community impact statement in part:

I used to love Toronto and valued the freedom and diversity of this city. Ever since I was young, I always felt comfortable going anywhere by foot, transit or car. As an adult, we intentionally chose to live in a downtown diverse area so that my family could interact with people from a variety of backgrounds and belief systems. October 7th changed all of that.

When one Jewish person is injured, we all feel the pain. On October 8th, I naively thought that my neighbours would now finally understand the level of hatred and violence Jewish people face. Instead, we were met with hostility, put downs and aggression. It was the opposite of understanding and compassion. It added a significant layer of trauma to the one my nervous system was already facing. When I saw the video of Mr. Elkhodary pulling down the posters of our family in a crass and aggressive manner, I was shocked, hurt and frankly, terrified. It also minimized the experience of our grief and attempted to dehumanize us.

Now, when I go for a walk with my dog, I am regularly confronted with hateful posters on poles and hateful signs on my neighbours’ lawns. I hesitate leaving my little area. I am always hypervigilant and have been having recurring nightmares of needing to pack my things quickly and flee this city and country. I am constantly scanning my environment to ensure that I am safe. I see a trauma therapist regularly. We now have security cameras and I obsessively check that all doors are locked. I changed my name on public facing apps, hide my Jewish necklace and have removed any mention of work experience in Jewish mental health agencies on my LinkedIn account. My son is visibly Jewish; he wears a kippa and other attire that indicate such. I especially worry that he will be attacked in the same way that Ms. Moscoe was assaulted, or worse. We talk regularly about safety planning.

That is the final community impact statement that was put in evidence.

LEGAL PARAMETERS

In this case, the Crown has proceeded summarily. The punishment is set out in section 787 of the Criminal Code, which provides:

“Where the Crown proceeds summarily, for most offences where the punishment is not prescribed otherwise, the maximum punishment is two years less a day jail. There is no minimum punishment.”

POSITIONS OF CROWN AND DEFENCE ON SENTENCE:

The Crown submits that the appropriate sentence in this case is one of a five-month conditional sentence, with the first third being house arrest with limited exceptions, the second third being a restrictive curfew of five p.m. to eight a.m., and the final third being a curfew of ten p.m. to eight a.m. The Crown opposes any form of discharge. The Crown submits that this should be followed by a 12-month probation order. The Crown also seeks ancillary orders, being a DNA sample for the secondary designated offence of assault, and a section 110 weapons prohibition order for a five-year period.

The defence submits that the appropriate sentence is an absolute discharge. Alternatively, the defence submits that if the court finds that additional supervision is required, then a conditional discharge should be imposed. The defence did not make any submissions regarding the ancillary orders sought by the Crown.

MITIGATING AND AGGRAVATING FACTORS:

Mitigating

There are mitigating factors in this case. This consists of a statement of remorse by Mr. Elkhodary, which was given to the court, and indicated as follows:

“Thank you for the opportunity, quite long process, want to formally apology to Vicki Moscoe. It is safe to say I overreacted in this scenario. In moment I argued self defence, come to life, court disagree, I respect that, I reflect on that, at first I upset, took me time to process it after the presentence report and sit down and think about it and conversations with my wife and mother, sister, family, have their support, they remind me this out of my character and not who I am.

Apology to court, I deal with large amount challenges from anxiety and ADHD, twisted vertebrae, I uncomfortable, not revealed to court, explanation for time I seemed dismissive or uninterested, not reflecting my feelings towards the court, just a reality of what I deal with, so no disrespect to you as a judge.

My experiences as an Arab is that I have seen a number of world events, highly calibrated to paint a picture of evil in the middle east, seen in movies, all make assumptions, play video games, call of duty, no shortage of Arabs as villains in modern times.

On October 6, 5, 8, and for 50 to 60 years before that, not discussed, I do not support Hamas or the way it acted on October 7th, nut to act as if Israel has suffered more loss; any day loss of life or prisoners is un- Canadian. The fact I walk in street and see support for a country we all know currently at the highest-level government commits pain, I’m not here argue about the people, only that hurts to live through, it does not justify anything, I overreacted, I should not have engaged in physical confront, no need, destroys examples I tried lead in my life

Since found guilty only longer reflection of this and I need to do more work to become the type of person I would like to see in the community. Since this time, there have been multiple videos on internet. I have not been working the last few months, not been able to get job call backs. I lost a job call back, just one day let go, and since then house arrest, not paint myself as victim, I am facing the consequences head on. I have not turned to more anger, only pursuits in my own pain and moved forward and get back living like function with rest of society.”

The court accepts this statement as a genuine indication of remorse for what Mr. Elkhodary did to the victim, Ms. Moscoe. It is more genuine and authentic an indication of remorse than what was reflected as his statement to the author of the pre-sentence report, which effectively was indicated as his sense of hindsight that he should have simply walked away from the situation rather than engaging with the people, that he could have returned later to remove the posters without confrontation. This is an interesting statement, this court would note in passing. Nonetheless, he seems to have reflected more upon his acts, as of the time he made his statement in court.

Mr. Elkhodary has no prior criminal record. He is a first offender. He has indicated a willingness to attend for counseling if the court is of the view that it is required. It does not appear that he has done any counselling to this point in time.

Aggravating:

There are aggravating factors in this case. Firstly, the court finds that it was an offence motivated by bias, prejudice or hate. Section 718.2(a)(i), of the Criminal Code provides that it is statutorily aggravating where an offence is motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation or any other similar factor. In this case, the offence was motivated arising from the complainant being a member of the Jewish community, and/or by the victim taking steps to speak on behalf of the child hostages in Israel who were abducted by members of Hamas. In this case, the defence has submitted that the court should not find that the offence was motivated by hate, as that has not been proven beyond a reasonable doubt.

The defence submits that there is no evidence that the victim was targeted or sought out because she was a member of the Jewish community, or a woman, and that the assault was not accompanied by antisemitic words phrases or gestures. The court finds that there is no need for there to be antisemitic words phrases or gestures, for the offence to be hate motivated. The court has also found that the assault was motivated by Mr. Elkhodary’s desire to silence the victim essentially; by removing her posters and her right to free speech. It was clearly motivated by his desire that she not place posters publicly speaking on behalf of Israeli child hostages taken by Hamas. The court has found that the offence was motivated by hate, given the context within which the assault was committed, as set out in the reasons for judgment. The defence makes the alternate submission that if the court finds that it was motivated by hate, that it was nonetheless a minimal type of offence and that a discharge is appropriate.

Secondly, the victim was assaulted when she was engaging in a peaceful act of putting up posters, pursuing her freedom of speech, on a main street in Toronto. She did not do or say anything that was in any way provocative, this was an unprovoked assault in the circumstances. The victim was also a woman, smaller in stature than the accused, and she was alone, while Mr. Elkhodary was accompanied by his girlfriend nearby.

In addition, as set out above, it is aggravating that the victim suffered victim impact as set out above, see also section 718.2(a)(iii.1)

SENTENCING PRINCIPLES:

Analysis:

The court bears in mind the guiding comments of the Supreme Court of Canada in R. v. Lacasse, [201] S.C.J. No. 64. In that judgment, the court stated that sentencing ranges are primarily guidelines, not hard and fast rules. Even if an appellate court has established a range, it may be that a fact pattern may arise which is sufficiently dissimilar to past decisions that the range must be expanded. Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered "averages", let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case. Accordingly, a sentencing range is not a straitjacket to the exercise of discretion of a sentencing judge. Each crime is committed in unique circumstances by an offender with a unique profile. Everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case. Sentencing ranges must in all cases remain only one tool among others that are intended to aid trial judges in their work.

In 2010, the Supreme Court of Canada noted in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 (S.C.C.), at paragraph 43, that "[n]o one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case."

Sentencing is highly individualized, see R. v. Suter, 2018 SCC 34 and most particularly at paragraph four.

In 2021, The Supreme Court of Canada in R. v. Parranto, 2021 SCC 46, [2021] S.C.J. No. 46, in the majority judgment at paragraph 10, the court stated that proportionality is the organizing principle for the court in imposing a fair, fit and principled sentence. Proportionality is the fundamental principle. Sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender, and the unique circumstances of each case. Parity and individualization are important, yet secondary principles. The demands of proportionality must be calibrated by reference to the sentences imposed in other cases. Individualization is central to the assessment of proportionality in that it demands consideration of the individual circumstances of each offender, as set out in paragraph 12.

The court has reviewed all of the cases referred to by the defence and by the Crown. The absence of mention by this court of any case does not mean that this court has not considered a particular case. It simply reflects the court’s view that the circumstances in those cases are not of assistance in considering the appropriate sentence in this case.

The principle of proportionality is also codified in the Criminal Code, which states that the sentence imposed by the court must be proportionate to the gravity of the offence and the degree of responsibility of the offender (see 718.1 of the Criminal Code).

Further, the court bears in mind that the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation, deterrence (both generally and specifically for the offender), separation of the offenders from society where necessary, rehabilitation, to provide reparation for harm done to victims or to the community, and to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community (see section 718 of the Criminal Code). The court bears in mind any applicable sentencing principles as set out in section 718.2, and as well the principles of parity, totality and judicial restraint in considering a sentence of deprivation of liberty or imprisonment, as set out in section 718.2(b) through (e). The emphasis of the court in considering those various objectives depends on the nature of the offence, and the circumstances of the offender.

The court considers the nature of the offence, together with the circumstances of the offender.

Nature of the offence:

People in Canada have the fundamental freedom of thought, belief, opinion and expression, guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms. The victim in this case was expressing views fundamentally protected by our Charter, when she put up the posters related to the children who had been taken hostage from Israel. She was expressing her views in a lawful way. The actions of Mr. Elkhodary in assaulting the victim were actions designed to undermine her freedom of expression protected by the Charter. He acted in a way to intimidate the victim, a smaller person, who was alone on the street putting up the posters when he was present with his girlfriend, thereby outnumbering the victim. His actions were designed to intimidate the victim, to show her that if she expressed her views by putting up the posters, this would be met by aggression and violence, and in this case, an assault by Mr. Elkhodary on her.

Bearing in mind the findings of this court, the court finds that Mr. Elkhodary’s actions were motivated by bias, prejudice or hate, based on the victim expressing views related to people who are Jewish. Mr. Elkhodary is from the evidence in this trial, in support of people who are Palestinian. He indicated his stepfather is Palestinian, his stepbrother is Palestinian, and he has family in Gaza. He clearly expressed his views in his evidence that he essentially fundamentally disagrees with the content of what was in the posters, which supported people from Israel. There is no doubt that it was a hate crime in that respect, as the only reason for Mr. Elkhodary committing the intentional assault on the victim was to intimidate her, and discourage her from expressing views in support of the Jewish people who supported the hostages in Israel who had been taken by Hamas. It is an aggravating factor pursuant to section 718.2(a)(i) of the Criminal Code.

Courts have considered this type of offence in various cases.

In Ontario, in R. v. Ingram and Grimsdale, (1977), 1977 CanLII 2018 (ON CA), 35 C.C.C. 2d 376, at page 379, the Ontario Court of Appeal, speaking for that court, made the following comments. Justice Dubin commented upon the racially motivated assault upon the victim, stating at paragraph eight,

“It is a fundamental principle of our society that every member must respect the dignity, privacy and person of the other. Crimes of violence increase when respect for the rights of others decreases, and, in that manner, assaults such as occurred in this case attack the very fabric of our society. Parliament's concern for the incitement of racial hatred is reflected in section 281 of the Criminal Code. An assault which is racially motivated renders the offence more heinous. Such assaults, unfortunately, invite imitation and repetition by others and incite retaliation. The danger is even greater in a multicultural, pluralistic urban society. The sentence imposed must be one which expresses the public abhorrence for such conduct and their refusal to countenance it.”

The comment in that case related to the principle of general deterrence, and the court would note as well, denunciation. In R. v Soles, [1998] OJ No. 5061, (Gen Div), the court considered offences related to knocking over monuments of deceased members of the Jewish community, in the B’nai Israel Cemetery. The court noted that the offences were racially motivated and intended to cause emotional injury and shock to the Jewish community, which it did. Victim impact statements were filed which demonstrated the profound grief among members of the Jewish community (see paragraphs 5 and 6). The court referred, at paragraph 20, to the pluralistic mosaic of Canada, enshrined in section 27 of the Charter, which indicates that the Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians. The court found that denunciation was an important principle. The court found that it must reflect society’s abhorrence of this type of crime and allowed the Crown’s appeal against sentence.

Subsequently, in R. v. Lelas, 1990 CanLII 6836 (ON CA), [1990] OJ No. 1587, (C.A.), the court considered the case where the accused was a member of the Ku Klux Klan, described himself as a racist, and spray-painted antisemitic symbols and slogans, or or near a synagogue on a Hebrew school building and on an automobile. In the majority judgment, the court found that the offence targeting a place of worship, done to cause emotional injury to a particular segment of society, required a greater penalty. The court stated, at paragraph 31:

“The message must go out loud and clear that conduct such as that engaged in by the respondent will not be tolerated in Canadian society, and if it is engaged in, it will be met with a severe penalty.”

Following R. v. Ingram and Grimsdale, the court stated that whether the Jews are a racial or religious group is irrelevant. “An offence which is directed against a particular racial or religious group is more heinous as it attacks the very fabric of our society.” The court also commented upon this not being an isolated occurrence, and the comments of Justice Dubin that such offences invite imitation and incite retaliation.

In R. v. Simms, [1990] A.J. No. 1050 (Alberta C.A.), the court commented in the consideration of a sentence appeal for assault related offences, that “Conduct fostered by philosophies and beliefs that condone and extol violence as a means of disapproval of those perceived to be in opposition to those philosophies and beliefs must be sternly denounced by the courts.”. The court found denunciation to be an important factor where the offences were motivated by a philosophy espoused by a group supported by the appellants and acted out against the victim as a member perceived to be a group opposed to that philosophy.

The court has also carefully considered the cases of R. v. Doyle, [2024] OJ No. 5583, R. . Cooper, Unreported OCJ May 13, 2024, R. v. Sandouga, 2002 ABCA 196, and R. v. Hennesy, 2021 ONCJ 263. In R. v. Abed, Unreported, OCJ March 11, 2025, at paragraph 32, Justice Borenstein, a colleague of mine, indicated in reasons for sentence relating to a charge of mischief, in relation to the grabbing of an Israeli flag from an 88-year-old man, in paragraphs 32 and 34 as follows:

“Mr. Sacke attended the rally and carried the Israeli flag to draw attention to the kidnapped hostages and to support each other. He and everyone have the right to peacefully assemble, to gather and to express their views. Ms. Abed chose to provoke them, to engage in conduct intended to undermine their right to peacefully assemble and their sense of peace and security, in the context of what is going on in the world. Ms. Abed intended to and did violate Mr. Sacke’s and his community’s sense of peace and security. It was meant to show their assembly and support cannot be expressed publicly without being met by aggressive behaviour.”

The court would find that there is a striking parallel in this case, as Mr. Elkhodary approached the victim, who had the right to peacefully indicate her views, by putting up posters on Yonge Street. Mr. Elkhodary chose to provoke her, by tearing down the posters right in front of her. His actions, in the presence of his common law spouse, culminated in physical violence to this smaller woman, who was alone. He pushed her and then struck her in the head.

In addition, the court has considered all of the cases referred to by the defence. In R. v. Gillard, 2022 ONCJ 164, the court considered a case related to hate motivation. However, there were many distinguishing features, most particularly related to the entry of a guilty plea, saving the victim from having to testify. Secondly, he was a youthful first offender, with unique mental health issues, related to an Impulsive disorder, a seizure disorder, and physically affected by the heat. He is in need of medication for his condition. He also had an indigenous background. The court did not find that case helpful in considering the subject case.

In R. v. Ghaddar, 2018 ONCJ 959, the court considered the entry of a guilty plea after the victim had testified. It was a case of intra-familial violence, and not a hate motivated offence. There were potential immigration related consequences. He had also completed 53 hours of community service, and the court ultimately imposed a conditional discharge. Both the facts of the offence and the offender are very unlike the case at bar. Mr. Elkhodary has done no community service to the knowledge of this court.

In R. v. Brown, 2005 CanLII 24762, a summary conviction appeal decision of Justice Durno, the court considered a case of intra-familial violence, which was a push, where the trial judge imposed an absolute discharge. It was not a hate motivated offence. The court ultimately dismissed the appeal against sentence. The test for overturning a sentence imposed at trial is somewhat different from the court’s consideration of imposition of sentence after trial.

In R. v. Barilko, 2014 ONSC 1145, the court considered another case of sentence for intra-familial violence, with no aspects of being a hate motivated offence.

In R. v. Allen, 2019 ONSC 971, the court considered sentence after the accused had been found guilty of assault. It was not a hate motivated offence. The parties were together to celebrate an event. While the accused threw the first punch, the victim was on top of him after that, which made it impossible for the accused to otherwise hurt him. The accused was 23 years old, and the father of two young children. Another accused was the one who caused injuries. This case is very different than the one at bar.

In R. v. Marshall, 2021 ONCA 344, the court considered the credit for pre-sentence custody credit, being Summers and Duncan credit. The court has considered the submission of the defence in the case at bar and does not find this case to be of assistance. There is no such credit in this case.

In R. v. Mills, 2022 ONCA 404, the court in a very short endorsement, considered the sentence of a tow truck driver who pled guilty to fraud under $5,000. The offence was not hate motivated. A psychological assessment revealed a prior diagnosis of a learning disability as a child. He had low level functioning as revealed in cognitive tests and had suffered from a number of head traumas that required hospitalization. He also experienced serious episodes of anxiety and depression and had engaged in self-harm. A conditional sentence was imposed by the trial judge, but the court ultimately allowed the appeal and imposed a conditional discharge. While a conditional discharge can be imposed for certain types of offences and offenders, this case is not helpful to this court.

The defence also relied upon R. v. Chapman, 2008 ONCJ 552, arguing that this was a de minimus type of assault. The facts in the case at bar provide a context which support it not being an offence of de minimus.

Where a defendant enters a plea of not guilty and a trial follows, this not an aggravating factor. A guilty plea saving the need for witnesses to testify at trial can be a mitigating factor. The absence of a guilty plea is neutral. As the Court of Appeal for Ontario noted in R. v. Kakekagamick, 2006 CanLII 28549 (ON CA), [2006] OJ No. 3346, the “failure to accept responsibility for his actions weighs against affording him significant consideration by way of mitigation”.

Judicial restraint:

The court specifically considers the principle of judicial restraint. Currently it is codified in section 718.2. of the Criminal Code. The court also specifically considers this principle as it relates to Mr. Elkhodary, a first offender, although he is not tremendously youthful. In that regard, the court considers the combination of R. v. Proulx¸ 2000 SCC 5, together with the Ontario Court of Appeal decision in R. v. Priest 1996 CanLII 1381 (ON CA), [1996], OJ No. 3369. The Ontario Court of Appeal judgment in Priest predated the availability of conditional sentences. While the Priest judgment related to property offences, the principle which has emerged from its consideration of the case is that the court should explore all other dispositions before imposing a custodial sentence. This principle followed the court’s earlier case in R. v. Stein (1974), 1974 CanLII 1615 (ON CA), 15 C.C.C. 2d 376, O.C.A., at page 377, a judgment authored by Martin, JA. The court also held that for a first term of imprisonment, the length should be as short as possible. Proulx has made it clear that a sentence of incarceration should only be imposed if a conditional sentence is not appropriate.

This court considers the judgment of the Court of Appeal for Ontario in R. v. Batisse (2009), 2009 ONCA 114, 93 O.R. 3d 643, at paragraphs 32 to 34.

The principle of restraint for a first offender requires the sentencing judge to consider all sanctions apart from incarceration, and where incarceration is imposed, to impose a term as short as possible and tailored to the individual circumstances of the accused, following R. v. Priest. Secondly, it requires the sentencing judge to consider rehabilitation. Thirdly, where the case is serious and involves violence, general deterrence and denunciation are also significant factors to be considered.

Overall, the court finds that denunciation and general deterrence are important principles for the court to consider in this case. However, the court also considers rehabilitation, given that Mr. Elkhodary is a first offender. Judicial restraint is similarly an important factor in this case.

Considering the law as it relates to this type of offence, and the circumstances of the offender, the court finds that an absolute discharge, or even a conditional discharge, given the aggravating factors in this case, would be contrary to the public interest.

Similarly, the court finds that a suspended sentence would be woefully inadequate to address the relevant sentencing principles, including the primary principles of denunciation and deterrence for this type of offence. The court is mindful of the aggravating factors noted above, and as well the principle of judicial restraint for a first offender. All in all, a suspended sentence would not be proportionate to the gravity of the offence and the degree of responsibility of the offender in this case.

The court goes on to consider whether a conditional sentence would properly address the principles of denunciation and deterrence, together with rehabilitation, given the aggravating factors in this case, including the victim and community impact.

Conditional Sentence:

The Crown has submitted that a conditional sentence would be appropriate for this offender and this offence. The court must consider the provision for this type of sentence, as set out in section 742.1 of the Criminal Code.

In this regard the court would note that pursuant to the positions of the parties, the sentence under consideration is one of less than two years.

The court must also consider section 742.1(a) and whether the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, together with;

(b) the offence is not an offence punishable by a minimum term of imprisonment;

Subsections (c) and (d) are not relevant to the court’s consideration in this case.

The court must therefore first determine whether a conditional sentence of imprisonment would be available. This is the sentence sought by the Crown. It is a term of incarceration, but one to be served in the community.

The Crown proceeded summarily. The offence is not punishable by a minimum term of imprisonment. The sentence under consideration pursuant to the positions of counsel, as indicated, is less than two years. The court finds that for this offender, with no prior criminal record, and who has not been charged with breaching any terms of bail, that the safety of the community would not be endangered by Mr. Elkhodary serving his sentence in the community.

The court considers whether a conditional sentence would satisfy the fundamental purpose, principles and objectives of sentencing, as set out in sections 718 to 718.2 of the Criminal Code, for this offence and this offender. The case law is clear that the paramount principles and primary sentencing objectives for a case of this nature are denunciation and deterrence. As noted, the court also considers rehabilitation as an important principle and objective for Mr. Elkhodary as a first offender. Courts have been clear that in some cases, a conditional sentence may satisfy the principles of denunciation and deterrence; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paragraphs 102 and 107, R. v. Wismayer (1997), 1997 CanLII 3294 (ON CA), 33 O.R. (3d) 225 (C.A.).

In Proulx, at paragraph 96, the Supreme Court of Canada specifically considered the principle and objective of judicial restraint, pursuant to section718.2(d), that is to say, that an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances. However, the court stated that this principle, is of course, not solely determinative, but involves a more comprehensive consideration. As stated in that paragraph, “a determination of when less restrictive sanctions are "appropriate" and alternatives to incarceration "reasonable" in the circumstances requires a consideration of the other principles of sentencing set out in sections 718 to 718.2. So, this is but one of the principles and objectives to consider. The court must have regard to both the seriousness of the offence and the offender’s degree of responsibility.”

In this case, the court also considers that Mr. Elkhodary would be suitable for a term of GPS monitoring, as indicated in the assessment put in evidence before this court, in the event the court imposes a conditional sentence.

In all of the circumstances, the court finds that a conditional sentence, rather than a term of incarceration to be served in a jail, would adequately express society’s condemnation for the conduct of Mr. Elkhodary in this case, and achieve the required deterrent effect. It would also permit him to continue on his path of seeking employment, and for the court to order rehabilitation in the form of counseling.

Accordingly, the court imposes a conditional sentence five months in length. The court is going to deal with the actual terms in a moment, given that defence counsel has sought the opportunity to address the court in the middle of the sentence with respect to the nature of the conditional sentence and the terms as it relates to house arrest and curfew.

Wednesday, November 5, 2025

BROWN, J: (Orally)

As I have indicated, I have already done reasons on the earlier date that I have released orally with respect to the matter. It is a conditional sentence as the court has indicated. It is approximately five months, but the court has broken it up into 150 days.

The first 50 days will involve a house arrest term, with exceptions that are set out below. The next 50 days will involve a restrictive curfew, as set out below. And the final 50 days will involve a less restrictive curfew.

There will be a requirement that the GPS monitoring equipment, of which there has been an assessment done, be worn to monitor those terms for compliance. The court will address the specific terms relating to those portions as follows in just a moment. However, due to the GPS electronic monitoring, it will have the standard terms, which include the following, and this will be throughout the whole 150 days:

You shall report immediately to the supervisor for the purpose of arranging your enrolment in the electronic supervision program.

You shall participate and abide by the rules and regulations of that program as required by your conditional sentence supervisor and/or designated electronic supervision resource officer, for the purpose of monitoring your house arrest, home curfew, residence restriction, et cetera.

You shall be placed on electronic supervision for the full conditional sentence, which is 150 days. You shall make yourself available, either by phone or in person, as may be required, at any time during house arrest/home confinement/curfew, and in particular, you shall answer the phone at any time during house arrest/home confinement/curfew, and present yourself to Ministry of Community Safety and Correctional Services staff, police services and/or persons who are authorized by the Ministry of Community Safety and Correctional Services associated with the Electronic Supervision Program at the door of your residence at any time during house arrest/home confinement/curfew for the purpose of confirming your presence and compliance

You are to reside at [address removed], which is an address approved by your supervisor and/or designate and you are not to change your address without prior permission of your supervisor.

You shall permit Ministry of Community Safety and Correctional Services staff and/or police services in your residence during the investigation of any alerts; either technical (ie. Transmitter battery low) or compliance issue (ie. Subject leaving during curfew), generated while on the Electronic Supervision Program.

You are to report to your supervisor within three working days and thereafter as required.

You are to attend for any assessment and counseling as directed by your supervisor, for anger management, and to sign releases or consents to permit your supervisor to monitor your attendance at those appointments.

You are to have no direct or indirect contact with Vicki Moscoe.

You are not to be within 100 metres of any place of residence, employment, worship, or locations regularly attended or attended at the time by Vicki Moscoe.

You are not to possess any weapons as defined by the Criminal Code.

You are not to possess any knives outside of your residence, and there is no exception to that term.

Then as it relates to the splitting of the conditional sentence into three sections:

As indicated, for the first 50 days of the conditional sentence, there shall be a term requiring house arrest. Accordingly, you are to reside at the address approved in advance by your supervisor, which I set out earlier, and you are not to move from that address without prior approval of your supervisor.

Now with respect to that, and I think Mr. Dorsz has already explained this to you, you are to remain in your residence and there will be no exceptions to the house arrest until the GPS monitoring equipment is installed at your residence, but typically it is done the same day, particularly if your lawyer takes you to probation, just outside the courtroom. It is on a floor in this building and you can get the process started and they can meet you there.

After the GPS monitoring equipment is installed, the following exceptions to house arrest for the first 50 days will apply:

Medical emergencies for yourself. Medical appointments and counselling appointments for yourself. Travel to and directly from and while at any position of employment, but you are to return immediately back to your residence. Two hours per week for personal matters, on Saturdays from two to four p.m., and as well appointments with your supervisor.

As it relates to any exception for medical appointments and counselling, and any employment position, you shall provide to the supervisor your schedule of these appointments and employment hours and location, and the supervisor will incorporate these into a written letter of permission to be out of your residence and that letter is to be carried by you on your person at all times while out of the residence.

Then, for the next 50 days of your conditional sentence, you are to abide by a curfew from six p.m. to eight a.m., each and every day of the week, and there will be an exception for medical emergencies. Earlier counsel indicated there was no other exception being sought to that curfew.

Then for the final 50 days of your conditional sentence, there will be a curfew from ten p.m. to eight a.m., with an exception for medical emergencies for you.

This conditional sentence will be followed by a period of 12 months probation, with the following terms of probation:

You are to report to your supervisor within three working days after completion of your conditional sentence, and thereafter as required.

You are to attend for any assessment and counseling as directed by your supervisor for anger management, and to sign releases or consents to permit your supervisor to monitor your attendance.

You are to have no direct or indirect contact with Vicki Moscoe.

You are not to be within 100 metres of any place of residence, employment, worship, or locations regularly attended, or places where Vicki Moscoe would happen to be.

You are not to possess any weapons as defined by the Criminal Code.

You are not to possess any knives outside of your residence, and there is no exception to that term.

Do you understand your terms of probation?

OMAR ELKHODARY: Yes.

THE COURT: Do you understand the terms of your conditional sentence?

OMAR ELKHODARY: Yes.

THE COURT: Are you able to comply with the terms?

OMAR ELKHODARY: Yes.

THE COURT: It’s very important that you do. If you break any of the terms of your conditional sentence, you could be charged with breach of your conditional sentence. If that happens, you can be brought back before the court and generally speaking, you would be brought back before me, because I am the judge that imposed this conditional sentence. One of the consequences that might happen if you’re found guilty of the breaching the conditional sentence is that you may be required to serve the balance of that conditional sentence in jail as straight jail time. So it is very serious if you break your conditional sentence.

If you break any terms of probation, you could be charged with that. That is a criminal offence called fail to comply with probation. You could be charged with breaching that probation order and brought back before the court. And if you are found guilty of breaking that probation order, a sentence can be imposed which can also include jail, so it is very important you comply with all the terms of your probation order.

There will also be ancillary orders imposed. Firstly, there will be a section 110 weapons prohibition order for a period of five years.

Next there will be a DNA order for the secondary designated offence of assault. So the court officer will take you for you to provide the sample for the DNA.

And the victim fine surcharge will be imposed, but the court will give you one year within which to make payment of the victim fine surcharge.

Is there any question, any clarification counsel want?

G. DORSZ: In my experience lately, although it changes all the time, the DNA order would actually have a date for him to attend and provide that, given that he’s not in custody.

THE COURT: It would be right after.

G. DORSZ: Okay, that’s fine.

THE COURT: So typically, Mr. Dorsz, I don’t know if we are going to say 12 o’clock or one o’clock, but he would be taken to do that right away, and then if you are able to wait or if you are able just to direct him to go to the probation office...

G. DORSZ: Yes.

THE COURT: ...right after that. Because he has to go with the court officer to do the DNA...

G. DORSZ: Absolutely.

THE COURT: ...but then he’s free to go to the probation after that to report for the conditional sentence.

G. DORSZ: I’ll make sure to guide him appropriately.

THE COURT: Okay. All right, any other questions from counsel?

G. DORSZ: No thank you.

THE COURT: From the clerks?

CLERK OF THE COURT: Yes, for the CSO, it’s report today?

THE COURT: Yes.

CLERK OF THE COURT: Thank you.

THE COURT: All right, I thank counsel very much for their work and their assistance in this regard. As I have indicated, I have sent the transcript of the reasons. I didn’t have time, even now, because I didn’t even make it back to my office, I was working right through the recess, to give a hard copy of the reasons, but counsel can print them should they wish to have them.

G. DORSZ: Absolutely, Your Honour. And I did receive the email with the reasons.

THE COURT: All right, thank you. As I said, I will be ordering the balance of my reasons from today and then most likely I think what we are going to do is upload both of them collectively as the reasons for sentence.

G. DORSZ: Great. Thank you, Your Honour.

THE COURT: All right, thank you.

R. v. Elkhodary, 2025 ONCJ 587

Case Summary

APPEARANCES:

Wednesday, September 3, 2025

Background

The Facts

B. Circumstances of the offender:

C. Impact on victim and/or community:

LEGAL PARAMETERS

POSITIONS OF CROWN AND DEFENCE ON SENTENCE:

MITIGATING AND AGGRAVATING FACTORS:

Mitigating

Aggravating:

SENTENCING PRINCIPLES:

Analysis:

Nature of the offence:

Judicial restraint:

Conditional Sentence:

Wednesday, November 5, 2025

R. v. Elkhodary, 2025 ONCJ 587

Case Summary

APPEARANCES:

Wednesday, September 3, 2025

Background

The Facts

B. Circumstances of the offender:

C. Impact on victim and/or community:

LEGAL PARAMETERS

POSITIONS OF CROWN AND DEFENCE ON SENTENCE:

MITIGATING AND AGGRAVATING FACTORS:

Mitigating

Aggravating:

SENTENCING PRINCIPLES:

Analysis:

Nature of the offence:

Judicial restraint:

Conditional Sentence:

Wednesday, November 5, 2025