WARNING

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

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(3) 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(3), read as follows:

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written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

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

Court Information

Court File No.: Kitchener 4943/11

Date: 2012-10-16

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Farid Mehanmal

Before: Justice G. F. Hearn

Heard on: February 7, 2012 and April 3, 2012

Reasons for Sentence released on: October 16, 2012

Counsel:

• Ms. A. Etheridge and Ms. M. Sopinka for the Crown
• Mr. D. Lang for the accused Farid Mehanmal

HEARN J.:

BACKGROUND

[1] Mr. Mehanmal came before the court on February 7, 2012 and at that time entered a plea of guilty to one count of sexual assault with the victim being T.G., the offence having taken place sometime between January 1, 1986 and December 31, 1986. The accused also entered a plea of not guilty to a further count of sexual assault alleging that during the same time period he committed a sexual assault on N.K. Facts were read in on consent and were agreed to be substantially correct with respect to the first count. With respect to the count to which Mr. Mehanmal had pled not guilty he offered no evidence and took no issue with the facts read in by the Crown, simply indicating that he had no recollection of same.

[2] After hearing the facts and submissions, findings of guilt and convictions were registered on both counts. The matter was then adjourned to April 3, 2012 and a pre-sentence report was ordered. The sentencing was then adjourned on further dates to allow for the preparation of an electronic technological report and also in order for the court to receive written submissions from both the Crown and the defence with respect to the issue of whether or not a conditional sentence is available for consideration in this matter. Those submissions have now been received and the matter has ultimately been adjourned to today's date for sentencing.

CIRCUMSTANCES OF THE OFFENCES

[3] T.G. was born in 1979 and N.K. was born in 1978. They are sisters and during the relevant timeframe they lived with their mother in Kitchener. The accused was born in 1957 and was 29 years of age at the time of the offences before the court.

[4] Mr. Mehanmal immigrated to Canada from Afghanistan in 1984 and took up residence in Waterloo. His sister was friends with the G. family and on occasion the victims' family would visit with the accused's sister at her residence in Waterloo.

[5] During the timeframe set out in the information on one of such visits both the victims were present as was Mr. Mehanmal. The adults were socializing in the upstairs of the residence while the children played in the basement. On this occasion both of the victims were wearing dresses.

[6] The accused went downstairs to play with the children and gave the victim T.G. during the course of that time a piggyback ride. He carried her around on his back for over 15 minutes and while carrying her he groped and caressed her buttocks and rubbed his fingers on her genital area. It was agreed as part of the facts that this rubbing took place over the underwear of the victim. The young victim told the accused to stop and he told her, "It's okay, don't worry".

[7] While this was taking place it had been observed by N., the second victim, and the accused then gave N. a piggyback ride. During the course of that he also caressed her buttocks and rubbed her genital areas, this time allegedly sliding his fingers underneath her underwear and fondling her vagina. Although the accused took issue with respect to the touching under the clothing with regard to the sister, he has no recollection of the event involving N. and takes no issue with the facts that she states.

[8] Those are the facts that form the subject matter of the charges before the court. Further, as aggravating factors it was acknowledged that sometime between January 1, 1986 and December 31, 1987 while T.G. was visiting the accused's sister's residence the accused, who was present, approached T. and said to her that he wished to give her a kiss. She declined. He then grabbed her and forcibly kissed her on the mouth using his tongue for ten to 15 seconds. There were other incidents described by T.G. including that during a further visit by her mother to the accused's apartment the accused picked up T.G., took her to his room and placed her on his bed. No further touching took place on that occasion.

[9] In addition, during the summer of 1987 or 1988 the two victims resided with their mother at an apartment which had a swimming pool available to residents. The accused offered to give both of the children swimming lessons and after they were in the pool T.G. would take a shower in her apartment. She recalls the accused insisting on entering the bathroom to use the toilet while she was in the shower on several occasions. Again, nothing else occurred.

[10] Also during that period of time while swimming with the victim N. the accused fondled her breasts with his hands. She told him to stop. She felt angry, frustrated and scared. Mr. Mehanmal told her not to tell anyone and if she did no one would believe her. She apparently did tell her mother within a month of that particular event occurring, however, her mother did not confront Mr. Mehanmal. The other sister T. also told the mother in 1989 of the incidents that had previously taken place involving herself.

[11] The mother then met with Mr. Mehanmal and confronted him about her daughters' accusations. He offered no real denial and remained relatively quiet. Nothing further was done, although both T. and N. sought counselling as a result of the conduct of Mr. Mehanmal.

[12] In June of 2010 the victim T. saw the accused working at a Tim Horton's in Kitchener and this particular encounter prompted the victim to come forward to the police. She provided a statement to the police on July 20, 2010 and thereafter statements were also provided by her sister N. and her mother.

[13] Upon request the accused surrendered himself into custody on September 10, 2011 and during a recorded interview admitted touching T.G. in a sexually inappropriate way while giving her a piggyback. He advised he did not recall specifically touching her sister N. but admitted that it could have occurred and he simply did not recall it happening. At that time Mr. Mehanmal wrote a letter of apology to both girls.

VICTIM IMPACT STATEMENTS

[14] Both victims provided victim impact statements and they have been marked as Exhibits #1 and #2 on the sentencing. T.G. is now 32 years of age and N.K. is 33. Both victims speak of the significant impact Mr. Mehanmal's conduct has had on them during the past two decades.

[15] T.G. speaks of "the great emotional trauma" and the fact that the abuse has contributed to "high levels of anxiety which have been debilitating at times". She speaks of the emotional difficulties that she has experienced including not only anxiety but depression and describes herself as emotionally exhausted and traumatized by the events involving Mr. Mehanmal. She worries that she will never recover "from the trauma" and is continuing to seek therapy to assist her in dealing with the issues.

[16] The victim N.K. speaks similarly of the impact of the accused's actions on herself. She describes herself as being emotionally exhausted and hypersensitive to things and the trauma that she has internalized for a number of years now has, according to the victim, limited her job opportunities, created financial limitations and "hindered her from going after the life she always wanted for herself".

CIRCUMSTANCES OF THE OFFENDER

[17] There is a pre-sentence report before the court which can be reasonably described as a positive pre-sentence report. Mr. Mehanmal has no prior criminal record and the events before the court occurred when he was 29 years of age.

[18] He is currently 54 years of age. He is one of ten children born to his parents in Afghanistan. In the report Mr. Mehanmal describes the traumatic circumstances under which he grew up in Afghanistan, both immediately before and following the invasion of that country by the Soviet Union.

[19] Notwithstanding the troubled nature of his childhood, he was able to obtain a good education and resided in India for a short period of time before coming to Canada when he was 26 years of age. Mr. Mehanmal maintains close contact with his siblings notwithstanding being geographically distant but he is closest with his sister who lives in a nearby city. The accused advises that when he told his sister of the circumstances before the court she was shocked and cried.

[20] Mr. Mehanmal addressed the court. I am fully satisfied following his comments that he is ashamed and remorseful for his conduct and I am satisfied that that remorse is genuine and sincere.

[21] Mr. Mehanmal is married and has been for 21 years which marriage post-dates the events before the court. He has two children, ages 19 and 16, one of whom is in university. On a prior occasion he advised the court that he has not told his children about the events before the court as he did not wish to upset them and disrupt their school years. Mr. Mehanmal, as noted, has a good education. He has obtained an engineering degree and although he was able to obtain employment in his field for a short time after coming to Canada, he has worked for the past number of years at a Tim Horton's location where his employer describes him as a "great employee" and one who is loyal and trustworthy. There are absolutely no concerns with respect to his employment. Both Mr. Mehanmal and his wife work full time at minimum wage jobs, reside in Ontario Housing and are able to meet their financial obligations together. Their immediate family is described as "very close and happy".

[22] There are no alcohol or substance abuse issues, although the accused candidly acknowledged to the probation officer that at the time of the commission of the offences before the court it appears alcohol may have been a factor. Currently and for the past many years neither alcohol nor drugs has been a difficulty for the accused.

[23] Mr. Mehanmal was quite forthright in his comments to the court. He was equally forthcoming with the probation officer who prepared the report. The probation officer describes Mr. Mehanmal as being very upset, embarrassed and as feeling much shame. He expresses not only sorrow for himself but more importantly for his family and the victims and their families. He is concerned about his own family's stability if he is incarcerated. His wife describes him as having been "very down" since the charges came before the court.

[24] He is described by his wife as a family man and a good father who has a good and loving relationship with his own children.

POSITION OF THE PARTIES

[25] When the matter first came before the court for sentencing the Crown took the position that notwithstanding the good character of Mr. Mehanmal and the dated nature of the charges before the court, a period of custody was required and that period of custody should be in a traditional setting. The Crown suggested that a reasonable range of sentencing would indicate that a period of custody of nine to twelve months to be followed by a probationary period was appropriate.

[26] Counsel for the accused initially submitted that this was one of those situations where a suspended sentence and probation would appropriately address all principles of sentencing. In the alternative, counsel submitted that a period of custody, if required, could be reasonably served intermittently and such a period of less than 90 days in custody would be appropriate followed by a period of probation.

[27] When the matter came back before the court for further submissions on sentencing after the preparation of a pre-sentence report the court requested submissions with respect to whether or not it was open to the court to consider the availability of a conditional sentence in this particular matter.

[28] Both counsel have provided written submissions in that regard and various case law which is helpful in the analysis required.

[29] Basically, the Crown takes the position that a conditional sentence would not have been an available disposition at the time of the commission of the offences and although between the time of the commission of the offences and the sentencing a conditional sentence would have been available to Mr. Mehanmal, at the actual time of sentencing the availability of a conditional sentence was no longer in place. The Crown submits that a proper determination of the wording in s. 11(i) of the Charter requires only a comparison of the two sentencing regimes. (1) the regime in place at the time of the commission of the alleged offences, and (2) the regime in place at the time of sentencing. As a conditional sentence was not available at either of those specific periods of time one cannot be imposed and s. 11(i) of the Charter is not breached.

[30] Defence counsel takes the position that a proper interpretation of s. 11(i) of the Charter results in a conditional sentence being available for the court to consider and now takes the position that such a sentence is an appropriate disposition.

PRINCIPLES TO BE APPLIED

[31] Before dealing with the issue of the availability of a conditional sentence it is appropriate to consider the principles to be applied in the sentencing of an individual such as Mr. Mehanmal facing the charges for which he has been found guilty. In considering the sentence to be imposed the court keeps in mind that sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. Each case is conducted as an individual exercise. (See Regina v. Wright, Regina v. D.(D.), both decisions of the Ontario Court of Appeal.)

[32] In Regina v. Hamilton, a decision of the Ontario Court of Appeal Mr. Justice Doherty noted at paragraph 87 as follows:

"Sentencing is a very human process. Most attempts to describe the proper judicial approach to sentencing are as close to the actual process as a paint by numbers landscape is to the real thing. The fixing of a fit sentence is the product of the combined effects of the circumstances of the specific offence and unique attributes of the specific offender."

[33] The principles of sentencing set out in the Code are set out in s. 718 to s. 718.2. Section 718 reads as follows:

"718. The fundamental purpose of sentencing is 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 following objectives:

(a) to denounce unlawful conduct;

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

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

(d) to assist in rehabilitating offenders;

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

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

[34] Section 718.1 states a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[35] The issue of proportionality is a principle rooted in notions of fairness and justice. The sentence must reflect the seriousness of the offence and the degree of culpability of the offender and the harm occasioned by the offence. The court must consider both aggravating and mitigating factors, look at the gravity of the offence and the blameworthiness of Mr. Mehanmal and the sentence ultimately imposed must properly reflect in terms of gravity that which the offence generally bears to other offences.

[36] Section 718.2 sets out:

"718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender and without limiting the generality of the foregoing,

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

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders."

[37] Also of note, when dealing with offences against children s. 718.01 states:

"When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct."

[38] In dealing with the issue of sentencing of Mr. Mehanmal, the primary factors then to be considered are issues of general deterrence and denunciation. Still, the court must recognize other principles of sentencing and also consider the personal circumstances of Mr. Mehanmal at this time.

[39] In dealing with the issue of denunciation, the objective of denunciation mandates that a sentence must communicate society's condemnation of the offender's conduct.

[40] As noted by Chief Justice Lamer in Regina v. M.(C.A.), at page 369:

"In short a sentence with a denunciatory element represents a symbolic collective statement that the offender's conduct should be punished for encroaching on our Society's basic code of values as enshrined within our substantive criminal law. As Lord Chief Justice Laughton stated in Regina v. Sargeant (1974) 60 Cr. App. R. 74 at page 77:

'Society through the courts must show its abhorrence of particular types of crimes and the only way in which the courts can show this is by the sentences they pass.'"

[41] Further:

"The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instils the basic set of communal values shared by all Canadians as expressed by the Criminal Code."

[42] The court has reviewed the authorities provided by counsel and other cases and all authorities clearly indicate that sexual abuse of children is to be treated seriously by the courts and denounced. Even where there is an absence of physical violence during the course of the commission of a sexual assault upon a child there still remains the psychological damage done to child victims of sexual abuse which can be profound and devastating. The courts must deal with perpetrators of sexual assault involving children in a way that properly reflects society's desire to protect children. See Regina v. Stuckless.

[43] Mr. Mehanmal presents as a first-time offender so the court also notes the principle of restraint set out in s. 718(2) (e) of the Criminal Code which states that imprisonment is a sanction of last resort and when imposed should be no longer than is minimally necessary to achieve the sentencing objectives set out in the Code. Effectively, the court must consider if incarceration is required that such a term be as short as possible and tailored to the individual circumstances of the accused. Further, the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length of sentence. (See Regina v. Batisse, 2009 ONCA 114 and Regina v. Priest.)

[44] The sentences imposed on individuals such as Mr. Mehanmal who come before the court on charges of sexual assault involving children that are historical in nature range widely. The range of sentences imposed in such cases runs from suspended sentences to periods of imprisonment to be served in the community to significant terms in the penitentiary. What is clear from the case law as well as the principles of sentencing set out in the Criminal Code is that the paramount considerations in cases dealing with sexual assaults on children are general deterrence and denunciation. However, again, the sentences imposed in the various cases ultimately are the result of the specific facts of the offences, the circumstances of the offender before the court and the proper application of all of the principles of sentencing.

AGGRAVATING FACTORS

[45] The aggravating factors in this matter are as follows:

(1) The accused has been found guilty of two sexual assaults occurring some time between January 1, 1986 and December 31, 1986. The victims of both sexual assaults were sisters who were seven and eight years of age at the time of the offences.

(2) Although the sexual assaults were not extremely intrusive, they involved the rubbing of the genital area of the one victim over her clothing and the rubbing of the same area on the other victim underneath her underwear. In addition, with respect to the one victim there was a forcible kiss on her mouth on another occasion and inappropriate conduct, although not sexual in nature, exhibited by the accused in 1987 and 1988. There was a further incident of sexual assault of the victim N. by the rubbing of her breasts while in a swimming pool during that period of time and an indication at that point by the accused to the victim that she should not tell anyone as no one would believe her. It is unclear how such conduct discontinued, although it appears the mother confronted Mr. Mehanmal with the allegations in 1989 and there has been no evidence of any misbehaviour since. It is noted that there is no evidence of physical violence or threats with respect to the charges before the court.

(3) The accused, although not technically in a position of trust or authority, was a friend of the family of the two victims who, as noted, were sisters and who took advantage of the friendship that he had both with the parents or parent of the children as well as the children themselves to place himself in a position where he was able to perpetrate the assaults.

(4) Both victims have been impacted by the conduct of the accused and that impact appears to have been significant. The victims are now 32 and 33 years of age and speak eloquently as to the emotional impact and trauma caused by the events which form the subject matter of the charges. The conduct of the accused appears to have significantly altered the course of the lives of both victims in many ways.

MITIGATING FACTORS

[46] The mitigating factors in this matter are as follows:

(1) Mr. Mehanmal has no criminal record and comes before the court as a first-time offender.

(2) Mr. Mehanmal has pled guilty to the one charge of assault and although pleading not guilty to the additional charge involving the victim N.K., did not dispute the allegations and has been found guilty of that count effectively on consent. By not requiring a trial and/or a preliminary hearing in this matter the accused has saved victimizing the victims any further. It is clear from the victim impact statements that such a trial and/or preliminary inquiry undoubtedly would have been a stressful experience for them, particularly when one considers the dated nature of the charges, their ages at the time and the impact these events have had on them already.

(3) Mr. Mehanmal's pleas are an indication of his remorse but I am fully satisfied that he is otherwise noted to be remorseful. He has indicated that in his comments to the court as well as to the probation officer preparing the pre-sentence report. He is ashamed, regrets very much his actions and not only has empathy for the victims but also for his own family who have been impacted by his conduct. I am satisfied that his remorse is both genuine and sincere.

(4) The matters before the court took place over 25 years ago. Since that time Mr. Mehanmal has been a productive member of the community for many years without difficulty or issue. He is married and has two older children, both of whom are pursuing higher levels of education. He is an educated man who has been unable to obtain employment in his own field but has not simply sat back. He has taken on a job with minimum pay, has held that job for some period of time now and is thought of highly by his employer.

(5) The pre-sentence report before the court is a positive report and speaks of the background of Mr. Mehanmal as well as his current situation. He has been described as a family man and a good father who prides himself as being an honest individual. He has suffered upset and depression as a result of the matters before the court and is very concerned about the effect incarceration will have on his family as both he and his wife provide the sole support for the family on minimal income.

AVAILABILITY OF A CONDITIONAL SENTENCE

[47] In dealing with the sentences open to the court for consideration the issue of whether or not a conditional sentence is available for consideration here has arisen. The issue arises as a result of the dated nature of the charges and the current state of the provisions of the Criminal Code dealing with the applicability of conditional sentences in matters such as that before the court. Relevant to the consideration of this particular issue is s. 11(i) of the Canadian Charter of Rights and Freedoms which states as follows:

"11. Any person charged with an offence has the right

(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment."

[48] The term "punishment" as set forth in s. 11(i) refers to the punishment fixed by Parliament rather than any range of sentencing that may emerge in court decisions within the controlling statutory provisions. (See Regina v. D. (R.).)

[49] The issue here arises as a result of the history of the availability of conditional sentences from the time of the commission of the offences to the time of the sentencing. The sexual assaults have been acknowledged to have taken place during 1986. At that time conditional sentences were not available under the provisions of the Criminal Code and did not become available until amendments to the Criminal Code took place on September 6, 1996. The availability of a conditional sentence for matters such as that before the court continued until 2007 when s. 742.1 of the Code was amended to exclude in certain circumstances the availability of a conditional sentence where the offence is a "serious personal injury offence" as defined in s. 752 of the Criminal Code.

[50] Simply put, the issue of the availability of a conditional sentence arises as a result of:

(a) at the time of the offences such a regime was not in place;

(b) between 1996 and 2007 there was a window of opportunity where such a sentence would have been available for consideration; and,

(c) at the time of this sentencing by virtue of the amendments to the Code in 2007 and the Crown proceeding on both assaults by indictment a conditional sentence is no longer available by virtue of s. 752 of the Criminal Code.

[51] The issue then is whether or not the accused is entitled to the "lesser punishment" that was available for a period of time following the commission of the offences and prior to sentencing.

[52] In analyzing this particular issue, in addition to the provision of s. 11(i) of the Charter the court also considers the following provisions of the Criminal Code:

"742.1 If a person is convicted of an offence, other than a serious personal injury offence as defined in section 752, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and is satisfied that 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, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's compliance with the conditions imposed under section 742.3."

"752. In this Part,

"serious personal injury offence" means

(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving

(i) the use or attempted use of violence against another person, or

(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person,

and for which the offender may be sentenced to imprisonment for ten years or more, or

(b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault)."

[53] The Crown here argues that the two periods of time and the two "sentencing regimes" to be considered are those in place at the time of the offence and then at the time of sentencing. The Crown argues it makes no difference if a "lesser punishment" was available between those two relevant dates and if a conditional sentence was not available either at the time of the commission of the offences or at the time of sentencing one cannot be imposed.

[54] Both counsel have provided case law in support of their position and the court has reviewed additional cases. Crown counsel indicates that notwithstanding the Crown's position in cases such as Regina v. Boudreau, 2012 ONCJ 322, which this court dealt with, there does not seem to be a consistent policy within the Crown's office as to the availability of conditional sentences in circumstances precisely such as that before the court.

[55] A short review of the case law provided as well as other cases which deal with the issue, although on occasion not directly, is appropriate.

Regina v. F. (E.R.), 2009 CarswellOnt 1299

[56] This case involved counts of sexual assault and touching for a sexual purpose relating to events in 1989 which did not proceed to trial and sentencing until 2009. Findings of guilt on counts of sexual assault were conditionally stayed. The Crown in that case had requested a stay of the sexual assault counts and convictions only on the sexual touching counts so technically the issue of the availability of a conditional sentence was not in play as the offence of sexual touching did not fall within s. 752 of the Code. However, the court did address the issue of s. 11 (i) and the other counts and noted as follows in para. 32:

"Between 1996 and 2007, persons convicted of the offence of sexual assault could seek a conditional sentence as opposed to a sentence of incarceration. That option was removed by the 2007 amendment. Thus, for a period of eleven years, offenders charged with sexual assault had the benefit of a non-custodial sentence, which I would regard as a lesser punishment. Accordingly, even if convictions had been entered on to the sexual assault counts, I would hold (and the parties agree) that, pursuant to s. 11(i) of the Charter, a conditional sentence would still be available."

[57] The issue then did not have to be determined specifically in this particular case given the position of the Crown but, clearly, by way of obiter the sentencing judge in this Superior Court decision stated he would have found that the availability of a conditional sentence to be in place even if convictions had been registered on the sexual assault counts.

Regina v. Boudreau, 2012 ONCJ 322

[58] This particular sentencing was a sentence imposed by this court on an individual who had been charged with sexual assaults arising out of events that took place in 1983 and 1984. The pleas were entered on January 25, 2012 and the sentencing completed May 28, 2012.

[59] There, both the Crown and the defence agreed that a conditional sentence was a form of disposition available to the court for consideration. That is, the Crown effectively conceded that such a sentence was open for the court to consider, although ultimately a conditional sentence was not imposed.

Regina v. James, 2012 M.J. No. 89

[60] This is another recent case of some notoriety where James, a hockey coach, had pled guilty to sexual assaults occurring in timeframes between 1983 and 1985 and 1989 and 1994. Although the accused was sentenced to a period of traditional imprisonment, the issue of and the availability of a conditional sentence was considered. The judge in that particular case simply decided that a conditional sentence was not appropriate but it was never argued by the Crown whether in fact it was not available and the Crown seems to have proceeded on the basis that such sentence was an available sentence for the court to consider.

Regina v. Desender, 2011 M.B.Q.B. 235

[61] This decision of the Manitoba Court of Queen's Bench dated September 28, 2011 involved the sentencing of an individual who had been convicted of sexual assaults alleged to have taken place between 1990 and 1993 and 1990 and October 6, 1998. There, the Crown had asked for a period of incarceration in the penitentiary whereas the defence submitted a conditional sentence was appropriate. The court there did consider the fact that there were two victims in that matter, one victim involved in the first period of time between 1990 and 1993 when the conditional sentence regime was not in place, and one involving a victim for the offences between September of 1990 and October of 1998 when a conditional sentence was available for much of the time the abuse had been directed towards the second victim. With respect to the timeframe 1990 to 1993, the Crown argued that a conditional sentence would not be available predicated on the fact that the conditional sentence regime was not yet enacted during the currency of the offending behaviour against that particular victim.

[62] The court invited the parties to provide case law on the issue (see paras. 38 and 40) and ultimately the court there held and was satisfied that a conditional sentence was available with respect to the first victim given the operation of s. 11(i) of the Charter "as well as the precedent case law". However, the court ultimately did not impose a conditional sentence.

Regina v. Yusuf, 2011 BCSC 626

[63] This is a decision of the British Columbia Supreme Court rendered on April 1, 2011. This involved the sentencing of an accused who was convicted of sexual assault causing bodily harm as a result of an event which took place in June of 1993. The court considered the availability of a conditional sentence and held that such a sentence was available for consideration. In fact, in that particular case a conditional sentence was ordered.

[64] The court considered that a conditional sentence was not available at the time of the commission of the offence as the legislation had not even been enacted and it was not available at the time of sentencing otherwise as a result of the exclusion for a serious personal injury offence following the amendment to s. 742.1 of the Criminal Code on December 1, 2007.

[65] The court noted those matters and concluded that there was no doubt that the accused if he had committed the offence after December 1, 2007 would not have had a conditional sentence available to him. The court, however, was mindful of the Charter protection set out in s. 11(i) and found that the authorities were clear that a conditional sentencing regime was considered to be "a lesser punishment" than a custodial sentence for the purposes of applying s. 11(i). (See Regina v. B.(B.S.), 2008 BCSC 1526, affirmed by the British Columbia Court of Appeal 2010 BCCA 40 and Regina v. R.(R.A.), 2000 SCC 8, Supreme Court of Canada.)

[66] The court held that the offence was committed in 1993 and that the Charter rights were to be interpreted liberally and in favour of an accused. The court found there that the punishment had been varied from the time of the commission of the offence to the time of sentencing and that there once was available the "lesser punishment of a conditional sentence". The court found then that a conditional sentence was available for the accused if otherwise found to be appropriate. As noted, the court in fact did impose a conditional sentence.

Regina v. Dubois, (unreported December 8, 1982 Quebec S.C.)

[67] This is a case that considered the provisions of s. 11 (i) where the issue for consideration was the appropriate period of parole ineligibility in a first degree murder case. There, between the time of the offence and the time of sentencing the law changed from imposing a death penalty to no minimum period of parole ineligibility to a minimum parole ineligibility of 25 years. The court compared the law in force at the time of the offence and at the time of sentencing even though there was a more advantageous amendment to the sentencing provisions (no minimum period of parole ineligibility) at some point between the two dates. The court there rejected the position of counsel that s. 11 (i) gave the accused the benefit of any change in the law between the offence and the sentencing date even if the lesser punishment was no longer available at the time the accused was sentenced.

[68] This particular case concludes that the only relevant sentencing provisions are those in force at the time of the offence and those in force at the time of sentencing. This conclusion was reached based on two points. (1) The first point being that the use of the word "lesser" in s. 11 (i) grammatically implies a choice between two rather than a choice among more than two. (2) The second point was that the change in the definition of first degree murder meant that for two years from 1974 to 1976 there would have been no penalty for the murder as committed by the accused if the defence submissions were correct. This particular point seems to be a red herring as it refers to a change in offence definition rather than a change in sentence. The initial point, however, has some persuasive value, i.e. the reference to only two periods of time, that being the date of the commission of the offence and the date of sentence. Otherwise, the court found there that "any other interpretation could verge upon the ridiculous".

Regina v. Olah

[69] This, again, was a decision involving a sentence imposed on a charge of first degree murder and the issue of parole eligibility. In that case one of the accused was 17 years of age when he committed the offence. Following his actual sentencing and prior to appeal there had been amendments to provide for the reduction of parole ineligibility period for persons convicted of first degree murder who were under 18 years of age at the time of the offence. The issue to be determined then was whether that particular accused was entitled to the benefit of a lesser punishment as a result of the amendment.

[70] The Crown submits that this case supports the interpretation of s. 11(i) as referring to the law in existence at the time of the offence and the law in existence at the time of sentencing. Although the case appears to present as a situation similar to that in Dubois, supra, and the court could have addressed the issue, one is unable to tell from reading the judgment whether that particular issue was in fact argued.

Regina v. Palacios, 2012 ONCJ 195

[71] Here, the accused was found guilty of several counts of gross indecency with respect to offences taking place between 1980 and 1985. The sentencing was heard and decided on April 4, 2012. There, the court ultimately granted a conditional sentence but it does not appear that the issue of the availability of such a sentence was ever addressed. The Crown suggests this case involved counts which would not have been caught by the definition of serious personal injury offence in any event. However, it is of note that although perhaps no analysis of the issue was required, the Crown had conceded in that particular case the availability of a conditional sentence.

Regina v. Thompson, 2010 CarswellOnt 6798

[72] This case dealt with the sentencing of an accused who had been found guilty of two counts of sexual assault and one count of invitation to sexual touching. The issue in that particular case did not deal with the issue that is before the court. This case has been provided by defence counsel but the court agrees with the Crown that this particular case dealt with the issue of whether or not a conditional sentence was precluded on a charge of sexual assault where the Crown proceeded summarily. It effectively involved an interpretation of s. 742.1 and is of little assistance here.

Regina v. E. H., 2009 NLTD 62

[73] In this case, which was decided on April 23, 2009 the court considered the sentencing of an individual convicted of two counts of indecent assault which had occurred in 1978. There, the court was dealing with counts of indecent assault, not counts of sexual assault, and concluded that a conditional sentence was available although one was not actually imposed. Although not specifically decided, the Crown here asks the court to consider the implication of this particular decision in that if the offences before the court met the definition of serious personal injury offences then the court would have found that a conditional sentence was precluded by virtue of the statutory pre-conditions in existence at the time of sentencing even though a conditional sentence would have been available prior to December of 2007.

Analysis and Conclusion on Conditional Sentence Availability

[74] After considering the various case law and the issue fully I am satisfied that by virtue of the operation of s. 11(i) of the Charter a conditional sentence is a disposition available for consideration in this matter.

[75] Section 11(i) in my view is to be interpreted liberally and speaks to not only the periods of time at the commission of the offence and at the time of sentencing, but also speaks to the period in between. The section itself talks of the variation of punishment "between" those two timeframes.

[76] "Lesser punishment" would include a consideration of a conditional sentence. The interpretation I would give to s. 11(i) of the Charter is that an accused is entitled to the benefit of effectively the "lesser punishment" since the time of the commission of the offence. To give effect to the Crown's argument that the "lesser punishment" only relates to two timeframes is to read down the protection afforded by the Charter. The Crown argues that the use of the word "lesser" grammatically implies a choice between two rather than a choice among more than two.

[77] However, I adopt the reasoning of the court in Regina v. Desender, Regina v. Yusuf, Regina v. F.(E.R.), supra, and also consider the statutory provisions of the Interpretation Act which requires that in dealing with statutory interpretation the singular includes the plural. Section 33(2) of the Interpretation Act states that words in the singular include the plural and words in the plural include the singular. This would effectively mean that "lesser punishment" also means "lesser punishments". I am also of the view that this particular interpretation had the persuasive support of the Crown's Office in Regina v. Boudreau and Regina v. F.(E.R.), supra.

[78] Having determined that a conditional sentence is a disposition that is available to the court, the next consideration is whether or not such a disposition is appropriate. In that regard, I consider s. 742.1 of the Criminal Code which sets out the prerequisites for the imposition of a conditional sentence. I am satisfied that there is no minimum period of imprisonment here, that the appropriate sentence is something less than two years and I am also satisfied that given the significant period of time that has passed since the events and the intervening history of Mr. Mehanmal that the service of such a sentence in the community would not endanger the safety of the community. Still, ultimately such a sentence must be consistent with the fundamental principles of sentencing set out in the Code in s. 718 to s. 718.2.

[79] I am mindful that the Ontario Court of Appeal has indicated in a number of cases involving sexual assaults that a conditional sentence should only be imposed in rare cases, particularly where the sexual violation is of a vulnerable victim by a person in a position of trust. As noted previously, in this particular case although Mr. Mehanmal was not in a position of trust or authority, he was in fact a friend of the family and it was that friendship which gave him the opportunity to perpetrate the crimes that he did.

[80] Dealing generally with the issue of conditional sentences, the leading case in that regard of course is Regina v. Proulx, 2000 SCC 5. That case and the case law that has evolved since then clearly indicates that the conditional sentence regime was enacted to both reduce reliance on incarceration as a sanction and to increase the use of principles of restorative justice in sentencing. A conditional sentence is meant to include both punitive and rehabilitative aspects and when appropriately imposed can address issues of both general deterrence and denunciation. Indeed, Proulx itself speaks to the fact that even where there are present aggravating factors which might indicate the need for denunciation and deterrence a conditional sentence can still provide sufficient denunciation and deterrence even where restorative objectives are of diminished importance. Still, the case law also demonstrates that there are circumstances where the principles of general deterrence and denunciation can only be adequately addressed by a period of imprisonment in a traditional setting.

SENTENCE TO BE IMPOSED

[81] The sentencing of Mr. Mehanmal is a troublesome matter. The charges before the court are serious and the impact his conduct has had on the two victims appears to be evident many years after the events.

[82] I have noted the aggravating features with respect to the offences and have considered the mitigating circumstances. I have also considered the fact that Mr. Mehanmal has been in the community without issue or any indication of inappropriate behaviour for almost 25 years since the commission of the offences. I also keep in mind that at the time of the offences Mr. Mehanmal was 29 years of age and had arrived as an immigrant from Afghanistan a short time before the events took place. He is now settled, has grown children and has been in a long-term relationship for many years.

[83] In considering the appropriate sentence not only have I considered the aggravating and mitigating circumstances of the offences but also I have considered the principles of sentencing to be applied. I have further considered the impact on the victims and that a period of incarceration would likely have on Mr. Mehanmal's family given that both he and his wife work at minimally paying jobs and provide the sole support for their children.

[84] Ultimately, I find that the objectives of general deterrence and denunciation in this matter can be best met by a conditional sentence. The principles of sentencing can be appropriately addressed by such a sentence, monitored by electronic supervision for a period of time, and such sentence would allow Mr. Mehanmal to continue his employment and remain within the community. His remorse and the history since these events clearly indicate to me that he is very unlikely to reoffend.

[85] In considering the imposition of a conditional sentence I note the comments of the court in Regina v. Taromi, 2010 ONCJ 304, where the court was dealing with an individual found guilty of trafficking in heroin and granted a conditional sentence notwithstanding the Crown's submission that a penitentiary term was appropriate. During that particular sentencing the court noted at para. 69 as follows:

"Justice must be tempered with recognition of the positive aspects of offenders' lives; the efforts that they make to rectify their wayward ship. This is the carrot that the court can offer a person like Ms. Taromi if she is given a conditional sentence. The stick is the sanction of incarceration for the remainder of her sentence. Skilful sentencing requires the employment of skilful means in order to achieve justice and the protection of the public. Adherence to sentencing principles without analyzing the person before the court and their particular case, and without analyzing how the public can be protected in their particular case, does an injustice to the offender, to the public and to the justice system."

[86] I am satisfied then that a conditional sentence of 12 months to be followed by a period of probation for one year is the appropriate disposition in this matter. The sentence will reflect a 12-month conditional sentence imposed on the first count of sexual assault together with a concurrent 12-month conditional sentence on the second count. A period of probation will be imposed on the first count and there will be a concurrent one-year period on the second. The terms of the conditional sentence order will be as follows:

1. Keep the peace and be of good behaviour.

2. Appear before the court when required to do so by the court.

3. Report within two working days of today's date, or today if possible, in person to a supervisor and thereafter report when required by the supervisor and in the manner directed by the supervisor.

4. Remain within the Province of Ontario unless written permission to go outside the province is obtained from the court or the supervisor.

5. Notify the supervisor in advance of any change of name or address and promptly notify the supervisor of any change of employment or occupation.

6. Abstain from the purchase, possession or consumption of alcohol or other intoxicating substances.

7. Abstain from the purchase, possession or consumption of any drugs except in accordance with a medical prescription.

8. Abstain from owning, possessing or carrying any weapon including any offensive weapon, ammunition, explosive substance or weapon as defined in the Criminal Code.

9. Attend and actively participate in any program or counselling that may be recommended by your supervisor for any area identified by your supervisor and provide proof as may be required by your supervisor of your attendance at and participation in any program that is recommended.

10. Make reasonable efforts to find and maintain suitable employment.

11. During the first eight months of the conditional sentence order you will be subject effectively to house arrest and you will remain in your home or your residence or on the property immediately adjacent to your residence except for the following purposes during that eight-month period:

(a) You will be allowed outside of your residence to attend for medical or dental treatment for yourself, your spouse or the children under your care.

(b) You will be allowed to attend for counselling sessions which may be required pursuant to the terms of this order, or as approved of by your supervisor.

(c) You will be allowed to attend directly to and directly from your place of employment and for attendance at your place of employment for employment purposes only.

(d) You will be allowed to attend with your supervisor.

(e) You will be allowed outside of your residence each and every Saturday between the hours of 10:00 a.m. and 3:00 p.m. for the purpose of conducting personal business.

(f) The only other times you will be allowed outside of your residence during the portion of the conditional sentence relating to house arrest will be with the written permission of your supervisor which permission is to be obtained prior to being out of your residence.

(g) During the course of the conditional sentence order you will carry a copy of the order on your person at all times when not in your place of residence and you will produce it as part of proof of identification when required to provide identification by any peace officer in the course of his or her duties. In addition to providing a copy of the order, you will provide the name of your supervisor and a telephone number where your supervisor can be reached.

(h) Also during the initial conditional sentence order of eight months you will be subject to electronic supervision. The technological report indicates that you are a suitable candidate for such an order and have agreed to participate in the program. (Terms of electronic supervision to be set out.)

(i) During the remaining four months of the conditional sentence order you will be no longer subject to house arrest but you will obey a curfew. You will also no longer be subject to electronic supervision. You will be in your place of residence between the hours of 10:30 p.m. and 6:00 a.m. the following morning each and every day of the week. The only time you will be allowed outside of your residence during the curfew hours are for the purposes of attending to and from and conducting the duties and responsibilities of your employment or for emergency medical treatment for yourself or your children or unless you have written permission from your supervisor or designate.

(j) You will not associate, communicate, or contact either directly or indirectly T.G. or N.K., except through legal counsel and you will not attend any place known by you to be the residence, place of employment or place of schooling of T.G. or N.K.

[87] Following the completion of the conditional sentence order, as noted you will be on probation for a period of one year. (Set out the terms of the probation order.)

[88] With respect to the ancillary orders, there will be a DNA order made pursuant to the provisions of the Criminal Code on both offences which are primary designated offences. Further, there will be an order requiring Mr. Mehanmal to comply for life with the provisions of the Sex Offender Information Registration Act given that there are two offences here. There will also be an order pursuant to s. 98(1) of the Criminal Code as it was in force at the time of the commission of these offences with respect to a weapons prohibition for a period of five years.

[89] The Crown also seeks a s. 161 order but as in Boudreau, supra, I adopt the reasoning set out in Regina v. M.E., 2012 ONSC 1078, where such an order with respect to historical charges was found to be a "sentence" as defined in the Code and as that particular section was not enacted until 1993, there was no statutory authorization for such an order at the time Mr. Mehanmal committed the offences before the court and that order is therefore denied.

[90] In summary then, there will be a conditional sentence of 12 months, a period of probation of 12 months to follow, a DNA order, a five-year weapons prohibition, and an order requiring compliance with the Sex Offender Information Registration Act. The other charges are marked withdrawn and the victim fine surcharge on both charges will be waived.

Released: October 16, 2012

Signed: "Justice G. F. Hearn"