R. v. A.A., 2020 ONSC 3802

Court File and Parties

COURT FILE NO.: CR-18-70000455-0000 DATE: 20200626

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Maeve Mungovan for the Crown

- and -

A.A. Siavosh Pashang and Marco Sciarra for A.A.

HEARD: November 13, 2019, March 6, June 10 and 26, 2020.

Amended Reasons for Sentence

Subject to any further order by a court of competent jurisdiction, an order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way.

CORRICK J.

Introduction

1After a trial, I found A.A. guilty of numerous offences involving his intimate partner, Y.L. Most of the offences occurred between September and November 2017, during a time when Y.L. was attempting to end their relationship.

2I found A.A. guilty of the following offences:

1. arson endangering life
2. arson endangering property
3. aggravated assault
4. mischief to private property
5. uttering a death threat; and
6. voyeurism.

3Following my verdict, A.A. was arraigned on seven further charges, three counts of breaching a condition of an undertaking, three counts of disobeying a court order and one count of criminal harassment. He pleaded not guilty. On consent of the parties, the Crown read in the facts to support the charges. A.A. called no evidence and made no submissions. I found him guilty of all charges.

4Sentencing was originally scheduled for March 23, 2020 but did not occur due to the suspension of normal court operations caused by the COVID-19 pandemic. With the consent of the parties, the matter of sentencing proceeded by way of conference call.

5Crown counsel submits that the appropriate global sentence is 9 years and 1 month in custody. Counsel for A.A. submits that the appropriate sentence is 6½ years. According to Mr. Pashang, once A.A. is given credit for pre-sentence custody, an additional sentence of two years to be followed by three years probation should be imposed.

6Counsel agree that the sentence A.A. receives should be reduced to account for the amount of time he has already served in custody pursuant to R. v. Summers, 2014 SCC 26 and for the harsh conditions he has experienced while in custody awaiting sentence pursuant to R. v. Duncan, 2016 ONCA 754.

7While in pre-sentence custody, A.A. contracted the COVID-19 virus. He has since recovered. Crown counsel submits that this collateral consequence warrants a one-month reduction in the sentence imposed on A.A. Defence counsel submits that it warrants a six-month reduction in the sentence that would otherwise be imposed.

8Counsel agree that the following ancillary orders should be imposed:

1. An order pursuant to s. 487.051(3) of the Criminal Code that A.A. provide a sample of a bodily substance for the purpose of forensic DNA analysis.
2. A weapons prohibition order pursuant to s. 109 of the Criminal Code for ten years.
3. An order pursuant to s. 743.21 of the Criminal Code prohibiting A.A. from communicating with Y.L. and O.A. during the custodial period of his sentence.

Circumstances of the Offences

9A.A. and Y.L. lived together between 2006 and 2016. They had four children. Their relationship became difficult in 2009 with frequent arguments over their precarious financial situation. By 2012, A.A. had become abusive and controlling. The relationship was particularly turbulent between October 2016 and November 2017 as Y.L. tried to end it. In November 2016, Y.L. feared for her safety and moved with the children into a shelter where they stayed for three months.

10In March 2017, Y.L. and the children moved into an apartment in Toronto. A.A. stayed at the apartment for periods of time until September when, after a fight during which A.A. broke a laptop and cell phone (the mischief charge in relation to the laptop), Y.L. told him that she did not want to live with him any longer. A.A. left when the police arrived. Y.L. changed the locks on the apartment door.

11A.A. returned to the apartment the next day to find the door locked. Y.L. would not let him in. The next day, when A.A. saw Y.L. on the street, he said to her, “I promise I kill you” (the threatening charge).

12On October 10, 2017, A.A. entered Y. L.’s apartment with a key that he had not returned to her. Y.L. demanded he return the key. He denied having one, insisting that the door had been unlocked. Y.L. ordered A.A. to leave. Later that night, A.A. sent Y.L. an email attaching a nude photograph of her in the bathtub, which he had taken without her knowledge (the voyeurism charge).

13On the morning of November 1, 2017, A.A. hid in the stairwell next to Y. L.’s apartment. When Y.L. returned home from taking her youngest child to daycare, A.A. approached her and followed her into the apartment. He sprinkled a liquid that smelled like gasoline on Y. L.’s hair and ignited a hand-held torch (the aggravated assault charge). Fearing that she would be burned, Y.L. fled the apartment and took refuge in an apartment down the hall and called the police.

14Once Y.L. was escorted by the police out of the building, she saw smoke and flames coming from her apartment. I found that A.A. intentionally set four independent fires in different areas of the apartment. The interior of the apartment and its contents were destroyed (the arson charges).

15On October 12, 2017, A.A. was arrested and charged with mischief to private property and uttering a death threat. He was released on an undertaking with conditions that he not communicate with Y.L. or be within 100 metres of her residence. He breached those conditions several times between October 23 and 26, and on November 1.

16A.A. was arrested on November 1, 2017 for several offences arising from the fire. He was held in detention pending a bail hearing. He was ordered not to communicate with Y.L. Despite this, he sent multiple letters to Y.L. between December 5 and 28, 2017.

17Following a bail hearing, A.A. was detained and ordered not to communicate with Y.L. pursuant to s. 515(12) of the Criminal Code. Contrary to this order, A.A. sent letters to Y.L. through a Children’s Aid Society worker and through her family lawyer.

Circumstances of the Offender

18A.A. is 67 years of age. He was born in Armenia and came to Canada as a refugee in 1991. He is a Canadian citizen.

19He and Y.L. have four children. He also had three sons with his first wife, who died in 2000 of brain cancer. In 2008, his eldest son committed suicide. His other two sons live in the United States. He told the author of the pre-sentence report that the deaths of his wife and eldest son had a significant negative impact on him.

20A.A. informed the author of the pre-sentence report that he has held a number of high-level security positions. He has been a member of the Soviet Union and British Intelligence Services and has worked as a double agent. He has worked as the security travel advisor to the King of Iran. In 2001, he went to Afghanistan on behalf of the Canadian Security Intelligence Service to be the head manager of a task force. None of A.A.’s claims have been verified.

21Y.L. testified during the trial that A.A. had sporadic work as a handyman in Toronto.

22A.A. has no criminal record.

23The author of the pre-sentence report indicates that A.A. does not appear to recognize the severity of the crimes he has committed and has little insight into his criminal behaviour. He characterized what happened as a “simple misunderstanding,” and was surprised that it had escalated to such proportions.

24In an address to the court, A.A. indicated that he was sorry about what had happened to his wife and children and thanked the people who had helped them. He said that he respected his wife’s decision to separate from him and had no plans to resume his life with her. He also indicated that he did not believe that his daughter was capable of writing the victim impact statement that was read to the court and that somebody must have “fixed” it for her.

Governing Sentencing Principles

25In determining a fit sentence for A.A. I am governed by the sentencing principles set out in the Criminal Code.

26The first is the fundamental purpose of sentencing set out in s. 718 of the Criminal Code, which is to “contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society” by imposing sentences that have one or more of the following objectives:

1. denouncing unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct,
2. deterring the offender and others from committing crimes,
3. separating offenders from society where necessary,
4. assisting in the rehabilitation of the offender,
5. providing reparations for harm done to the victim or to the community,
6. promoting a sense of responsibility in the offender, and
7. acknowledging the harm done to victims and the community.

27The second is the principle of proportionality set out in s. 718.1. The sentence I impose must reflect the gravity of the offence and the degree of responsibility of the offender.

28I am also required by s. 718.2 to take the following matters into consideration when imposing sentence:

❏ the sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; ❏ where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; ❏ the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; ❏ offenders should not be deprived of liberty if less restrictive sanctions may be appropriate; and ❏ all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.

Sentences Imposed in Other Cases

29To determine the appropriate disposition, I must consider sentences imposed on similar offenders for similar offences in similar circumstances. I turn to that now.

30Ms. Mungovan and Mr. Pashang have each provided me with cases in support of their respective positions on the appropriate sentence.

31Mr. Pashang does not disagree that the range of sentence for these offences is between eight and nine years. His position is that I should tailor the sentence to address A.A.’s apparent mental health challenges. He submits that this can be accomplished most effectively by imposing a sentence that includes a lengthy period of probation.

32The decisions relied on by Ms. Mungovan support her position that the paramount sentencing objectives in cases of domestic violence must be denunciation and deterrence: (See for example, R. v. Kormendy, 2019 ONCA 676).

33Mr. Pashang relies on decisions that support his position that the principles of proportionality and restraint must be considered, and that the sentence must be as short as possible and tailored to the individual offender: (See for example, R. v. Priest (1996), 110 C.C.C. (3d) 289 (Ont.C.A.)).

34A.A. has been convicted of thirteen offences. The most serious is arson endangering life. It is punishable by life in prison. The Crown has provided me with a number of cases involving arson endangering life resulting in sentences from 12 years to two years in prison. This broad sentencing range reflects the wide variety of circumstances in which arson offences are committed.

35The case of R. v. Bevacqua, 2014 ONSC 6279 is the most factually similar to this case in that it occurred in the context of a domestic assault. The accused removed his belongings from the family home before setting fire to a couch knowing that his wife and two young children were asleep in the house. The accused had previously been convicted of assaulting his wife and his son. He was sentenced to 4½ years for arson endangering life, 2½ years concurrent for arson damaging property and six months consecutive for assaulting his wife several weeks before the fire.

36Justice Ricchetti held that the appropriate range of sentence for arson endangering life is three to five years in prison, and that denunciation and specific and general deterrence must be the paramount sentencing considerations: Bevacqua, at paras. 47 and 49.

37Two facts set A.A.’s situation apart from Mr. Bevacqua’s. A.A. has no criminal record, and no one was in the apartment when he started the fire.

38I have reviewed all the cases provided. Although they assist me in determining the governing principles that must guide my decision, a careful review of them demonstrates that sentencing is not an exact science. It is instead a profoundly individualized process driven by the unique facts of every offence and the unique characteristics of every offender. As Chief Justice Lamer noted in R. v. M. (C.A.), [1996] 1 SCR 500, at para. 92, “there is no such thing as a uniform sentence for a particular crime.” The circumstances of any case, including this one, can be readily distinguished from any other case.

39Despite this, prior decisions assist in defining the principles that I must apply, and in determining the appropriate range of sentence and the factors that place A.A. within that range.

40It is clear from the jurisprudence that offenders who feel it is their right to control their partners and punish them when they challenge their control will be severely dealt with by the courts.

Impact on the Victim

41The court received victim impact statements from,

1. Y. L.,
2. O.A., A.A.’s 16-year old daughter, and
3. M.A., a neighbour who assisted Y.L. after she fled from A.A. on November 1, 2017.

42Y.L. described her ongoing feelings of sadness, embarrassment and shame. A.A. destroyed the home she had tried to make for her children after living in a shelter for three months. She and her children lost many irreplaceable sentimental items in the fire. She described the distress of having to uproot her children away from the schools and daycares they had been attending, and of hearing her two-year-old son tell his friends that his father had gone far away to work.

43O.A. spoke of the betrayal she feels having been introduced to “the dark side of the world” by her father, someone who was supposed to love and protect her. She also spoke of the embarrassment she felt about having no home to return to from school and having to live in a shelter. She has experienced nightmares and saw a therapist. She described the experience as a scar that will remain close to her heart for the rest of her life.

44M.A. wrote that she does not know if she will ever be able to forget the smell of gas or the fear in Y.L.’s eyes the night of the fire. Although she has moved away from that apartment building, M.A. indicated that noises from her neighbours put her on edge thinking that a similar situation could reoccur.

Aggravating and Mitigating Circumstances

45I turn now to consider the aggravating and mitigating circumstances.

46First the aggravating factors.

47These offences were part of a pattern of abuse and control that A.A. exerted against Y.L. Each time Y.L. resisted his control, A.A. retaliated.

48When she told him that she was going to leave him in October 2016, he called the Children’s Aid Society and falsely reported that she was abusing the children. When she told him in November 2016 that the police wanted to speak to him, he said things to her that caused her to fear for her safety, and she and the children moved to a shelter. When she argued with him about accusing O. A. of being with a man, he smashed a computer and cell phone. When she changed the locks on the apartment in September 2017, he threatened to kill her. When she ordered him to return the key to her apartment and leave, he called the Children’s Aid Society and falsely reported that she had threatened to harm the children. When she changed the lock on her door and her telephone number, he sent her a naked photograph of herself and told her to call him if she wanted to see more. When she refused to reply to his emails in October 2017, and closed her email account, A.A. obtained an order from a justice of the peace requiring Y.L. to be assessed by a doctor. About two weeks later, he torched the home of his wife and children.

49The fact that these offences were committed against an intimate partner is itself an aggravating factor by virtue of s. 718.2 (a)(ii) of the Criminal Code. The significant, persistent and sophisticated pattern of control and abuse A.A. exerted over Y.L. increases the importance of this factor in determining the appropriate sentence.

50These offences have had a profound and lasting impact on Y.L. and A.A.’s four children. The victim impact statements I have reviewed are striking evidence of this.

51A.A. appears to have no insight into his behaviour. He pleaded not guilty as was his right, and I do not expect him to accept responsibility for these crimes. His statements to the author of the pre-sentence report about his surprise that minor misunderstandings with Y.L. could have escalated to this point, and his statement to the court that someone other than his daughter wrote her victim impact statement demonstrate that he is out of touch with the seriousness of these events and the impact they have had on others. This does not augur well for his rehabilitation.

52The assault against Y.L. was only thwarted by the quick actions of Y.L. and M.A. A.A. pursued Y.L. in the hallway of the apartment. When she was finally able to enter M.A.’s apartment, the two women had to push against A.A. to close the door.

53The events of November 1, 2017 were planned. A.A. concealed himself in the stairwell waiting for Y.L. to return home. He was armed with a small torch. These were not offences committed in the heat of the moment in a rage. They were retribution for Y. L.’s refusal to be controlled by A.A.

54The fire set by A.A. destroyed his children’s home. This violent act was directed not only at Y.L., but also at his children.

55The fire was set in a multi-unit residential building putting the lives of the other residents at risk. He also exposed the fire fighters and first responders to harm.

56A.A. was not deterred by orders of the court requiring him to stay away from Y.L. and to refrain from communicating with her. His persistence in attempting to contact her was unabated even when he was in custody. He sent her multiple letters directly and when he received no reply, he sent letters to her via the Children’s Aid Society and her family lawyer.

57There is very little to say in mitigation. A.A. is a first offender. He has suffered some tragedy in his life with the death of his wife and suicide of his son.

58Although not a mitigating factor, I have also considered that as a consequence of his crimes, he is unlikely to have any relationship with his children in the future.

Determination of a Fit Sentence

59Denunciation and deterrence, both general and specific, are of paramount importance in cases involving domestic violence. The court must send a message to anyone who feels entitled to exercise control over their intimate partner and to use violence to overcome resistance to that control will be dealt with harshly by Canadian courts.

60A.A.’s moral blameworthiness for these offences is high. He gave no thought to how his ongoing pattern of abuse and control of Y.L. affected not only her, but his four children, who were entitled to rely on him for love, support and protection. Instead they were forced to live in shelters for protection from him. A.A.’s criminal behaviour warrants a custodial sentence that adequately expresses society’s condemnation of his conduct. That said, I have considered the fact that he has no criminal record and that the principle of totality is engaged given the number of offences involved.

61I have also considered that A.A. contracted the COVID-19 virus while in pre-sentence custody at the Toronto South Detention Centre. According to medical records filed as exhibit #4, A.A. tested positive for COVID-19 on April 29, 2020. As a result, he was isolated in a cell in the medical wing of the institution. He indicated in an affidavit that he suffered excruciating pain, had difficulty breathing, and had to be constantly masked. Given his age (67 years), and his pre-existing health conditions, A.A. feared that he would die. He was permitted out of his cell for only ten minutes a day for showers or phone calls. There is no evidence about the length of time A.A. was isolated.

62Despite having recovered from the virus, he fears the long-term consequences to his health of having suffered from it.

63Counsel agree that A.A. should receive some credit for having contracted the virus in custody while awaiting sentencing.

64I accept Ms. Mungovan’s submission that the court ought to consider A.A.’s illness as a collateral consequence. Collateral consequences include, “any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender:” R. v. Suter, 2018 SCC 34, at para. 47. Sentencing judges must consider collateral consequences in order to tailor a sentence to the circumstances of the offence and the individual offender. This is necessary to give effect to the principles of individualization and parity: R. v. Pham, 2013 SCC 15, at para. 11.

65Although there is no mathematical formula for considering collateral consequences, as Justice Pomerance noted in R. v. Hearns, 2020 ONSC 2365, at para. 20, “…a sentence may be reduced … where it is necessary to account for other punitive consequences.” The contraction of a potentially deadly virus while in pre-sentence custody is a punitive consequence that flowed from A.A.’s conviction, and I have given it serious consideration.

66I have also considered the fact that A.A. will be required to serve his sentence while the pandemic is ongoing. As numerous jurists have already commented, the fear of transmission of this virus adversely affects the conditions of imprisonment and increases the psychological stress of inmates who can do little to protect themselves: Hearn, at para. 16; R. v. Kandhai, 2020 ONSC 1611, at para. 7; R. v. Studd, 2020 ONSC 2810, at para. 44.

67The fundamental principle of proportionality remains paramount however. Collateral consequences cannot be used to reduce a sentence to the point where it is no longer proportionate to the gravity of the offences or the moral blameworthiness of the offender: Suter, at para. 56.

68In my view a total sentence of 6½ years as suggested by Mr. Pashang does not adequately address the principles of denunciation and deterrence, even with the serious collateral consequences A.A. has suffered. The pattern of abuse and control was too prolonged, the offences too serious, the defiance of court orders too persistent, and the emotional toll on Y.L. and the four children too great.

69In all of the circumstances, I find that the appropriate total sentence is one of eight years.

Credit for Pre-Sentence Custody

70Counsel agree that A.A. should be given credit for 62 days of pre-sentence custody at the rate of 1.5 to 1, in accordance with s. 719(3.1) of the Criminal Code and R. v. Summers, reducing his sentence by 93 days.

71They also agree that A.A. should be given credit for the harsh conditions that have prevailed during his pre-sentence custody at the Toronto South Detention Centre. Evidence before the court shows the significant number of full or partial lockdowns A.A. experienced during his pre-sentence incarceration. By far, the majority of the lockdowns was due to staff shortages.

72When the institution was locked down, A.A. was permitted to be out of his cell for only 20 minutes a day. His ability to shower and use the telephone was curtailed during lockdowns. His meals were served to him in his cell where there was no table.

73Not surprisingly, during lockdowns, tensions in the institution rise and violence is more prevalent. A.A. was attacked by another inmate with a cane.

74I am satisfied that A.A. was subject to harsh conditions during the lockdowns that was detrimental to his well-being. Counsel agree that he has been subjected to these harsh conditions between January 3, 2018 and today’s date, June 17, 2020, a total of 897 days. As a result, I will credit him a further 1,794 days, pursuant to R. v. Duncan.

Ancillary Orders

75A.A. will be subject to the following ancillary orders:

1. a weapons prohibition order for ten years pursuant to s. 109 of the Criminal Code;
2. an order pursuant to s. 743.21 of the Criminal Code prohibiting A.A. from communicating with Y.L. and O.A. during the custodial period of his sentence; and
3. an order pursuant to s. 487.051(1) of the Criminal Code that A.A. provide a sample of a bodily fluid for the purpose of forensic DNA analysis.

Conclusion

76In conclusion, A.A. is sentenced to a total of eight years in prison, less credit of 1,887 days or 62 months. When the credit is deducted, A.A. will be required to serve a further 34 months. The sentence shall be recorded as follows:

Count	Offence	Sentence
3 and 4	Arson endangering life and property	4 years each concurrent
18	Aggravated assault	2 years consecutive
2, 9, 10, 11, 12, 13, 16	Breach of undertaking x 3 Disobey court order x 2 Criminal harassment	18 months on each concurrent with each other and consecutive to count 3
6	Mischief to property	1 month consecutive
8	Uttering death threat	3 months consecutive
14	Voyeurism	2 months consecutive
	Total sentence	8 years less 62 months for a remaining sentence of 34 months.

Corrick J.

Released: June 26, 2020