Court File and Parties
COURT FILE NO.: CR-18-1363 DATE: 2021 03 05
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Cristina Lynch, for the Crown
- and -
WAQAR ALI Ariel Herscovitch for the Defendant
HEARD: December 16, 2020
Restriction on Publication
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the persons described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
Reasons for Sentence
D.E HARRIS J.
1After a judge alone trial, Mr. Ali was found guilty of sexually assaulting two young women, M.P. and S.J.S., and assault causing bodily harm to M.P. On sentence, there is a wide gulf between the positions of counsel. Ms. Lynch recommends a sentence of two years less a day. Mr. Herscovitch argues that the appropriate sentence, in light of the lengthy period on a house arrest bail, COVID and other factors, is time served. At the outside, an intermittent sentence should be imposed.
2As recounted in the reasons for judgment at 2019 ONSC 5740, Mr. Ali was at the time of the offences working as an Uber driver. He picked up both women in his vehicle while they were in a highly inebriated state in the wee hours of the morning, Ms. J.S. (26 years old at trial) on February 28, 2016 and Ms. P. (28 years old at trial) on June 12, 2016. Ms. P., because of excessive alcohol consumption, had no recollection whatsoever of any of the pertinent events. Ms. J.S. had only a patchy memory. When she was with Mr. Ali in his vehicle, she was in and out of consciousness.
3For the most part, neither of the women remembered being touched by Mr. Ali. However, both complainants had a vague feeling something was amiss in the aftermath of their contact with Mr. Ali and went to the hospital afterwards to have rape kit examinations done. Mr. Ali’s DNA was found on Ms. P’s left breast and his DNA was also found on J.S.’s right breast, establishing based on my previous finding, that Mr. Ali touched their breasts either with his hand or mouth. Ms. J.S. also saw Mr. Ali touch his penis as he was driving her to Mississauga and testified that he tried to put his hand up her shirt at one point. She swatted him away.
The Aggravating Features
4It was no coincidence that Mr. Ali picked up two intoxicated young women late at night. Neither had hailed an Uber with the Uber app. With respect to intoxication, Ms. P’s friend J.W. testified that Ms. P. was so intoxicated that she had to be carried to the taxi they used to return to Ms. W.’s apartment on Palmerston Avenue in Toronto’s annex area after the night of heavy drinking. Ms. P. refused to leave the taxi but eventually was convinced by Ms. W. to exit. She and Ms.W. argued on the sidewalk for several minutes. Ms. W. testified that Mr. Ali pulled up during this fight and asked if someone needed a ride somewhere. Ms. W. told him that they did not need his help and that they did not know who he was. Mr. Ali was on the scene for some period of time. For reasons that are not clear but were clearly irrational, Ms. P. ended up jumping into the front seat of Mr. Ali’s vehicle. He then sped away from the area, squealing his tires. Ms. W., holding her friend’s shoes and cell phone, ran after the car but it was going too fast. The time was just after 4 a.m.
5With respect to Ms. J.S., she had just left a Toronto club. She thought she might have been drugged. She had never felt before the way she did. She had drunk a good deal of alcohol. The time must have been somewhere around 4 a.m. She needed help to get back home to Mississauga and was crying on the curb. She had lost contact with her friends and was very upset. Mr. Ali offered to drive her home. How she was going to pay, as I observed in the reasons for judgment, is somewhat unclear. On the way back to her home area, she was continually falling asleep. I find that as Ms. J.S. testified, Mr. Ali was stroking his penis, making lewd comments and tried to put his hand up her shirt as she said in her evidence.
6The two instances of similar behaviour picking up these two inebriated women and touching their breasts establishes that Mr. Ali was hopeful when he picked them up in their compromised states that he could sexually assault them. In my view, Mr. Ali was trolling downtown Toronto for this purpose. He was quite persistent in his efforts to get Ms. P. into his car. This was predatory behavior.
7These complainants were not merely vulnerable, they were virtually helpless. The women were both easy marks. This is well-illustrated by the video of Ms. P. in the parking lot about two hours after being initially picked up by Mr. Ali. She is seen walking around like a zombie. Her blood alcohol level when tested, extrapolating it back, was high. In my view, there was a dual purpose in picking up the intoxicated women: 1. Mr. Ali could sexually assault them with no resistance; and 2. Because of their state, he would likely escape detection and apprehension.
8The exploitation of the intoxicated women for his own sexual gratification demonstrates Mr. Ali’s high degree of blameworthiness. There are numerous cases that consider sexual assaults on unconscious victims: see e.g. R. v. M.R., 2018 ONSC 583 (Ont.S.C.J.) at paras. 27, 32-35; R. v. Smith, 2015 ONSC 4304 (Ont.S.C.J.) at paras. 32-33. For an “invasive” sexual assault, such as intercourse, it is suggested that the range is 18 months to 3 years. In M.R., an offence which was not characterized as invasive but rather was said to be a case of “intrusive fondling”, Justice Boswell imposed a sentence of 14 months. While the specifics of these cases are not of direct assistance, the recognition of the unconsciousness of a sexual victim as a central, indeed pivotal, aggravating factor is important. Justice Bowell said in M.R. at para. 33 and it applies equally here,
There can be no doubt that sexually assaulting a victim who is utterly defenceless due to a lack of consciousness attracts a high degree of moral blameworthiness … What occurred here was undoubtedly a gross violation of MH’s dignity, security and sexual autonomy.
9The relatively recent addition to the Criminal Code of Section 718.04 dictates that a sentencing judge must give primary consideration to denunciation and deterrence in the situation of the abuse of a person who is vulnerable because of personal circumstances, including because the person is Aboriginal and female. That provision applies here, and in any case, the precedence given to denunciation and deterrence was already dictated by the common law.
10Moving to the nature of the sexual assaults, there is no doubt that the more invasive, the more aggravated is a sexual assault. The obverse does not necessarily follow, however. Sexual assault constitutes an unwanted intrusion into a victim’s bodily integrity and sense of identity. It is often more about the profound and lasting psychological fallout than about the precise nature of the physical violation itself: R. v. Carrasco 2020 ONSC 5308 (Ont. S.C.J.) at para. 8. For that reason, in evaluating the nature and extent of the intrusion, factors other than invasiveness are important. These include vulnerability of the victim, the situation in which the assault took place, and a myriad of other factors some general, some personal. In the present circumstance, both women were touched sexually by a stranger while they were in an intoxicated, unconscious and helpless state. While not as invasive as some sexual assaults, the complainants’ feelings of well-being, safety, security and bodily autonomy and integrity were badly shaken. Women are particularly vulnerable to sexual assault and are likely to be profoundly affected by the crime.
11In R. v. Friesen, 2020 SCC 9 (S.C.C.) a sentencing case dealing with sexual abuse of children and young women, the Supreme Court said,
68 Sexual violence also has a disproportionate impact on girls and young women. Like the sexual assault of adults, sexual violence against children is highly gendered (Goldfinch, at para. 37). The “intersecting inequalities of being young and female” thus make girls and young women especially vulnerable to sexual violence (”The ‘Statutory Rape’ Myth”, at p. 292). In 2012, 81% of child and youth victims of police-reported sexual offences were female and 97% of persons accused of such offences were male (Police-reported sexual offences against children and youth in Canada, 2012, at pp. 10 and 14). Sexual violence against children thus perpetuates disadvantage and undermines gender equality because girls and young women must disproportionately face the profound physical, emotional, psychological, and economic costs of the sexual violence ( see R. v. Osolin, [1993] 4 S.C.R. 595 (S.C.C.), at p. 669; Goldfinch, at para. 37). Girls and young women are thus “still punished for being female” as a result of being disproportionately subjected to sexual violence (see The Hon. C. L’Heureux-Dubé, “Foreword: Still Punished for Being Female”, in E. A. Sheehy, ed., Sexual Assault in Canada: Law, Legal Practice and Women’s Activism (2012), 1, at p. 2).
12In my view, this comment applies equally in this case despite the fact that these women were in their twenties. The impact from the sexual assault on Ms. P. was major. Because Ms. P. did not want to disinter and relive her feelings from the assault, her mother wrote a victim impact statement for her. In the aftermath of the assault, her mother said that Ms. P. was seriously depressed. She could not get out of bed, was crying continually and could not talk about the incident even with her family. She is a very social person but did not want to see or talk to her friends. She was basically in her room for months and was unable to work. Her family could not help her overcome the pain. To this day, she has not had long-term relationships with men and exhibits distrust and suspicion. She believes Mr. Ali or his friends might well stake out her home. She is constantly looking over her shoulder and feeling unsafe. She double checks that the blinds are closed at night, the doors locked, and the alarm activated. The effect on Ms. P. and her family has been substantial.
13Ms. P. can be assured that neither the accused nor his friends are coming by her house. This would be a very serious breach of his bail and would yield extremely harsh sanctions. However, the feelings that she is unsafe and distrusting of others are normal, even typical, in the aftermath of a sexual assault. I have seen it many times before. The feeling of safety and security, potentially fragile conditions for a woman in our society, can be severely damaged by a sexual assault.
14I am convinced that the impact on Ms. P. from Mr. Ali’s sexual assault and assault causing bodily harm was substantial. This is an aggravating factor under the common law and is codified in Section 718.2 (iii.i) of the Criminal Code. While Ms. J.S. did not file a victim impact statement, I can infer that there was also a significant negative effect on her as well.
Breach of Trust
15Mr. Ali was an Uber driver, a professional driver. In that capacity, he had agreed to not only take passengers from point A to point B, he had undertaken to do so in a safe and responsible manner. In this sense, Mr. Ali was in a position of trust with respect to both complainant passengers. He abused that trust: see Section 718.2(iii) of the Criminal Code; R v Friesen, at paras. 125-126.
16Mr. Herscovitch attempted to blunt the force of the violation of trust by pointing out that the complainants did not know that Mr. Ali was an Uber driver. That is likely true. Ms. P.’s friend, Ms. W. saw some instruments on Mr. Ali’s dashboard which led her to believe that he might be an Uber driver. But there is no indication that Ms. P. knew he was. Ms. J.S. may have known that he was an Uber driver, but the evidence is somewhat unclear.
17The argument made by Mr. Herscovitch was that since the complainants did not know that Mr. Ali was an Uber driver, there was no trust relationship or breach of that trust. I do not agree. There are two sides to trust relationships: R. v. J.M., 2018 ONSC 2829 (Ont.S.C.J.) at paras. 21-31. First, the person in whom the trust is reposed, Mr. Ali in this instance, by reason of their position, has a higher obligation towards others than would otherwise be true. If Mr. Ali were not a professional driver but was picking up these two women as a regular citizen, the obligation upon him would be lower. We expect more of people who drive for a living. They must qualify for the work by training or at least by being vetted by their overseeing company because they will be entrusted with dealing with members of the public. When a person has a higher obligation by reason of their position, a violation of that trust by the commission of a criminal offence significantly aggravates the crime.
18The second aspect of a trust relationship is based on the expectations of the person receiving services from the person in a position of trust. Such a member of the public relies on the trusted individual to be ethical and competent. In this instance, neither woman placed their trust in Mr. Ali based on a belief that he had been vetted by Uber or any other organization. To them, he was just a man driving a car and offering to help them.
19There is a good amount of case law with respect to the trust position taxi drivers are in towards their passengers. A helpful summary of the sentences imposed in the context of sexual assaults committed by taxi drivers on passengers can be found in Justice Leach’s judgment in R. v. Ukumu 2020 ONSC 3645 (Ont. S.C.J.) at para. 42; appeal dismissed R. v. Ukumu, 2021 ONCA 91 (Ont.C.A). Some of the cases emphasize the breach of trust from the victim’s perspective, some concentrate on the obligation of the driver. For example, Justice Leach summarizes one of the cases this way at para. 42(b)(viii),
In R. v. Jakupaj, [2018] N.J. No. 134 (S.C.), the court agreed with earlier authorities in Newfoundland and elsewhere, (including the already noted decisions [case citations omitted]), and emphasized that offenders acting as taxi drivers are clearly in a position of trust vis-à-vis their customers. The court noted, in particular, that sexual assault by taxi drivers of young and vulnerable passengers, (such as young women under the influence of alcohol), is deserving of public outcry and a high degree of public abhorrence. In that regard, the court emphasized that such misconduct has an impact not only on the immediate victims but on the broader community, which is entitled to expect being free from harm when trust is placed in such drivers, and understandably "feels at risk when the well-used and relied upon safety of a taxi ride home after a night of drinking becomes a potentially predatory opportunity for sexual assault".
20In a case like this, the absence of the second aspect of breach of trust is, in my opinion, not of great significance. The main aggravating impact of the breach of trust here is that Mr. Ali, in committing the criminal act, abused the trust with which he was entrusted. In this case, Uber implicitly vouched for Mr. Ali’s ethics and competence. Denunciation and general deterrence are required to respond to the offender’s violation of his position. It is imperative that our values be affirmed and a clear message be promulgated that professional drivers must conduct themselves with integrity.
21The situation is very different, to take one example, than a parent\child trust relationship. If there is a violation in that context, the child will suffer a sense of betrayal at the hands of the parent which could have profoundly harmful, lifelong ramifications. However, the trust a passenger places in a professional driver is on a much lower order and is generally of a fleeting nature. The betrayal felt by the victim is comparatively minor.
22For these reasons, I conclude that the fact that these complainants did not know that Mr. Ali was an Uber driver is of limited weight in detracting from the aggravating factor of the breach of trust committed.
23I add that I also do not believe it is of any importance that Mr. Ali was not using or at least not responding to his Uber app at the time he picked up these complainants. In both instances, he had earlier in the night been picking up fares using the Uber app. He had then turned the app off in the case of Ms. J.S. It was on when he picked up Ms. P. but he was not actively using it. That he was not responding to the Uber app at the time of picking up the two women may well not be a coincidence. The Uber app requires a driver to respond only to requests for rides. Neither woman made such a request. Additionally, Uber can track a driver’s route. Responding to Uber requests and being tracked by the app would have interfered with Mr. Ali’s purposes those nights. I conclude that Mr. Ali’s status as an Uber driver did not turn off and on with his decision to have the Uber app activated or deactivated. This was not clothing he could shed for his own convenience.
24In conclusion, the dramatic breach of Mr. Ali’s responsibilities and the trust he held as an Uber driver are substantial aggravating factors on this sentencing.
Additional Aggravating Factors
25There are additional aggravating factors proved beyond a reasonable doubt which apply to each of the complainants. With respect to Ms. P., she was dumped unceremoniously at just before 6 a.m. in her semi-conscious state on the pavement of a parking lot on Dupont Street, just west of Spadina Avenue in Toronto. The audio tapes which Mr. Ali made at the time have him pleading with her to give him her address so he could take her home. In her state, she could not or would not give it to him. She was sitting in the well of the front passenger seat of his car with her legs held up against her chest. She was not coherent. She had urinated in his car. To this point, she had been with Mr. Ali for close to two hours.
26Mr. Ali had put himself in a terrible position by insisting on taking Ms. P. in his car for his own nefarious purposes despite her obviously inebriated state. He testified that he did not think to take her to a hospital. He did not want to take her to the police because the police were ticketing Uber drivers at that time. One thing he could not do is leave her in the parking lot, dressed only in the one piece backless bodysuit from her attendance at the bar the night before. But that is exactly what he did.
27To remove her from his car, Mr. Ali grabbed Ms. P.’s wrists or hands and pulled her out of the car. The video shows Ms. P. resisting by attempting to concentrate her weight in the opposite direction but she was ultimately unable to do much to prevent it. Mr. Ali used several pumping efforts with his body in a squatting position to overcome her resistance. Because of the way he removed her, her entire weight transferred to her knees once they made contact with the pavement of the parking lot. Her knees were badly scraped as a result. They are permanently scarred, particularly the right one. This was the basis for the assault bodily harm finding. Mr. Ali than quickly jogged back to the driver’s door, got in, and sped away, leaving Ms. P. sitting alone on the pavement. The sun had just begun to rise.
28This was a craven act. Most people take better care of their garbage than Mr. Ali took care of Ms. P. Besides the scars on her knees, leaving her alone at 6 in the morning highly intoxicated in a deserted parking lot only a matter of feet from a busy street was grossly irresponsible.
29After several minutes, the video shows Ms. P. picking herself up and dusting off her knees. Ms. P. did not have shoes or a phone as Ms. W. had been left holding them when Mr. Ali sped away on Palmerston Avenue. Ms. P. banged desperately on a building abutting the parking lot several times and stumbled around looking for help. She looked into one particular car, uninhabited, for a minute or two and tried to get into it. It was locked; she could not get in. At about 6:40 a.m, the video shows her walking surprisingly well given her state and that she was not wearing shoes, along the sidewalk on the north side of Dupont.
30Ms. P. was not taken for help until a firefighter noticed her at about 8 a.m. In total, she was on her own in the parking lot for about two hours. Ms. P. could have, as far as Mr. Ali knew, easily have wandered into the traffic on Dupont or come to serious injury some other way. Abandoning her in the parking lot, together with the assault causing bodily harm offence, are major aggravating factors on this sentencing.
31With respect to the offence against Ms. J.S., the main aggravating factor outside the circumstances around the sexual assault itself was Mr. Ali going to her house and then into her bedroom with her. Why this occurred is somewhat murky but it could not have been with Ms. J.S.’s informed and valid consent. He had no legal right to be there. She woke up at one point in her bed and saw the person she referred to as the driver (she could not identify Mr. Ali), in a corner of her room. This observation would be unreliable on its own due to her advanced state of intoxication but is confirmed by other evidence. Her brother heard two people come into the house and then one person leave shortly afterwards. A van of the same general description as Mr. Ali drove and which he had registered with Uber that night is seen in a video at the time that the brother heard the activity in the immediate vicinity of Ms. J.S.’s home. The contents of Ms. J.S.’s wallet including a great many cards of different types were strewn on the floor of her bedroom. Mr. Ali was clearly responsible for this. Going unlawfully into Ms. J.S.’s home and going through her wallet with the purpose of finding money or other value that he could take is an aggravating factor. It is consistent with the brazen violation of Ms. J.S.’s bodily autonomy and privacy which had occurred earlier in his vehicle as he drove her home.
The Mitigating Factors
32Mr. Ali is now 32 years old and does not have a criminal record or any outstanding charges. He has worked for Metro Logistics as a full time labourer for a number of years. He went on medical leave in March of 2020 because of depression and COVID. He has been working again as of November 2020 about 6 hours per day. He has worked part-time in other jobs as well, working as a Deputy Returns Officer in the 2019 Federal Election and the Brampton Municipal Election in 2018.
33He was arrested separately on both sets of charges on June 14, 2016 and June 18, 2016 and was in jail one night on each before getting bail. That is four days in total, and six days applying the usual credit. He was on strict house arrest until May 2017 and could not work to support his family which includes his mother and four siblings whom he sponsored to come to Canada. An exception to allow him to work was incorporated into his release in May 2017. Other bail conditions were subsequently relaxed. He still cannot drive a car unaccompanied which makes getting to and from work difficult.
34Mr. Ali recently completed his GED. He is $100,000 in debt and is attempting to pay it off. He says he suffers from PTSD and depression. He has struggled with alcohol abuse for years. It was his evidence that he was bullied in high school in Pakistan when he was young. He suffered a serious head injury when 11-12 years old. Mr. Ali has seen psychologists and gone to counselling for his issues since being charged.
35Supportive letters were filed from a brother, two sisters and Mr. Ali’s mother vouching for his character and stating that he is a breadwinner for his family. A thorough well-balanced psychological report written by Dr. Monik Kalia was presented on sentence. Mr. Ali has a sad history. He was a poor student in his local village in Pakistan. He was bullied for stuttering by his school mates and was repeatedly sodomized when he was 7 years old. His uncle who he was close to committed suicide in front of him when Mr. Ali was 6 years old.
36Mr. Ali came to Canada when he was approximately 12 years old on his own. He struggled in school here too and did not initially finish high school. After becoming a citizen in 2007 he sponsored his mother and siblings to come to Canada. He has a solid work record. Before becoming an Uber driver, he drove a taxi.
37Sexually, he had causal relationships with a few women some years ago. He has never dated a woman. For the last several years, he has relied on the services of sex trade workers. He has no friends; he is socially isolated. He was diagnosed with a major depressive disorder soon after the offences in question. He is on anti-depressants. His psychological testing indicates low functioning but did not expose any underlying pathology or sexual deviancy.
The Sentencing Principles
38General deterrence and denunciation, as mentioned above, are key sentencing principles in this case. The offence was a planned one, in my view, and therefore, there is an important role to be played by general deterrence. Other professional drivers, many of whom may at times be in a similar position to commit crimes like Mr. Ali’s, must know that if they take advantage of their passengers, they will not be treated leniently by the courts. Denunciation of attacks on two defenceless young women, together with the aggravating factors explored above, inclines towards a sentence in the range sought by the Crown.
39It is difficult to say how pressing the future deterrence of Mr. Ali is based on what is known about him. The sexual assault of Ms. P. and Ms. J.S. fits a pattern based on the common features between the counts. Mr. Ali is very unlikely, hopefully, to ever be in the position of a professional driver again. Specific deterrence is not overwhelming but is far from irrelevant either.
40Dr. Kalia stated that from an “actuarial” perspective, Mr. Ali is at moderate risk to reoffend. But given his 4 years in the community without incident, Dr. Kalia places him at low to moderate risk to offend. I would add that Mr. Ali clearly has problems with women and is sexually frustrated. That played a major part in these offences. These problems, despite some counselling, have not been adequately addressed. Furthermore, it is of importance that he denies the sexual aspects of these offences.
41Rehabilitation of Mr. Ali so that he does not lapse into sexual offences again is of importance in this case but is secondary behind deterrence and denunciation. The primary function of rehabilitation here is to ensure that any sentence imposed on Mr. Ali is not a crushing one and that he is able to get back on his feet afterwards. He is beset with some serious problems.
Conclusion
42Mr. Ali committed very serious offences of sexual exploitation against two young, quite helpless women, causing significant injury to them both. His sexual gratification took precedence to the obvious harm he was inflicting upon them.
43Mr. Ali has no record and his family speaks well of him. He has significant issues and has attempted to get treatment and counselling to deal with them.
44The fundamental principle of proportionality is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Section 718.1 of the Criminal Code. Both are high in this case.
45As is usually true, counsel advanced other cases which they believe are analogous to assist in crafting an appropriate sentence. I will only refer to a few of them. The welter of different acts of sexual assault together with the varying aggravating and mitigating factors makes comparisons with sentences imposed in other cases of limited assistance. What may appear to be minor nuances can significantly alter the sentence imposed. And, of course, although it is critical that there be consistency in sentencing, the process is inherently subjective: R. v. Shropshire, [1995] 4 S.C.R. 227 (S.C.C.) at para. 46.
46The defence relied on R. v. Anderson 2017 ONSC 1322 (Ont. S.C.J.), a case in which Anderson, a modeling agent and photographer, touched the genitals of three young male models. In two instances, he began to masturbate them. A conditional sentence was imposed as well as a 30 day intermittent sentence. The circumstances in Anderson are too different to be of much direct help on this sentencing. While there was a breach of trust involved, there was no exploitation of drunken, helpless complainants. Otherwise, the Anderson case illustrates the trite proposition that sexual touching does necessarily require a real jail term.
47In R. v. Chen 2017 ONCJ 612 (Ont. C.J.) the accused hair stylist touched the breasts of three customers, all over the clothing except for one instance. Although agreeing that 4 to 6 months jail would be justified, Justice Kenkel imposed a sentence of 90 days intermittent so as not to overly prejudice Mr. Chen’s family. Once again, despite the common element of breach of trust, the Chen case bears no factual similarity to the case at hand. The paramount aggravating features of this case were not present.
48Lastly, in R. v. D.A. 2017 ONSC 1800 (Ont.S.C.J.), again 90 days intermittent was the sentence. The accused and the complainant, nurses in a remote First Nations community, drank together in D.A.’s room. D.A. pushed the complainant on to a bed and got on top of her. He fondled her breasts and attempted to fondle her vagina. The conviction was likely to have significant impact on D.A.’s work as a nurse. The complainant had suffered PTSD and was plagued by haunting fears related to the sexual assault. Of the defence cases, this is probably the closest one to the facts here. But it is still a very different scenario.
49Of the Crown cases, the Ukumu case is perhaps the closest to this one. In that case, a taxi driver accosted a young woman in his taxi and climbed on top of her in the back seat. He kissed her neck repeatedly and started to take off his pants before she escaped. The complainant was vulnerable as she had consumed drugs and alcohol before the assault. After a very thorough canvass of the taxi driver sexual assault cases, Justice Leach imposed a sentence of 12 months, recently upheld by the Court of Appeal. The assault in that case was more invasive, more prolonged, and perhaps more terrifying for the complainant. But it lacked some of the key aggravating factors seen here.
50Moving to this case, the defence position of no jail time or at the most intermittent time, in my view, falls well below a proportionate sentence for the gravity of the crime and the responsibility of the offender. It is true that the Crown is only able to prove the touching of the complainants’ breasts, a bodily invasion closer to the defence cases than the Crown cases. However, the surrounding circumstances are seriously aggravating.
51I have considered that Mr. Ali is a first offender, has the support of his family, and is their main breadwinner. He has taken some steps to struggle with his depression and addiction issues which bodes well for the future. I am not without sympathy for him.
52Nonetheless, in view of the seriousness of his crimes and the aggravating features, I am in general agreement with the position of the Crown with respect to incarceration but with some modifications. First, everything is harder in the time of COVID, including serving jail time. There is a threat of infection weighing on inmates. I can also infer that there are additional physical restrictions in jail: R. v. Kazman, 2020 ONCA 251, 386 C.C.C. (3d) 424 (Ont. C.A.) at paras. 17-18. If lockdowns can be taken into account in determining pre-trial custodial credit per R. v. Duncan 2016 ONCA 754 (Ont.C.A.), so too can restrictions in the jail setting be taken into account in assessing an appropriate sentence. Undue hardship in serving a sentence has always been a pertinent consideration.
53Taking totality into account, and not harping on specific differences in seriousness between the two sexual assault counts and the aggravating factors, in my view the appropriate sentences before reductions are 9 months on each sexual assault count, consecutive to each other for a total of 18 months. For the assault causing bodily harm, the sentence should be consecutive to the other two counts as, in my view, although it was committed in the same time frame as the sexual assault on Ms. P., it was an independent criminal transaction. However, it is particularly important, given its temporal connection to the sexual assault, to ensure totality is respected in sentencing for this offence. Taking that into account, 4 months consecutive to each of the two sexual assault counts is a fit sentence. The total global sentence is then 22 months.
54That should be reduced as Mr. Herscovitch has argued in order to recognize the length and restrictiveness of the bail that Mr. Ali has been on: R. v. Downes, [2006] O.J. No. 555, 79 O.R. (3d) 321 (Ont. C.A.). He was on strict house arrest for almost a year. It was then loosened to allow for work and school. The total duration on bail is more than four years, closer to five. I note parenthetically that part of this may be Mr. Ali’s responsibility after he discharged trial counsel following his conviction in October, 2019.
55There is no formula applicable but, in my view, a credit of 3 months is appropriate. The total sentence is reduced to 19 months. The deadtime credit is 6 days in total which I will round up to 10 days. I will subtract this from count 3. The final figure then is 18 months and 20 days. The sentence will be broken down in this way:
Count #1: sexual assault committed upon S.J.S.—7.5 months Count #2: sexual assault committed upon M.P.—7.5 months consecutive to count 1 Count #3 assault bodily harm committed on M.P.— 3 months and 20 days (4 months – 10 days credit for pre-trial custody), consecutive to counts 1 and 2
Total sentence: 18 months and 20 days.
56There will be a probation order for three years on the statutory conditions, adding a provision to report to probation within two working days of release from jail and participate in sexual offence counselling as prescribed by the probation officer. I am advised that Mr. Ali is amenable to counselling, although he denies the offences. Also, the probation order should include no contact direct or indirect with M.P., S.J.S. and J.W. and not to be within 100 metres of their home, work or where they are known to be.
57There will be an order under Section 743.21(1) of the Code not to communicate while in custody with M.P, S.J.S. or J.W. Mandatory ancillary orders are a DNA databank order, a lifetime Section 109 weapons prohibition and a SOIRA order for life.
D.E HARRIS J.
Released: March 5, 2021
