COURT FILE NO.: CR-21-911 DATE: 20230720

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING J. Goulin, for the Crown

- and -

ALI HILAL J. Thorning, for the Defendant

HEARD: July 20, 2023

REASONS FOR SENTENCE

Publication of Any Information Tending to reveal the identity of the Complainant Herein is Prohibited under s.486.4 of the Criminal Code of Canada

MILLER J.

Overview

[1] Ali Hilal was found guilty, by a jury, on September 29, 2022, of between the 27th day of January, 2016, and the 12th day of August, 2020, Sexually Assaulting and Sexually Interfering with M.W. Following the findings of guilt Mr. Hilal changed lawyers resulting in a delay in the sentencing hearing to April 27, 2023. That day I was presiding in another jury trial and so the sentencing hearing was adjourned to today.

The Facts

(a) Circumstances of the Offence

[2] Ali Hilal sexually assaulted his stepdaughter multiple times from the time she was 9 years old and ending two weeks prior to her giving her statement to police on August 25, 2020 when she was 13. The acts occurred largely within the family’s homes, but also on various vacations and other locations in Ontario. The assaults began with various sexual touching until M.W. turned 13, at which time Mr. Hilal began using a vibrator on her and there were multiple incidents of vaginal intercourse. Although Mr. Hilal would usually use a condom there were occasions when he used no protection at all.

[3] Mr. Hilal took advantage of the situation created by pandemic restrictions to increase the amount and degree of sexual contact with M.W. during the time when M.W. was attending school from home and Mr. Hilal was working from home while M.W.’s mother was absent from the home at work. Eventually M.W. told her adult sister who assisted her in getting out of the house where this was occurring and reporting the matter to police.

(b) Circumstances of the Offender

[4] Mr. Hilal is 35 years of age. He immigrated to Canada in 2011 and is a Canadian citizen. He is married to M.W.’s mother and they have two children together.

[5] Mr. Hilal has a college diploma in network administration and is presently employed as an IT Help Desk Technician. The university education he began was interrupted by his immigration to Canada.

[6] Included in the material filed on behalf of Mr. Hilal is a psychoeducational evaluation dated February 1, 2023 completed by Dr. Muller, a psychologist. The report refers to diagnoses of a learning disorder, post-traumatic stress disorder with generalized anxiety, obsessive compulsive disorder and depression and high functioning autism. The report is focused on Mr. Hilal’s educational needs, indicating that certain academic accommodations are necessary and suggesting several strategies to assist Mr. Hilal in overcoming his learning disability. Counsel for Mr. Hilal advises the report was filed to support the submission that Mr. Hilal is likely to have a harder time in a prison setting than someone without his particular challenges.

[7] A pre-sentence report was completed in which the author noted:

The subject presents with a pro-social demeanour and appeared to have ties to convention in that he reportedly values his employment and family. At no point during the Pre-Sentence Report process did the subject exhibit any trait that could be interpreted as remorse or sense of responsibility.

[8] I note that Mr. Hilal continues to maintain his innocence and it is therefore not surprising that he expresses no remorse. This is not an aggravating factor on sentence.

[9] The author of the pre-sentence report recommended conditions of assessment and programming including but not limited to Sexual Behaviour. The author of the pre-sentence report also specifically recommended conditions not to seek or maintain employment or a volunteer position where Mr. Hilal might provide direct supervision, guidance, or counsel to any person under the age of 18; and not to be in the company of or communicate directly or indirectly, by any physical, electronic, or other means with females under the age of 18 years, unless accompanied by their parent or legal guardian who is aware of his offence. This appears to be a reflection of the pre-sentence report author’s assessment of Mr. Hilal’s ongoing risk to the community, and mirror conditions that may be attached to a s. 161 order.

(c) Impact on Victim and/or Community

[10] M.W. provided a written victim impact statement, which was read at the sentencing hearing, in M.W.’s presence. In her Victim Impact Statement M.W. describes in articulate and devastating detail, the impact of Mr. Hilal’s sexual predation of her from age 9. She indicates that he effectively stole her childhood and left her with ongoing struggles with her own self-worth and depression as well as prevailing fearfulness and a general lack of trust. The effect is not only on M.W.’s past but is likely to affect all her future relationships.

[11] As indicated by the Crown, Mr. Hilal’s criminal acts have effectively imposed a life sentence on his victim.

[12] I note as well that M.W.’s mother has thrown her lot in with Mr. Hilal who is the father of her two youngest children and has eschewed M.W. entirely. The result of this has been M.W.’s separation from her younger siblings, for whom she had a caregiving role before she reported her abuse to police, and with whom she was very close. At trial M.W. testified as to the severe emotional impact this has had upon her.

[13] M.W.’s experience is similar to other victims of child sexual abuse. The Supreme Court of Canada made note of the devastating and long term impact such abuse has on its victims in R. v. Friesen 2020 SCC 9.

[14] At paragraph 58 of Friesen the Court remarked:

… Sexual violence can interfere with children's self-fulfillment and healthy and autonomous development to adulthood precisely because children are still developing and learning the skills and qualities to overcome adversity… For this reason, even a single instance of sexual violence can "permanently alter the course of a child's life"….

[15] In the same paragraph the Court quoted from Otis J.A. in the 1998 Quebec Court of Appeal decision in R. v. L. (J.), 126 C.C.C. (3d) 235, (leave to appeal refused [1998] 2 S.C.R. viii) at p.250:

The shattering of the personality of a child at a stage where [the child's] budding organization as a person has only a very fragile defensive structure, will result — in the long term — in suffering, distress and the loss of self-esteem.

[16] At paragraph 60 of Friesen, the Supreme Court said this:

60 Sexual violence causes additional harm to children by damaging their relationships with their families and caregivers. Because much sexual violence against children is committed by a family member, the violence is often accompanied by breach of a trust relationship (R. v. W. (D.R.), 2012 BCCA 454, 330 B.C.A.C. 18 (B.C. C.A.), at para. 41). If a parent or family member is the perpetrator of the sexual violence, the other parent or family members may cause further trauma by taking the side of the perpetrator and disbelieving the victim …Victims may also lose trust in the ability of family members to protect them and may withdraw from their family as a result (Rafiq, at paras. 39-41).

[17] I note that has been the effect on M.W.

[18] In addition, at paragraph 61 of Friesen, the Supreme Court noted:

61 The ripple effects can cause children to experience damage to their other social relationships. Children may lose trust in the communities and people they know. They may be reluctant to join new communities, meet new people, make friends in school, or participate in school activities (C.-A. Bauman, "The Sentencing of Sexual Offences against Children" (1998), 17 C.R. (5th) 352, at p. 355).

[19] This has also been the effect on M.W.

[20] At paragraph 64 of Friesen, the Supreme Court noted as well the community harm that flows from sexual abuse of children:

Beyond the harm to families and caregivers, there is broader harm to the communities in which children live and to society as a whole. Some of these costs can be quantified, such as the social problems that sexual violence against children causes, the costs of state intervention, and the economic impact of medical costs, lost productivity, and treatment for pain and suffering … In particular, children who are victims of sexual violence may be more likely to engage in sexual violence against children themselves when they reach adulthood (D. (D.), at paras. 37-38)…. Sexual violence against children can thus fuel a cycle of sexual violence that results in the proliferation and normalization of the violence in a given community …In short, the costs that cannot be quantified are also profound. Children are the future of our country and our communities. They deserve to have a childhood free of sexual violence … When children become victims of sexual violence, "[s]ociety as a whole is diminished and degraded" …

(d) Legal Parameters

[21] Sexual Assault of a person under age 16 carries a maximum sentence of 14 years imprisonment. Sexual Interference carries the same maximum sentence. Both offences are primary designated offences pursuant to s.487.04 for the purposes of a DNA order. A s. 109 firearms prohibition is mandatory as is compliance with the Sex Offender Information Registration Act for a period of 20 years.

[22] The circumstances of this offence also require me to consider making an order pursuant to s. 161 of the Criminal Code.

(e) Position of Crown

[23] Application of the Kienapple principle applies here as the two offences for which Mr. Hilal was found guilty overlap. In accordance with the Crown’s request in this regard, there will be a conviction on Count# 2 Sexual Interference. Count # 1 Sexual Assault will be conditionally stayed.

[24] The Crown seeks a term of imprisonment of 8-10 years, followed by a 10 year s. 161 (1) (b) order, a SOIRA order for 20 years; a DNA order; a s. 109 firearms prohibition order and a s. 743.21 order prohibiting any contact with M.W. while Mr. Hilal is in custody.

(f) Position of Defence

[25] Counsel for Mr. Hilal takes no issue with any of the ancillary orders sought by the Crown but submits that an appropriate sentence of imprisonment in the particular circumstances of Mr. Hilal is one in the 5-7 year range.

[26] Counsel for Mr. Hilal is not opposed to an order pursuant to s. 161 (1) (c) although that will pose logistical difficulties for Mr. Hilal and his wife as it would prohibit unsupervised contact with his daughter until she reaches the age of 16. However, she will be closer to 16 whenever Mr. Hilal completes his custodial sentence.

(g) Case Law

[27] Counsel for Mr. Hilal has cited a number of sentencing decisions following the Supreme Court of Canada decision in Friesen. These cases are all distinguishable on their facts but have resulted in various sentences between 30 months and seven years imprisonment for sexual abuse of children.

[28] I note that in R. v. L.S. 2023 ONSC 1281, the case in which 30 months imprisonment were imposed, the facts were one single sexual assault of a 15 year old in which the (unsuccessful) defence at trial was mistake of age. In that case the accused also had an intellectual disability.

[29] In R. v. B.M. 2023 ONCA 224 the Ontario Court of Appeal imposed a seven year term of imprisonment finding that a conditional sentence was not appropriate and citing the sentencing judge’s errors in failing to prioritize denunciation and deterrence and misapprehending the evidence on the relationship between the respondent’s mental health and the offences. That case involved a breach of trust and two young victims.

[30] In R. v. B.W. 2022 ONSC 2399 the sentence imposed was 6 years imprisonment. There were two victims one had been sexually assaulted on one occasion and the other multiple times over a 7 week period. In that case there was no penile penetration.

[31] In both R. v. C.B. 2021 ONSC 187 and R. v. C.F. 2020 ONSC 5975 in which five year sentences were imposed the accused persons had significant mental health issues. I note that counsel for Mr. Hilal specifically indicated that he does not take the position that any of Mr. Hilal’s mental health or intellectual challenges played any role in the commission of the offence against M.W. Counsel does submit that Mr. Hilal’s intellectual and mental health challenges may mean that he will have a harder time in prison than someone without those challenges. The Crown points out the comments of the sentencing judge in C.B. at paragraph 96 that:

With respect to any ongoing concerns regarding CB’s mental illness while incarcerated, Correctional Services of Canada are statutorily compelled to take care of CB and provide for his essential health care, which includes mental health care; s. 86(1) Corrections and Conditional Release Act.

[32] The Crown refers to the Ontario Court of Appeal decision in R. v. D.D. [2002] O.J. No. 161 (cited in Friesen) wherein at paragraph 44 the Court indicated:

…when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms.

[33] The Supreme Court in Friesen at paragraph 114 indicates that that mid-single digit penitentiary terms for sexual offences against children are “normal” and that upper-single digit and even double-digit sentences should not be “unusual or reserved for rare or exceptional circumstances.”

[34] Other cases cited by the Crown, in which there are factual similarities and differences from the case at bar, cover sentences of between five and nine years imprisonment.

(h) Mitigating Factors

[35] Ali Hilal is a relatively youthful first offender who is gainfully employed and financially supports his young family. He has strong family supports from his parents who reside in Canada and siblings who do not, but with whom Mr. Hilal has close relationships. He is also supported by his wife (M.W.’s mother).

[36] I note that Mr Hilal has been out of custody on conditions without incident for almost three years.

[37] Mr. Hilal’s willingness to undergo a psychological assessment after being found guilty and before sentencing is some indication, he may be amenable to rehabilitation through treatment or counselling.

(i) Aggravating Factors

[38] This was a gross breach of trust of Mr. Hilal’s position as step-father to M.W. She was entitled to his protection of her. Instead, his abuse of her when she was particularly vulnerable due to an estrangement from her biological father was particularly egregious.

[39] The offence was a calculated sexual grooming of this young child from age nine with increasingly invasive infringements of her sexual integrity over a period of four years. The offences involved multiple incidents of penile penetration, at times without a condom.

[40] The ongoing, long term impact on M.W. has been devastating.

(j) Principles of Sentencing

[41] I have considered the principles of sentencing set out at s. 718, s. 718.1 and s. 718.2 of the Criminal Code, including s.718.2 (b) which provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[42] I note the direction of Parliament that denunciation and deterrence must be the priority in sentencing principles in a case of this nature.

[43] S. 718.2 directs that a court that imposes a sentence shall also take into consideration that:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, including

(ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family,

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

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

[44] All of these are aggravating circumstances here.

(k) Reasons

[45] The paramount sentencing principles here are denunciation and deterrence. The circumstances of the offence and the way it was committed, and the particular impact on this vulnerable victim who was, effectively trapped in her own home with her abuser during the pandemic restrictions, merits a sentence in the high single digits.

[46] I do recognize that Mr. Hilal will likely face some challenges in prison due to the social awkwardness associated with his autism, although he is, as noted, particularly high-functioning. I recommend that correctional authorities take steps to ensure his protection while in custody, and I recommend that Mr. Hilal be considered for programming specific to his offence.

[47] In all of the circumstances here I impose a term of imprisonment of eight years. There was no pre-sentence custody and counsel for Mr. Hilal does not seek any credit for the circumstances of Mr. Hilal’s release terms to date.

(l) Ancillary Orders

[48] As Sexual Interference is a primary designated offence there will be an order authorizing the taking of the number of samples of bodily substances from Ali Hilal that are reasonably required for the purpose of forensic DNA analysis, pursuant to s.487.051(1) of the Criminal Code.

[49] There will be an order pursuant to s.490.012 and s. 490.013 (2) (b) of the Criminal Code requiring Ali Hilal to comply with the Sex Offender Information Registration Act for a period of 20 years.

[50] Following his release from custody, Ali Hilal will be subject to an order pursuant to s. 161 (1) of the Criminal Code for ten years. Pursuant to s. 161 (1) (b) he is prohibited from seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years; pursuant to s. 161 (1) (c) he is prohibited from being in the company of or communicating directly or indirectly, by any physical, electronic, or other means with females under the age of 16 years, unless accompanied by their parent or legal guardian who is aware of Mr. Hilal’s conviction for this offence.

[51] There will be an order pursuant to s. 743.21 of the Criminal Code prohibiting any contact or communication directly or indirectly with M.W. while Mr. Hilal is in custody.

[52] There will be a mandatory order pursuant to s.109 (2) of the Criminal Code, prohibiting Ali Hilal from possessing any firearm, other than a prohibited firearm or restricted firearm, any cross-bow, restricted weapon, ammunition and explosive substance for a period of 10 years and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

MILLER J. Released: July 20, 2023