WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order.

(3) 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.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community.

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

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.

Court of Appeal for Ontario

Date: 20230907 Docket: C69882

Before: Hourigan, Paciocco and Nordheimer JJ.A.

Between:

His Majesty the King Respondent

and

Mostafa Alkhalil Appellant

Counsel: Myles Anevich, for the appellant Alyssa Holmes, for the respondent

Heard: September 5, 2023

On appeal from the conviction entered on July 13, 2021 and the sentence imposed on September 10, 2021 by Justice J. Christopher Corkery of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] Mostafa Alkhalil, who was 40 years of age at the time of the relevant incident, was convicted of sexually assaulting and unlawfully confining a 17-year-old, underdressed and penniless runaway from a group home, whom he happened upon in the early hours of a winter morning, sitting on a curb in the parking lot of a closed coffee shop. The trial judge found that Mr. Alkhalil invited the young girl into his van. She expected refuge from the cold and a ride to an open coffee shop where she could warm up. Instead, he drove her to a parking lot, ignored her protests and attempts to push him away, and forced her to perform unprotected oral sex on him before he ejaculated in her mouth. Approximately thirty-five minutes after picking her up, he returned her to the closed coffee shop parking lot where he had found her.

[2] Mr. Akhalil appeals his conviction and seeks leave to appeal the sentence imposed by the trial judge of six-years imprisonment on the sexual assault charge, and three-years concurrent imprisonment on the unlawful confinement charge. At the end of the oral hearing, we denied Mr. Alkhalil’s conviction appeal, granted leave to appeal the sentence, but denied the sentence appeal. These are our reasons.

[3] Mr. Alkhalil advances only one ground of appeal from his conviction. He has been missing part of his right thumb since he was a child. The complainant testified that she did not notice this. Mr. Alkhalil argued that if things happened as she described, this detail could not have been missed, and that the trial judge misapprehended this evidence by failing to give it proper effect. We are not persuaded. The trial judge understood and addressed this submission but found it to be entirely plausible that she would not have noticed Mr. Alkhalil’s thumb, given the poor lighting in the vehicle and the more pressing concerns that were preoccupying the complainant. His finding is reasonable and entitled to deference.

[4] Mr. Alkhalil argues that the trial judge committed several errors of principle in sentencing him. Again, we are not persuaded.

[5] We do not accept Mr. Alkhalil’s submission that the trial judge found that Mr. Alkhalil and the complainant were in a relationship of trust that aggravated the offence. The trial judge recognized explicitly that there was no such relationship within the meaning of the Criminal Code. He concluded instead that it was aggravating that Mr. Alkhalil created an expectation of trust by inducing the vulnerable victim into his vehicle with an offer of assistance, only to sexually assault her after she entered and put herself within his control. When he referred to Mr. Alkhalil’s “position of trust” the trial judge was simply describing the trust that Mr. Alkhalil had caused the victim to repose in him, which enabled the assault. This was a seriously aggravating feature of the offence that the trial judge was entitled to consider.

[6] The trial judge did not err by treating the complainant’s lack of consent as an aggravating factor. As we read his decision, he did no more in his reasoning than to situate the relative gravity of the offence by recognizing that Mr. Alkhalil persisted despite the complainant’s repeated refusals, and then ultimately used force to overcome her resistance.

[7] Finally, the sentence was not manifestly unfit or in breach of the principles of parity. The trial judge imposed a proportionate, denunciatory, and deterrent sentence in the absence of compelling mitigating factors in a case where the highly vulnerable adolescent victim was subjected to serious sexual indignities the caused her extreme psychological harm that contributed to her subsequent self-harm and suicide attempts. The sentence, which is entitled to deference, was consistent with the guidelines provided in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424.

[8] The conviction appeal and the sentence appeal are therefore dismissed.

“C.W. Hourigan J.A.”

“David M. Paciocco J.A.”

“I.V.B. Nordheimer J.A.”