Court of Appeal for Ontario

Date: 2025-07-07
Docket: COA-23-CR-0884
Coram: Gary Trotter, Thorburn, Lorne Sossin

Between:
His Majesty the King (Respondent)
and
Rasha Al-Enzi (Appellant)

Appearances:
Alexander Ostroff, for the appellant
Caitlin Sharawy, for the respondent

Heard: 2025-06-20

On appeal from the sentence imposed by Justice Michelle Fuerst of the Superior Court of Justice on August 29, 2022.

Reasons for Decision

Background and Offences

[1] The appellant pleaded guilty to one count of kidnapping with the use of a prohibited firearm and one count of robbery with the use of a restricted firearm, arising from offences committed on April 30 and June 10, 2020. The sentencing judge sentenced the appellant to 11 years of imprisonment. The appellant seeks leave to appeal this sentence.

[2] The appellant participated in two separate home invasions on April 30 and June 10, 2020. The first involved the kidnapping of a family, including two young children, from their home in Stouffville, during which both parents were assaulted. The second involved the beating and robbing of an individual in a home in Markham. Although the appellant did not go to either home, she helped plan the home invasions and knew that firearms would be used in carrying out these offences. She was also present at the location where the family was taken during the first home invasion.

Sentencing Decision

[3] The sentencing judge reached the 11-year sentence by sentencing the appellant to six years in jail for the kidnapping offence and to five years in jail for the robbery offence, to be served consecutively. The sentencing judge then reduced the appellant’s sentence by 38.5 months to account for pre-trial custody, leaving the remaining custodial sentence of 7 years, 9 months and 13 days. The sentencing judge reviewed the sentencing principles that are relevant to home invasion offences, notably that “the paramount objectives of sentencing in home invasion cases are the protection of the public, general deterrence, and denunciation, although rehabilitation must also be considered”, citing R. v. Wright (2006), at para. 24. She also noted that the offence of kidnapping with the use of a prohibited firearm carries a mandatory minimum punishment of five years in jail where, as here, the person kidnapped is under 16 years of age. She further noted that the offence of robbery with the use of a restricted firearm also carries a five-year mandatory minimum penalty.

[4] The sentencing judge set out the various aggravating factors relating to the appellant’s participation in the offences, including: (1) the extensive planning of the offence; (2) the financially-motivated objective of the offence; (3) the fact that the offence was a group endeavor; (4) the violent nature of the offence; (5) the fact that the appellant knew the group would use firearms; (6) the traumatizing effect of the offence on the victims; (7) the appellant’s prior criminal record; (8) the fact that the kidnapping offence occurred in the middle of the night when the victims were most vulnerable; and (9) the fact that the kidnapping offence included children. The sentencing judge also took account of the relevant mitigating factors, including: (1) the appellant’s guilty plea; (2) the harsh conditions that the appellant endured during pre-trial custody; (3) the steps that the appellant has taken towards rehabilitation in pre-sentence custody; (4) the fact that the appellant suffered abuse from her family in the past; and (5) the fact that the appellant has support in the community.

[5] Weighing all of the above, the sentencing judge concluded that an 11-year sentence was necessary given the seriousness of the offences and the high moral blameworthiness of the appellant. She explained that consecutive sentences are appropriate in this case because the offences were committed as separate transactions, at different times, in different locations, and involving different victims; therefore, the offences warranted separate sanctions.

Grounds of Appeal

[6] On appeal, the appellant argues that the sentencing judge failed to consider additional mitigating factors, such as: (a) the consequences of separating the appellant from her children; (b) the appellant’s drug abuse and mental illness; (c) the harsh pre-sentence conditions endured by the appellant; and (d) the appellant’s rehabilitative potential. The appellant further argues that the sentencing judge improperly treated the appellant’s parenthood as an aggravating factor. The appellant submits that the consecutive sentences imposed by the sentencing judge should be replaced with a sentence of six years on the first count of kidnapping, and five years on the robbery count, to be served concurrently.

Analysis

[7] In our view, this sentence appeal turns on whether the sentences related to the mandatory minimums are served consecutively, as determined by the sentencing judge, or concurrently, as sought by the appellant. The sentencing judge concluded her sentencing analysis by stating:

I have considered the totality principle. I am satisfied that consecutive sentences are appropriate in this case, given the magnitude of these offences committed as separate transactions, at different times, in different locations, and involving different victims. The offences warrant the separate sanction of consecutive sentences.

[8] Consecutive sentences are warranted where offences reflect distinct wrongs: R. v. Stuckless, 2019 ONCA 504, paras. 77-78, 80, leave to appeal requested but application for leave discontinued, [2020] S.C.C.A. No. 93. A sentencing judge’s discretion to impose consecutive or concurring sentences is entitled to significant deference: R. v. Lacasse, 2015 SCC 64, para. 39; Stuckless, at para. 50. We see no error in the sentencing judge’s exercise of this discretion. The two separate offences related to separate conduct in the commission of separate crimes on different dates affecting different victims.

[9] On this basis, the appeal must be dismissed.

Family Consequences

[10] Nor do we find that the effect on family should alter the sentence imposed. While family consequences may be a relevant factor, courts must be careful not to let these consequences overwhelm the other principles of sentencing: R. v. Dent, 2023 ONCA 460, para. 124.

[11] In this case, defence counsel did not emphasize “family separation” as a collateral consequence or mitigating factor, did not discuss the appellant’s role in their lives, their ages and their needs or the effect that family separation had on them, and at the time of sentence, the appellant’s children were 15 and 20 years old.

[12] This case is distinguishable from R. v. Habib, 2024 ONCA 830, cited by the appellant, a decision which was released after this sentencing decision was decided. In Habib, unlike this case, significant evidence was tendered about the offender’s family circumstances, and the detrimental impact of incarceration and family separation.

[13] As such, while it would have been appropriate for the sentencing judge to address family separation in her reasons, in our view it would not be appropriate in this case for family consequences to overwhelm the other principles of sentencing.

Parenthood as an Aggravating Factor

[14] The appellant further argues that not only did the sentencing judge fail to consider the appellant’s relationship as a parent as a mitigating factor, she referred to it as an aggravating factor. As part of the sentencing judge’s analysis of aggravating factors, the sentencing judge remarked that:

Ms. Al-Enzi knew that the victims included children. She was at the rented premises when the victims were delivered there. At one point, she went into the room where the children were being held apart from their parents. On the agreed facts, she did nothing to comfort or assist them. This was particularly cold and callous behaviour on her part and especially alarming because she is, herself, a parent. [Emphasis added.]

This observation was not necessary to the sentencing judge’s analysis and, in our view, this comment should not have been included. That said, it did not constitute an error. The basis for this reference as an aggravating factor was the appellant’s conduct in light of the presence of children. The presence of children is appropriate to highlight as an aggravating factor in sentencing, and there is no basis to conclude that this remark resulted in a harsher sentence for the appellant.

Disposition

[15] For these reasons, we would grant leave to the appellant to appeal the sentence, and dismiss the appeal.

“Gary Trotter J.A.”
“Thorburn J.A.”
“L. Sossin J.A.”