Ontario Court of Justice

Date: 2014-07-25 Court File No.: Brampton 005453 & 002533

Between:

Her Majesty the Queen

— AND —

Ali Laldin

Before: Justice P.F. Band

Heard on: March 25, June 13, July 25, 2014

Reasons for Judgment released on: July 25, 2014

Counsel:

• Ms. Helena Gluzman — counsel for the Crown
• Mr. Robert Richardson — counsel for the accused Mr. Ali Laldin

BAND J.:

[1] Reasons for Sentence

[1] The following are Reasons for Sentence after guilty pleas that were entered on March 25, 2014.

Procedural History

[2] Based on incidents that occurred on May 5, 2013, Mr. Laldin was charged with one count of Breaking and Entering into a Dwelling house and committing the offence of Sexual Assault therein and one count of Sexual Assault. He was released from custody on a Recognizance the following day. For today's purposes the most pertinent of the conditions of that Recognizance was that Mr. Laldin was to have no contact direct or indirect with the complainant or her family.

[3] Between February 28 and March 1, 2014, Mr. Laldin breached that condition by communicating with the complainant's daughter over the internet by way of various social media. He was arrested, held for bail, and released on a second Recognizance the following day.

[4] By this time, the March 25, 2014 date for the preliminary inquiry had been set.

[5] On that date and with the consent of the Crown, Mr. Laldin pleaded guilty to the lesser and included offence of Breaking and Entering and Committing Assault, Assault and Breach of Recognizance. On that date, Mr. Richardson filed a forensic psychiatric report by Dr. J. Gojer dated March 24, 2014: Exhibit 7 ("Dr. Gojer's Report"). The matter was put over to June 13, 2014 for sentencing.

[6] On June 13, 2014, Mr. Richardson filed two written updates by Dr. Gojer, dated June 6 and 11, 2014: Exhibits 8 and 9 ("letter of June 6" and "letter of June 11").

[7] Due to some concerns raised by Ms. Gluzman, on behalf of the Crown and some questions of my own, it was agreed that Dr. Gojer would attend to provide expert testimony on today's date.

The Facts of the Offences

Break & Enter & Assault; Assault

[8] On May 5, 2013, Mr. Laldin occupied the basement residence of a 2 floor house. The victim in this matter, Ms. H.M., lived upstairs with her husband and 5 children.

[9] The units were connected by a door that could be locked from the H.M. family's side. That lock was in poor working order and the door could be opened easily.

[10] Just before 2 a.m., Mr. Laldin entered the H.M.'s residence, and went to Mrs. H.M.'s bedroom where she was sleeping with her 3 year old son nearby. Mr. Laldin knew that Mr. H.M. was overseas.

[11] Mr. Laldin touched Mrs. H.M. on the cheek. At first, she thought it was one of her children. When she woke up and opened her eyes, she saw Mr. Laldin standing near her wearing only pajama bottoms. He had removed his shirt.

[12] Mrs. H.M. screamed, and three of her teenaged children came to help her. Mr. Laldin stood like a statue. The children pushed him out of their mother's room and down the stairs to his basement apartment where police found him a short time later. He was wearing shoes and a jacket at the time.

[13] Mr. Laldin was cooperative with police, and provided a videotaped statement. The videotaped statement and transcript were filed as Exhibits in the proceedings.

[14] In his statement, Mr. Laldin explained that he had been romantically infatuated with Mrs. H.M. over the past year, and concerned that she was going to be moving away. He admitted kissing her cheek and touching her stomach. When asked what he would have done if she had not woken up, Mr. Laldin said that he would have continued. When asked what he would have done if she had said no but did not scream, Mr. Laldin would "have humbly obliged."

[15] In response to another question, Mr. Laldin stated that "rape was never completely part, part of it in my mind."

[16] He explained that he thought Mrs. H.M. had a "slight adoration of" him so he proceeded to her flat despite knowing that "this could turn ugly." He appreciated that he may be wrong and when she woke up, he understood he had been wrong.

[17] It is beyond question that Mrs. H.M. did not share Mr. Laldin's feelings.

Breach of Recognizance

[18] On February 28, 2014, Mr. Laldin inadvertently made an entry on Twitter which, by virtue of that network, constituted contact with one of Ms. H.M.'s daughters. That is, he made one of her recent tweets a "favourite." Having realized this, Mr. Laldin sent her a message via Facebook explaining his mistake and asking that she delete her tweet and repost it. Based on his understanding, there was no other way to break what was otherwise a constant link between the two which he knew to constitute some form of communication. He indicated that he did not wish to be associated with any of the H.M. family. Fearful, the girl spoke to her older sister, who replied that police would be contacted. Mr. Laldin responded with a more lengthy email on March 1 entitled "If you hate my guts so much, why is my request such a big one? PLEASE REMOVE MY ACCIDENTAL FAVORITE FROM YOUR POST." In the body of the email, Mr. Laldin explained his mistake and reasons for making further contact. He indicated that he understood that this email could cause the H.M. to contact police. He also indicated his desire to have no contact with the H.M., and used strong and hurtful language in doing so.

The Role that Mental Illness Played in the Commission of the Offences

[19] Mr. Laldin is 37 years old. He suffers from long-standing, chronic schizophrenia which had its onset when he was a teenager. It went largely untreated for approximately 20 years as he was non-compliant with medication.

[20] The central issue before me in this proceeding is whether there is a causal link between Mr. Laldin's mental illness and his offending conduct. If so, then he is entitled to mitigation on sentence according to the appellate authorities relied upon by the Crown. If not, then he is to be sentenced like other offenders for what are clearly very serious offences. While I focus in what follows on the Break & Enter, I am mindful of the Crown's concerns relating to the breach which was, clearly, done deliberately and with an understanding of the inherent risks associated with it.

[21] Dr. Gojer's Report indicates that at the time of the Break & Enter, Mr. Laldin had erotomanic feelings toward Mrs. H.M. which were "not of delusional intensity." In his letter of June 11, however, Dr. Gojer opined that Mr. Laldin's "belief system regarding the victim was of delusional intensity and he acted upon his belief."

[22] This apparent inconsistency is what led to Dr. Gojer's attendance today. I say apparent inconsistency because his testimony satisfied me that it was an inconsistency only in form. His testimony served as a reminder that as jurists, we are not experts in forensic psychiatry. Its terms, which are not necessarily fixed in stone, can be difficult for us to scrutinize. As the Crown put it, had we proceeded to sentencing on March 25, we would have been able to conclude only that the evidence of Mr. Laldin's mental illness, while active, would have fallen short of that required to found a causal nexus. We know now that had we taken that course, we would have been wrong.

[23] Dr. Gojer explained that the apparent change in his opinion was a function of his evolving understanding of Mr. Laldin's state of mind at the time of the Break & Enter. On March 24, Mr. Laldin had been medicated, for the first time in approximately 20 years, only for a few days. He was ill and displayed little or no insight. Over the following months, Mr. Laldin complied with his medication and received therapy on a weekly basis. By June 11, Dr. Gojer was better able to understand what Mr. Laldin's state of mind as it was on May 5, 2013. Based on this better understanding, Dr. Gojer came to the conclusion that Mr. Laldin was in fact delusional and that he acted upon that delusion in committing the offence. This was based on his irrational and false belief that Mrs. H.M. was enamoured with him. It was also complicated by Mr. Laldin's disorganized and irrational thought system. Dr. Gojer's conclusion was that Mr. Laldin's behaviour was "significantly driven by mental illness."

[24] Dr. Gojer quite fairly conceded that the illness' causal link to the breach was much more tenuous. However, he pointed out that the illness remained active, and went some length to explain the confusion Mr. Laldin experienced in trying to fix his mistake, and the anger and frustration he felt subsequently. It also went some length to explain how he expressed himself. It reflected the fact that Mr. Laldin has difficulty interpreting social cues and behaving in a socially appropriate manner. These challenges are features of Mr. Laldin's mental illness.

[25] I am satisfied that Dr. Gojer's evidence, once clarified and amplified, establishes a causal nexus between Mr. Laldin's mental illness and offending behaviour. While its link to the breach is more diffuse, I am satisfied that it is nonetheless one of the causes of that behaviour when it is viewed in its context. See: R. v. Robinson, [1974] O.J. No. 545 (C.A.); R. v. Prioriello, 2012 ONCA 63, [2012] O.J. No. 650 (C.A.); R. v. Batisse, 2009 ONCA 114, [2009] O.J. No. 452 (C.A.).

[26] Put yet another way, unlike someone whose illness is in partial or full remission, Mr. Laldin was not well when the offences occurred.

[27] I am also satisfied that Mr. Laldin's reference to rape in his statement to police, while concerning on its face, must be read in context. In that interview, he makes it plain that he is alive to Mrs. H.M.'s right to consent. I do not believe that he had an intention to rape her. That statement must also be considered in the context of Mr. Laldin's untreated mental illness. When read with other passages, it is evident that Mr. Laldin's thoughts were disordered at that time.

[28] Perhaps more important in this regard is Dr. Gojer's unchallenged opinion that Mr. Laldin represents the lowest risk to the safety of the community that is possible in the circumstances. That opinion is well founded. Mr. Laldin has no criminal record and no history of sexual or other violence. He is compliant with and committed to his medication. His insight, while impaired, is growing. He is actively involved in treatment and enjoying a strong therapeutic alliance with his caregivers. His family are both knowledgeable and supportive: see Exhibit 10, his sister's insightful letter dated June 12, 2014.

Sentence

[29] Both counsel presented their positions with great dedication and strength. I am grateful for their hard work and indebted to them for the materials they have filed.

[30] There is no doubt that these offences – particularly those that took place on May 5, 2013 – are very serious. They have caused tremendous fear and unrest, and this has been voiced in the Victim Impact Statements.

[31] Ms. Gluzman acknowledged that the finding of a causal link between Mr. Laldin's mental illness and offending conduct meant the difference between a sentence that prioritized deterrence and denunciation and one that focused on rehabilitation. This concession was both fair and consistent with the law: see Robinson, supra, at para. 18; Batisse, supra, at para. 38.

[32] In my view, a just and fit sentence in this matter is a suspended sentence and two years' probation. In addition to the factors I have referred to above, I am of the view that the central sentencing principles in this particular case are those of restraint, proportionality and rehabilitation. It cannot be forgotten that Mr. Laldin pleaded guilty and has no criminal record. While it is true that his plea was entered on the morning of his preliminary inquiry, it was only on that date that the parties joined minds on the offences of which he was guilty.

[33] Given the link between Mr. Laldin's mental illness and offending behaviour, he is less morally blameworthy than those who have no such challenges: see Batisse, supra.

[34] In addition, where, as here and all things being equal, the accused is a first offender and the divide is between jail and no jail, the principle of restraint dictates that great care be taken to find alternatives to imprisonment.

[35] I would add that I am aware that a conditional sentence of imprisonment is statutorily unavailable in this matter. In my view, neither form of incarceration was warranted in this case. A suspended sentence with the terms and conditions canvassed by the parties is, in my view, the only just and fit sentence in this matter.

Released: July 25, 2014

Signed: Justice Band