Court Information

Ontario Court of Justice

Date: 2014-01-23

Court File No.: Toronto 4817 998 13-70003524-00

Parties

Between:

Her Majesty the Queen

— And —

Nabil Sheik

Before: Justice Richard Blouin

Heard on: December 12, 2013, and January 8, 2014

Reasons for Sentence released on: January 23, 2014

Counsel

Meghan Scott — counsel for the Crown

Philip Klumak — counsel for the accused Nabil Sheik

BLOUIN J.:

Guilty Pleas

[1] On December 12, 2013, Nabil Sheik appeared before me and entered guilty pleas to the following three offences:

• Assault with a Weapon, contrary to s. 267(1)(a) of the Criminal Code;
• Failure to Comply with Recognizance, contrary to s. 145(2)(a) of the Criminal Code;
• Criminal Harassment, contrary to s. 264(1) of the Criminal Code.

[2] On January 8, 2014, I gave the defendant a custodial sentence of 11 months. Although I told him why, I promised to set my reasons out more fully in writing. These are those written reasons.

Accepted Facts

[3] The defendant is 19 years of age and had been in a relationship with the complainant since his early teens. On Sunday, October 14, 2013, the complainant and the accused met in the area of Humber College. The defendant asked the complainant to come with him to a shelter and the complainant refused. The defendant then tried to get the complainant to comply with his request by making several threats to her and poking her several times with a shank, made from one half of a pair of scissors. Over the next several hours the complainant tried to escape and the defendant forcefully confined her movement.

[4] As the complainant was attempting to get on a bus, the defendant tried to block her entry and bit her on her face around the lip area. While on a bus, the defendant stabbed the victim's right arm with the shank causing her to scream out in pain. The defendant and the complainant exited the bus and the complainant reached her home. At this point, the defendant covered the complainant's nose and mouth with his hand, obstructing her breathing. The complainant was asthmatic and the defendant was aware that obstructing the complainant's breathing in this way was very distressing for her. The defendant finally fled the scene upon hearing someone approach. Before fleeing, he grabbed the complainant's iPad. The complainant's sister notified the police.

[5] At the time of the incident, the defendant was subject to a recognizance order that required him to be at his residence between the hours of 12:00 a.m. and 6:00 a.m. The defendant left the complainant's house at 12:10 a.m. and was at some distance from his own residence. Therefore, he was in breach of the recognizance order.

Position of the Parties

[6] This was not a joint submission as the Crown sought a custodial sentence of 12 months while defence sought time served, which, as of December 12, 2013, amounted to 60 days of pre-trial detention. At that time I was not prepared to sentence the defendant. I adjourned to allow preparation of a pre-sentence report, and a victim impact statement. The defence asked me to consider a conditional sentence should I decide a further custodial term was warranted.

[7] The Crown requested the following ancillary orders:

• DNA order pursuant to s. 487.051(1) of the Criminal Code;
• Section 110 weapons prohibition for 10 years, pursuant to s. 109(1)(a) of the Criminal Code;
• Non-association order;
• Three years probation.

[8] The defence took no issue with the ancillary orders.

Evidence on Sentence

[9] Three exhibits were filed on the sentencing hearing:

Exhibit 1

[10] The Victim Impact Statement dated January 5, 2014, written by Rahila Saleh, describes significant physical and emotional harm suffered by the victim as a result of these crimes. The victim continues to live in fear and has had bouts of sleeplessness and anxiety. She has a scar on her arm as a result of the stabbing that will serve as a future reminder of the violence that she experienced.

Exhibit 2

[11] The Pre-Sentence Report dated January 2, 2014, describes the defendant's upbringing and current job and education prospects. The defendant grew up in a close family and has the emotional support of his parents and siblings. He completed grade 11 and then left school to pursue employment. The defendant recognizes that the relationship with the victim was the cause of his absenteeism from school and plans to return to school and gainful employment at the conclusion of the current matter.

[12] The probation officer stated that the defendant accepted responsibility for his actions, and was remorseful. The defendant has indicated a desire to turn things around in his life by staying employed, focusing on furthering his education and seeking help in addressing personal issues by appropriate counseling. In the opinion of the probation officer, the defendant is a good candidate for educational programs that would promote pro-social behaviour and anti-criminal thinking, while under community supervision.

Exhibit 3

[13] The defence submitted a letter by the John Howard Society. The letter acknowledges that the defendant has expressed interest in attending an Anger Management counseling program upon his release. The Society confirms the defendant eligibility to attend such a program.

The Law

[14] The fundamental objectives of sentencing are set out in s. 718 of the Criminal Code and include denouncing the conduct, deterring the offender and the general population from offending, separating the offender from the community, rehabilitating where possible, and promoting responsibility in the offender for the harm done to the victim and the community. In cases of domestic violence the Ontario Court of Appeal has stated that denunciation and repudiation of the conduct are paramount objectives of sentencing. R. v. Boucher, 186 CCC (3d) 479 at 488 per Simmons JA.

[15] In the earlier case of R. v. Denkers, 69 OAC 391, the Court referred to defendants that harass and assault former lovers because they cannot deal with rejection:

"The victim, and others like her, is entitled to break off romantic relationships. When they do so, they are entitled to live their lives normally and safely… The law must do what it can to protect a person in those circumstances… It follows that principles of general and specific deterrence must be the overriding considerations in the determination of the sentence in this case. Those principles demand a very heavy sentence to act as a general deterrence to other persons who cannot abide their rejection by a person whom they love."

[16] The same principles were applied in R. v. Bates, [2000] OJ No 2558 in a case involving assault, threat and harassment. In sentencing, the Court considered not only the safety and security of the victim, but also the ongoing effects the victim suffered due to the conduct of the defendant.

[17] In addition, I asked counsel to provide any helpful precedents to support their respective positions, which they did.

[18] In R. v. Said, [2009] OJ No 1243 (Ont SCJ), the defendant pleaded guilty to assault, criminal harassment, threatening bodily harm and threatening death. He did not have a criminal record. The Superior Court of Justice sentenced the defendant to a total of eight months in prison. In that case, the assault was a slap to the face and the criminal harassment was carried out over a period of nine months.

[19] In R. v. West, 2013 ONCJ 460, the defendant was found guilty of several counts of assault and threatening. The defendant poured hot water over his spouse. The Ontario Court of Justice sentenced the defendant to 18 months in custody. The defendant had a long history of domestic abuse and prior domestic assault convictions.

[20] In R. v. Menary, 2012 ONCA 706, the trial judge issued a custodial sentence that was far longer than the joint submission by counsel proposed. The Court of Appeal allowed the appeal and issued a custodial sentence of 12 months for an assault that was relatively minor in nature and did not result in physical injuries. The defendant's circumstances were mitigated by an alcohol-related problem, but were aggravated by several prior convictions of domestic violence. Menary had a horrific record of domestic assault, including a prior conviction regarding the same complainant.

[21] In R. v. Wardak, 2013 ONCJ 259, the defendant was found guilty of domestic assault and threatening death and was sentenced to a custodial sentence of 90 days, which was the maximum sentence proposed by the Crown. In that case, the defendant punched his spouse on the head. No injuries resulted and the defendant had no prior criminal record.

[22] R. v. Conway, 2011 ONCJ 583, involves a defendant with a lengthy record of violent offences. The defendant punched, slapped and pulled the complainant by the hair. No injuries resulted. The Ontario Court of Justice sentenced the defendant to 18 months.

[23] Just before sentencing, I was made aware of a recent Ontario Court of Appeal decision (R. v. Rahaman, 2008 ONCA 1) by a law student in our chambers. I gave counsel an opportunity to examine the case and make submissions on it since the facts in Rahaman were similar to this case.

[24] While the cases provided by counsel have been valuable, I find the facts in R. v. Rahaman are closest to the facts at bar. In that case, the defendant kept the complainant confined over a period of five hours, under the threat of knife, while driving to various locations in the Ottawa area. In the course of the drive, the defendant confronted the complainant about lying to him and in the process, choked, threatened and slapped her. Although the knife was visible during the entire incident, the defendant never struck the complainant with it. There were no injuries. The Ontario Court of Appeal upheld a sentence of nine months, where the mitigating factors were a guilty plea, remorse, and no prior record.

Aggravating Factors

[25] The conduct of the defendant was a serious breach of trust since he and the complainant had been in a relationship for over four years, since their early teens. The defendant committed an assault with a weapon in the course of forcible confinement and criminal harassment that lasted over seven hours.

[26] Most disturbingly, the defendant used a weapon and caused a significant injury by stabbing the complainant with such force as to tear through three layers of clothing including a jacket. A scar remains on the complainant's forearm. The incident has caused a significant and serious emotional impact on the complainant who still lives in fear of the defendant.

[27] The defendant choked the victim and at one point covered her mouth to stop her breathing. The defendant was aware of the complainant's medical condition and the distress that this would cause her.

[28] This incident occurred while the defendant was on bail. The defendant broke bail conditions that required him to be at home between the hours of 12:00 a.m. and 6:00 a.m.

Mitigating Factors

[29] The defendant pleaded guilty, surrendered himself to the police and gave an incriminating statement. He is 19 years old and has no criminal record. He has shown remorse for his actions, admitted that he needs help, and has shown willingness to seek counseling and turn his life around.

Conclusion

[30] Taking into account the mitigating and aggravating factors mentioned above, I am of the view that a sentence of 11 months is warranted in this case. A lesser sentence would not sufficiently emphasize the principles of denunciation and deterrence.

[31] As of this date, the defendant has spent 87 days in pre-trial custody and has been on lock-down for three-four days each week. While in custody, he has been of good behaviour and shared his cell with three other people. These circumstances justify maximum credit for time served at the rate of 1.5 to 1, for a total of 130 days. The remaining custodial sentence to be served from today forward is 200 days.

[32] Upon completion of the custodial portion of his sentence, the defendant will be placed on probation for a period of two years with the following terms:

• the defendant will report to a probation officer within 72 hours of his release from custody and thereafter as directed by his probation officer;
• the defendant will refrain from communicating, directly or indirectly, with Rahila Saleh;
• the defendant will refrain from attending within 100 metres of the known residence or place of employment or education of Rahila Saleh;
• the defendant will refrain from possessing any weapons as defined by the Criminal Code; and
• the defendant will attend for assessment and counseling for rehabilitative programs such as the Partner Abuse Program (PAR), or its equivalent, to the satisfaction of his probation officer.

[33] The ancillary orders requested by the Crown will be granted as follows:

• DNA order pursuant to s. 487.051(1) of the Criminal Code;
• weapons prohibition for 10 years, pursuant to s. 109(1)(a) of the Criminal Code.

Released: January 23, 2014

Signed: "Justice Richard Blouin"