Court Information

Ontario Court of Justice

Date: 2015-06-29

Court File No.: Oshawa 13-14965

Parties

Between:

Her Majesty the Queen

— AND —

Farida Fakhri

Before the Court

Justice G. R. Wakefield

Heard on: January 26th, May 4th, and June 8th, 2015

Reasons for Judgment released on: June 29th, 2015

Counsel

P. Murray — counsel for the Crown

A. Glass — counsel for the defendant Farida Fakhri

Judgment

WAKEFIELD J.:

[1] Farida Fakhri has been convicted with one count of Public Mischief. The matter first came before me as the prospective trial judge by way of a type of focus hearing after being judicially pre-tried by a different judge and a 10 day trial having been set on this Crown elect Indictable offence. Within that focus hearing, resolution discussions opened up which would save the 10 days of court resources.

[2] However, with impending civil litigation the Defendant was not offering a guilty plea in which to resolve the trial. There was discussion between both counsel and myself as to a procedure which would not abrogate the rights of the Defendant nor contravene the directions in R. v. D.M.G., 2011 ONCA 343 as to the obligations of a trial judge where the Defendant pleads not guilty while not contesting a reading of the allegations, but rather fall within the precepts of R. v. R.P., 2013 ONCA 53. Both counsel agreed that the manner of proceeding in this case fell within the guidance of R. v. R.P.

[3] My purpose as the trial judge was to prevent any miscarriage of justice, to not compromise the fairness of the hearing or contribute to an unreliable verdict. I was concerned that any procedure ensures the Defendant was both fully informed and freely participating. Counsel for the Defendant is an experienced, senior counsel who obtained written instructions from the Defendant such instructions obtained with the assistance of a Dari interpreter.

[4] Ms. Fakhri had the assistance of a Dari interpreter during the proceedings. That Interpreter was duly sworn and confirmed he and the Defendant understood each other without difficulty. The agreed upon procedure was to have the investigating officer sworn in as the only Crown witness, and set out his investigative knowledge including hearsay evidence in place of calling each witness in the prosecution roster. That officer would be available for cross-examination but counsel anticipated minimal questioning by defence.

[5] The Defendant confirmed her understanding of the disclosure, that she did not have any questions of her lawyer regarding the disclosure contents, that she understood the procedure, she understood the Crown overview of the procedure and the trial result of the Crown evidence being uncontested. She confirmed that she was proceeding in this fashion due to her informed personal choice and not subject to any duress or adverse influence.

[6] There was cross-examination of the officer by defence counsel. The Crown closed. Defence elected not to call any evidence, and specifically, Ms. Fakhri confirmed on the record that she understood she had a right to testify and did not wish to do so. The Crown submitted that there was evidence beyond a reasonable doubt as to the guilt of Ms. Fakhri. Defence elected to not make submissions. On the basis of the testimony in the trial I concluded the Crown had indeed proven its case beyond a reasonable doubt and I thereupon convicted the Defendant and bound her over for a pre-sentence report and subsequently an electronic monitoring assessment.

Sentencing Hearing

[7] At the Sentencing Hearing, the Defence argued for a Conditional Sentence, on any terms or duration, followed by Probation, again on any terms or duration that would in the Court's mind permit the imposition of a Conditional Sentence as opposed to a "real jail" setting.

[8] The Crown's original position was a sentence of nine to twelve months incarceration followed by two years' probation. After reviewing the pre-sentence report, the Crown reduced its position of incarceration to one of 6 months.

[9] Counsel are in agreement that a Conditional Sentence is available to the Defendant if appropriate. That would appear to mean a concession that this offender would not endanger the community if subjected to a Conditional Sentence, and if that was not clear on the record, I don't hesitate in finding Ms. Fakhri would not be a danger. I also acknowledge that a Conditional Sentence provides significant denunciation and deterrence, especially as in the case at bar, where the Defendant has been approved for electronic monitoring to ensure compliance with all terms of a Conditional Sentence.

[10] My sentencing dilemma is to determine, given the facts of this offence whether the need for denunciation or deterrence is so pressing that incarceration is the only suitable way in which to express society's condemnation of the offender's conduct or to generally deter similar conduct in the future.

Facts of the Offence

[11] The facts underlying the offence clearly cry out for incarceration. The Victim found out that the Defendant's husband was having an affair with the Victim's girlfriend. I would infer that in some state of outrage he decided to contact the Defendant with the anticipation of a similar reaction by her. Instead, the Defendant preferred not to talk to the Victim. The Victim did not accept her response and continued to call resulting in the Defendant family changing their telephone number.

[12] When the Victim found out the new telephone number, and commenced calling again, the Defendant decided to use the Victim's calls as an excuse for losing thousands of dollars at the casino by pretending she paid the money to the Victim who was extorting funds by threatening to kill the Defendant's husband. She even taped a telephone conversation with the Victim, much to his confusion, in which she expressed the hope that the payments would satisfy him. This set in motion a sequence of events in which the Defendant's daughter called the police despite being told not to by the Defendant. Rather than admitting the truth to the police, the Defendant then embellishes the story over several interviews, adding in details, often contradictory, describing the people she dealt with and the location of meetings.

[13] That resulted in the arrest of the Victim, and his detention in custody for 42 days. I am not aware as to the circumstances in Bail Court resulting in the Victim spending that long in custody as opposed to a release. He was prevented from paying the rent on his business which was then shut down. While speculative and as such not an aggravating factor in sentencing, I anticipate that were it not for the continuing police investigations and subsequent disbelief of the Defendant's story, the Victim's detention in custody would have lasted substantially longer. While the Defendant did not start the investigation, she consciously perpetuated those false allegations to explain missing money she had lost at the casino.

Personal Circumstances of the Defendant

[14] The personal facts of Ms. Fakhri as set out in the pre-sentence report clearly cry out for a Conditional Sentence. Her early life is the extreme opposite of the complacent expectations of most youth in Canada. She was born in Afghanistan and when she was about 12 years of age, her mother was murdered while pregnant. Her father remarried to a woman who was abusive to the Defendant and her siblings, including preventing the Defendant from attending school in order to do housework, as opposed to the over 10 children her father had with his new wife all of whom did attend school. The pre-sentence report also asserts that the Defendant has not attended a single day of school in her life. That lack of education is reflected in the remarkably unsophisticated manner in which she committed this offence. She married her husband at twenty years of age having left Afghanistan for Pakistan, then immigrated to India and finally to Canada. She has 6 children ranging in age from 11 to 29 years old. She is in overall good health with a history of medication for depression and possible abuse of Tylenol 3's for pain.

[15] The Defendant is a stay at home mother who also has recently started a home business as well as undocumented part time employment at a restaurant. While she advises she does not speak very much English, she apparently was able to successfully apply for and obtain a driver's licence and is able to, albeit poorly, attend and participate in gambling at the casino. The Pre-sentence report also describes the Defendant and her husband as lacking insight as to the impact on the Victim or the waste of police resources. Indeed, her husband asserts he does not understand why the Victim gave the Fakhri family problems. Unlike her husband, the Defendant was open to counselling and assessments which supports the Defence submission, and which I accept, that in the probation interview, the Defendant was quite upset and any suggestion of minimizing her involvement arose from the language barrier and her emotions during that interview.

[16] The letters in support of Ms. Fakhri depict a lady who is completely devoted to her family, and a support to a circle of friends who rely upon her unstinting ability to volunteer to help. The stress of the charges and impending sentence is clearly having an emotional and physical impact on her children whose letters demonstrate an equal devotion to their mother. The Crown submits that the impact of incarceration on the family is not the sort of "collateral consequences" referred to in R. v. Pham 2013 SCC 15, which focused on the unintended immigration status of a sentence. On the contrary, the impact of incarceration on extended family may very well be a collateral consequence within the sentencing matrix, but one which ultimately is caused by the choices made by the Defendant.

[17] Ms. Fakhri is now fifty years old with no criminal antecedents whatsoever. She appears to be a productive member of the community who has earned the trust, respect and love of her family, her circle of friends and business customers. I fully accept that she will not re-offend and that specific deterrence is not necessary.

Sentencing Principles

[18] Nor do I conclude that general deterrence is a large factor in sentencing this Defendant as I do not see this sentence deterring other women like the Defendant with a similar background, personal history and lack of sophistication. I would not be prepared to incarcerate Ms. Fakhri were the only basis was as a sacrificial lamb on the altar of general deterrence, as that sentencing principle by itself would not in my view preclude consideration of a conditional sentence in this case.

[19] However, this offence and the impact it had on the Victim, is an attack on the foundations of our justice system. Just as the legitimacy of our trials requires witnesses to fulfil their oath to tell the truth, so any police investigation is dependent on members of our community to be truthful or at least silent during their interactions with a police officer. Such an officer relies on what that investigator is told to determine whether there are sufficient grounds to arrest, and will inform the content of any reports which will impact on an accused's ability to obtain bail at a show cause hearing. Here, the Defendant's assertions to the police not only caused a police investigation and the arrest of the Victim, but his pre-trial incarceration which in turn impacted on his livelihood.

[20] I have reserved this sentencing decision to consider whether a Conditional Sentence can be justified for this offence and offender. I considered a Conditional Sentence in the range of nine to twelve months followed by the maximum probationary period with the maximum community service hours as a component in both the Conditional Sentence and the probationary period. Were it not for the Victim's incarceration, I would have concluded that this offender's personal situation outweighed the substantial seriousness of the offence and would have imposed a Conditional Sentence.

[21] However, the Victim did suffer real jail which demands a denunciatory sentence expressing society's reliance upon and respect for the integrity of our justice system and revulsion at the incarceration of the wrongfully accused. In my view, a non-custodial sentence for Ms. Fakhri would tarnish the reputation of the justice system by not sufficiently denouncing her conduct which resulted in the Victim's incarceration.

[22] A different Defendant could easily attract an incarceratory sentence in excess of a year given these facts. The current Crown position is one which has clearly taken into account the personal circumstances of Ms. Fakhri.

Sentence Imposed

[23] My view is that incarceration of roughly double the time spent in jail by the victim, followed by a lengthy and restrictive probation order which includes non-association, counselling for gambling and life skills, prohibition from attending casinos or gambling and a substantial number of community service hours balances out the competing sentencing principles applicable to the crime committed. My sentence is one of 90 days followed by two years' probation. I will hear submissions from counsel as to whether the sentence can be served intermittently and on the issue of any other terms of probation.

Released: June 29th, 2015

Signed: Justice G. R. Wakefield