WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. —(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application. — 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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

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

Court Information

Date: 2016-05-18

Court File No.: Brampton 14-8009

Ontario Court of Justice

Between:

Her Majesty the Queen

- and -

Zamin Khan

Before: Justice P.A. Schreck

Heard on: April 1, 2016

Released: May 18, 2016

Counsel

T. Powell — counsel for the Crown

D. Berg — counsel for the defendant, Zamin Khan

REASONS FOR SENTENCE

SCHRECK J.:

I. THE OFFENCE

[1] M.N. went to a massage clinic to receive a massage from a registered massage therapist. She instead received a massage from Zamin Khan, who was not a registered massage therapist. During the massage, he sexually assaulted her by touching her breasts and vaginal area. Mr. Khan was charged with sexual assault. The Crown elected to proceed summarily and he was found guilty following a trial. The Crown takes the position that the appropriate sentence for this conduct is imprisonment for 15 months. Counsel for Mr. Khan seeks a nine-month conditional sentence.

[2] On June 27, 2014, M.N. and her spousal partner went to the Evergreen Wellness Centre in Mississauga for massages. M.N. was a frequent consumer of massage therapy services, the cost of which was covered by her employment benefits plan. The plan only covered massages done by a registered massage therapist ("RMT"). However, M.N. had viewed the Evergreen website, which stated that all massages were done by RMTs.

[3] Upon arriving at the Evergreen Wellness Centre, M.N. and her partner were greeted by the defendant, Mr. Khan, who identified himself as the person who would conduct their massages. M.N.'s partner went into the massage room first. Her massage was uneventful. It was then M.N.'s turn.

[4] Upon entering the massage room, M.N. disrobed fully, lay face down on the massage table and covered herself with a thin sheet that had been provided for that purpose. Mr. Khan then began to massage M.N.'s legs and then moved to her back and shoulders. At one point, he pulled down the sheet that was covering her such that one of her buttocks was exposed. During the massage, Mr. Khan talked a lot about personal matters. At one point, he told M.N. that she was a tall, attractive woman and that her shoulders were very broad. After a while, Mr. Khan told M.N. to roll over onto her back, which she did. He asked her if she wished to have her stomach massaged. She found this to be odd and declined. At this point, Mr. Khan put his hands under the sheet, cupped both of her breasts with his two hands and began to squeeze them repeatedly with a "pumping" motion. M.N. told him that she did not need a massage there. Mr. Khan then moved one of his hands down under the sheet and began to massage her inner thigh, very close to her vagina. At this point, M.N. said "no". Mr. Khan then moved his hand up again and as he did so his fingers brushed against her clitoris.

[5] Mr. Khan asked M.N. out for dinner. She declined and asked him if the massage was over. He replied that it was and then left the room. M.N. got dressed, left the room, and paid for the massage. At that point, she learned that Mr. Khan was not an RMT. Later that day, M.N. contacted the police and reported that she had been sexually assaulted.

[6] M.N. prepared a victim impact statement, which she read in court. She reports that the sexual assault caused her to be embarrassed and ashamed, resulting in her withdrawing from her friends and family. She is now less trusting with strangers than she had been and has difficulty fostering new relationships. She reports that "[t]his incident has changed me in a way that is not for the better".

II. THE OFFENDER

[7] A Pre-Sentence Report ("PSR") was prepared. Mr. Khan is 44 years old and was born and grew up in India. He has been married since 1997 and has no children, although he and his wife plan to adopt. A letter written by his wife was submitted at the sentencing hearing. She describes her relationship with Mr. Khan in positive terms.

[8] Mr. Khan obtained a Bachelor of Arts degree in India. He is currently employed in a warehouse and this job will continue to be available to him after he has served whatever sentence is imposed.

[9] Mr. Khan told the author of the PSR that he began working at the Evergreen Wellness Clinic with plans of becoming an RMT. He claimed that after a year and a half of training, he was to attend the "schooling portion" of this training, which he was forced to discontinue after being charged with this offence. I am somewhat sceptical of this claim. First, it would be somewhat surprising if the proper training to become an RMT was to first work as one for several years and then attend school. With most professions, practical training follows at least some schooling. Second, the owner of the Evergreen Wellness Clinic testified at Mr. Khan's trial. He was not a credible witness, and I find that he was actively attempting to defraud his customers by falsely claiming that all massages were conducted by RMTs. Whether Mr. Khan was involved in this fraudulent activity and to what extent is unknown and I have not considered his involvement in determining the appropriate sentence.

[10] Mr. Khan has not expressed any remorse for his actions. He told the author of the PSR that in his view, the victim must have something "wrong with her psychologically". He apparently suggested that she falsely accused him because she "likes" women and "doesn't like" men. M.N. is a gay woman.

[11] The PSR mentions that Mr. Khan was granted a conditional discharge after being found guilty of assault in 2010. The author of the PSR goes on to describe this as "a Sexual Assault for which he plead [sic] guilty to the lesser offence of Assault" and then relates the allegations found in the "police report". None of this information should have been included in the PSR. Section 6.1 of the Criminal Records Act, R.S.C. 1985, c. C-47 clearly prohibits the disclosure of a record of a conditional discharge more than three years after the end of the term of probation: R. v. Manel, [2012] Q.J. No. 4788 (S.C.) at para. 69; R. v. Corser, [2004] A.J. No. 1335 (Q.B.) at para. 8. Furthermore, regardless of what Mr. Khan had been charged with, the only offence he was found guilty of was assault. Even if the record was disclosable, the only relevant facts would have been those that he admitted to. Unproven allegations in the "police report", which was likely a synopsis, were irrelevant and potentially prejudicial. It is well known that a police synopsis is prepared at the very early stages of the prosecution and often includes allegations which are ultimately never proven: R. v. P.G., 2013 ONSC 589, [2013] O.J. No. 490 at para. 32. I am directing that a copy of these reasons be provided to the author of the PSR.

[12] I have disabused my mind of the information respecting the prior finding of guilt and it has played no part in my determination of the appropriate sentence. Mr. Khan is entitled to be treated as a first offender.

III. ANALYSIS

A. Aggravating and Mitigating Factors

[13] This case has a number of aggravating features. Foremost among them is that the offence involved a breach of trust. M.N. trusted Mr. Khan to provide her with massage therapy services because she believed him to be an RMT. He abused that trust. The fact that the trust relationship was created through deceit is, in my view, a further aggravating factor.

[14] A second aggravating feature, although somewhat related to the first, is that the victim was in a vulnerable position at the time of the offence. She was in a small room, alone with Mr. Khan and in a completely disrobed state.

[15] Third, the assault was more than momentary. After M.N. made it clear to Mr. Khan that she did not want him to massage her breasts, he proceeded to touch her upper thigh, brushing his hand against her vaginal area.

[16] Finally, the offence has had a significant impact on the victim, as described in her victim impact statement.

[17] There are, however, mitigating factors as well. Most importantly, Mr. Khan has no prior convictions and is being sentenced as a first offender. I note as well that he has a history of gainful employment, although the mitigating effect of this is somewhat attenuated by the fact that some of that employment consisted of falsely holding himself out as an RMT. Mr. Khan appears to enjoy support in the community and from his family. It appears that the offence is somewhat out of character for him.

[18] A mitigating factor that is wholly absent is an expression of remorse or acceptance of responsibility. This is, however, the absence of a mitigating factor. It is not an aggravating factor: R. v. Valentini (1999), 43 O.R. (3d) 178 (C.A.) at paras. 81-84.

B. The Availability of a Conditional Sentence

[19] The parties differ substantially with respect to their views as to the appropriate penalty. The Crown seeks a sentence of 15 months imprisonment. The defence seeks a nine-month conditional sentence.

[20] As defence counsel correctly points out, the appropriate duration of a conditional sentence will often differ from the appropriate duration of a sentence served in a custodial facility: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 at para. 52. While the determination of where the sentence is to be served cannot be divorced from the issue of its duration, in the circumstances of this case it is my view that the best approach is to first determine whether a conditional sentence is appropriate in this case and then determine the appropriate duration.

[21] The availability of a conditional sentence is dictated by s. 742.1 of the Criminal Code. The sentence must be less than two years in duration and is unavailable in a number of enumerated circumstances. In this case, the Crown elected to proceed summarily, so the maximum penalty is imprisonment for 18 months and there is no minimum penalty. As result, the offence is not one of those excluded in subsections (b) to (f) of s. 742.1. The real issue is whether the requirements of subsection (a) are met, that is, that a conditional sentence would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Code.

[22] I am satisfied that a conditional sentence would not endanger the safety of the community. Mr. Khan has been on bail for a significant period of time and I have heard no suggestion that he has not abided by his bail conditions or has committed any further offences.

[23] More difficult is the question of whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 and 718.2. The approach to be taken to making this determination was explained in R. v. Proulx, supra at paras. 113-115:

In sum, in determining whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing, sentencing judges should consider which sentencing objectives figure most prominently in the factual circumstances of the particular case before them. Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration. In determining whether restorative objectives can be satisfied in a particular case, the judge should consider the offender's prospects of rehabilitation, including whether the offender has proposed a particular plan of rehabilitation; the availability of appropriate community service and treatment programs; whether the offender has acknowledged his or her wrongdoing and expresses remorse; as well as the victim's wishes as revealed by the victim impact statement (consideration of which is now mandatory pursuant to s. 722 of the Code). This list is not exhaustive.

Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravating circumstances, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved by a conditional sentence. Conversely, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of diminished importance, depending on the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances of the offender and the community in which the conditional sentence is to be served.

[24] In this case, restorative objectives can play but a limited role because Mr. Khan has refused to accept responsibility for the offence. As noted earlier, this is not an aggravating factor. However, the reality is that absent an acceptance of responsibility, there is little that can be done to promote Mr. Khan's rehabilitation or reparations to the victim and the community. No treatment program will be effective as he does not admit to having any problems that led to his offending behaviour. He has shown no interest in making reparations. To the contrary, he blames the victim for causing him problems, which he seems to attribute to the fact that she is a lesbian.

[25] In my view, in this case denunciation and deterrence are the primary sentencing objectives. Denunciation is of particular importance given the breach of trust. While the effectiveness of imprisonment as a general deterrent is somewhat uncertain (see R. v. Proulx, supra at para. 107), specific deterrence is of some importance in this case. Mr. Khan is free to refuse to accept responsibility. However, he must be made aware of the consequences of this type of behaviour to ensure that he does not engage in it again. For these reasons, I am not satisfied that a conditional sentence would be consistent with the fundamental purpose and principles of sentencing.

C. The Appropriate Length of Sentence

[26] The issue that now needs to be determined is the appropriate length of the term of imprisonment that must be imposed. The Crown seeks a sentence of 15 months, and in doing so relies on a number of authorities. I note that in some of those cases, the Crown proceeded by indictment. I recognize that the sentence for a hybrid offence prosecuted summarily should not be "scaled down" from the maximum on summary conviction simply because the defendant would likely have received less than the maximum had he or she been prosecuted by indictment: R. v. Solowan, 2008 SCC 62, [2008] 3 S.C.R. 309 at para. 15. However, when the Crown elects to proceed summarily, the range of sentence is circumscribed by the statutory maximum. Insofar as other authorities are situating a sentencing within a range that has an upper limit greater than 18 months, they are of limited value in this case: R. v. Mermer, [2015] O.J. No. 2857 at para. 20 (S.C.J.).

[27] Having reviewed the Crown's authorities, I am not persuaded that they support the sentence being sought here. Some are easily distinguishable from the case at bar. In R. v. Aguas, 2015 ONSC 5732, [2015] O.J. No. 4739 (S.C.J.), the accused, a nurse, was convicted of both voyeurism and sexual assault in relation to two different victims. Both victims were extremely vulnerable, one having just attempted suicide and the other having recently been in a serious car accident. The fact that there were multiple victims and their extreme vulnerability both played a significant part in the sentencing judge's decision to impose a 14-month sentence. R. v. Hall, [2010] A.J. No. 586 (C.A.) bears very little factual similarity to this case except that both involved a fondling of the victim's breasts. In any event, the Court in that case held that a six-month sentence was appropriate. R. v. Im, 2009 ONCA 101, [2009] O.J. No. 373 (C.A.) involved a physician who rubbed his genitals against a patient while examining her. He received a six-month conditional sentence. The Court of Appeal's judgment sets out its reasons for refusing leave to appeal a Summary Conviction Appeal Court decision dismissing a conviction appeal. There is no discussion with respect to how the sentence was arrived at.

[28] The Crown relied on two cases which are factually similar to this one. In R. v. Collins, [2007] N.B.J. No. 167 (Q.B.), a massage therapist improperly massaged the victim's breasts. Like Mr. Khan, the accused was a first offender but did not accept responsibility. Unlike in this case, however, the offence occurred repeatedly over the course of six visits by the victim. Even then, the Court imposed a one-year sentence, significantly less than the Crown is seeking in this case. In R. v. Alasti, [2011] B.C.J. No. 1177 (S.C.), the accused was convicted of two counts of sexual assault. Like Mr. Khan, he was an unlicensed massage therapist. As in this case, the Crown proceeded summarily. The first sexual assault consisted of the accused touching and then digitally penetrating the vagina of a woman he was massaging. The assault resulted in pain and bleeding for which she required medical attention. The second sexual assault consisted of the accused touching the breasts and nipples of a woman he was massaging. He was sentenced to 12 months imprisonment for the first offence and six months consecutive for the second. The sentences were upheld on appeal.

[29] Obviously, no two cases are exactly the same. In my view, the second sexual assault in R. v. Alasti, supra bears the greatest resemblance to the case at bar. As in this case, it involved an unlicensed massage therapist and the Crown proceeded summarily. This case involved the added touching of the upper thigh and a brushing of the vaginal area, but the assaults are otherwise similar.

[30] Mr. Khan is a first offender. It is well established that "a first sentence of imprisonment especially for a first offender should be as short as possible and tailored to the individual circumstances of the accused": R. v. Hayman (1999), 135 C.C.C. (3d) 338 (Ont. C.A.) at para. 22. Having considered the authorities reviewed above, in my view a six-month sentence will appropriately denounce Mr. Khan's conduct and drive home to him and others that his behaviour was unacceptable.

D. Probation

[31] Upon his release from custody, Mr. Khan is to be placed on probation for a period of 12 months. In addition to the statutory terms, he is to abide by the following terms:

1. Report in person to a probation officer within two working days of your release from custody and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision.

2. Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with M.N. or S.M.

3. Do not be within 500 metres of any place where you know any of the persons named above to live, work, go to school, frequent or any place you know them to be.

4. Do not possess any weapons as defined by the Criminal Code.

5. Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of your probation officer.

6. Do not engage in employment as a massage therapist unless fully licenced by the Ontario College of Massage Therapists.

E. Ancillary Orders

[32] As required by ss. 490.012(1) and 490.013(1) of the Criminal Code, Mr. Khan is ordered to comply with the Sex Offender Information Registration Act ("SOIRA") for a period of 10 years.

[33] In accordance with s. 487.051(2) of the Criminal Code, Mr. Khan is ordered to provide such samples of bodily substances as may be required for forensic DNA analysis and inclusion in the national databank.

[34] I am indebted to both counsel for their assistance.

Justice P.A. Schreck

Released: May 18, 2016