Ontario Court of Justice

Date: 2016-01-14

Court File No.: Halton 15-528

Between:

Her Majesty the Queen

— AND —

Joseph Ali

Before: Justice D.A. Harris

Heard on: October 14 & 15, November 16 & 20 & December 16, 2015

Reasons for Sentence released on: January 14, 2016

Counsel:

• Erinn O'Marra, counsel for the Crown
• Morie Luft, counsel for the defendant Joseph Ali

HARRIS J.:

Charges and Plea

[1] Joseph Ali was charged with break and enter dwelling house, mischief under $5000 (3 counts), assault, assault causing bodily harm, threatening death, threatening bodily harm, breach probation (3 counts) and take motor vehicle without consent.

[2] The break and enter offence is an indictable matter. The take motor vehicle charge is a summary conviction offence. Crown counsel chose not to proceed on that latter charge. She elected to proceed by indictment with respect to the other charges. Mr. Ali elected to be tried by a judge and jury in the Superior Court of Justice and we began a preliminary hearing.

[3] Following examination in-chief of the third witness, Mr. Ali re-elected, choosing to now proceed in the Ontario Court of Justice. He then pled guilty to one mischief, one breach, and to the assault, assault causing bodily harm, threatening death, and threatening bodily harm charges.

[4] He is before me today to be sentenced.

Sentencing Submissions

[5] Crown counsel suggested that I should sentence him to time served, being 341 days of pre-sentence custody, plus imprisonment for a further 18 to 24 months.

[6] Counsel for Mr. Ali suggested that I should sentence him to time served.

[7] Both counsel agreed that I should place him on probation for three years and make the following ancillary orders:

1. a DNA order;
2. a firearms prohibition order pursuant to s. 109 of the Criminal Code, and
3. an order pursuant to section 743.21 of the Criminal Code prohibiting any contact or communication with S.G. while in custody.

[8] I find that the appropriate global sentence is one of time served being 341 days of pre-sentence custody, credited as 511 days (17 months) plus imprisonment for a further 90 days followed by probation for three years.

[9] My reasons are as follows.

Fundamental Purpose and Principles of Sentencing

[10] The fundamental purpose of sentencing as expressed in section 718 is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[11] The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.

[12] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.

[13] Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.

[14] He went on to state that:

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence, especially the fault component, and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.

[15] He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.

[16] On this point, Doherty J.A. concluded by stating that:

Fixing a sentence that is consistent with s. 718.1 is particularly difficult where the gravity of the offence points strongly in one sentencing direction and the culpability of the individual offender points strongly in a very different sentencing direction. The sentencing judge must fashion a disposition from among the limited options available which take both sides of the proportionality inquiry into account.

[17] Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.

[18] Mr. Ali's offences involve the physical and emotional abuse of his common-law partner. Section 718.2 (a)(ii) of the Criminal Code specifically provides that this is an aggravating circumstance, and that his sentence should be increased to account for that.

[19] His offences also had a significant impact on his victims, considering their age and other personal circumstances, including their health and financial situation. Section 718.2 (a)(iii.1) of the Criminal Code specifically provides that this too is an aggravating circumstance, and that his sentence should be increased to account for that.

[20] Section 718.2(b) provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[21] Section 718.2(c) provides that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.

[22] I must specifically consider section 718.2(d) which provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".

[23] I must also consider the impact of section 718.2(e) which provides that "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders."

[24] The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen and said that section 718.2 (e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.

[25] The Supreme Court also noted that section 718 now requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation. Now a sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. As a general matter restorative justice involves some form of restitution and reintegration into the community.

[26] The maximum sentence for assault causing bodily harm is imprisonment for 10 years when the Crown proceeds by indictment. The maximum sentence for each of the common assault and the threatening offences is imprisonment for five years when the Crown proceeds by indictment. The maximum sentence for each of the mischief and breach of probation offences is imprisonment for two years when the Crown proceeds by indictment.

Gladue Principles

[27] In this case, I must also pay particular attention to Mr. Ali's circumstances as an Aboriginal offender.

[28] As I noted earlier, section 718.2 (e) which provides that "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders [emphasis added]."

[29] The Supreme Court of Canada made it clear in R. v. Gladue, supra that sentencing is an individual process, and that in each case the consideration must continue to be what is a fit sentence for this accused for this offence in the community.

[30] The effect of section 718.2(e) is to alter the method of analysis which sentencing judges must use in determining a fit sentence for aboriginal offenders.

[31] It is not a mitigating factor on sentencing simply to be an aboriginal offender, nor does simply being an Aboriginal offender provide anyone with immunity from being imprisoned.

[32] Rather, section 718.2(e) was enacted as a remedial provision in recognition of the fact that Aboriginal people are seriously overrepresented in the prison population across Canada, and in recognition of the reasons why this overrepresentation occurs. So, while section 718.2(e) requires a sentencing judge to consider reasonable alternatives to imprisonment for all offenders, special consideration must be given to the circumstances of Aboriginal offenders.

[33] The subsection also requires that a sentencing judge consider a shorter period of imprisonment, in appropriate cases, for an Aboriginal offender.

[34] Section 718.2(e) and Gladue command a different methodology for determining a fit sentence for an Aboriginal offender, but do not necessarily dictate a different result. The more violent and serious the offence committed, the greater the likelihood that the terms of imprisonment imposed on Aboriginal and non-Aboriginal offenders will be the same or similar. In the case of serious and violent offences, even for Aboriginal offenders, the balance will often tilt in favour of deterrence, denunciation and the need for social protection.

[35] In R. v. Peters, supra, the Ontario Court of Appeal went on to say that:

To say that the balance will often tilt in favour of deterrence and denunciation in the case of serious and violent offences, as this Court did in [Whiskeyjack], is not to say that it always will. Neither Gladue nor its progeny establish that aboriginal offenders are to be sentenced to terms of incarceration in all cases of serious offences. At the end of the day, as many authorities have noted, it remains for the sentencing judge to consider the case as a whole and to arrive at a sentence that is fit and just in the circumstances. [emphasis original]

[36] These issues were revisited by the Supreme Court of Canada more recently in R. v. Ipeelee, where the Supreme Court reaffirmed that section 718.2 (e) of the Criminal Code is a remedial provision designed to ameliorate the serious problem of overrepresentation of aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing.

[37] Section 718.2(e) does more than affirm existing principles of sentencing; it calls upon judges to use a different method of analysis in determining a fit sentence for Aboriginal offenders.

[38] It directs sentencing judges to pay particular attention to the circumstances of Aboriginal offenders because those circumstances are unique and different from those of non-Aboriginal offenders. When sentencing an Aboriginal offender, a judge must consider the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts and the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection.

[39] Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information will have to come from counsel and from the Pre-Sentence Report.

[40] Courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for aboriginal peoples.

[41] There is no burden of persuasion on an Aboriginal accused to establish a causal link between the systemic and background factors and commission of the offence. "It would be extremely difficult for an Aboriginal offender to ever establish a direct causal link between his circumstances and his offending. The inter-connections are simply too complex".

[42] The Supreme Court reiterated in Ipeelee that Gladue had stated quite clearly that section 718.2 (e) should not be taken as requiring an automatic reduction of a sentence, or a remission of a warranted period of incarceration, simply because the offender is Aboriginal. So Gladue factors, on their own, do not necessarily justify a different sentence for aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel.

[43] I am however mindful of the fact that more than 15 years after the Supreme Court of Canada released Gladue, the proportion of Aboriginal offenders incarcerated in Canadian prisons and reformatories has increased. Clearly, that is not going to change if we simply pay lip service to the principles of Gladue and then look for reasons not to apply them.

[44] Further, the Gladue analysis must be performed in all cases involving an Aboriginal offender, regardless of the seriousness of the offence.

[45] In addition, denunciation and deterrence are not the only sentencing objectives that I must consider. Watt J.A. stated in R. v. Jacko that:

Restorative justice sentencing objectives are of crucial importance in the circumstances. They include assistance in rehabilitation, providing reparations for harm done to the victim and to the community, promoting a sense of responsibility in offenders and an acknowledgement by offenders about the harm their conduct has done to the victims and to their community.

[46] He went on to state that:

In cases such as these, we must do more than simply acknowledge restorative justice sentencing objectives and note approvingly the rehabilitative efforts of those convicted. They must have some tangible impact on the length, nature and venue of the sentence imposed. The rehabilitative efforts here, more specifically those of Jacko, extend well beyond the promises made all too frequently between conviction and sentence, and all too infrequently executed and maintained in the days, weeks and months following imposition of a lenient sentence.

[47] Neither counsel suggested that I impose a conditional sentence in this case. I note, however that while such a sentence would not be available with respect to the assault causing bodily harm charge, one could be imposed with respect to any or all of the other offences. I am satisfied that the availability of a conditional sentence of imprisonment is integral to the analysis required by Gladue and accordingly, I will examine the law regarding conditional sentences.

Conditional Sentence of Imprisonment

[48] The conditional sentence came into being when section 742.1 of the Criminal Code was proclaimed in 1996.

[49] The Supreme Court of Canada subsequently stated in R. v. Proulx that "Parliament clearly mandated that certain offenders who used to go to prison should now serve their sentence in the community."

[50] The Supreme Court of Canada stated further that an offender who meets the criteria of section 742.1 will serve a sentence under strict surveillance in the community instead of going to prison. His liberty will be constrained by conditions to be attached to the sentence. In case of breach of conditions, the offender will be brought back before a judge who may order him to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence.

[51] Section 742.1 lists five criteria that a court must consider before deciding to impose a conditional sentence. These are:

1. the offender must be convicted of an offence that is not specifically excluded by the legislation;
2. the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;
3. the court must impose a term of imprisonment of less than two years;
4. the safety of the community would not be endangered by the offender serving the sentence in the community; and
5. a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[52] The first four criteria are prerequisites to any conditional sentence. These prerequisites answer the question of whether or not a conditional sentence is possible in the circumstances. Once they are met, the next question is whether a conditional sentence is appropriate. That decision turns upon a consideration of the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[53] In Mr. Ali's case, the first three of the four prerequisite criteria have been satisfied.

[54] The assault cause bodily harm offence was excluded pursuant to section 742.1 but the other offences were not.

[55] It is settled law that it is improper to blend a custodial sentence with a conditional sentence in the context of a single offence.

[56] However:

when an accused is being sentenced for more than one offence, it is legally permissible to blend a custodial sentence with a conditional sentence so long as the sentences, in total, do not exceed two years less one day and the court is also satisfied that the preconditions in s. 742.1(b) have been met in respect of one or more but not all of the offences.

[57] None of the offences are punishable by a minimum term of imprisonment.

[58] I find that the appropriate global sentence of imprisonment should be for less than two years.

[59] However, I am not satisfied that Mr. Ali serving his sentence in the community, even subject to appropriate conditions, would not endanger the safety of the community. He has a history of assaulting S.G. and damaging her property. His criminal record includes six breaches of court orders. He was breaching his existing probation order when he committed the current offences. His probation officer reports that he has failed to satisfy numerous other requirements set out in his existing probation orders. So, I am far from satisfied that there is no danger that he would return to crime following the imposition of a conditional sentence.

[60] That then makes it unnecessary to resolve the question of whether a conditional sentence is appropriate in all of the circumstances of this case. In any event, after considering the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code, I would have found that a blended sentence which included a conditional sentence would not have been appropriate here.

[61] In order to apply the applicable principles of sentencing, however, I must look at the facts underlying the offence here, the impact that it had on its victims, and the background of Mr. Ali.

The Offences

[62] Mr. Ali and S.G. had been in an intimate relationship. They had one daughter together. NA was 5 months old at the time of the offences. Ms. S.G. had another daughter from a previous relationship. GK was 7 years old.

[63] The family had been living together in a residence in Oakville. The residence was owned by Ms. S.G.

[64] However, in June 2014, Mr. Ali was placed on probation for 18 months for two counts of assault and one count each of breach recognizance and breach probation. These offences involved Ms. S.G. This probation order prohibited Mr. Ali contacting Ms. S.G. or communicating with her or being at her residence except with her written revocable consent.

[65] The situation was complicated by the fact that the Children's Aid Society warned Ms. S.G. that they would apprehend her children if she allowed Mr. Ali to come into her residence. Accordingly, she did not file written revocable consent with Mr. Ali's probation officer. She did, however allow Mr. Ali to have contact and communicate with her and even to live with her, albeit secretly.

[66] On February 8, 2015, S.G.'s father K.G. and his wife M.G. were staying with S.G. at her residence. They were there to assist with some painting that needed to be done.

[67] S.G. and Mr. Ali argued about money that day. This was a common occurrence. At some point, he left to go to get some money from his employer. He did not have a car. S.G. reluctantly let him take her car because she wanted him to get the money.

[68] He was gone for a few hours. She expected him to be back earlier and was angry when he did return. So even though he gave her some money, she yelled at him. They argued for about 5 to 10 minutes and then he left again taking her car. She did not want him to do that. She had noticed that he had been drinking. In addition, she wanted him to stay with her.

[69] He came home around 3 a.m. The car was damaged. The front door of the residence was locked and Mr. Ali did not have a key with him. He damaged the door while entering the house. He went upstairs to S.G.'s room and got into her bed. He wanted her to put GK in her own room so that he could sleep. Ms. S.G. objected to this. He slapped her face. She then woke her daughter and told her to go to her own room. She and Mr. Ali then began arguing and then fighting. He was hitting her and she was hitting him back. At some point he pulled her hair. She yelled for her father to help her but he did not hear her. She ran downstairs to the kitchen and got a knife. When Mr. Ali followed her there, she cut his arm with the knife in order to make him stop hitting her. Then when she saw how badly cut he was, she tried to help him by wrapping a towel around his arm. He took the towel off. Blood was squirting on the walls. She tried to talk him into going to hospital. He refused. They were yelling and screaming and swearing at each other. Ms. S.G. and Mr. Ali continued fighting until she went upstairs and woke her father. It took him some time before he could get involved though as he needed to use the bathroom.

[70] He heard screaming and yelling between S.G. and Mr. Ali. She was crying. Mr. Ali was angry and spewing profanities. At one point he came to Mr. K.G. and showed him blood on his arms and said, "see what your pig slut daughter did to me. She gave me herpes too".

[71] When Mr. K.G. came out of the bathroom, he saw the blood on Mr. Ali, told him he needed to go to hospital and he put a towel on Mr. Ali's arm. Mr. Ali removed the towel and refused treatment.

[72] Mr. K.G. went downstairs to see what had happened there. He saw the blood on Mr. Ali, told him he needed to go to hospital and he put a towel on Mr. Ali's arm. Mr. Ali removed the towel and refused treatment.

[73] Mr. K.G. suggested that his wife take the children outside to get them away from these events. When they tried to do this, Mr. Ali sat on the stairs blocking the way for about five minutes despite being asked to get out of the way. Eventually, M.G. successfully took the two children out of the house and placed them in her van. She stayed there with them.

[74] In the house, as Mr. K.G. was walking around, Mr. Ali blocked his way. He then pushed Mr. K.G. to the ground. Mr. K.G. got up, and went upstairs and called 911.

[75] I heard the recording of this call. It is chilling to say the least.

[76] Mr. Ali can be heard calling S.G. a "fucking stupid whore" or variations of that, and accusing her of giving him herpes.

[77] At one point she can be heard screaming, "You tried to kill me … dad, help me".

[78] Another time I heard what sounded like a slap.

[79] Another time she called out "Pa, he's trying to hit me, Pa". Mr Ali replies "I don't want to hear that Pa, Pa, Pa, Pa. You fucking slutty whore. You're a fucking loose fucking cunt."

[80] When she says, "Joey just stop" he replies "I won't stop. You're a slut. I won't fucking miss you. How dare you, how dare you?" he then speaks to Mr. K.G. accusing S.G. of stealing protein from her boss.

[81] Mr. K.G. saw Mr. Ali hit S.G. and spit on her. Mr. K.G. told him to stop and tried to get between them. Mr. Ali continued to try to hit her over Mr. K.G. In that process, he was hitting Mr. K.G. too. Mr. K.G. then punched him in the face and tackled him. Mr. Ali reversed their positions and got Mr. K.G. down on the floor. He grabbed his hair. Mr. K.G. then hit Mr. Ali "in the balls" in an effort to get loose. Mr. Ali kneed him in the back, driving Mr. K.G. to the floor.

[82] S.G. can be heard screaming:

Stop, no, don't touch my dad. Stop, don't hurt my dad, don't hurt my dad, don't hurt my dad, don't hurt my dad, please, please, please, please, don't hurt my dad, don't hurt my dad, Joey please, Joey please, Joey please, Joey please, Joey please, stop, Pa, Pa, stop hitting my dad, Joey please.

[83] Later, Mr. Ali threatened both Mr. K.G. and S.G., "I will fuck you up".

[84] Police officers arrived shortly before the end of the 911 call. They can be heard on the recording of the 911 call instructing Mr. Ali to get back and to get down on the ground.

[85] Sergeant Fisser, and Constables Zivkovic and Civieiro noted that the front door had been kicked in and the frame was damaged. Pieces of wood were on the floor. There was blood on the door.

[86] As they went upstairs they noted blood smears on the wall, and blood stains and a pool of blood on the carpet in the family room. They heard a commotion on the third level and went there and saw Mr. Ali come out of a bedroom. His fists were clenched and Sergeant Fisser drew his taser. Constable Zivkovic had his asp displayed. Mr. Ali complied with the second direction to get down on the floor. He then struggled with Constables Zivkovic and Civieiro and they applied hobbles to him. They escorted him downstairs so that paramedics could look at him.

[87] At various times he referred to police as "fucking cowards", "a fucking pussy" and "the load your mother should have swallowed". He directed them to remove the handcuffs and fight him like a man.

[88] While being driven to hospital by Constable Zivkovic, he told him "Fuck you, I'll rape you and your mom".

[89] At the hospital, while Constable Zivkovic attempted to read him his rights to counsel and cautions, Mr. Ali told him "Take off the cuffs and I'll beat the shit out of you. I'll find you in the alley and I'll fucking rape you". He also stated "your mom's a whore" and "I want to fuck your mom in her asshole and your sister in her cunt" and "Are you scared of me. Look me in the eyes. I'll eat you alive. I'll spank and rape you. You can't even look me in the eyes."

[90] It was determined that Mr. Ali had suffered two cuts on his arm. One was four inches long and two inches wide and required eight stitches to close it. The other was two to three inches long and required five stitches.

[91] With respect to the others found at the residence, K.G. was carried out on a backboard. He lost consciousness briefly.

[92] S.G. had a raised bump with light bruising on her left temple. There was a red mark on her cheek under her left eye. There were red scratches and bumps and some bruising on her right forearm and small red marks on her left forearm.

[93] Seven year old GK informed police that she had been awakened by Mr. Ali screaming while on top of her mother. She was not assaulted. She teared up while telling police "Joey was not very nice" and that "she was scared".

Victim Impact

[94] I received two Victim Impact Statements, one from K.G. and one from Mrs. M.G. K.G. was also interviewed for the Pre-Sentence Report.

[95] He cannot understand why his daughter chooses to be with a man who physically and verbally abuses her. He believes that had he not intervened that night, Mr. Ali would have caused serious harm to his daughter. When he intervened to protect her, Mr. Ali assaulted him and caused him serious injuries. He tried to return to work too early and added a torn rotator cuff to his problems. This has made it impossible for him to return to work as an ironworker / welder which has led to significant financial loss already and negatively impacted his future pension. He is scheduled to undergo surgery this month. He does not know when he will be able to return to work. He is 60 years old and does not expect to heal quickly at that age. In the meantime, he takes pain-killers to deal with the physical pain and is dipping heavily into his savings in order to meet expenses.

[96] M.G. was already diagnosed as being bipolar. This incident added greatly to her stress and depression.

[97] Both Mr. and Mrs. M.G. fear for the safety of S.G. and her children when Mr. Ali is released.

[98] S.G. did not provide a Victim Impact Statement.

[99] During her testimony in court, I observed her to regularly downplay Mr. Ali's actions and the consequences of those actions.

[100] In the Pre-Sentence Report she admitted that their relationship had been physically and verbally abusive and she could not explain or understand why she allowed him back into her home despite the probation order and the directive from the Children's Aid Society prohibiting contact between them. She acknowledged that her decision to do this resulted in her father suffering serious injury.

[101] She noted that her older daughter was taken away from her by CAS because of this and that she faces a battle in family court to regain custody.

[102] She would like Mr. Ali to eventually have contact with their child once he satisfies all of the requirements of the court and CAS. She is unsure of the status of their relationship but she believes that Mr. Ali can change if he seriously addresses his shortcomings through appropriate counselling.

[103] She stated that she was not concerned for safety.

Background of Mr. Ali

[104] I have had the benefit of a Pre-Sentence Report with Gladue components and other material provided on behalf of Mr. Ali. Those sources have provided me with the following information.

[105] Mr. Ali is now 32 years old.

[106] He was born in Mississauga.

[107] His mother is Metis. His father is French Canadian. His father abandoned his mother shortly after his birth and Mr. Ali has met his father twice only.

[108] Mr. Ali did not previously self-identify as Metis. "It was only during his present remand period that he took part in Aboriginal group meetings to cope with his stress and anxiety. He may consider exploring his aboriginal heritage in the future when he is ready."

[109] When he was around two years old, his mother married a Pakistani immigrant to help him gain Canadian citizenship. This marriage soon ended in divorce but Mr. Ali retained his new surname.

[110] His mother was an ill-tempered alcoholic who was often absent from home. Mr. Ali often witnessed her being physically assaulted by men causing him feelings of anger and frustration. They moved often resulting in disruption of his schooling. Teachers did little to help. His mother once attempted suicide.

[111] As a result he was placed in foster care on a number of occasions. He moved out on his own at age 16 because he could not handle her drinking.

[112] Mr. Ali has had no contact with his mother or his half-brother or half-sister (from two different fathers) for more than a year. He is unaware of his mother's current whereabouts.

[113] With respect to S.G., Mr. Ali reported that he met her about three years ago through a mutual friend. He noted that their relationship had been chaotic, abusive and unhealthy from the beginning. He blamed the relationship for his job loss, drug and alcohol abuse, his conflict with the criminal justice system, and his stints in prison. He attempted to end the relationship on more than one occasion but each time Ms. S.G. would emotionally manipulate him, including accusing him of infidelity, and threatening to abort their child if he left her. While together, their constant arguments and her emotional manipulation took a toll on him and he began abusing alcohol and drugs to cope with self-doubt, anxiety and low self-esteem.

[114] He wants to reunite with her and their child, if permitted to, "so that his child will not be raised in a broken home like he was".

[115] With respect to school and work, Mr. Ali reported that he completed grade nine and dropped out of school to help his mother financially. This is somewhat at odds with his statement that he moved out on his own when he turned 16 (school leaving age).

[116] He stated in the Pre-Sentence Report that his most recent job was in the construction field but he lost that job because Ms. S.G.'s frequent and verbally abusive phone calls to his employer ruined the relationship with the company's owner. He plans on finding work in the construction industry and eventually become self-employed.

[117] This is very much at odds with the letter from Douglas Nugent, operations manager and foreman of the Interlocking and Concrete Company. He stated that Mr. Ali worked for him for the two years leading up to February 2015 (the date of these offences). Mr. Ali worked at least 50 hours a week plus overtime and earned between $1900 and $2300 per week. Mr. Ali has a job waiting there for him when he is released from jail. All of this contradicts the suggestion that he had lost his last job because of the actions of Ms. S.G.

[118] I note also that in the Pre-Sentence Report, Mr. Ali does not blame just Ms. S.G. for his drinking problem. He also stated that working in the construction industry did not help because he was surrounded by co-workers who would drink daily after work.

[119] Mr. Ali has a prior criminal record.

[120] He was convicted in 2005 of assault with intent to resist arrest and mischief over $5000. He was fined $100 and $50 for these.

[121] In 2013 he received a conditional discharge and placed on probation for 18 months for a mischief under $5000 involving S.G.

[122] In March 2014, he received another conditional discharge and was placed on probation for two years for uttering threats, mischief under $5000, and breach probation. These offences did not involve Ms. S.G. I do note that he apparently spent seven days in pre-sentence custody before being sentenced. I note also that this probation order was in effect when Mr. Ali committed the current offences.

[123] In June 2014, he received a suspended sentence and was placed on probation for 18 months for two counts of assault and one count each of breach recognizance and breach probation. These offences did involve Ms. S.G. This time he spent 62 days in pre-sentence custody before being sentenced. This probation order was the one that prohibited Mr. Ali from even being at Ms. S.G.'s residence when he committed the current offences.

[124] In August 2014, he was sentenced to time served, being five days pre-sentence custody plus imprisonment for a further 10 days plus a $500 fine for two breach probation offences.

[125] The author of the Pre-Sentence Report made the following comments about Mr. Ali under the heading "Response to Community Supervision":

The subject has exhibited a poor attitude towards supervision and appears to have little regard for community supervision. He continues to minimize his offending behaviour and blames Ms. S.G. for his past and present predicament. He has resisted attending for substance abuse counselling and has avoided contacting the Children's Aid Society worker. The subject has also failed to complete any of his required hundred hours of community service and failed to make payments towards his $1600 restitution. To his credit he managed to complete the Partner Assault Response (PAR) Program twice, in December 2013 and October 2014.

[126] The Pre-Sentence Report concludes that, "it appears that he will remain a high risk to re-offend unless he truly acknowledges his offending behaviour and sincerely commits himself to rehabilitation programming".

Analysis

[127] In cases like this, involving unprovoked violence causing bodily harm, the predominant sentencing objectives are denunciation and deterrence.

[128] A conditional sentence can be punitive and is capable of providing significant denunciation and deterrence. Actual imprisonment however will better accomplish both denunciation and deterrence.

[129] I am satisfied that I should send Mr. Ali to jail. The real issue is for how long.

[130] In determining that length, I must not lose sight of the possibility of rehabilitation.

[131] I note that Mr. Ali is still relatively young. He had a very dysfunctional upbringing. There was no positive father-figure in his life. His mother failed to provide for either his material or his emotional needs.

[132] He has entered a guilty plea, which I take to be an expression of remorse and an acceptance of responsibility. I note that the plea was entered in the middle of a preliminary hearing after the victims had testified. However, I accept the explanation that the delay in pleading guilty occurred only because Crown counsel previously insisted on proceeding with the break and enter charge. The facts alleged originally were substantially more serious than those eventually agreed to by Crown counsel. Accordingly, I am giving Mr. Ali full credit for his eventual plea.

[133] I note also that when asked if he had anything to say, Mr. Ali told me that he was taking responsibility for his actions and that he felt remorse. He recognized that it was time for him to grow up and be a man. He had never had a father and he did not want that for his daughter.

[134] However, I find that Mr. Ali does not fully get it.

[135] When speaking to me he referred to losing a year of his life in jail "because of being drunk".

[136] Mr. Ali's offences involved much, much more than "being drunk".

[137] He started offending just by being in Ms. S.G.'s house. He was subject to a probation order that directed him to not be there.

[138] Then when he and Ms. S.G. argued, he took off with her car even though she told him she did not want him to do this.

[139] He then got drunk and continued to drive the car, damaging it.

[140] He returned to the residence late that night (or early the next morning depending on one's perspective) still drunk. The door was locked which should have suggested to him that Ms. S.G. did not want him there that night.

[141] His response was to force open the door, damaging it and the frame, march upstairs, get into her bed, and direct her to move her daughter to another room so that he could sleep.

[142] When she objected to this, he became verbally and then physically abusive towards her.

[143] Then when she cut him with a knife while trying to protect herself, he refused any assistance in treating his wound or taking him to hospital. Instead he stomped around the house leaving a trail of bloodstains behind him.

[144] The comments which I heard him make to S.G. were vulgar and demeaning and clearly intended to intimidate her so that he could get his way.

[145] His suggestion that he "retaliated in self-defence" was ludicrous.

[146] When K.G. attempted to intervene between his daughter and Mr. Ali, Mr. Ali refused to defuse the situation. Instead, he escalated the conflict by physically assaulting Mr. K.G., eventually to the point where he caused bodily harm to Mr. K.G.

[147] Even with the police, he continues his vulgar and demeaning tirade at them, in the house, in the police car and even in hospital.

[148] Some of this outrageous behaviour occurred in the presence of the children.

[149] In the Pre-Sentence Report he blames Ms. S.G. and their difficult relationship for his drinking and the consequences that ensued.

[150] This is not simply a case of Mr. Ali getting drunk and committing some minor offences. His intoxication was just one component of an extended series of verbally and physically abusive acts carried out by him that night.

[151] Only a significant period of imprisonment can satisfy the need for denunciation and deterrence here.

[152] I am also satisfied that I should not simply impose one global concurrent sentence in this case.

[153] The brutal attack on Mr. K.G. is the most serious offence and I will be treating it as such.

[154] However, it should be made clear that there are separate consequences for breaching a court order.

[155] The offences against S.G. warrant being treated separately from the others.

[156] Finally, the threats to Constable Zivkovic warrant separate treatment.

[157] I will also indicate that, absent the Gladue factors here, I would have imposed sentences totalling something in the two years less a day range.

Sentence

[158] For all of the above reasons, I sentence Mr. Ali as follows:

[159] Count 2, mischief to the front door of S.G.: Imprisonment for 30 days.

[160] Count 5, assault on S.G.: Imprisonment for 30 days, concurrent.

[161] Count 6, assault causing bodily harm to K.G.: Time served of 341 days pre-sentence custody, credited as 511 days (or 17 months) plus imprisonment for 1 day.

[162] Count 7, threatening S.G.: Imprisonment for 30 days, concurrent.

[163] Count 8, threatening Constable Zivkovic: Imprisonment for 30 days, consecutive.

[164] Count 9, breach of probation: Imprisonment for 30 days, consecutive.

[165] These will all be followed by probation for three years. The terms of the probation will require that Mr. Ali:

1. keep the peace and be of good behaviour;

2. appear before the court when required to do so by the court;

3. notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation;

4. report in person to a probation officer within two working days of his 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 his supervision;

5. co-operate with his probation officer. He must sign any releases necessary to permit the probation officer to monitor his compliance and he must provide proof of compliance with any condition of this order to his probation officer on request;

6. not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with K.G. or M.G.;

7. not be within 20 metres of any place where he knows K.G. or M.G. to live, work, go to school, frequent, or any place he knows them to be;

8. not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with S.G. or G.K. except:

   • a) pursuant to a family court order made after today's date or for the purpose of conducting or defending family court proceedings, or
   • b) in the presence of or through legal counsel
   • c) for the purpose of making contact arrangements for your child N.A., by text message or email;

9. not be within 20 metres of any place where he knows S.G. or G.K. to live, work, go to school, frequent, or any place he knows them to be except as stated above;

10. not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with N.A. except:

    • a) pursuant to a family court order made after today's date or for the purpose of conducting or defending family court proceedings, or
    • b) with the prior written approval of the Children's Aid Society filed in advance with your probation officer;

11. not be within 20 metres of any place where he knows N.A. to live, work, go to school, frequent, or any place he knows her to be except as stated above;

12. not buy, possess or consume alcohol or other intoxicating substance;

13. attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by the supervisor, and complete them to the satisfaction of the supervisor, for anger management; substance abuse; alcohol abuse; and any other program directed by the probation officer.

[166] I also make the following three ancillary orders.

[167] This is a primary designated offence and I make an order pursuant to s. 487.051 of the Criminal Code, authorizing the taking from Mr. Ali of any number of samples of one or more bodily substances, including blood, that are reasonably required for the purpose of forensic DNA analysis.

[168] Pursuant to section 109 of the Criminal Code, for the rest of his life, Mr. Ali is prohibited from owning, possessing, or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance.

[169] Pursuant to section 743.21 of the Criminal Code, Mr. Ali is prohibited from communicating directly or indirectly with S.G., G.K., N.A., K.G. or M.G. during the custodial portion of his sentence.

[170] Mr. Ali will have six months following his release from custody to pay the victim fine surcharges.

Released: January 14, 2016

Signed: Justice D. A. Harris