Court File and Parties

Ontario Court of Justice

Date: 2017-06-01

Court File No.: Newmarket 16-06308

Between:

Her Majesty the Queen

— and —

Hamidreza Ghaffari

Sentence

Trial: 5 May, 2017

Sentencing Proceedings: 1 June, 2017

Reasons Delivered: 1 June, 2017

Counsel:

• Mr. Rob De Chellis, counsel for the Crown
• Mr. Sourena Sarbazevatan, counsel for the defendant

KENKEL J.:

Introduction

[1] Mr. Ghaffari was convicted at trial of committing mischief in relation to a property used for religious worship where the mischief was motivated by religious prejudice or hatred. Mr. Ghaffari walked into a mosque during a service in the holy month of Ramadan. He insulted the occupants in strong terms and repeatedly yelled, "Fuck your religion", "Fuck Islam". He was ushered outside by the mosque president. On the steps of the mosque he took his penis out and urinated on the mosque steps at the main entrance and in the driveway. He continued his angry yelling and gestures throughout.

Submissions of Counsel

[2] The Crown submits that a custodial sentence in the range of 90 days should be imposed for reasons of general and specific deterrence.

[3] The defence submits that a conditional discharge would be sufficient in the circumstances of this case.

Mischief Relating to Religious Property

[4] A religious or racial motive for committing an offence of mischief has always been an aggravating factor on sentence.[1] Shortly after the September 11, 2001 "9/11" attacks Parliament passed an omnibus bill, [Bill C-36][1] that was meant to contribute to national security through various anti-terrorism amendments. Within the 186 page Bill was one provision that received less attention – an amendment to s.430 of the Criminal Code to add a new offence, s.430(4.1) for mischief in relation to religious property. The new section expanded the available sentences for such acts from 2 years (s.430) on prosecution by Indictment to a maximum of 10 years imprisonment. Where the Crown proceeds summarily the maximum sentence is 18 months.

[5] The enhanced penalties provided for in s.430(4.1) reflect the aggravating circumstances set out in that section and the impact that this offence can have on the targeted community and the community as a whole. While such offences often will result in a custodial sentence, I note that Parliament has not imposed a minimum sentence. On the contrary, a discharge under s.730 is an available disposition as is a conditional sentence s.742.1. Parliament has left open the full range of sentencing alternatives so that sentences for this offence can be tailored to the circumstances of the offence and the circumstances of the offender in accordance with the purpose and principles of sentence set out in sections 718-718.2.

The Circumstances of the Offence

[6] The circumstances of this offence are very unusual. Mr. Ghaffari is a member of the Shia branch of the Muslim faith, the same denomination as those who attend the Imam Mahdi Islamic Centre. It's difficult to discern a credible logical intent for Mr. Ghaffari's actions,[3] but unlike most cases of mischief to religious property, Mr. Ghaffari was not motivated solely by religious hatred. His mother died shortly before the incident. It appears that he felt he did not have the support of his ex-wife and that religious community during that difficult time. He went to the mosque in an intoxicated condition and was asked to leave. He then urinated on the steps while denouncing Muslims and Islam.

[7] Mr. Ghaffari was well aware that to attend the mosque in an intoxicated condition was improper. It was Ramadan and he knew that many families would be attending that evening for supper and prayers. He knew that cleanliness is essential in the mosque to the extent that those who attend remove their shoes and there is an area to wash immediately by the entrance doorway. Urinating on the steps and sidewalk would interfere with an important religious service and would be insulting to those who attended the mosque. To make matters worse he chose to urinate on the steps in front of children as shown in the video with other families arriving. His actions and his insults to Muslims and Islam plainly upset members of the congregation.

[8] There's no question he was angry with his religion at the time he committed the mischief. However, that anger did not arise out of a general contempt for Muslims but from his particular circumstances at that time. Mr. Ghaffari's mother died in Iran and he had not been able to see her before her death. He was estranged from his former wife and did not have family support when he most needed it. It appears relevant that his former wife and her family attended and were very involved in the operation of that particular mosque.

The Circumstances of the Offender

[9] Mr. Ghaffari is 35 years old and has no criminal record. He works as a commercial truck driver. He pays child support for his daughter who lives with her mother.

[10] Mr. Ghaffari is remorseful for his actions. Well before the trial date he arranged for and completed an anger management program. A few days after the incident he attended another mosque in sober condition and engaged in a proper ceremony to honour his mother. He donated $500 to that mosque in her memory. He apologized directly to the members of the Imam Mahdi Mosque in the courtroom at the time of sentence and he asked their forgiveness in the spirit of Ramadan as we once again are in that season.

[11] Mr. Ghaffari's friends who provided letters of support describe the incident as out of character. A recent letter from the Islamic Iranian Centre of Imam Ali confirms that he's reconciled with his faith and sometimes participates in their programs.

[12] Mr. Ghaffari is concerned about the impact a conviction might have on his status as a commercial driver with a dangerous goods authorization and on his application for Canadian citizenship.

Impact on the Community

[13] The video evidence shows that the accused's actions were upsetting and offensive to those who saw them. They are also offensive to the community at large.

Analysis

[14] Beyond the aggravating features incorporated into this offence under s.430(4.1), the fact that the accused interfered with a religious service, that he directly upset members of the congregation and that he urinated in front of children and arriving families all aggravate sentence. The accused's lack of any criminal record, his acceptance of responsibility, his direct apology to the members of the mosque present in court, and the fact that he took anger management counselling of his own accord all mitigate sentence. The fact that this act was motivated by a temporary anger with his religion while he was grieving for the loss of his mother places this offence within a much different context than most offences under this section.

[15] I agree with the Crown that offences under s.430(4.1) typically will require a jail sentence for reasons of deterrence and denunciation, but this is not the typical offence. The unique circumstances of this offence place it at the lower end of the scale of conduct prohibited under this section. The accused harbours no ongoing ill will towards Islam or this particular congregation. Fully explained, his actions do not have the same impact on that community or the community at large that other similar offences have.

[16] Mr. Ghaffari has obeyed the term of his undertaking prohibiting attendance at that mosque for the past 10 months. There's no evidence he's had difficulty during that time with his former spouse or her family. It appears not much further need be done to specifically deter Mr. Ghaffari. Others will understand from these reasons that the lack of a custodial disposition here reflects the unusual circumstances of this case and not a general tariff for these offences.

[17] I agree with the Crown that the sentence imposed should still contain a punitive aspect to denounce the particular actions and their impact on the congregation and to provide some general deterrence. I find that community service would provide a meaningful punishment in this case and would also contribute to the rehabilitation of the offender.

[18] I find that the purpose and principles of sentences set out in sections 718 to 718.2 can be best met in this case by a non-custodial sentence. A discharge as requested by the defence would be in the accused's best interest. I agree with the Crown that a discharge would rarely be fit for this type of offence, but despite the aggravating features I find that this is that rare case. I find that a discharge with appropriate terms would not be contrary to the public interest given the circumstances discussed above.

Sentence

[19] I will grant Mr. Ghaffari a conditional discharge on the following terms and conditions:

• For 18 months he will keep the peace and be of good behaviour
• He will report to probation within 7 days of this order and thereafter as required
• He will not attend at the Imam Mahdi Islamic Centre 7340 Bayview Avenue, Thornhill Ontario
• He will perform 40 hours of community service within the first 12 months

[20] There will be a victim fine surcharge as provided by statute and the accused will have 6 months to pay.

Delivered: June 1, 2017

Justice Joseph F. Kenkel

Footnotes

[1] For example see: R v Lelas, [1990] OJ No 1587 (CA); R v Ingram, [1977] O.J. No. 531 (CA)

[2] SC 2001 c. 41, Royal Assent 18 December, 2001

[3] Mr. Ghaffari's evidence on this point and others was found not to be credible.