REASONS FOR SENTENCE

Date: July 2, 2019

Information No. 4811-998-17-15002325-00 and 4811-998-17-15003894-00

Ontario Court of Justice

Her Majesty the Queen v. Najeeb Saad

Before the Honourable Justice P. Band

On: July 2, 2019, at Toronto, Ontario

NOTICE: Information contained herein cannot be published, broadcast or transmitted pursuant to section 486.4 of the Criminal Code of Canada.

Appearances

J. Stanton – Counsel for the Crown

G. Lafontaine – Counsel for Najeeb Saad

BAND, J. (Orally):

Introduction

Najeeb Saad pled guilty to committing serious sexual offences on three boys: E.P., J.P. and E.C.

E.P. was 17 and 18 at the relevant times. J.P. and E.C. were 15 and 14 years old, respectively, at the relevant times.

Mr. Saad was 41 and 42 years old at the time of the offences. He is 44 years old now.

The offences took place in the following time periods: in and around November 2015 regarding E.P., February to March 2017 regarding E.C., and then November 2016 to roughly February 2017 regarding J.P. Mr. Saad has been detained in custody since his arrest on March 24th, 2017.

The matter was brought to me for resolution in April of 2018. This was within the context of a preliminary inquiry that officially began before another judge, but which did not require the testimony of any of the young people.

The sentencing process came to its conclusion in May 2019. The hope was to have this matter conclude in a much more efficient manner. I acknowledge that the numerous interruptions in this case have had an unfortunate impact on the victims, their families and indeed on Mr. Saad and his family.

This matter has not gone smoothly and that has been for a variety of reasons. Some of these were frankly frustrating and the record reflects my concerns about them. Others were perfectly understandable.

While the parties provided written submissions to assist me, they gave rise to a number of questions. So, too, did the jail records, the voluminous medical records and the immigration law opinion filed by the defence.

I provided questions I had in writing to the parties. A further delay was required in order to allow the parties to provide adequate responses. They did so orally on a subsequent date and the Crown also provided written responses.

My job today is to explain to the parties, the victims, their families and the public why I have decided this case the way I have. This will take a number of steps.

First, I will summarize the offences and facts pertaining to them by grouping them in relation to each victim, in the order in which they were presented to me at the outset. This will include a discussion of the impact that the offences have had on the victims and their families, which I have derived from the Victim Impact Statements that were presented to me.

Following that, I will discuss Mr. Saad's personal circumstances and those things that may qualify as collateral factors in this case.

I will then outline the positions of the parties, the aggravating and mitigating factors and the legal principles I must consider.

Finally, I will order what I consider to be a fit and proportionate global sentence that takes into account all of the relevant circumstances.

Facts

The facts were presented by way of a detailed and lengthy Agreed Statement of Facts. It was filed as a sealed exhibit on consent, because it contained some sensitive material, including a sexually explicit photograph to which I refer below, in the context of the offences involving J.P.

What I present here is the essence of those facts.

Offences Committed Against E.P.

Summary of the facts in the Agreed Statement of Facts

Mr. Saad pled guilty to the offence of sexually assaulting E.P. during a 4-day period in March 2016 contrary to section 271 of the Criminal Code.

E.P. stood at approximately 5'9" and weighed approximately 140 pounds. This is in contrast to Mr. Saad, who was 41 years old, stood at 6'3" and weighed approximately 210 pounds.

E.P. was 17 and 18 years old at the relevant times.

Mr. Saad first reached out to E.P. using a website for male escorts. The two arranged to meet for a sexual purpose in exchange for money. During the chat, Mr. Saad told E.P. that he was 29 years old and that he had just broken up with his boyfriend.

Mr. Saad invited E.P. over to his condo in downtown Toronto. He told him that there would be friends there and that they would get to know each other prior to any sexual activity taking place.

When E.P. arrived in his car, Mr. Saad met him outside and got in. He told E.P. to go to a store where he bought a few items and then handed $800.00 to E.P. They then went to Mr. Saad's condo.

When they arrived, E.P. was surprised that there was no one else there. Mr. Saad told him that friends would be arriving soon. He then began to kiss E.P. He then pushed him against a wall and continued to kiss him. He then directed him to the bedroom, moved him onto the bed and the two engaged in anal intercourse.

Mr. Saad directed E.P. to have a shower with him and then told him to leave the unit until his friends arrived so that no one would suspect anything. He gave E.P. a pre-planned story to tell, should he be asked how they met.

E.P. left and thought about going home. Mr. Saad repeatedly texted him to come back, so he did. At that point, there were a number of males socializing and consuming drugs and alcohol.

Shortly after this first encounter, E.P. met with Mr. Saad and his friends again. He believed that Mr. Saad had gotten back together with his boyfriend and felt that he was no longer interested in him.

They continued to socialize in the months that followed. Mr. Saad invited E.P. to join him and his friends at Blue Mountain. He drove himself to the resort. By this time, E.P. had turned 18.

The group decided to go to a bar. Mr. Saad provided him with his boyfriend's ID so that he could join them at the bar. This was the group's idea and E.P. went along with it.

Mr. Saad flirted with E.P. by text and asked him to go for a walk during dinner. E.P. did not act on it because he felt embarrassed.

Later, E.P. slept on the couch in the hotel room. Mr. Saad slept in one of the rooms.

The next morning, E.P. did not see Mr. Saad. He was told that Mr. Saad was not feeling well and was in his room.

The next day, members of the group left the hotel to go skiing while E.P. stayed behind. Mr. Saad later came out of his room and asked where everyone had gone. E.P. told him. About 20 minutes later, Mr. Saad opened the door to his room and told E.P. to "come here"; E.P. said he was fine where he was but Mr. Saad continued to tell him to come. E.P. eventually did so. When he got into the room, he saw Mr. Saad standing there with his underwear pulled down masturbating. Mr. Saad told him to give him fellatio. E.P. refused. Mr. Saad demanded oral sex again and E.P. refused again. Mr. Saad then pulled E.P. into the room and pushed him against the wall, holding him by his hips. He pulled E.P.'s pants down and forced anal intercourse on him. E.P. protested and said others would be returning at any time and that Mr. Saad's boyfriend could find out. He gave more reasons why Mr. Saad should stop. Mr. Saad said no one would come home or find out, and continued to force anal intercourse. E.P. continued to protest and resist for several minutes until Mr. Saad released him.

Mr. Saad told E.P. to exit the room, leaving E.P. to put his clothes back on in the main room. E.P. left the hotel in the middle of the night after everyone had gone to sleep. He saw Mr. Saad again once in a group setting and then severed ties with the entire group.

E.P.'s Victim Impact Statement

E.P. makes it clear that he was at a particularly vulnerable stage in his life, struggling with his sexuality. As he put it, he felt "lost." He was fearful that he might have contracted a sexually transmitted disease. He wants to forget about the events but knows he cannot.

Offences Committed Against J.P.

Summary of the facts in the Agreed Statement of Facts

Mr. Saad pled guilty to committing sexual interference against J.P. on November 11th, 2016 contrary to section 151 of the Criminal Code. He also pled guilty to transmitting sexually explicit material to J.P. on December 9th, 2016, contrary to section 171.1, and luring, contrary to section 172.1.

The recitation of the facts included excerpts of the internet-based chats that took place between Mr. Saad and J.P.

J.P. lived in the Pickering area with his family.

At the time, he stood approximately 5'11" and weighed 115 pounds.

In the fall of 2016, Mr. Saad and J.P. met using Grindr, an online forum primarily used by gay men for purposes of engaging in various types of relationships. While it is meant to be for people over the age of 18, J.P., who was 15 years old, was able to gain access to it. On November 9th, J.P. told Mr. Saad that he was 15 years old. While Mr. Saad told him that he was in his late 20s early 30s, J.P. eventually became aware that this was not true.

During the chats, Mr. Saad offered to pay J.P. $1,000.00 in exchange for sex — particularly anal intercourse. Mr. Saad indicated his attraction to J.P.'s boyish body. The two arranged to meet at a hotel in the Pickering area. J.P. told him he would only have a few hours after his parents fell asleep. Mr. Saad said he would pick him up. J.P. suggested that they engage in sexual conduct in Mr. Saad's SUV rather than at a hotel. Mr. Saad told him "being in a car with a 15 year old is risky."

On November 11th, Mr. Saad came to pick up J.P. near his family home. They went to a hotel that Mr. Saad had reserved and paid for. Mr. Saad gave J.P. marijuana and they smoked it together.

In the hotel room, Mr. Saad began to kiss J.P., took J.P.'s clothes off and placed him on the bed. They performed oral sex on each other. Mr. Saad tried to anally penetrate J.P. but stopped after experiencing difficulty. He drove J.P. close to his family home and gave him $1,000.00.

They met again a few days later. Mr. Saad picked J.P. up again and drove him to the same hotel, where he had booked and paid for the room. He offered J.P. marijuana and they smoked it together in the room. They engaged in sexual activity including anal intercourse. This time, Mr. Saad paid J.P. $200.00 as he had not achieved anal penetration on the first occasion. He drove J.P. close to his home.

The two continued their online chats, which included Mr. Saad telling J.P. that he would have to shave his pubic hair. Mr. Saad negotiated and arranged for sex with J.P. and one of his friends but it did not happen as Mr. Saad chose not to go through with it while he was en route.

On December 9th, Mr. Saad sent J.P. a "selfie" photo showing a male from the shoulders down with an erect penis standing in front of a mirror.

In January 2017, Mr. Saad asked J.P. to remind him of his age. J.P. told him 15 years old.

In February they met for a third time at a hotel in downtown Toronto. Mr. Saad had paid for an Uber to pick J.P. up from his home. He gave him $700.00 for sexual services. He provided marijuana and alcohol, which they consumed together. On this occasion, J.P. felt the effects of those substances.

Mr. Saad took off J.P.'s clothing and pushed him against a wall. He digitally penetrated J.P. and then had anal intercourse with him. J.P. felt uncomfortable and made an excuse that he had to go to the washroom. In the washroom, he tried to think of a way out of the situation that would not upset Mr. Saad but was unable to. He returned to the bed where Mr. Saad continued the anal intercourse. J.P. told him it hurt but Mr. Saad continued, telling J.P. that he was "hot" and that he loved the fact that he was 15 years old. J.P. continued to protest that it hurt and told Mr. Saad to stop. Mr. Saad then slammed J.P. onto the bed and continued to force intercourse. J.P. told him to "just finish."

J.P. pretended that he was not bothered and spent time with Mr. Saad afterward. After showering, Mr. Saad ordered an Uber to take J.P. home. Instead, J.P. went to meet a friend at a mall and disclosed to him what had happened. He went home and took swabs of his anus as the sex had been unprotected. He provided those and his electronic devices to the police when he gave his statement.

Victim Impacts of J.P. and That of His Parents

The impact of these offences on J.P. has been extreme.

His Victim Impact Statement is lengthy, detailed and very concerning. He has engaged in self-harm. While he has not directly tried to commit suicide, he thinks about it daily. He has made plans to kill himself but, thankfully, has not gone through with them. He has panic attacks. He abuses drugs and alcohol most days of the week. He is fearful of males, particularly those who resemble Mr. Saad. He feels no happiness. He feels damaged and used. He has trust issues.

J.P.'s parents' Victim Impact Statement confirms that he has never been the same. He is under psychological care and is on medication. He has required extra help with schoolwork. This has been a financial and emotional burden for the entire family. The events hang like a dark cloud over the whole family.

Offences Committed Against E.C.

Mr. Saad pled guilty to the offence of luring E.C. between February and March 2017, contrary to section 172.1. He also pled guilty to committing sexual interference against E.C. contrary to section 151.

E.C. downloaded Grindr in order to meet friends. He met Mr. Saad on Grindr in February of 2017. At that time, he was 14 years old; he stood 5'7" and weighed 120 lbs.

They continued to chat on Snapchat. E.C. felt that the two had clicked. The two met at a Starbucks. E.C. discovered that Mr. Saad was much older than he expected.

Mr. Saad told E.C. he had booked a hotel room for them. E.C. felt he had no choice but to go with him. They left in Mr. Saad's Range Rover. Mr. Saad offered him marijuana — while he did not want any, he took a "fake puff" and pretended to inhale.

Once in the room, E.C. felt pressured to have sex. Mr. Saad started kissing him, pushed him onto the bed and told him to remove his clothes. E.C. complied, as he found Mr. Saad "very dominating." When he said he did not want to have unprotected sex, Mr. Saad told him he was clean and showed him documents showing test results regarding sexually transmitted diseases. They engaged in unprotected anal intercourse.

Mr. Saad gave E.C. $560.00 and told him to be "discrete." E.C. showered, got dressed and said he "just wanted to get out of there". Mr. Saad told him to wait 3 minutes after he left and to meet him in the parking lot. To E.C., Mr. Saad appeared paranoid that others would see them together.

E.C. did as he was told and Mr. Saad drove him to the area of his home.

The two stayed in touch. E.C. felt that Mr. Saad was giving him a guilt trip concerning the money. Mr. Saad denies this. The two met again. This time, Mr. Saad picked him up near his home and they drove to the Eaton Centre. Mr. Saad spent a total of $1,800.00 on clothes for himself and E.C. Mr. Saad then paid for dinner somewhere nearby. Mr. Saad drove E.C. to the Church and Wellesley area where he bought him underwear. Mr. Saad also gave E.C. gifts including money.

At some point, E.C.'s parents took away his cell phone. Mr. Saad and E.C. arranged to see each other again at the Starbucks so that Mr. Saad could give him an old iPhone that could only function on Wi-Fi. This enabled them to stay in touch using iMessage.

The two last saw each other in March 2017 at the hotel St. Germain. E.C. took the bus there. When he arrived, Mr. Saad was in the lobby. They went to the room and had unprotected anal intercourse. They then took a shower together, Mr. Saad ordered food and they watched a movie. After the movie, E.C. told Mr. Saad that he needed to be home before his 6:00 p.m. curfew. He left on his own and took the Go Train home.

During their last chat, Mr. Saad told E.C. they needed to stop seeing each other before E.C.'s parents found out. After giving it some thought, E.C. agreed that it would be best. He then changed his account settings to stop receiving messages from Mr. Saad. By that time, Mr. Saad had stopped messaging him as well.

E.C.'s parents confronted him after finding expensive clothing and money. Unsatisfied with his explanations, they searched his room and found the iPhone. They confronted him again. E.C. wrote them a letter explaining what had taken place. His parents then called police.

The chat excerpts make it clear that E.C. was a child. They also make it clear that E.C. was having conflict with his parents and that he very much wanted money.

Victim Impact Statement of E.C.'s Family Members

E.C.'s mother died when he was young. His father remarried. E.C.'s grandmother played an important role in raising him. They are a tightknit family. Those who are aware of the offences have been deeply affected by them.

E.C.'s father indicates that E.C. was a kind, trusting and honest child who would do anything for friends and family.

After the offences that changed. E.C. is no longer trusting. He suffers from anxiety, depression and sadness. He and his wife felt defeated by their inability to protect E.C.

E.C.'s grandmother has observed intense sarcasm and seething anger in E.C.

Mr. Saad's Criminal Antecedents

Mr. Saad had repeated involvement with the American criminal justice system in Florida.

In 1999, he pleaded guilty to four counts of misdemeanor battery. The victim was a 14-year-old girl. The four counts alleged that Mr. Saad had committed battery by "actually and intentionally touching or striking her against her will or by intentionally causing bodily harm to her" on one date in 1998. In the context of the plea, which was done under oath, Mr. Saad advised the sentencing judge that the girl had been his girlfriend at the time. Beyond that, no facts supporting that plea were provided in the transcript that was filed before me.

While the girl's mother's Victim Impact Statement was filed in this matter, it refers to conduct of a sexual nature that goes well beyond the nature of the offences to which Mr. Saad pleaded guilty. It would be largely inadmissible if the proceedings had taken place here and I have given it no weight.

Mr. Saad received four consecutive 12-month terms of probation.

In 2008, Mr. Saad entered a nolo contendere plea to one count of felony battery regarding conduct that took place in 2002 with a young person. No admissible facts in support of that matter were provided to me. Nor are they reflected in the videotape of the proceedings in the courtroom in Florida.

It appears to have been understood by parties in Florida that Mr. Saad would be deported upon the conclusion of the proceedings. The result was a "withheld adjudication of guilt" along with a stay and withholding of sentence together with a 5-year period of probation to be effective if Mr. Saad should return to the United States.

The Crown took the position that the resolution by way of a nolo contendere plea constituted a finding of guilt. She did not provide authority for that position and I was not persuaded by her submissions. By way of illustration, a conditional discharge cannot be used in this manner in Canada even though it entails a finding of guilt beyond a reasonable doubt: see R. v. Montesano, 2019 ONCA 195.

What is more, the Florida court documents themselves belie the Crown's position.

In my view, I was presented with untried allegations stemming from the 2002 incidents that took place in Florida.

After significant debate, the parties agreed that the 2008 Florida proceedings could not be used as an aggravating factor to punish Mr. Saad but that the known facts surrounding them could be relevant to certain sentencing principles including the need for specific deterrence, ongoing risk to the public and prospects for rehabilitation. As I will discuss below, it appears that this is how Dr. Gojer used this information as well.

In my view, this approach is consistent with the views expressed by the Ontario Court of Appeal in R. v. Edwards, 2001 O.J. No. 2582 and R. v. B.M., 2008 ONCA 645, 2008 O.J. No. 3653.

Circumstances of Mr. Saad

Mr. Saad is a 44-year-old man. He has four siblings. His parents' relationship was fractious, and the kids were exposed to their frequent disputes. The parents divorced in 1993.

Mr. Saad is the divorced father of two children who are 9 and 11 years old. He practices the Muslim faith. He has been in a relationship with a young man for a number of years. There were difficulties in that relationship at the time Mr. Saad committed the offences before the court.

Mr. Saad has a complex immigration history and is currently stateless. His parents met in a Palestinian refugee camp in Lebanon. Mr. Saad was born in Kuwait, where his parents were issued work permits. He had no independent right to live there. In 1990, the family left Kuwait for Lebanon because of the Gulf war. They lived in a refugee camp. In 1991, the family went to the United States on the strength of a visitor's visa. That visa expired and the family remained without status. Mr. Saad never received American citizenship. Other members of his family received American or Canadian citizenship, albeit by different means. One of his sisters obtained Convention Refugee status in Canada.

In 2002, Mr. Saad came to Canada and claimed refugee status. That claim has never been heard due to his involvement in the criminal justice system in the United States and now here. Between 2002 and 2007 Mr. Saad was the subject of American extradition proceedings. These led to his return to the United States, where he dealt with the 2002 charges as discussed above.

In 2007, he filed an application for permanent residence in Canada on humanitarian grounds. That application, as well as a refugee claim, remain outstanding.

He returned to Canada from the United States in 2008 and has lived here since.

In 2013, Mr. Saad's refugee claim was denied. His appeal was unsuccessful. He is under a removal order and has been served with a "pre-removal risk assessment."

Mr. Saad is fearful that if he were to be removed from Canada, he would be sent back to Lebanon where, as a gay Palestinian man, he would face harsh and life-threatening conditions.

One of his sisters, as I mentioned, was found to be a Convention Refugee and remains in Canada on that basis. His other sister now lives in Canada with her family. They have Canadian citizenship.

Mr. Saad's mother also now lives in Canada with permanent resident status.

Mr. Saad reports that he was sexually abused repeatedly between the age of 7 and 14 by teenage boys he wanted to befriend when his family still lived in Kuwait.

Mr. Saad was able to do well in high school in the United States. He then attended a college in Florida for 1.5 years.

While in Canada, Mr. Saad has been able to work and take care of his children by virtue of a work permit. He is the owner of a successful garage door and window installation and repair company.

Starting from a young age, Mr. Saad has provided financial support to his family members.

Evidence Placed Before the Court on Mr. Saad's Behalf

Evidence of Dr. Gojer

The Defence filed a report by Dr. Julian Gojer, a forensic psychiatrist with expertise in sexual paraphilias.

Dr. Gojer provided a clinical psychiatric assessment regarding Mr. Saad and was subjected to cross-examination by the Crown.

Mr. Saad has a history of engaging in sexual activity with males and females. His sexual preference is for males, but he does not self-identify as homosexual. Owing to his cultural and religious beliefs, he feels that homosexuality is wrong. He struggles with his sexual identity.

Dr. Gojer diagnosed Mr. Saad as a bisexual hebephile — that is, he has a sexual preference for pubescent kids. Given the offences he committed in Florida, that preference appears to involve both males and females. His past victims have all been adolescents. While Mr. Saad himself denies it, Dr. Gojer acknowledges that Mr. Saad's offending suggests that there may be a coercive element to his sexual disorder.

Mr. Saad does not appear to suffer from any other major mental disorder of concern to this court.

While Dr. Gojer did not perform a comprehensive risk assessment, he was confident that his clinical assessment presented a clear picture as to Mr. Saad's risk. According to Dr. Gojer, Mr. Saad represents at least a moderate risk to reoffend if untreated. I accept Dr. Gojer's opinion in this regard. It is of note that it took into account the allegations of sexual abuse that were alleged against Mr. Saad in the Florida offences.

Mr. Saad has a history of substance abuse, including the use of cocaine. In his offending, Mr. Saad has a history of using substances and providing them to his victims. Dr. Gojer acknowledged that this is a concern as it can form part of the grooming process. It also has the effect of reducing inhibitions. Dr. Gojer also indicated that pubescent children are vulnerable, particularly as they confront their own sexuality. They are impressionable, they can seek out someone who they perceive is like them, who is older and whom they do not know has a sexual disorder.

Mr. Saad has never sought counseling with respect to his substance use or sexual paraphilia.

Dr. Gojer fairly acknowledged that Mr. Saad's insight into his problems and the need for treatment is a concern. However, he explained that at least part of the explanation for Mr. Saad's lack of interest in seeking treatment was the secrecy and shame that surrounded his sexuality. It is not accepted in his culture, religion or family. That secrecy, inner conflict and lack of acceptance can impede treatment.

That said, it is now out in the open and his family have visibly rallied around him. They have attended court on multiple occasions and have provided informed letters of support on his behalf.

Dr. Gojer believes that this is a promising sign that can help open a path to effective treatment.

Mr. Saad has expressed a willingness to take such treatment as is recommended going forward.

Letters of Support

The defence filed 20 letters of support on Mr. Saad's behalf. They come from an array of sources including Mr. Saad's ex wife, his current romantic partner, his partner's mother, his family members, direct, extended and in-laws as well as employees.

Letters from Mr. Saad's family and relatives demonstrate that he is a valued and loved member of their family. He loves and takes good care of his children. He is caring towards his friends and family and is seen as a leader. He is generous and provides financial support to others. Many of the letter-writers confirm that he feels remorseful for the harm he has caused to the victims and to others.

His family also confirm the challenges he and his siblings faced in childhood.

Those who wrote letters are very supportive of him.

Evidence Regarding Circumstances of Detention and Medical Issues

The defence filed records from the Toronto South and Toronto East Detention Centres where Mr. Saad has been detained. The defence also filed medical records pertaining to this period.

By the date of his sentencing, Mr. Saad will have served approximately 830 days of pre-trial detention. Based on the material filed, the defence seeks enhanced credit beyond the normal 1.5:1 ratio. They ask that it be enhanced to 2:1 credit.

During his time in pre-trial custody, Mr. Saad has been subjected to a number of lock-downs. These are times when inmates are required to remain in their cells, usually as a result of staffing shortages or safety concerns. In this case, the vast majority were due to staff shortages. Recent cases in this and the Superior Court of Justice have commented on this deplorable situation.

Normally, inmates are free to be out of their cells using the yard and other facilities for 13 hours each day. During lockdowns, those freedoms may be removed. This can make conditions of pre-trial detention harsher. However, according to the evidence before me, inmates are generally able to shower and use the telephone during a lockdown. This, of course, is subject to discretion.

Mr. Saad was subjected to lockdowns during 205 of his 830 days in pre-trial detention. Based on the records before me, the vast majority of these were the result of staff shortages, as I have mentioned. Most were in place for part of the day and rarely were they in place on consecutive days. At the East Detention Centre, Mr. Saad was housed with two other inmates, rather than just one, for 13 nights.

Mr. Saad has had complications arising from hemorrhoids while in custody. These included blood in his stool. He has also suffered from chronic back pain.

For religious and health reasons, Mr. Saad has required a special diet.

By and large, the detention centre has accommodated Mr. Saad's dietary and medical needs.

Regarding the latter, a doctor has provided an opinion that Mr. Saad requires surgery for his hemorrhoids. The recovery period can be lengthy and painful. Optimally, for health and privacy reasons, this should occur out of custody. On the other hand, it would be best not to delay the procedure.

The defence did not file an affidavit and Mr. Saad did not give evidence as to the impact that the conditions of his pre-trial detention have had on him. Pursuant to the authorities, such a failure can be fatal to a request for enhanced credit: see R. v. Duncan, 2016 ONCA 754 at paragraph 6; see also R. v. Kabanga-Muanza [2019] O.J. No. 909. In response to my questions during submissions, counsel distilled the argument as follows. Lockdowns are not the only way in which conditions of incarceration can be viewed as harsh. In Mr. Saad's case, it is not the lockdowns per se that have made his incarceration harsher. Rather, the argument is that his time has been harder due to the fact that his hemorrhoids have required him to deal with very private health issues in a very public setting, sometimes with no option but to do so in his cell with a cellmate nearby.

The medical records provide evidence of Mr. Saad's difficulties.

Letter from Immigration Counsel

Mr. Saad submitted a letter from immigration counsel detailing the complex position he is in as a stateless person who is involved in the criminal justice system and who is the subject of a removal order. That situation is all the more complicated by his sexual orientation, as it might subject him to persecution should he be removed to refugee camp in Lebanon.

As I understand the thrust of the letter, the authorities will be forced to consider and attempt to balance the danger that Mr. Saad poses to the Canadian public against the risks to his security he might face by being deported.

The letter also adds that Mr. Saad's circumstances will also be considered. In particular, the best interests of his Canadian children. The concern is that a lengthy sentence may be seen to outweigh these factors.

The letter summarizes the dilemma as follows:

"In short, the lengthier his sentence, the less likely [his claims] are to be approved."

It also states that "it is impossible to say with any degree of certainty what length of sentence may be found to weigh against the positive factors in this case or whether the conviction itself will be found sufficient to reject the application."

In an email sent to defence counsel in response to some of my questions, immigration counsel advised that it was not possible to be more precise. In some instances, the authorities consider an offence to be "serious" when it has been punished by imprisonment of 6 months or more.

That email also confirmed that the Canadian authorities will also consider Mr. Saad's American criminal history.

Positions of the Parties

The Crown argued that the sentencing range applicable in this case is 8-10 years in the penitentiary. She relied on the sentencing principles set out in appellate case law including R. v. Stuckless, [1998] O.J. No. 3177, R. v. D.D., [2002] O.J. No. 1061, R. v. D.G.F., 2010 ONCA 27, [2010] O.J. No. 127, R. v. Dakin 2014 ONSC 3794, R. v. Cresswell 2009 ONCA 95 and R. v. Woodward 2011 ONCA 610. She also provided a sentencing chart, about which I will say more below.

The Crown seeks a global sentence of 10 years in custody, less the time spent in pre-trial detention at the normal 1.5:1 rate. She is opposed to enhanced credit given that Mr. Saad's dietary and medical concerns were accommodated and the absence of direct evidence from him as to any specific impact resulting from the lockdowns.

The Crown points out that the sentences regarding each victim must be applied consecutively. With respect to how the sentences for luring and transmitting a sexually explicit image counts ought to be served, the Crown is ambivalent. The concern is that the global sentence be proportional and reflect the principle of totality. I must be sensitive to the potential for overlap regarding those two counts to the extent that the conduct they represent could also be seen as aggravating factors in relation to the more substantive counts.

The Crown argues that the following sentences would be appropriate:

• Sentences of 5-7 years in relation to the offences committed against E.C. and J.P.
• A sentence of approximately 3 years in relation to the offences committed against E.P.

Owing to the principle of totality, she would adjust the individual sentences to add up to 10 years.

The main point of distinction, in her submission, is the difference in the victims' age. E.C. and J.P. were 14 and 15 years old at the relevant times. At 17 going on 18, E.P. was an adult when the offending sexual conduct took place.

The Crown also seeks the following ancillary orders:

• An order that Mr. Saad be subjected to the requirements of the Sexual Offender Information Registration Act, or SOIRA, order for life
• An order pursuant to section 161 of the Criminal Code for life, with some tailored language, as discussed, regarding s. 161 (d)
• A lifetime weapons prohibition pursuant to s. 109 of the Criminal Code
• An order requiring Mr. Saad to provide a sample of his DNA for DNA database banking purposes

The Crown also made submissions concerning the aggravating factors, both statutory and case specific and I will turn to these below.

In their written submissions, the defence sought a 4 to 5 year global sentence less time already served on a 2 for 1 basis. In their oral submissions, they argued that the applicable sentencing range in this case is 4-6 years.

Much of their written and oral submissions were focused on distinguishing the main cases that the Crown relied on — principally Stuckless and D.D. They did not provide cases to me that were similar enough in kind to underpin their proposed sentencing range.

Regarding the ancillary orders sought by the Crown, the defence was opposed only to the section 161 order, arguing that it was draconian and contrary to the interests of justice.

While this matter has been on reserve, the Court of Appeal released its decision in R. v. Stuckless 2019 ONCA 504 — I refer to this decision as Stuckless 2019 and to the prior one as Stuckless 1998.

Because distinguishing the Stuckless matters was a focus of the Defence arguments in this case, I requested additional written submissions from the parties. Their final positions were unchanged.

Aggravating and Mitigating Factors

Aggravating Factors

There were many aggravating factors in this case. They include the following:

• At 14, 15 and 17, going on 18, the age of the victims is an aggravating factor by operation of section 718.2 of the Criminal Code and the governing case-law;

• The impact on the victims and witnesses described above is profound. In the case of J.P., it has been extreme. I remind myself that the full extent of the impact in this case might not yet be known; the authorities teach us as much;

• All three victims were vulnerable, owing to their age and other personal attributes;

• These offences required planning and organization including negotiating prices, booking hotels, providing or arranging for transportation;

• They also involved grooming behaviour, particularly regarding E.C. — in the form of gifts, money, and outings;

• The financial aspect of the offences undoubtedly provided a strong lure to the three victims;

• Mr. Saad lied about his age, which undoubtedly had the effect of making sexual contact with him appear more acceptable;

• Mr. Saad used and provided alcohol and/or drugs to E.C. and J.P. in the context of the assaults;

• In addition to the coercive nature of sexual assaults in general, Mr. Saad engaged in additional violence in the form of forced and painful unprotected anal penetration, as well as other physical violence;

• In the case of E.P. and J.P., this was in the face of protests or pleas that he stop;

• He also made demands, such as for oral sex;

• In relation to all victims, there was more than one instance of sexual assault;

• Viewed in its entirety, the conduct took place over several months, albeit in different years, with three unrelated victims; while I am not inclined to view it as a systemic pattern of behaviour akin to that in the Stuckless cases, it was deliberate and it cannot be said to be a "one-off" or momentary lapse in judgment;

• Mr. Saad separated E.C. and J.P. from their parents and homes to facilitate the commission of the offences; this involved considerable distances;

• Mr. Saad has criminal convictions for assaulting young persons; in saying that, I have to acknowledge that his American convictions are dated;

• The luring behaviour, some of which I have identified above, and the sending of a sexually explicit image, are themselves aggravating factors in this case; but I have to be cautious in relation to them insofar as they stand as separate offences charged and pled to in this matter.

Mitigating Factors

There are six main mitigating factors in this case: the guilty pleas, pre-trial custody, remorse, Mr. Saad's diagnosis as a hebephile, his willingness to take treatment and the support Mr. Saad has in the community.

I disagree with the defence that Mr. Saad's use of websites or apps designed exclusively for adults is a mitigating factor in this case. I also disagree that Mr. Saad's complex immigration status, as it has been described to me by immigration counsel, is a mitigating or collateral factor in this case. I will explain why.

The Guilty Pleas

While Mr. Saad's guilty pleas were not early, they are nonetheless the most significant mitigating factor in this case. By pleading guilty, he has taken responsibility for his offending; he has saved the public the cost of a preliminary inquiry and a trial; he has spared the victims of having to be retraumatized by testifying in court, possibly twice; in this case, given what I have learned about the victims and their families, this is very important.

Pre-trial Custody

Mr. Saad has spent 830 days in pre-trial custody. For that, the parties agree that he is entitled to credit for 1,245 days at the standard 1.5 to 1 ratio.

For approximately one quarter of his pre-trial detention period, he was subject to lockdowns for at least part of the day; usually as a result of staffing shortages. During his entire time in custody, he has suffered from chronic back pain and complications related to hemorrhoids. I note that his medical and dietary concerns were largely addressed. That said, I find that he is entitled to some enhanced credit pursuant to R. v. Duncan, cited above, regarding the additional impact that the lockdowns had on his privacy and dignity in relation to the complications relating to his hemorrhoids.

Remorse

Based on the letters I have read, and the words Mr. Saad spoke to the court, I accept that he is remorseful for the harm he has caused.

Mr. Saad's Diagnosis as a Hebephile

Mr. Saad's moral culpability may be attenuated to some extent by his diagnosis; however, caution must be had in this regard. The fact that Mr. Saad remains untreated, coupled with the other relevant circumstances, means that there is a corresponding need to separate him from society to protect children: see R. v. D.D. at paragraph 44.

Willingness to Take Treatment and Counseling

While his past offending did not trigger Mr. Saad to seek treatment and counseling, I accept that he understands that need now. I am cautiously optimistic that he will see it through. I understand that his cultural and religious beliefs have been a barrier for him. This barrier remains, at least subjectively, but it appears that it might be less difficult to cross now that his sexual orientation and sexual disorder are known to his family.

While I must remind myself that Mr. Saad has no track record in this regard, and that he represents at least a moderate risk to reoffend sexually if untreated, his willingness to seek treatment retains some mitigating force.

Support in the Community

Mr. Saad's family, friends and work associates are present and willing to support his rehabilitation and reintegration into society.

Age Restrictions on Grindr and Other Websites or Apps

As I said, I reject the defence's argument that the age restrictions on the platforms Mr. Saad used to meet his victims has any mitigating effect in this case. I do so for a number of reasons. First, there is no question but that Mr. Saad knew the victims' ages when he made arrangements to engage in sexual activity with them. I stress the fact that there were multiple victims in this case; this is far from a "one-off" offence committed impulsively or opportunistically. Second, only a very naive person would rely on age restrictions on websites and apps of this kind in this day and age. Mr. Saad is not that person. Third, Mr. Saad lied about his own age.

Mr. Saad's Immigration Status

It is within my discretion to treat immigration consequences as a relevant collateral factor in appropriate cases so long as I impose a fit sentence: see R. v. Pham, 2013 SCC 15, [2013] S.C.J. No. 100, at paragraph 14.

In this case though, I am unable to do so. To have an attenuating effect on sentence, it stands to reason that proposed collateral effects must be capable of being known.

The opinion put forward by immigration counsel is too vague and uncertain to be of any use to me in this case. It suggests a sliding scale but does not provide any guideposts.

How the length of any reasonable sentence I could legitimately impose in this case will affect the immigration authorities' assessment of Mr. Saad's risk is unknown. Much less how a marginal difference, upward or downward, might affect that assessment. There is no way for me to know what difference there is between a sentence at the top end of the defence's range (that is 6 years) and at the bottom end of the Crown's range (which is 8 years).

That said, if those authorities look at nothing more than the quantum, it seems obvious to me that a sentence in the range proposed by the defence will send them the message that Mr. Saad's risk is a very live concern. Should they probe more deeply — which one would expect in claims that involve balancing risk — the clinical evidence presented by the defence in this case is clear: Mr. Saad is at least a moderate risk to reoffend sexually if untreated. Combined with his offending, past and current, that assessment appears logical.

As a practical matter, the immigration lawyer's opinion can do no more than what the principle of restraint requires me to do.

Applicable Legal Principles

The authorities and the provisions of the Criminal Code make it clear that the primary principles at play in this case are general deterrence and denunciation: see generally Stuckless (1998 and 2019), D.D. and Woodward, cited above. See also section 718.01 of the Criminal Code.

The focus must be on the harm caused to the young victims and the life-altering consequences that have flowed from it and which will continue to mount: see Woodward, at paragraph 76 and Stuckless 2019 at paragraph 56.

While the effects of sentence and conviction on the offender and his prospects for rehabilitation do warrant consideration, the objectives of denunciation, general deterrence and the need to separate him from society must take precedence absent exceptional circumstances; again see Woodward, at paragraph 76; see also D.D. at paragraph 34.

In cases like this, the authorities have clearly stated that offenders must know that they will pay a heavy price.

The overarching principle in this and all sentencing cases is that the sentence must be proportionate. A proportionate sentence is one that is individualized. In other words, it is one that is deserved by the offender: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089.

Proportionality requires that the court consider the gravity of the offence and the moral blameworthiness of the offender. It is determined both on an individual basis — that is in relation to the accused herself and the offence she committed, and by comparison to sentences imposed on other offenders for offences committed in similar circumstances.

In relation to the first branch of the proportionality analysis, the circumstances of the accused are relevant: see R. v. Davies, 2017 ONCA 467.

This second factor, known also as the principle of parity, requires that like cases be treated alike. This of course is not an exact science. It is difficult and sometimes impossible to find other cases that are similar in all important respects.

I must also consider the totality of the sentences that I impose. It is not simply an exercise of finding the appropriate sentence for each count and then adding one to the other. The total sentence cannot be unduly long or harsh. It must be fit and proportionate. See section 718.2; see also R. v. Jewell, [1995] O.J. No 2213, at paragraph 27.

I feel it important to pause here to add the following.

In this case, unlike other cases, the Criminal Code requires me to impose some of the sentences consecutively - that is one after the other. As a result, when the total global proportionate sentence is broken down into its individual components — again by count and victim — the individual sentences may appear artificially low in comparison to the sentences ordered in other cases that I have referred to.

It may also make one victim or family wonder why the sentence imposed in relation to one victim is not dramatically different from that imposed in relation to another.

I would urge the families to keep in mind that this effect is really a function of the way the individual sentences must be accounted for in a case like this.

By way of illustration, that effect is also present in the Stuckless 2019 decision itself, which was just released by the Court of Appeal for Ontario. In that case, the offender was sentenced to 10 years in the penitentiary. That sentence covered over 100 serious offences perpetrated against 18 victims.

Analysis and Sentence to be Imposed

In my respectful view, the ranges presented by the parties and the sentences they seek miss the mark.

The Crown's proposed range of 8 to 10 years and sentence sought of 10 years are excessive. They fail to account for a number of attenuating factors that are present here, and ignore the absence of a position of trust or authority, which, when present, is a significant aggravating factor in the governing case law.

The Crown's sentencing chart relies overwhelmingly on cases that involved abuses of positions of trust. Stuckless 1998 and 2019, D.D., Cresswell and Dakin, upon which she placed particular reliance are among those cases. It also glosses over other important factors, such as the absence of guilty pleas (in D.D., Cresswell and, to a certain extent, Stuckless 2019). Also overlooked are the lengthy periods over which the accused committed their offences in those cases. I must also pay some attention to the fact that in many of the cases the Crown relied upon, the children were younger; this includes D.D. and Stuckless. Also relevant is that those cases involved a greater number of victims; see Stuckless 2019 at paragraph 133 to 135. In Stuckless, the sheer number of victims and offences was staggering.

In my view, it is with those distinctions in mind that I must read the following often quoted passage from paragraph 44 of D.D.:

As a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double-digit penitentiary terms will generally be appropriate.

I also read the following passage from D.M. in this light. In that case, the offender, in a position of trust, sexually assaulted a girl from the time she was 15 to 19 years old. The abuse included over 120 acts of sexual intercourse.

At paragraph 44, the Court of Appeal wrote:

To conclude on the issue of the proper range of sentence, although sentencing is always an individualized process of decision making, where there is prolonged sexual abuse and assault of a child including penetration by an adult in a position of trust the minimum sentence will be five to six years in the penitentiary.

I wish to be absolutely clear here: I understand that the absence of an abuse of trust is not a mitigating factor. But it is the absence of an aggravating factor that figures powerfully in the cases in which it is present and which I have cited from.

It is for this reason that I asked the Crown to point me to authorities that did not involve abuses of trust. She helpfully pointed me to Woodward.

In that case, the 30 year-old offender lured a 12 year old girl into engaging in sexual activity with him including fellatio and vaginal intercourse by offering her astronomical amounts of money. His sentence of 5 years for the sexual assault and 18 months consecutive for the luring was upheld on appeal as being within the appropriate range.

I agree that Woodward is of assistance. However, I remind myself that it involved a sentence that was imposed after trial. Also, while it involved one victim, she was two years younger than J.P. and E.C.

The defence pointed to this court's decision in R. v. Stanley, 2014 O.J. No. 6378, where the offender was sentenced to a 5 year global sentence. He stood in a position of trust as a Scout leader. He abused that position by sexually assaulting four boys, aged 12 to 15 years. In the case of one of the boys, the conduct involved anal penetration. There was no additional gratuitous violence. Mr. Stanley entered an early guilty plea. He had no prior criminal record. He did not suffer from a sexual disorder; rather, his issues were cognitive and emotional. Nonetheless, he sought treatment prior to sentencing. He was assessed and found to present a low to medium risk.

It would seem that in light of the appellate authorities, the sentence in Stanley appears to be at the very low end.

In my view, 5 to 9 years in the penitentiary is the applicable range in a case involving the following factors, as in this case:

• Multiple vulnerable victims in their mid to late teens;
• Grooming;
• Luring;
• Multiple instances of sexual assault - including penetration - taking place over a period of several months;
• Additional gratuitous violence;
• Serious victim impact; and
• A moderate risk of reoffending while untreated.

The gravity of the offences is high and the impact on the victims is very serious. They call for a significant penitentiary sentence.

Having said that, I believe that the attenuating factors in this case pull toward the middle of that range.

Mr. Saad's personal circumstances do not allow for a sentence falling below the range; nor do they amount to exceptional circumstances. But they have an attenuating effect on his moral culpability. Mr. Saad was raised in very difficult circumstances, including refugee camps. He moved with his family from country to country without being able to acquire the security of stable immigration status. It also appears that he was the victim of sexual abuse himself for many years as a child.

Also, as I have said, Mr. Saad's guilty pleas are particularly significant mitigating factors in the context of this case.

In consideration of these factors, I am of the view that the appropriate global sentence for Mr. Saad is one of 7.5 years in the penitentiary.

As I mentioned earlier, I am required to break down this sentence to reflect the principle of totality and to honour my obligation to order that some of the sentences be served consecutively as is required in the Criminal Code. It is for these reasons I break it down as follows:

• Sexual assault regarding E.P.: 2 years to be served in the penitentiary;
• Luring regarding E.P.: 12 months to be served concurrently;
• Sexual interference regarding J.P.: 3 years to be served consecutive to the sexual assault sentence involving E.P.;
• Transmitting a sexually explicit image to J.P.: 6 months to be served concurrently;
• Sexual interference regarding E.C.: 2.5 years to be served consecutively to the sentences imposed regarding E.P. and J.P.;
• Luring regarding E.C.: 15 months to be served concurrently.

Having spent 830 days in pre-trial custody, Mr. Saad has already served the equivalent of 1,245 days at the 1.5 to 1 ratio. The remainder of his sentence would therefore be 1,493 days or 49 months and three weeks. I would give Mr. Saad an additional 7 weeks as enhanced credit to reflect the harshness caused by the combination of lockdowns and health complications tied to his hemorrhoid difficulties as I have described them above.

The total sentence left to be served is therefore 4 years (or 48 months).

The Crown's request for orders that Mr. Saad provide a sample of his DNA, that he be bound by the requirements of SOIRA for life and that he be subject to a section 109 weapons prohibition for life are unopposed and will be made.

An order pursuant to section 161 of the Criminal Code for life will be made with appropriate exceptions. The parties are going to help me with crafting appropriate exceptions momentarily, but it is my obligation to explain why I am making this order. My explanation is as follows:

Mr. Saad used smartphones, apps and Internet-based platforms as vehicles to meet, groom and make arrangements to have sexual encounters with his young victims. A messaging app enabled him to remain in contact with E.C. using iPhones after E.C.'s parents had taken away his smartphone. Electronic communications also enabled Mr. Saad to deceive his victims about his age and to send J.P. a sexually explicit image. Finally, based on the evidence, Mr. Saad continues to represent an ongoing risk to young persons.

For these reasons a section 161 order is required to protect the public.

Released: July 2, 2019

P. Band, J.