Non-Publication and Non-Broadcast Order

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

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

486.4 Order restricting publication — sexual offences. —(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: (i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii). (2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (b) on application made by the complainant, the prosecutor or any such witness, make the order.

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

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2021·03·05 COURT FILE No.: Toronto 4817-998-18-75003527; 4817-998-19-75006278

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

ALA AL SAFI

Before: Justice H. Borenstein

Delivered Orally on: March 3, 2021 Written Reasons for Sentence released on: March 5, 2021

Counsel: Ms. Yeshe Laine .................................................................................... counsel for the Crown Ms. Elizabeth Moore .............................................................................. counsel for the Crown Mr. Wayne Cunningham ............................................. counsel for the defendant Ala Al Safi

BORENSTEIN, J.:

Overview

[1] Ala Al Safi plead guilty to ten counts of aggravated sexual assault or attempted aggravated sexual assault and breaching a condition of his recognizance to work with and comply with Public Health relating to his HIV status and sexual encounters. There is a joint submission for a ten-year sentence and a Long-Term Offender (“LTO”) designation.

[2] Al Safi committed these offences over a period of about six years, from 2011 to 2017.

[3] He is now 30 years old. He began committing these offences when he was 21.

[4] He knew he was HIV positive and yet continued to meet young men online for the purpose of engaging in sexual relations. These men usually asked him if he was HIV negative and to wear a condom. He would assure them he was negative even though he knew he was HIV positive. When they asked him to wear a condom, he would not and would then engage in penetrative, mostly anal, sexual activity with these men knowing that he was HIV positive. He transmitted HIV to four of these men, and the impact on all is profound. He had been repeatedly warned by Public Health to disclose his HIV status to sexual partners and to wear a condom and to take his medication. He repeatedly failed to do so. He repeatedly lied to Public Health officials about his activities.

[5] Fortunately, an HIV positive diagnosis is not the death sentence it once was. However, the harm to his victims is profound, both physically, requiring medication for life, and psychologically.

[6] Mr. Al Safi has now been in custody since July 20, 2017; approximately three-and-a-half years. He does not have a criminal record.

[7] The Crown and defence jointly submit that Al Safi should be sentenced to ten years in jail less pre-sentence custody. They disagree as to how much pre-sentence credit he should receive.

[8] Crown and defence further agree that, in addition to the ten-year sentence, Al Safi should be declared a long-term offender within the meaning of s. 753 of the Criminal Code.

[9] They also agree that he should be subject to a Long-Term Offender Supervision Order but disagree about the length of that Order. The Crown submits it should be for the maximum term of ten years. The defence submits a five-year Order should be imposed.

[10] Before turning to the two principal issues before me, I begin by discussing the facts and the impact on the victims.

Facts of the Offences

[11] By way of situating this timeline, Al Safi was diagnosed with HIV in February 2011. Various health care professionals counselled him about how HIV is transmitted, the importance of condoms and medication and the need to disclose his HIV status to partners. He said he was aware of that as he worked in an AIDS related organization in Windsor.

C. B.

[12] In early July 2011, Al Safi tested positive for gonorrhea and was counselled about that as well as HIV. Two weeks later, he met C.B. through a Craigslist personal ad. Prior to meeting, Al Safi falsely claimed to be disease-free and HIV negative. When they met, C.B. gave Mr. Al Safi a condom but Mr. Al Safi said he did not wish to use a condom and that C.B. should trust him. They engaged in unprotected sex twice. C.B. contracted HIV from Al Safi.

[13] In his victim impact statement, C.B. wrote that he feels stupid and hates himself for believing Al Safi, and for engaging in unprotected sex with him. When Al Safi denied responsibility, C.B. was met with self-doubt and feelings of hopelessness, and described his spirit dying and blamed himself. He felt his life was completely shattered and broken, and experienced depression and suicidal ideation. He has constant feelings of distrust for people, hopelessness, worthlessness and overwhelming isolation.

A. F.

[14] In December 2011, Al Safi began a sexual relationship with A.F. after meeting on a dating website called “Adam for Adam”. At the outset, Al Safi said that he did not have any sexually transmitted infections (STIs) and lied about his HIV status. A.F. said he wanted Al Safi to use a condom, but Al Safi said that he preferred to have unprotected sex. Their relationship extended until the summer of 2012. They engaged in unprotected sex on multiple occasions. Al Safi never disclosed his HIV status. In February 2012, A.F. advised that he had contracted HIV; he again asked Mr. Al Safi regarding his status. Mr. Al Safi continued to deny having HIV and said that he would get tested.

[15] In his victim impact statement, A.F. writes that he no longer trusts people and lives in a constant and absolute state of distress.

R. P.

[16] Between June 15th and July 15th, 2014, Mr. Al Safi met R.P. through the dating application “Grindr”. They engaged in unprotected sex. They did not discuss Al Safi’s HIV status. R.P. learned several months later that he had contracted HIV.

[17] In his victim impact statement, R.P writes that he felt as though his world was crumbling down around him. He had feelings of self-harm and blamed himself for what happened. He describes the assault as taking every ounce of happiness away from him. His diagnosis has affected his friendships, romantic relationships, familial relationships and his economic situation.

S. 22 Order

[18] In October 2014, Toronto Public Health issued a s. 22 Order under the Health Protection and Promotion Act R.S.O. 1990, c. H-7 (“HPPA”) requiring Al Safi to abstain from any penetrative sexual activity unless he informs his partner that he is HIV positive and wears a condom.

S. M.

[19] About a week after the issuance of the s. 22 Order, on October 30th, 2014, S.M. met Al Safi at a bar in downtown Toronto. They went for a walk together and stopped at a park. They discussed engaging in intercourse. S.M. did not have a condom. There were no specific discussion about HIV, but S.M. stated, “you better not have anything”. Despite the requirements of the s. 22 Order, they ultimately engaged in unprotected sex and Mr. Al Safi did not disclose his status. S.M. was diagnosed with HIV shortly thereafter.

A. R.

[20] In December 2014, Mr. Al Safi met A.R. on the “Grindr” application. Prior to meeting in person, A.R. asked Mr. Al Safi about his HIV status. Despite the advice and counselling as a result of again testing positive for gonorrhea, and despite the s. 22 Order, Al Safi said that he was HIV negative. They met and engaged in unprotected sex several times in the coming months. They maintained contact with one another. In May 2015, A.R. learned that he was HIV positive. When he contacted Al Safi, Al Safi claimed A.R was the one who transmitted HIV to him.

[21] In 2016, a second s. 22 Order was issued under the HPPA with the same conditions as before. It added a requirement that Al Safi attend his doctor’s office within five days and to comply with treatment for HIV infection. Despite this, Al Safi’s compliance with the prescribed anti-retroviral (“ARV”) drug regimen was largely sporadic and therefore, ineffective.

R. K.

[22] In December 2016, Al Safi and R.K. met on “Tinder”. They later engaged in unprotected sex. Despite the s. 22 Orders, they did not discuss Al Safi’s HIV status or use a condom. R.K. contracted HIV. This offence occurred during a time period when Al Safi began his ARV medication but was non-compliant with the treatment requirements.

[23] In his victim impact statement, R.K writes he now feels like an outcast and has been rejected and bullied; he feels devastated and stated, “its unbearably difficult to trust people anymore”. He describes his relentless, emotional suffering; the ongoing medical hassles; economic struggles and he is unable to understand Al Safi’s motive in his criminal actions. R.K. constantly asks himself where he would be, had he not met Al Safi.

V. L.

[24] Around the same timeframe as R.K., Al Safi met V.L. through “Tinder”. V.L asked Mr. Al Safi if he had HIV. Mr. Al Safi said he did not. V.L asked him to wear a condom. Al Safi reluctantly complied but, during intercourse, Al Safi removed the condom and ejaculated close to V.L.’s penis. Afterwards, V.L asked Al Safi if he was HIV positive and Mr. Al Safi again said he was not. The two met up again a short time later. Mr. Al Safi again attempted to penetrate V.L without a condom. V.L. again asked if he had any diseases and if he was HIV negative. Mr. Al Safi assured him that he was disease-free and did not have HIV. They then engaged in unprotected sex. After the intercourse, at a time when V.L could have taken steps to address the serious health risk posed from unprotected sex, Al Safi lied and said he did not have anything and that V.L had nothing to worry about. In January 2017 V.L was diagnosed with HIV and gonorrhea as a result of these encounters. He reached out to Mr. Al Safi on January 23rd, asking if he was HIV negative. Al Safi did not respond.

[25] On January 11th, 2017, Mr. Al Safi again tested positive for gonorrhea.

[26] The same day that he received the positive gonorrhea result, Al Safi engaged in a text conversation with an unknown male, which was subsequently retrieved from Al Safi’s phone. During that conversation, the unknown male wrote, “we probably talked about it that night but your negative right”. Mr. Al Safi wrote, “I am babe”. On January 18th, 2017, the male wrote to Mr. Al Safi asking if he got himself checked. The male begged him to write back so that he would know what he gave him so that he could be treated. Al Safi did not respond.

E. C

[27] On January 22, 2017, Al Safi met E.C. through a dating app. They met and were about to engage in sexual activity when E.C. asked about Al Safi’s HIV status. Mr. Al Safi brushed off the discussion and did not disclose his status. They later engaged in sex, during which E.C. again asked if Al Safi was HIV positive. Al Safi did not respond. Al Safi wanted to engage in unprotected sex and E.C. did not. Al Safi persisted in his attempts to engage in unprotected sex and ultimately did penetrate E.C. without a condom, albeit briefly. E.C. told Mr. Al Safi to stop several times and he ultimately did. The next day, E.C contacted Al Safi again and asked about his HIV status and asked if he should go on post-exposure prophylaxis (PEP) which involves taking ARV treatment after being exposed to HIV to protect against infection. Despite knowing that he had been completely non-adherent to ARV medication at this point for months, and despite knowing the risks associated with unprotected sex, Al Safi again lied, stating that he was HIV negative and that he last tested negative for the virus in November 2016.

[28] In his victim impact, E.C. writes that, as a result of Al Safi, he was fearful and ashamed and questioned his trust in future partners, or anyone at all.

V. S.

[29] In March 2017, Al Safi met V.S. through “Grindr”. They had a discussion about sexual preferences. Al Safi lied, saying that he was safe and preferred not to use a condom. They later met and V.S. again asked about Al Safi’s HIV status. Al Safi said that he was “clean”. V.S. asked Al Safi to wear a condom and despite having been very recently counselled on this point, Al Safi said that he is “safe” and preferred not to use condoms, as they were not his ‘thing’. V.S. insisted on using a condom. Mr. Al Safi agreed, and they engaged in protected sex. Mr. Al Safi then removed the condom and persuaded V.S. to continue to have sex. At no point did Mr. Al Safi advise V.S. of his HIV status. In his victim impact statement, V.S. wrote that he felt worthless, ashamed, depressed and scared. He was unable to return to work for a period of time.

E. D.

[30] Mr. Al Safi was charged with one count of aggravated sexual assault in April 2017. Following his release on bail, the Medical Officer of Health obtained a s. 102 Order under the HPPA requiring Al Safi to comply with the previous s. 22 Orders. Days later, Al Safi met with E.D. and engaged in unprotected sexual activity without disclosing his HIV status.

[31] Throughout this period, whenever Al Safi would test positive for gonorrhea or chlamydia, he would usually lie to Public Health officials, claiming he had not been with sexual partners. He would routinely not attend or follow up with health care professionals.

Ala Al Safi’s Background

[32] Mr. Al-Safi is 30 years old. He does not have a criminal record. He was born in Jordan and came to Canada with his family when he was three years old. He grew up in Windsor. While Al-Safi describes his family in warm terms, his relationship with some of his family, including his father and brother, is superficial or distant due to, according to Al Safi, their non-acceptance of his sexual orientation. He was bullied in middle school but that changed in high school when he was popular. After high school, he attended a journalism program at college and had an internship. He moved to Toronto in 2009 but did not find work in journalism. He worked in some restaurants and eventually became a successful drag queen performer. He was quite involved in the LGBQT community and in related charity work. When released, he wants to work in a nursing related field to help people with HIV related matters.

[33] Numerous letters were filed in support of Al-Safi, written by his family and friends. Some letters stray into political discourse about criminalizing HIV. One says he should be pardoned because he would never harm anyone. But, for the most part, they speak to someone they view as warm and kind and helpful.

[34] Before turning to the Long-Term Supervision Order (“LTSO”), I will address his pre-sentence custody.

Pre-sentence Credit

[35] As of today’s date, Mr. Al Safi has spent 1325 days in custody.

[36] Enhancing that period on a 1.5 to 1 basis for the reasons expressed in Summers, he has spent the equivalent of 1,985 days in custody.

[37] Defence seeks further enhanced credit for a variety of reasons; principally, the lockdowns which resulted in harsher conditions during his pre-trial incarceration. He also submits that his pre-sentence custody should be enhanced as a result of conditions more specific to him – including, a homophobic remark made by a correctional officer, his skin condition which worsened as a result of lack of fresh clothes or treatment and a period of time when he was kept in medical segregation for three days rather than one. He was placed there as a result of a scabies infection, but an unknown officer noted that Al Safi had expressed suicidal ideation which Al Safi testified he did not express.

[38] The Crown concedes that lockdowns should entitle Mr. Al Safi to further credit.

[39] There is a significant disagreement between the Crown and defence as to how many days Al Safi spent in lockdown, as well as how much enhanced credit he should be given for those days.

[40] I heard evidence from Deputy Superintendent Marchand, as well as from Mr. Al Safi and have seen various records.

[41] Suffice it to say, for reasons that became clear during the hearing and were acknowledged by Marchand, the records from the South Detention Centre were incomplete and inaccurate, although their accuracy has been improving over the last year.

[42] Mr. Al Safi kept his own records of his lockdowns but, through no fault of his own, the records he created, pre-February 2019, were lost. He tried to recreate the lost record by talking to or looking at records prepared by other inmates. The approach he was forced to take to recreate them is unreliable. They were also unreliable at other times when compared with other accurate records. The records from the South Detention Centre indicated 384 lockdown days as of the sentencing hearing. Al-Safi’s recreated records, including pre-February 2019 records, indicates 634 lockdown days as of that date. The Crown estimates the most accurate number is around 400.

[43] It is impossible to tell with complete accuracy but, when one looks at the number of days Mr. Al-Safi spent in lockdown over various periods of time, and extrapolating, I think the figure of 40% of his pre-sentence custody was spent in full or partial lockdown. That figure could be as high as 44% if I just look at 2020 and include lockdowns caused by Covid related reasons. Forty percent (40%) is a startling number of days and deserving of condemnation. The impact of the lockdown is significant. It creates tension among inmates. Lack of dignity. Having to ask one’s cell mate to turn around to use the toilet in the cell. Limited use of the shower, the phone, access to the yard or fresh air. An additional sense of hopelessness. The hardships are in addition to certain difficulties which are inevitable or necessary to a period of incarceration.

[44] Management at the South is trying to ameliorate the situation as best they can. In fact, the lockdowns, other than those that were unavoidable due to Covid or other emergencies such as safety concerns at the South, were, for the most part, caused by staff shortages or the need to re-allocate staff within the South to other units. In fact, where partial lockdowns occur (roughly half the time), it is often due to the re-allocation of staff to other units so that others can get out of lockdown. More staff needs to be hired. Lockdowns caused by shortages or re-allocation 40% of the time is dysfunctional. It has become the norm rather than the exception. While allocation of resources is a government issue, the impact of that allocation is a matter to be considered by the Court.

[45] There is no fixed formula when determining how much enhancement beyond the Summers’ credit is to be given, and the case law ranges from nothing or a half day to three for one at the high end. Al Safi submits the high end is appropriate in light of some of the factors he asserts as noted above. The Crown disputes some of those factors and emphasizes there were legitimate efforts by the South to address some of those concerns, including treatment. In the end, this sentencing hearing delved far in minutiae, such as laundry and the like. I do not say that in a critical way as that minutiae helped show the unreliability of the records from the South, which has been improving. I accept that Mr. Al-Safi’s pre-trial incarceration was harsher than it should have been, principally as a result of the lockdowns. For that reason, I will not distinguish between partial and full lockdowns in this case in an effort to give full effect to the circumstances of his pre-sentence incarceration.

[46] In my view, an additional one-and-a-half days credit for every day in lockdown will be granted for unnecessary hardship for the reasons expressed by Justice Schreck in Persad and Justice Forestell in the 2020 decision on Fronczak, 2021 ONSC 219.

[47] Therefore, I consider 40% of Al-Safi’s actual pre-sentence custody as days that were spent in full or partial lockdown and will credit Mr. Al Safi with an addition one-and-a-half days for each of those days, in addition to the half day Summers’ credit. Accordingly, 40% of the days spent in pre-sentence custody (530), he will receive a credit of three-to-one, which includes the time spent, the Summers’ credit and the enhanced credit. Therefore, those 530 days will be credited as 1590 days. For the remaining 60% or 795 days, they will be given the usual Summers’ credit of one-and-a-half-to-one, totalling 1190 days. According to my math, that results in his 1,325 days of actual pre-sentence custody enhanced to 2,780 days. For even greater clarity, his ten-year sentence, which effectively amounts to 3,650 days, will be reduced by 2,783 days, leaving a custodial sentence of 865 days or approximately 29 months.

Long-Term Offender Declaration

[48] Crown and defence both agree that an LTO designation and a LTSO are appropriate. I agree.

[49] They differ on the length of the LTSO Order.

[50] The Crown submits it should be for the maximum period allowed: ten years. The defence submits five years would be appropriate given how long Al Safi will have then been in custody.

[51] An LTO assessment was ordered pursuant to s. 752.1. Dr. McMaster conducted that assessment, prepared two reports and testified. I have reviewed his reports and the other material filed and the witnesses called.

Purpose of LTO Designation and LTSO

[52] In determining the length of the LTSO Order, it is important to bear in mind that the essential basis of an LTO designation and the purpose of the LTSO Order.

[53] The LTO designation is based in part on a finding that Al Safi is likely to again cause significant harm to others. The reason there is a proposed LTSO is the acceptance that there is a reasonable possibility of eventual control of that risk within the life of the LTSO.

[54] A LTO designation and a LTSO are not intended as additional punishment for the crime committed. The punishment for the offending conduct is the sentence imposed, arrived at by balancing traditional sentencing principles.

[55] The LTO/LTSO provisions are forward looking and aim is to prevent future violence. It requires balancing the public’s right to not be subject to likely future serious violence from someone likely to cause such violence with Al-Safi’s liberty interests. While a balancing is required, the balancing favours public protection ([R. v. Jones, 1994] and [R. v. G.L., 2007 ONCA 479]).

[56] While there is overlap between a Dangerous Offender designation and an LTO designation, a Dangerous Offender designation keeps an offender incarcerated indefinitely to protect the public. An LTO designation supervises the offender once released to protect the public and assist in the offender’s rehabilitation (see [R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163 at para 42]).

[57] An LTO finding has both the protection of society and rehabilitation and reintegration as its goals. The LTSO must address the needs of the offender in the least restrictive but most comprehensive way without sacrificing the main objective of public safety.

Three Pre-Conditions to an LTO Designation

[58] Counsel agree that the three pre-conditions to declaring Al Safi a Long-Term Offender pursuant to s. 753.1 have been met. They are:

1. The Court must be satisfied that the appropriate sentence is two years or more.

[59] This condition is easily met in light of the aggravating factors, including the large number of youthful victims; the six years of repeatedly offending; the inexplicable refusal to follow the advice of health care professionals; the fact that four of his victims contracted HIV; his duplicity to victims and health care professionals; the repeated breach of Public Health Orders during some of these offences; and that he continued engaging in these offences even after learning some of his victims contracted HIV.

[60] Mr. Al-Safi callously and deceptively engaged in unprotected, penetrative sex with so many men who simply asked him if he was HIV negative and if he would wear a condom. Not only did Mr. Al-Safi not take his medication, but he did not respect them enough to even wear a condom, knowing what he was exposing them to. He has caused lifelong harm to these men. They will be on medication for the rest of their lives.

[61] The mitigating feature chiefly is his plea of guilt, which evinces some remorse and saves significant court time. I note that all the victims did have to testify at the preliminary hearing but, nonetheless, the pleas of guilt are mitigating.

[62] These factors lead counsel to jointly submit that a ten-year sentence would be reasonable in the circumstances for Al Safi, a man with no prior record. That is justified. The first pre-condition is met.

2. S. 753.1(1) requires the Crown to prove beyond a reasonable doubt that Al Safi will cause severe damage or injury in the future. More specifically, the Crown must prove that

1. there is a substantial risk that Al-Safi will cause death or injury to other persons or inflict severe psychological damage on them; and/or,

2. a likelihood that he will cause injury, pain or other evil to others in the future by through similar offences.

[63] It is conceded that the Crown has proved that Al Safi is likely to commit such harm under both subsections.

[64] Al-Safi’s long history of offending amply demonstrates this.

[65] Further the statutory presumptions in s. 753.1(2)(b)(i) and (2)(b)(ii) apply in this case.

[66] Subsection (2)(b)(i) provides that where, as here, an offender has been convicted of a sexual offence in 273, the Court shall be satisfied that there is a substantial risk to re-offend if he has shown a pattern of repetitive behaviour, of which the predicate offences are part, that shows a likelihood of the offender causing death or inflicting severe psychological or other damage.

[67] Subsection (2)(b)(ii) provides that the Court shall be satisfied of a substantial risk to re-offend if the offender, by his conduct in any sexual matter including the instant offence, has shown a likelihood of causing injury, pain or other evil to other persons in the future.

3. The Court must be satisfied that there is a reasonable possibility of eventual control of the risk in the community within the duration of the LTSO Order.

[68] The Crown and defence submit that there is a reasonable possibility of eventual control of that risk from Al Safi within the life of the LTSO Order.

[69] However, this factor is more ambiguous.

[70] Dr. McMaster could not say when the reasonable possibility of eventual control of the risk might occur. Yet Crown and defence and Dr. McMaster all say it exists. That determination of when is being left to the Court based on all the evidence, expert and otherwise.

Length of the LTSO

[71] Al Safi submits that the number of previous victims and the harm caused to them are not particularly relevant to the issue of the length of the Order. He submits those factors, his moral blameworthiness and the harm he caused were relevant to sentence and at arriving at a ten-year sentence. He argues those factors are spent and it would be essentially giving them double weight by relying upon them again now. I disagree.

[72] The LTSO assessment is a forward-looking assessment which looks at the potential and extent of harm likely to occur, and what can be done to mitigate risk.

[73] The number of previous victims and extent of the harm caused to them is relevant in this assessment, not to re-punish Al Safi for past offences but, to come to a view about the extent of the harm that could occur if the risk materializes. That view in turn would inform the extent of the measures needed to control the risk. Simply put, the greater harm that may occur, the more will be justified to mitigate the risk of that harm materializing.

[74] In this case, the factors that contributed to Al-Safi’s criminal behaviour are the same ones that create the risk of his offending in the future. Those must be addressed to control the risk. These include his long history of lying to his sexual partners; putting the fulfillment of his own sexual desires above their lives and health; his refusal to do anything at all to mitigate the risk to their health, including wearing a condom; his long history of refusing to take medication or to not continue it once he does; his deception to health care professionals regarding taking medication or sexual partners; his non-compliance with the advice of health care professionals regarding his sexual behaviour; and his breaches of Court and of other Orders. All of these factors will have to be addressed and monitored to reasonably control the risk he presents.

[75] The Crown submits that the LTSO Order should be for the maximum period allowed: 10 years. Al-Safi submits that five years would be appropriate because, by then, he will have taken his medication while in custody and for five years thereafter thereby demonstrating compliance with an ARV regimen. Further, he now knows there are no significant side effects from the medication, and he has not been shunned by his family or community; two of the reasons he gave to McMaster or others for not taking his medication.

[76] I cannot rely on Al-Safi’s stated reasons for not complying with medication for several reasons. First, he has a long history of deceit as it relates to these issues. Second, this does not explain his failure to ensure to wear a condom even when asked, which would have protected his sexual partners. This alone demonstrates a selfish and cruel disregard for the safety of others which reflects a lack of empathy and that enhances any future risk. Third, there were numerous inconsistencies between Al Safi’s statements regarding his compliance with medication and the known facts about when he acquired or renewed his prescription. Fourth, his statements to health care professionals is replete with self-serving rationalizations that are incredible. One example is his claim that he did not know or understand the need to take medication or wear a condom to reduce the risk of transmission. Anyone living with HIV would know that. Anyone in the public would know that. And Al-Safi was counselled by doctors and nurses. It defies belief that he would not have known that. In short, while I accept some of his evidence about his time at the South Detention Centre, I do not accept or rely on his statements to anyone regarding his reasons for not complying with his ARV regimen.

[77] I do accept that Al Safi can change and has begun to do so. He is intelligent. He will receive significant sexual offender counselling while incarcerated, which is a positive going forward. He has potential to change.

[78] Ms. Brennan from Correctional Services of Canada (“CSC”) testified about the programming Al-Safi will receive prior to his release and while on parole, and then subject to the LTSO. He will receive intensive programming at the penitentiary. He will be eligible for either the high-intensity sexual offender program, which consists of 100 group counselling sessions of three hours each and six individual sessions. If he receives moderate-intensity programming, it consists of 50, three-hour sessions, rather than 100, plus six individual sessions. Those programs could be repeated. Prior to his release, there is a further 12-week program consisting of weekly three-hour counselling. All this counselling should help in the future.

[79] If he is granted parole, he will be on parole until warrant expiry at which time the LTSO Order begins. The Parole Board can impose conditions on both his Parole and LTSO relating to risk mitigation, including complying with treatment regime and verification of that. For the first year of the LTSO Order, a residency requirement can be imposed. It expires after one year unless the LTO supervisor applies to the Parole Board to extend that requirement.

[80] Of all of the factors that need to be addressed, both counsel submit that Al-Safi’s adherence to a proper ARV medication regime is the single most important factor that can mitigate the risk he presents.

[81] Until there is a cure for HIV, he will have to completely adhere to a proper ARV regimen for the rest of his life, as do his victims.

[82] Given Al Safi’s past conduct, sustained over years, despite knowing the risks and harm he was doing, there is no question in my mind that his adherence to the ARV medication will need to be verified. That is the only way to reasonably control the risk he presents. This will be done though the conditions of an LTSO and will continue until the Court can be reasonably confident that Al-Safi will exercise control without the threat and strength of an LTSO looming. He will have to demonstrate compliance for a lengthy, sustained period of time.

[83] The fact that Al Safi has been ARV compliant while in custody is positive but taking ARV while in jail is not the same as taking it in the outside world without supervision and control. Nonetheless, it is positive.

[84] All agree that Al Safi’s fear of returning to jail once released will be a significant motivating factor.

[85] Accordingly, his current compliance with medication, the counselling he will receive and his fear of returning to jail provide a basis to believe that there is a reasonable possibility of eventual control of the risk Al Safi represents but, at this point, it would be speculative and arbitrary for the Court to choose a specific year when that will arise. In my view, his adherence to medication in particular needs to be monitored and verified for the maximum allowable period, ten years, to reasonably mitigate the risk.

CONCLUSION

[86] Mr. Al Safi will be sentenced to a total of ten years in custody concurrent per count less pre-sentence custody. I am enhancing his 1325 days of pre-sentence custody for the reasons given to 2,784 days, leaving a custodial sentence of 866 days or approximately 29 months.

[87] He will be placed on a ten-year Long-Term Supervision Order pursuant to s. 753.1 to commence following the completion of his sentence.

[88] The Court recommends the following conditions be included in the LTSO:

1. That Al Safi disclose his HIV status to all future sexual partners.
2. That Al Safi use a condom for all future sexual intercourse.
3. That Mr. Al Safi seek and attend for psychiatric counselling for any issues as may be identified by the Board or Parole Supervisor and to cooperate fully in producing proof of attendance and progress as required.
4. That Mr. Al Safi take whatever medication may be prescribed to treat his HIV by a qualified medical doctor in accordance with the schedule of the prescription and that he co-operate fully in producing proof of medication compliance to his Parole Supervisor.
5. That Mr. Al Safi comply with the recommended testing and/or treatment for HIV infection and that he co-operate fully in producing proof of this to his Parole Supervisor.
6. That Mr. Al Safi comply with regular medical assessments and bloodwork as recommended by his HIV care provider and that he co-operate fully in producing proof of this to his Parole Supervisor.
7. That Mr. Al Safi provide to his Parole Supervisor copies of any HIV viral load testing performed by his health care provider.
8. That Mr. Al Safi report to his Parole Supervisor any intimate relationships or the intention to enter into any intimate relationships in advance of such intimacy.
9. That Mr. Al Safi allow his Parole Supervisor to access his social media accounts and/or phone records to monitor compliance with these conditions; and
10. That Mr. Al Safi reside at an address approved of by his Parole Supervisor.

[89] I also make the following ancillary Orders:

1. A lifetime s. 109(1)(a) Weapons Prohibition Order.
2. A DNA Order.
3. An Order and that he be registered on the Sex Offender Information Registration Act, pursuant to s. 490.013(2.1), for life.

Written Reasons Released: March 5, 2021 Signed: “Justice Borenstein”