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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

(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 victim of the right to make an application for the order; and

(b) on application made by the victim, 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 11 16 COURT FILE No.: St. Catharines 19-S0437

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

Mohamed ALI

Before: Justice D.A. Harris

Heard on: September 24, 2021 Reasons for Sentence released on: November 16, 2021

Counsel: Todd Morris......................................................................................... counsel for the Crown H.A. Patrick Little............................................. counsel for the defendant Mohamed Ali

D.A. HARRIS J.:

Introduction

[1] Following trial, I found Mr. Ali guilty of sexually assaulting LSM at the City of St. Catharines on January 2, 2019.

[2] Crown counsel had elected to proceed by indictment.

[3] Mr. Ali is before me today to be sentenced.

[4] Crown counsel suggested that I should impose a sentence of imprisonment for two to three years.

[5] He also asked for the following ancillary orders:

(1) a DNA order;

(2) an order compelling Mr. Ali to comply with the Sex Offender Information Registration Act for 20 years;

(3) a weapons prohibition; and

(4) an order pursuant to section 743.21 of the Criminal Code prohibiting any contact or communication by him with LSM during the custodial portion of his sentence.

[6] Counsel for Mr. Ali suggested that I impose a conditional sentence of imprisonment for 6 months, followed by probation.

[7] He opposed the imposition of a SOIRA order.

[8] I find that imprisonment for two years is the appropriate sentence.

[9] I will also be making the ancillary orders requested by Crown counsel.

[10] My reasons for this are set out under the following headings:

(1) The Law regarding conditional sentences of imprisonment,

(2) The fundamental purpose and principles of sentencing,

(3) The facts underlying the offence,

(4) The background of Mr. Ali, and

(5) Analysis.

Conditional Sentence of Imprisonment

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

[12] The Supreme Court of Canada subsequently stated in R. v. Proulx, 2000 SCC 5 that "Parliament clearly mandated that certain offenders who used to go to prison should now serve their sentence in the community." [1]

[13] The Supreme Court of Canada stated further that an offender who meets the criteria of section 742.1 will serve a sentence under strict surveillance in the community instead of going to prison. His liberty will be constrained by conditions to be attached to the sentence. In case of breach of conditions, the offender will be brought back before a judge who may order him to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence. [2]

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

1. the offender must be convicted of an offence that is not specifically excluded by the legislation;

2. the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;

3. the court must impose a term of imprisonment of less than two years;

4. the safety of the community must not be endangered by the offender serving the sentence in the community; and

5. a conditional sentence must be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

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

[16] In Mr. Ali’s case, the first two of the prerequisite criteria have been satisfied.

[17] His offence was excluded pursuant to section 742.1 (e)(i) but that provision has since been struck down as unconstitutional.

[18] It is not punishable by a minimum term of imprisonment.

[19] However, for reasons set out below, I am satisfied that I should impose a sentence of imprisonment for two years.

[20] Further, I am not satisfied that Mr. Ali serving his sentence in the community, would not endanger the safety of the community.

[21] Finally, I am satisfied that a conditional sentence is not appropriate in all of the circumstances of this case. In making this decision, I have considered the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.

Fundamental Purpose and Principles of Sentencing

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

[23] The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender. [3]

[24] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence. [4]

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

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence. [5]

[26] He went on to state that:

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime. [6]

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

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good. [7]

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

[29] Section 718.2(a)(iii.1) provides that it is an aggravating circumstance if the offence had a significant impact on the victim, considering his age and other personal circumstances, including his health and financial situation.

[30] Section 718.2(d) provides that “an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances”.

[31] Section 718.2(e) provides that “... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.”

[32] The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen and said that section 718.2 (e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender. [8]

[33] In R. v. Priest, supra the Ontario Court of Appeal made it clear that much of this is simply a codification of the existing law, especially with respect to youthful first offenders. That case also made it clear however that this principle is of much less importance in cases involving very serious offences and offences involving violence. [9] The case before me is certainly one of those cases.

[34] More recently, the Ontario Court of Appeal stated the following in R. v. Disher, 2020 ONCA 700:

The principle of restraint, as reflected in ss. 718.2 (d) and (e) of the Criminal Code, directs that a first period of incarceration imposed on a young first offender should be as short as possible, while giving adequate weight to the principles of general deterrence and denunciation: R. v. Rocchetta, 2016 ONCA 577, [2016] O.J. No. 3871, at para. 35. As s. 718.2(e) specifically directs, while the restraint principle should be considered for all offenders, particular attention should be given to the circumstances of Aboriginal offenders, a class of offenders to which Ms. Weaver belongs. Sentencing judges are to give effect to the principles in s. 718.2(e) even where the offence is serious and the sentence involves imprisonment: R. v. Batisse, 2009 ONCA 114, [2009] O.J. No. 452, at para. 36. [10]

[35] The Supreme Court of Canada noted in Gladue v. The Queen that section 718 requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation. Now a sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. [11] As a general matter restorative justice involves some form of restitution and reintegration into the community.

[36] The maximum sentence for sexual assault is imprisonment for 10 years when the Crown proceeds by indictment.

[37] In R. v. Friesen, 2020 SCC 9 [12], the Supreme Court of Canada provided a detailed analysis of the sentencing principles to be applied in cases where an adult has sexually abused a child. Some of their comments however are applicable here.

[38] For example, at paragraph 89 the Court wrote:

All forms of sexual violence, including sexual violence against adults, are morally blameworthy precisely because they involve the wrongful exploitation of the victim by the offender -- the offender is treating the victim as an object and disregarding the victim's human dignity [13].

[39] The Court goes on to temper this, stating “These comments should not be taken as a direction to disregard relevant factors that may reduce the offender's moral culpability. The proportionality principle requires that the punishment imposed be just and appropriate, and nothing more". [14]

[40] Sexual assault is a broadly-defined offence that embraces a wide spectrum of conduct. [15] The offender's conduct will be less morally blameworthy in some cases than in others. Further, the personal circumstances of offenders can have a mitigating effect. [16]

[41] I must also take into account the effect that Covid 19 is having on our community at large and in the corrections system in particular.

[42] Crown counsel provided me with a number of cases suggesting that sentence range for date rape cases is imprisonment for two to three years. The primary sentencing objectives should be denunciation and deterrence.

[43] Counsel for Mr. Ali provided me with two relatively recent cases from the British Columbia Supreme Court. Both of these are easily distinguished from the current case.

[44] In R. v Chen, 2019 BCSC 1290 [17] sentence was suspended and Ms. Chen was placed on probation for two years. This case was very different from the current one. Ms. Chen was 26 years old. She was convicted of sexual interference for having sexual intercourse with a 13-year-old boy. This was not a case where she forced herself on him. She was convicted because a 13-year-old could not consent to the sexual act.

[45] In R. v. Taya Tompouba, 2020 BCSC 308 [18] the court imposed a 90-day intermittent sentence with probation for three years following a conviction for sexual assault.

[46] I have selected two paragraphs from that case to show the basis upon which the judge sentenced Mr. Tompouba:

7 Based on my trial findings, I am sentencing Mr. Tayo Tompouba on the basis that he honestly but mistakenly believed the complainant initially communicated her consent to intercourse. At some point, however, Mr. Tayo Tompouba believed the complainant was asleep. He continued to have intercourse with her without taking any steps to ascertain her actual, active, ongoing, and conscious consent. In other words, he continued to have intercourse with the complainant without an honest but mistaken belief that she was consenting.

74 While Mr. Tayo Tompouba clearly should have known better, I also consider him to have a reduced level of moral blameworthiness compared to many of the offenders in the cases I have cited. He initiated intercourse with the complainant honestly but mistakenly believing that he had her consent. Though he was sober, Mr. Tayo Tompouba was only 22 or 23 at the time and mistakenly believed that the complainant would wake up and enjoy having sex with him. In other words, he did not think that he would be hurting her. While that was a massive mistake with criminal consequences, as I just said, he did not intend to hurt the complainant.

[47] This is very different than the case before me.

[48] I have also reproduced paragraph 80 for reasons that should be self-evident.

80 Despite the outcome in this unique and isolated case, the overall message from the court remains crystal clear that sexual assaults involving intercourse with vulnerable women will, in the vast majority of cases, result in a jail sentence of two to six years, plus many other harsh personal consequences.

[49] I found both of these cases to be of little if any assistance to me.

[50] Before applying these principles, I must take into account the facts underlying the offence and the background of Mr. Ali.

The Offence

[51] The facts of this case are set out in much greater detail in my earlier Reasons for Judgment. [19] The following is a short summary of what happened.

[52] Mr. Ali was 30 years old. LSM was 20. They got together to have lunch. They went to Mr. Ali’s residence to eat their food. At some point Mr. Ali attempted to initiate sexual activity. She said “no” and attempted to stop him. She failed in this attempt. He removed her jeans, pushed her panties to one side and penetrated her vagina with his penis. He continued to have sexual intercourse with her until he ejaculated inside her. He did not use a condom.

Impact on the Victim

[53] LSM spoke to the probation officer who prepared the Pre-Sentence Report and also prepared a Victim Impact Statement which she read out in court.

[54] She told the Probation Officer that reporting the offence was one of the most difficult things she has ever done.

[55] She came to Canada from Columbia eight years ago believing she would have better opportunities but what happened that day changed the entire course of her life.

[56] She was attending university and planned to attend law school following graduation. Instead, after the incident she was overwhelmed with anxiety and unable to focus on her studies. Feelings of guilt and self-blame led her to isolate herself from family and friends, she withdrew from school and began experiencing regular panic attacks attempting basic tasks. She has felt violated and has issues with sexual intimacy and trust in her subsequent relationship.

[57] Her Victim Impact Statement reads as follows:

This offence affected my life goals as well as my emotional state. I was completing my studies at Brock University when the incident occurred. I could not continue with my studies I was feeling hopeless, vulnerable, depressed, and scared. I could not focus on my classes; I did not want to attend the campus thinking I could be approached by him there. I would continuously have issues with my family and close friends because I could not control my emotions. I felt a sadness that I had never experienced before, I lost many friendships and my relationship with my parents was not the best I felt no one could understand my pain.

I thought life had no meaning and that I could not keep going. I was overwhelmed, I even thought that the best solution was to end my life. I could not understand why me? Why would someone who is religious, well spoken, educated could not understand the meaning of the word no or just know the definition of consent?

I started to have constant panic attacks, I lost all trust in people and I quickly learned that not everyone is what they claim to be. I went to the psychologist to learn how to cope with the emotional pain, I also went to a homeopath because allopathic medicine caused me side effects. I discovered that talking to a psychologist was not for me, I decided to get in contact with a life coach and till this date I am still learning about forgiveness and to let go of the past because every time I remember what happened my mood changes, and I get in this whirl of sadness and anger.

After I dropped out of Brock University, I was charged for all my tuition, I was also restricted to get OSAP again to continue my studies because of a previous withdrawal. I could not afford to study for a whole year and all my life goals were affected by this situation. The year 2019 has been one of the hardest of my life I could not continue studying, I lost interested in living and I felt ashamed for what had happened. In addition to all the emotional duress I am always concerned for my safety as my place of residence is known.

I was worried about what came next in my life I did not think I would get over it, thankfully today I can say that regardless of what happened I stood up and kept going. I went to Mohawk College and got my Paralegal diploma, I am back at Brock finishing my political science degree and I did not graduate in the initial time frame and I might not be a lawyer as soon as I expected nor wanted but I am willing to keep going to not let any situation or person determined my future or who I am. I certainly believe that pain only makes you stronger. I came to Canada for safety and protection as many other immigrants, it is concerning that people who experienced the struggle of a new beginning forget that we all came to Canada for a better life and have the audacity to hurt others.

Background of Mr. Ali

[58] I was provided with a Pre-sentence Report. From this I have learned the following.

[59] Mohamed Ali was born in Kismayo, Somalia on January 1st, 1989. During the Civil War in the early 1990s, his family fled Somalia to a refugee camp in Kenya where he remained for his formative years. He had a difficult upbringing due to the harsh environment of living on a refugee camp. Food and water were scarce, they had little money and he felt neglected in terms of emotional love and support. His mother died by drowning when he was approximately two years old. He was raised primarily by his maternal grandmother and, after her passing, his paternal grandmother. His paternal grandmother too died when Mr. Ali was 10 years old and his care transferred to his eldest sister. During childhood, his father was largely absent, residing in Ethiopia until Mr. Ali was of secondary school age. When he was present, Mr. Ali recalled his father used a stimulant plant known as khat and described him feeling like a stranger to him. His father also subjected him to violent forms of discipline, including the use of a stake for beatings.

[60] At 14 years of age, Mr. Ali participated in a student refugee program through a Canadian international development non-profit organization which brought him to Canada. He has remained in Canada since that time and became a Canadian citizen on December 13, 2018.

[61] Mr. Ali completed his Bachelor of Business Administration (Honours) from Brock University in June 2021 with a concentration in Information Systems and provided a letter of acceptance from University West Canada for a Master of Business Administration degree program commencing fall 2021 via online delivery.

[62] Mr. Ali was actively involved with the Brock University Student’s Union (BUSU), occupying several roles. As a student member of the BUSU Board of Directors he was involved in budgeting decisions, human resource issues and legal matters. He was also a paid member of the BUSU Student Administrative Council debating motions and approving funds. Additionally, Mr. Ali was the undergraduate representative on the Student Senate of Appeal hearing appeals of decisions related to academics or other matters. Following his arrest in January 2019, Mr. Ali resigned from these positions.

[63] In terms of traditional employment, Mr. Ali shared experiences in marketing and technical support. He has also engaged in charitable work via the BUSU Food Bank and the Kenya Red Cross. Currently, Mr. Ali has started an e-commerce business, where he has established a direct line to manufacturers to offer products at a lower rate to the consumer. In the future, Mr. Ali plans to pursue his PhD but is unsure how a criminal record will impact his employment endeavours

[64] In terms of current partners, Mr. Ali is in a two-and-a-half-year long distance relationship with a female who resides in Minnesota. They grew up in the same refugee camp and reconnected via social media after many years of lost contact. While they have not met in person as adults, Mr. Ali indicated they intend to marry. He described his partner as loving and denied any issues within their relationship. The relationship was described as platonic by choice with Mr. Ali citing his legal circumstances as motivation to avoid any situation which would violate expectations of his religion. He indicated his partner is aware of the charges before the Court and remains supportive. Their wedding plans have been placed on hold because of Mr. Ali’s current legal predicament.

[65] As a Muslim, Mr. Ali reported he is family oriented and remains in daily contact with his siblings in Kenya. Both of his sisters have seven children and he sends money to support them on a monthly basis. Mr. Ali considers himself a religious person, actively attending mosque and participating in daily prayer.

[66] Mr. Ali’s roommate, Kari Polot, was contacted as a collateral source of information for the PSR. She advised her grandfather previously owned the home where Mr. Ali rents a room and she inherited the landlord duties upon his passing. She estimated she has known Mr. Ali for five years and moved into the home approximately one year ago. Mr. Ali occupies the lower level of the home, Ms. Polot the upper level, and they share common areas. Ms. Polot claimed she knows Mr. Ali very well and has never felt uncomfortable with him. She described Mr. Ali as a quiet individual who does not partake in alcohol or drug use, attends mosque twice a day and rarely has guests over. She has met Mr. Ali’s current partner over the internet and noted she seems nice.

[67] Mr. Ali’s surety and friend, Ezeldin Ebadalla, also participated in the PSR process. He has known Mr. Ali for several years through the mosque community and suggested he is like a brother to him. He described Mr. Ali in positive terms and suggested he can be taken advantage of due to his kind and sometimes naïve nature.

[68] He believed the incident has taken a toll on Mr. Ali’s reputation within the community and suggested he feels remorseful and regretful for the whole ordeal.

[69] Jalal Ebrahim, the current President of the Islamic Society of St. Catharines, and friend of Mr. Ali was also contacted for the PSR. He stated he has known Mr. Ali for many years and became close to him after hiring Mr. Ali for a government funded student position at the mosque. He advised Mr. Ali is very active in the community and serves as a leader and role model to others. While he acknowledged knowing limited details surrounding Mr. Ali’s criminal involvement, he maintained he knows Mr. Ali as a “good kid” whose focus is his family back home and the local Islamic community.

[70] Abdi Ibrahim, Mr. Ali’s friend, was contacted as a personal collateral source for the PSR. He advised they were both raised on the Dadaab refugee camp in Kenya and participated in the same scholarship program which brought them to Canada. Mr. Ibrahim recollected that as young children, the refugee camp was a place of little parental oversight and freedom to play, however, with maturity the realities of life on a refugee camp became apparent. Although Mr. Ali is older than Mr. Ibrahim, he was second to move to Canada. Mr. Ibrahim stated Mr. Ali was not accepted on his first application and credited him with persevering for the opportunity the following year. The two maintained contact while attending their respective universities and remain close friends.

[71] Mr. Ibrahim stated Mr. Ali confided in him following his police involvement and he was shocked at the nature of the charge. He asserted he’s never known Mr. Ali to be disrespectful or inappropriate with women. He described Mr. Ali as a person who is easily loved by those that know him, always available to help others and held in high regard by the Muslim community. He deemed the offence a deviation from the person he knows Mr. Ali to be.

[72] Mr. Ali has never experimented with substances and is even hesitant to take over the counter painkillers when needed.

[73] Mr. Ali has no prior terms of community supervision with the exception of bail supervision on the current matter. Kaley Williams, Bail Supervision Counsellor from the John Howard Society of Niagara confirmed she has been supervising Mr. Ali on bail since his release from custody on January 24, 2019. Mr. Ali was initially meeting with Ms. Williams, in person, on a weekly basis before being reduced to bi-weekly in November 2019. Ms. Williams cited no concerns related to Mr. Ali’s reporting habits.

Analysis

[74] Doherty J.A. aptly described my task here when he began the judgment in R. v. Hamilton, supra by stating:

The imposition of a fit sentence can be as difficult a task as any faced by a trial judge. [20]

[75] Sentencing is not an exact science. The determination of the sentence that is just and appropriate in a given case is "a highly individualized exercise that goes beyond a purely mathematical calculation." [21]

[76] The primary objectives in sentencing Mr. Ali are deterrence and denunciation, but I cannot ignore the other principles of sentencing.

[77] I must craft a sentence that is proportionate to the gravity of the offences committed and the degree of responsibility of Mr. Ali and yet, at the same time, one that is responsive to his unique circumstances.

[78] I must consider both the aggravating factors and the mitigating factors when determining the appropriate sentence here.

[79] The aggravating factors can be found in the facts of the offence itself.

[80] He was 30 years old. She was 20.

[81] Mr. Ali attempted to initiate sexual activity. She said “no” and attempted to stop him. He ignored this.

[82] He removed her jeans, pushed her panties to one side and penetrated her vagina with his penis. He continued to have sexual intercourse with her until he ejaculated inside her. He did not use a condom.

[83] I heard evidence of the subsequent conversations between them in which she expressed her concerns about the possibility of pregnancy or STDs.

[84] This is a case involving a significant violation of her bodily integrity.

[85] The impact on the victim has been significant. It is clear that it could be a long time before she gets over this, if in fact she ever does.

[86] There are some mitigating factors.

[87] He was a person of good character and had no prior criminal record.

[88] After considering all of the above, I am satisfied that nothing short of a penitentiary sentence would be appropriate here. Nothing less than this would deliver the message that such behaviour will not be tolerated.

Sentence

[89] For the above reasons, I sentence Mr. Ali to imprisonment for two years.

[90] I also make the following ancillary orders.

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

[92] It is also a designated offence pursuant to section 490.011 of the Criminal Code. Accordingly, I make an order pursuant to section 490.012 of the Criminal Code, that Mr. Ali comply with the provisions of the Sex Offender Information Registration Act for 20 years.

[93] Pursuant to section 109 of the Criminal Code, for 10 years Mr. Ali is prohibited from owning, possessing, or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance.

[94] All of the above orders are mandatory.

[95] Finally, I make an order pursuant to section 743.21 of the Criminal Code prohibiting any contact or communication by him with LSM during the custodial portion of his sentence.

Released: November 16, 2021 Signed: Justice D.A. Harris

Footnotes

[1] R. v. Proulx, 2000 SCC 5, [2000] S.C.J. No. 6 (S.C.C.) at para. 12. [2] Ibid, at para. 21. [3] R. v. Hamilton, supra at para. 102; R. v. Lyons, [1987] 2 S.C.R. 309 (S.C.C.) at para. 26; R. v. Morrisey, 2000 SCC 39, [2000] S.C.J. No. 39 (S.C.C.) at para. 46. [4] Criminal Code, section 718.1 [5] R. v. Hamilton, supra, at para. 90. [6] Ibid, at para. 91. [7] R. v. Priest, [1996] O.J. No. 3369 (Ont. C.A.) at para. 26, quoted in R. v. Hamilton, supra, at para. 92. [8] Gladue v. The Queen, [1999] S.C.J. No. 19 (S.C.C.) at para. 36; see also R. v. Proulx, supra, at para. 20. [9] R. v. Priest, supra at para 17. [10] R. v. Disher, [2020] O.J. No. 4849 (Ont. C.A) released Nov 9, 2020, at para 59 [11] Gladue v. The Queen, [1999] S.C.J. No. 19 (S.C.C.) at paras. 43 and 48; see also R. v. Proulx, 2000 SCC 5, [2000] S.C.J. No. 6 (S.C.C.), at paras. 18 to 20 [12] R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100 [13] Ibid, at para. 89. [14] Ibid, at para. 91 [15] Ibid, at para. 91. See also para. 113. [16] Ibid, at para. 91 [17] R. v Chen, 2019 BCSC 1290 [18] R. v. Taya Tompouba, 2020 BCSC 308 [19] R. v. Ali, [2021] O.J. No. 3394 [20] R. v. Hamilton, supra at para.1; See also R. v. Lacasse, supra, at para. 1 and R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100 (S.C.C.) at para. 43 [21] R. v. Muzzo, 2016 ONSC 2068, [2016] O.J. No. 1506 (Ont. S.C.J.) per Fuerst J. at para. 59.