Court File and Parties

Court File No.: Metro North, Toronto Region 19-45003037 Date: 2022 04 08 Ontario Court of Justice

Between: Her Majesty The Queen

— And — Kevin William Gillard

Before: Justice Cidalia Faria

Heard on: March 3, 2022 Reasons for Sentence released on: April 8, 2022

Counsel: Arian Khader, counsel for the Crown Spiro Nicolakakos, counsel for the defendant Kevin William Gillard

Faria J.:

I. Overview

[1] On March 3, 2022, Mr. Gillard plead guilty before me to the charge of Assault. Normally such a plea proceeds directly to sentence. This assault, however, was accompanied by hateful Islamophobic language and was a racist and gendered targeting of a member of the community. The parties were not ad idem in their sentencing recommendation. As a result, I reserved to provide written reasons. These are my reasons.

II. The Offence

[2] Mr. Gillard and Ms. Mahamed both lived in a high-rise apartment building in Toronto. On July 20, 2019, they were both in the lobby waiting for an elevator. Ms. Mahamed saw that Mr. Gillard was having a verbal argument with another person. She intervened to try to maintain peace. Mr. Gillard then directed his aggression at Ms. Mahamed and started swearing at her. As she stepped into the elevator, Mr. Gillard approached her and bumped her with his chest. She told him not to touch her. He then stated “you fucking guys wearing these ugly things” while pointing at her hijab. Mr. Gillard grabbed Ms. Mahamed’s hijab from her head, pulled it off, and threw it on the floor. He then punched Ms. Mahamed on the left side of her face, causing her to fall to the floor. Mr. Gillard was pulled away by other bystanders, and he left. Ms. Mahamed sustained swelling on the left side of her face and a scrape to her right knee.

III. Circumstances of the Offender

[3] Mr. Gillard was 24 years old at the time of the offence and is now 25. He lives with his common-law partner and their 14-month-old son as well as his partner’s children. He suffers significant mental health issues, and as a result, has had limited education, is of limited means and struggles with impulse control.

[4] Mr. Gillard was diagnosed with learning disabilities around grade 3 or 4 at approximately 8 years old. By the age of 12 he was diagnosed with Impulsive Disorder which required medication that he continues to need. He required special classes and counselling for anger and impulse control while he was in school and was unable to complete high school as a result. Mr. Gillard worked for a cleaning service when he was about 19 years old, but soon went on Ontario Works. He is now financially supported by the Ontario Disability Support Program (ODSP) and receives about $1100 a month, $750 of which he uses for rent. He helps care for his 14-month-old son and his partner’s children daily. His son was recently hospitalized and diagnosed with a condition Mr. Gillard suffers from himself.

[5] Counsel described the circumstances Mr. Gillard was in on the day of the offence. Mr. Gillard’s friend asked him for help with a move. Mr. Gillard was not well, had not taken his medication and the hot July weather was affecting him negatively as he has significant physical reactions to heat. However, Mr. Gillard went to help his friend move anyway as this type of volunteering is one of the ways he keeps himself busy. During the move, in a building with elevator troubles, his friend became involved in an altercation with a woman and a child. Mr. Gillard then got involved. When the victim tried to mediate, as already described, Mr. Gillard’s attention turned to her, and the situation escalated uncontrollably. The assault then occurred as admitted.

[6] Counsel informed the Court Mr. Gillard’s memory of the assault is “blurry”. He does not recall the words he used. He did not think he had behaved the way he did and awaited disclosure of video (with no audio) of the assault. Counsel submitted Mr. Gillard was surprised when he saw himself pulling the victim’s hijab and the assault. Counsel stated Mr. Gillard says he does not recall saying the words he said.

[7] Mr. Gillard intended to resolve the matter from the beginning. Since he was charged, he has been in touch with COTA, the court the mental health organization and the Toronto Youth Services for counselling. Due to the COVID-19 pandemic closures, Mr. Gillard has not received much benefit from these services and had not received treatment. Mr. Gillard is now on his medication and submits he will take counselling if given the opportunity.

[8] Regarding the specific racial and Islamophobic nature of the assault, Counsel stated Mr. Gillard “feels so bad about that”, acknowledges what he did and is remorseful. He noted Mr. Gillard has learned that his roots may be Ojibway – Mi’kmaq on his mother’s side. Mr. Gillard’s mother was present in the courtroom. When asked if he had anything to say to the Court, Mr. Gillard stated “I’m just really sorry”.

IV. Position of the Parties

Crown

[9] The Crown characterized this assault as one with features of a hate crime, one that strongly undermines Canadian values and is not tolerated. The Crown submits the Court consider the evil of racism, the context of Islamophobia, the strength of the Crown’s case, and the negative impact on the victim and the community. He argues the guiding principles are denunciation as well as specific and general deterrence. He acknowledged the mitigating factors of age, the guilty plea which demonstrates remorse, and that Mr. Gillard has no criminal record which calls for restraint.

[10] The Crown submits that but for these mitigating factors, custody should be imposed. He recommends a fit sentence to be at minimum a Suspended Sentence with a period of probation. He is also requesting a weapons prohibition and a DNA order. In support of his position, the Crown filed a Victim Impact Statement and a Community Victim Impact Statement in video form with a transcript.

Defence

[11] Counsel, Mr. Nicolakakos, appropriately, takes no issue with the concerns articulated by the victim in her Victim Impact Statement, and the comments made in the Community Victim Impact Statement.

[12] He submits on behalf of his client, that given Mr. Gillard’s longstanding and significant mental, psychological, and physical challenges, his age, his lack of a criminal record, his guilty plea, his remorse, and his life circumstances, the Court consider a Conditional Discharge with a period of probation. He takes no issue with any proposed terms of probation as suggested by the Crown and does not oppose the ancillary orders. Counsel submits a Conditional Discharge is in Mr. Gillard’s best interests and not contrary to the public interest.

V. Aggravating Factors

Physical Injuries

[13] Ms. Mahamed sustained significant injuries as a result of Mr. Gillard punching her in the face. Photos were filed as exhibits which showed the discolouration and size of the bruising that encompassed her left eye, upper cheek area and into the bottom of her cheek which lasted several weeks. She was prescribed pain medication and endured headaches and loss of sleep for a significant period.

Victim Impact

[14] Ms. Mahamed was an experienced volunteer who supported children’s programs, community events, and mediated conflicts. She considers herself a strong woman who stands up for herself and helps people, which is what she was doing when she stepped in to intervene when Mr. Gillard was in an altercation with a woman and her child.

[15] As a result of Mr. Gillard’s physical assault, the words he used and the pulling off of her hijab, she states [1]:

• She is “on guard” and “cautious in case” she is in danger again, she is now “more attentive” to her surroundings and is “more paranoid that something like this will happen again”.
• She feels her “voice was taken away from me. That if I were to speak up there would be some horrible consequence for standing up. I am a very outspoken person and I don’t feel like I can be like myself since”.
• She now does not “feel comfortable helping people much”, she had to “step back” from her community work because she “didn’t feel comfortable being around so many people. The fact that this happened in the privacy of my own building, it makes me more cautious and scared to do community work in the area”.
• Although she considers herself a mediator, since the offence, “when there is the smallest conflict around me I remove myself from it. I think I do it subconsciously. But I used to always mediate issues around me and now I don’t think I can do that.”
• She now does not “feel like herself” as she finds “it hard to stand up for myself since this incident”. “Standing up for others and myself is a huge part of who I am. But I haven’t since.”

[16] In essence, this offence has negatively impacted Ms. Mahamed’s sense of safety, sense of self, her role, and her contribution to her community.

Community Impact

[17] The Court had the benefit of a Community Victim Impact Statement authored by Amira Elghawaby. She is a member of Canada’s Muslin communities doing human rights work, has widespread networks in Canada and has written extensively about the impact of Islamophobia including hate crimes.

[18] Ms. Elghawaby noted that “between 2012 and 2015, police-reported hate crimes targeting Muslims in Canada tripled, increasing by 253%”. This is particularly disturbing given that “two thirds of hate crimes are unreported according to Statistics Canada”. [2]

[19] To accentuate unreported hate crimes as well as the increase in reported hate crimes, Ms. Elghawaby referred to a number of hate-motivated attacks that have made Canadian headlines such as the attack on six men attending evening prayers in a Quebec City mosque in 2017, the London Ontario family killed by a truck-driver, and last year a Toronto Muslim man stabbed to death by a man allegedly involved in hate movements.

[20] In addition, gendered Islamophobia is now a recognized phenomenon by Statistics Canada where “police-reported violent hate crimes against Indigenous and Muslim populations are more likely than other hate crimes to involve female victims.” [3]

Hate

[21] The increased prevalence of offences with features of hate, motivated by hate or in the context of hate is an aggravating factor to consider that necessitates the consideration of general deterrence. Mr. Gillard’s targeted words in addition to his targeted physical grab of Ms. Mahamed’s hijab constitute this aggravating element.

VI. Mitigating Factors

Guilty Plea, Accountability, Remorse

[22] Mr. Gillard has plead guilty. The plea in and of itself demonstrates accountability. It is a late plea in the context of a strong Crown case where the assault was captured on video, however, I accept the submission that Mr. Gillard’s memory of the assault was “blurry”. He never set a trial date on the matter. The Court accepts Mr. Gillard’s very straightforward and simply stated remorse in his apology.

Obviating the victim from testifying

[23] Of note is the fact the guilty plea obviated the victim from testifying. Having to attend at trial and testify to the traumatizing assault and uttering the hateful words that were hurdled at her would have re-traumatised the victim in the re-telling. The fact she did not have to, in this case, given the impact of the offence, is of significant value.

Limited Court resources

[24] The Court is also mindful of the limited and strained judicial resources in the criminal legal system because of the COVID-19 pandemic. The fact Mr. Gillard took responsibility precluded the need for a trial.

Age and Antecedents

[25] As a 25-year-old with no criminal record, Mr. Gillard also comes before the Court as a youthful first offender. The Crown recognized, counsel emphasized, and the Court agrees the principle of restraint is to be considered. [4]

Mental Health and Rehabilitation

[26] A relevant and mitigating factor unique to Mr. Gillard are his significant mental health conditions which I accept were in effect at the time of the offence. As an individual with an Impulsive Disorder, a seizure disorder, who was physically affected by the heat, in a frustrating situation of conflict when he had not taken his medication, Mr. Gillard’s medical conditions contributed to his inability to regulate himself at the time of his offence.

[27] Since Mr. Gillard was charged, he has gone back on his medication. He has also made efforts to get counselling and treatment. He has made personal connections with both COTA and Toronto Youth Services. He has demonstrated he is prepared and willing to take counselling and though his attempts have been curtailed by pandemic restrictions, they are positive rehabilitation efforts that reflect initiative and intention.

Gladue Factors

[28] Although Mr. Gillard informed the Court that he had just learned he has or may have Ojibway – Mi’kmaq ancestry on his mother’s side, he did not avail himself of s. 718.2(e) which requires particular attention to the circumstances of Aboriginal offenders. He did not avail himself of a Gladue Report. He did not provide any information about his possible Indigenous ancestry. He did not make any connection between his possible Indigenous identity and the circumstances that brought him before the Court.

[29] Nonetheless, I accept counsel’s submission that Mr. Gillard’s recent discovery that he himself may have Indigenous ancestry may assist him to better appreciate the depth and breath of the impact of the hateful words he used, and the injury he caused with his violent targeting of a Muslim woman, particularly if, moving forward, he chooses to learn about his ancestry and the impact of racism.

VII. Sentencing Objectives and Principles

[30] A fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Pursuant to s. 718 of the Criminal Code the fundamental purpose of sentencing is to protect society and to contribute to respect for the law to maintain a just, peaceful, and safe society. Sanctions are to have one or more of the following objectives:

• denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct
• deter the offender and other persons from committing offences
• separate offenders from society, where necessary
• assist in rehabilitating offenders
• provide reparations for harm done to victims or to the community; and
• promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community

[31] How much emphasis is placed on each of these objectives will vary according to the nature of the crime and the circumstances of the offender.

[32] In this case, an additional consideration is that of s. 718.2

718.2 Other sentencing principles A court that imposes a sentence shall also take into consideration the following principles: (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor

[33] Given the age and lack of criminal record of Mr. Gillard, counsel recommends the Court consider a Conditional Discharge as the way by which to demonstrate the applicable principle of restraint.

[34] Section 730(1) of the Criminal Code sets out the twofold test for consideration:

i) that the Court be satisfied that it is in the best interests of the accused and ii) that the Court is satisfied that it is not contrary to the public interest that the accused receive a discharge.

[35] Of assistance is R. v. Sanchez-Pino [5] which distills the guideline to be:

i) A discharge must be in the best interest of the accused meaning that deterrence of the offender is not a relevant issue except to the extent required by a probation order ii) It is not expected the offender will re-offend iii) Normally the person is of such character that the conviction may have significant repercussions iv) Consideration of the public interest includes first the consideration as to whether general deterrence is necessary v) The more serious the offence the less likely a discharge will not be contrary to the public interest.

[36] Of note is R. v. Wood [6] which stated at para.4: “in cases of violence resulting in injury the requirement of general deterrence to the public militates, in almost every case, against the grant of a conditional discharge, notwithstanding considerations personal to the accused”.

[37] The Court is mindful that discharges are not restricted to trivial matters [7] or that unusual circumstances or pressures may permit a Conditional Discharge to be appropriate [8] for an offence of violence. In addition, the effect of a criminal record on an offender may be disproportionate to meet the ends of a fit sentence and so a discharge may be appropriate. [9]

[38] The circumstances that call for the consideration of a Conditional Discharge are not present in this case. Although a Conditional Discharge is always in some way in the best interest of the offender, in this case, the specific deterrence Mr. Gillard requires to ensure he regulates hateful conduct eliminates a Conditional Discharge as an appropriate sentence.

[39] There is no evidence that Mr. Gillard is in a situation that a conviction will have significant repercussions on him vis-à-vis employment or travel. Moreover, given the seriousness of the offence and the injuries sustained, as well as the necessity for specific and general deterrence, a Conditional Discharge is not an appropriate and fit sentence for the offence Mr. Gillard committed.

[40] In fact, this offence in this context with this particular manifestation of hate reasonably attracts a custodial term for consideration.

[41] In Medeiros [10] the appellant was convicted of criminal harassment after approaching a Muslim woman wearing a hijab in a local park and yelling obscenities at her. After finding that the “conduct falls squarely within the scope of this statutorily prescribed aggravating circumstance,” the trial judge sentenced Mr. Medeiros to a 90-day intermittent term of imprisonment followed by 18 months of probation, which was upheld

[42] In Elliot [11] a 55-year-old offender wrote a hateful phrase on the door of a bakery owned and operated by a Muslim family originally from Iran. She had no criminal record, pled guilty to the mischief, and had a diagnosed mental health condition she was suffering from at the time of the offence. She was remorseful, did counselling, apologized formally to the victims and both her Pre-Sentence Report and submission to the Court outlined her regret and shame for committing the offence. She was sentenced to a 30-day Conditional Sentence, 30 hours of Community Service and 18-month probation

VIII. Sentence

[43] In the context of this case the principles of restraint and rehabilitation on a youthful first offender must be balanced with the principles of denunciation, and specific and general deterrence given the fact this is an offence of violence where hate is part and parcel of offence.

[44] In reply to Counsel’s submissions outlining Mr. Gillard’s mental health issues, the Crown responded “Mental health does not make you a racist. Racism does.” I cannot say I disagree.

[45] Neither violence nor racism are acceptable reactions to frustration. Mr. Gillard unleashed both.

[46] Had Mr. Gillard only physically assaulted Ms. Mahamed, it would have been a violent act of a grown heavy set young man exerting physical violence and injuring a woman in anger. That would have been quite serious in terms of Ms. Mahamed’s gender, age, and size disadvantage.

[47] However, the words Mr. Gillard used when assaulting Ms. Mahamed, in addition to the pulling of her hijab and throwing it on the floor, is particularly odious and exacerbated the targeted racialized gendered focus of his violence. His words verbalized an exercise of denigration based on race and religion that the Crown, the victim, and the Community Victim Impact statement speak to as Islamophobia.

[48] The significant and damaging impact of Mr. Gillard’s crime was well articulated both at the individual level by Ms. Mahamed and at the collective community level by Ms. Elghawaby. The impact of Mr. Gillard’s offence harms the entirety of our community, the values Canadian law upholds and purports to preserve, pursue and promote.

[49] But for Mr. Gillard’s unique, relevant, and unmedicated mental health condition as it specifically existed and manifested at the time of the offence, even given his age and lack of a criminal record, a custodial term, be it an intermittent sentence or a Conditional Sentence would have been imposed.

[50] However, given the totality of the mitigating factors and his unmedicated mental health condition at the time, although the aggravating factors are significant, Mr. Gillard will not be sentenced to a custodial term.

[51] Mr. Gillard, please stand. Noting your 2 days in pre-sentence custody and enhancing them by 1.5 for a credit of 3 days of pre-sentence custody, I sentence you to a Suspended Sentence.

[52] You will be on probation for 2 years with the following terms:

• Keep the Peace and be of good behaviour;
• appear before the court when you are required to do so;
• notify the court or the probation officer in advance of any change of name or address;
• report to a probation officer within 2 business days of this Order;
• reside at an address approved by your probation officer;
• have no contact directly or indirectly with Muna Mahamed:
• not be within 50 m of where Muna Mahamed lives, works, goes to school, worships, volunteers or is known by you to be;
• not to possess any weapons as defined by the Criminal Code nor to apply for any licences for such weapons as defined by the Criminal Code;
• attend and actively participate in all assessment, counselling or rehabilitative programs as directed by your probation officer and complete them to the satisfaction of the probation officer, including for a) cultural competence/anti-racism; b) anger management; c) mental health; d) parenting and anti-racism e) life skills;
• you shall sign any release of information as will enable your probation officer to monitor your attendance, and completion of any such assessments, counselling or rehabilitative programs as directed.

[53] In regard to your DNA, I have considered and balanced the fact you have no previous criminal record, the nature of your offence and the circumstances surrounding its commission, the minimal impact on your privacy and security of person of such an Order, I find it is in the best interests of the administration of justice to order your DNA. You will provide a sample of your DNA. You will do so today in the Courthouse.

[54] In addition, pursuant to s. 110 of the Criminal Code, I order that you are prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for period of 5 years from today.

[55] Mr. Gillard, I hope you learn from the tremendous impact of your actions and never act in such a way again.

Released: April 8, 2022 Signed: Justice Cidalia C.G. Faria

Footnotes

[1] Exhibit 1: Victim Impact Statement, Muna Mahamed, January 11, 2021

[2] Exhibit 2a: Community Victim Impact Statement, Video, Amira Elghawaby, December 15, 2021 Exhibit 2b: Community Victim Impact Statement, Transcript, Amira Elghawaby, December 15, 2021

[3] Exhibit 2a: Community Victim Impact Statement, Video, Amira Elghawaby, December 15, 2021 Exhibit 2b: Community Victim Impact Statement, Transcript, Amira Elghawaby, December 15, 2021

[4] R. v. Priest, [1996] O.J. No. 3369

[5] R. v. Sanchez-Pino (1973) 2 O.R. 314

[6] R. v. Wood, (1975, 24 C.C.C. (2d) 79 (C.A.)

[7] Regina v. Vincente (1975), 18 Crim, L. Q. 292 (Ont. C.A.)

[8] Regine v. Taylor

[9] Regina v. Myers

[10] R v Medeiros, 2014 ONSC 6550

[11] R. v. Elliot, 2020 ONCJ 134