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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

DATE: 2022 10 17 COURT FILE No.: 19-45002621 Metro North, Toronto Region

BETWEEN:

HIS MAJESTY THE KING

— AND —

Hurshed TURSUNOV

Before: Justice Cidalia Faria

Heard on: March 25, 2022, and June 17, 2022

Reasons for Sentence released on: October 17, 2022

Counsel: Paul Alexander, for the Crown Yaroslav Obouhov, for the defendant Hurshed TURSUNOV

Faria J.:

Introduction

[1] Mr. Tursunov was found guilty on March 25, 2022, of Impaired Driving and Sexual Assault after trial R. v. Tursunov, 2022 ONCJ 136. His sentencing was adjourned to June 17, 2022, and on that day, knowing he faced a period of incarceration, he asked the matter to be adjourned to after the summer work season so he could complete a work project and minimize the financial impact of his incarceration on his family. I granted the request and Mr. Tursunov appears before me today for sentence.

Circumstances of the Offence

[2] On June 23, 2019, Hurshed Tursunov was driving his vehicle westbound on Finch at the Yonge intersection in the city of Toronto. He collided with a TTC bus as he drove past it, damaging his passenger side mirror and the bus. He did not stop and proceeded to drive onto a residential street shortly thereafter. A witness who saw the collision followed Mr. Tursunov, had a conversation with him, took his keys and called 911.

[3] As described by Mr. Kjaer, the witness at trial, Mr. Tursunov could not drive straight in a traffic lane. He tried to attach a clearly unattachable mirror back to his car. He stumbled and lost his balance. He admitted he was drunk.

[4] Ambulance, Fire and Police attended. Paramedic A.I. and Officers Leano and Miller further substantiated Mr. Kjaer’s observations and opinion. They observed Mr. Tursunov’s speech was slurred, he was incoherent and not making any sense. He was aggressive in the ambulance, had bloodshot eyes, was belligerent and urinated on himself. He fell asleep in the hospital. Mr. Tursunov’s swaying, slurred speech, inability to sit on the bench properly and inappropriate laughter when asked if he had ever tried to injure himself demonstrated significant indicia of impairment in the Booking video.

[5] While he was being treated in the ambulance, Mr. Tursunov was lying on a stretcher. He reached out and grabbed Paramedic A.I.’s right buttock with his hand and squeezed. He smiled, snickered, and made a “kissy kind of smirk” to her when she removed his hand from her body.

Circumstances of the Offender

[6] Mr. Tursunov is a 35-year-old married man with three children, 12- and 6-year-old boys and a 2-year-old little girl. He has his own contract construction business since 2012 and is a hard worker, working long hours and in all seasons. He currently completed a contract fixing balconies and had 6 employees working for him. Mr. Tursunov has a university education from his country of origin and had done well for himself in Canada.

[7] The Pre-Sentence Report provided background information about Mr. Tursunov and his family, particularly the effect of the loss of his parents in 2017 and 2018 before the offences were committed. He explained that this was the reason for his drinking on the day of the offences as his friend suggested drinking would help him with his grief. He denied any dependence on alcohol, indicated he had no mental health concerns and no physical challenges either. He did take counselling for alcohol use and advised the author of the report that he was informed he did not need it.

[8] His concern about the impact of his criminal conduct on his family was clear, his concern about the gravity of the actual offences and the impact on the community and the victim, less so, as he tended to minimize his responsibility.

Position of the Parties

[9] The Crown recommends a 4-month jail sentence given this is Mr. Tursunov’s second drinking and driving offence which involved a collision and serious impairment, and the sexual assault is of a front-line health care provider trying to assist Mr. Tursunov. He also recommends a 2-year driving prohibition, a DNA Order, a SOIRA Order, and a Weapons Prohibition.

[10] Counsel for Mr. Tursunov recommends the minimum 30-day jail sentence for the Impaired Driving offence minus the 4 days spent in pre-sentence custody enhanced by 1.5 to 6 days, and a Suspended Sentence and a period of probation for the sexual assault offence. He appeared to take no issue with the ancillary orders suggested by the Crown. He urges the Court to consider the impact of incarceration on Mr. Tursunov’s family and emphasizes the principles of proportionality and restraint.

Sentencing Factors

[11] Section 718 of the Criminal Code provides the purpose and principles of sentencing. A sentence is to have one or more of the following objectives:

• denounce 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
• promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.

[12] The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[13] In this case, there are several aggravating factors. Mr. Tursunov already has a criminal conviction for a drinking and driving offence from 2015 when he received a fine and a driving prohibition. This is his second such conviction.

[14] Mr. Tursunov had a collision with a public transit vehicle travelling in a live lane of traffic at a busy Toronto intersection, and he fled the scene of the collision. He caused damage both to his own vehicle and to the bus. His behaviour gave rise to such concern to a member of the public, who followed him and took his keys away.

[15] The Pre-Sentence Report was not reassuring in that it spoke of little to no insight into the dangerousness of Mr. Tursunov’s conduct.

[16] There is also little evidence of any insight into his sexual offending behaviour. A.I.’s competence, knowledge, professionalism, and dignity were of no value to Mr. Tursunov, who, when he sexually assaulted her, in her words “demeaned her profession and demeaned women in general.” A.I. is a front-line worker who was alone, in a small space trying to help Mr. Tursunov. A paramedic in the back of an ambulance assisting a patient. Even there, doing that, she was not safe from sexual assault.

[17] In mitigation, Mr. Tursunov’s incarceration is going to have a significant impact on his family financially and on his relationship with his children. As the principle breadwinner, they will lose his contribution for a period of time. In regard to the children, they will be without a father for a period of time and will need an explanation, one that will surely affect their perception of their hardworking dad.

[18] In addition, though restrictions have decreased, Mr. Tursunov will be serving his jail sentence under pandemic protocols in a congregate setting. As someone entering a prison for the first time, this will be an additional burden to the experience of incarceration.

[19] The guiding principles of denunciation, and specific and general deterrence must be reflected in Mr. Tursunov’s sentence. He was in a collision, fled, and was significantly impaired, after already having been convicted of a drinking and driving offence. This conduct requires more than the minimum 30-day sentence.

[20] Mr. Tursunov sexually assaulted a front-line healthcare worker providing him medical treatment. She was alone in closed environment with a stranger by virtue of her job. Mr. Tursunov used that vulnerability and access to gratify himself sexually. Again denunciation, specific and general deterrence are called for on that offence.

[21] However, the collision was minor, no one was injured, and Mr. Tursunov was quickly apprehended. The sexual assault was definitive, but of short duration. This calls for proportionality and restraint.

Sentence

[22] Having considered all the circumstances of the offences, Mr. Tursunov’s circumstances, the relevant aggravating and mitigating factors, and balancing the applicable principles, the appropriate and fit sentence in this case is as follows:

• Impaired Driving: 45 days jail minus 4 days pre-sentence custody enhanced by 1.5 to 6 days
• Sexual Assault: 30 days jail consecutive to the Impaired Driving
• A 12-month period of Probation with statutory terms, and the additional 3 conditions:
  • To attend counseling for Gender Based Violence as directed by the Probation Officer
  • Sign releases to enable the Probation Officer to monitor attendance and completion of counselling
  • Not to be in possession of weapons as defined by the Criminal Code
• Pursuant to s.259 of the Criminal Code, you will be prohibited from driving for a period of 2 years
• Pursuant to s. 110 of the Criminal Code, I order that you are prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for a period of 5 years
• Pursuant to s. 490.012 of the Criminal Code, I order you to comply with the Sex Offender Information Registration Act for a period of 10 years.
• Pursuant to s. 497.04, I order that you provide samples of bodily substances reasonably required for the purpose of forensic DNA analysis today at Metro North Courthouse, 1000 Finch Avenue West.
• You will also pay a $100.00 Victim Fine Surcharge for each offence, for a total fine of $200 with 6 months to pay.

[23] Thank you to counsel for your helpful submissions.

Released: October 17, 2022 Signed: Justice Cidalia C. G. Faria