ONTARIO COURT OF JUSTICE DATE: 2022 07 12 COURT FILE No.: Brampton 3111 998 20 9822
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
ABDUL HAMID
Before Justice G.P. Renwick
Sentencing Submissions Heard on 12 July 2022 Reasons for Sentence released on 12 July 2022
Counsel: S. Karim................................................................................................ counsel for the Crown V. Strugurescu...................................................... counsel for the Offender Abdul Hamid
An Order prohibiting the publication of information that could identify the complainant has been made pursuant to s. 486.4 of the Criminal Code of Canada.
RENWICK J.:
INTRODUCTION
[1] Following a brief trial, I found the Defendant not guilty of invitation to sexual touching but guilty of breaching a prohibition order (s. 161(4)). The complainant, her mother, and the Offender had testified. The prosecutor had proceeded summarily.
[2] The child complainant testified about an incident following her thirteenth birthday. She had been involved in a significant argument with her mother. She had left her home around seven in the evening. After a while, she made her way to the Offender’s apartment, in the same building where she lived. She told him about the argument with her mother. I found as a fact that the Offender invited her into his apartment, where she stayed for an indeterminate, but more than momentary, period of time. She may have left after an hour or several hours. The complainant was obviously in a vulnerable position.
[3] For this offence, the prosecutor seeks 10-12 months of custody followed by three years of probation, a DNA sampling order, and a s. 161 prohibition for 10 years. [1] The Offender submits that his pre-trial custody credit, including credit for a lengthy and restrictive judicial interim release, puts him in a “time-served” position. Alternatively, he submits that any further imprisonment should be served conditionally. All other orders are opposed.
GOVERNING SENTENCING PRINCIPLES
[4] 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.
[5] 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. 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. [2]
[6] In R. v. Hamilton and Mason, 2004 ONCA 5549, Doherty J.A. of the Ontario Court of Appeal stated 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…
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. [3]
[7] The Court 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. [4]
[8] Section 718.1 of the Code ensures that proportionality is the fundamental principle of sentencing. However, proportionality is not the sole principle to be considered. A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [5]
[9] In R. v. Proulx, 2000 SCC 5, the Supreme Court spoke about the principle of restraint when considering imprisonment:
Parliament has sought to give increased prominence to the principle of restraint in the use of prison as a sanction through the enactment of s. 718.2(d) and (e). Section 718.2(d) provides that "an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances", while s. 718.2(e) provides that "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders". Further evidence of Parliament's desire to lower the rate of incarceration comes from other provisions of Bill C-41: s. 718(c) qualifies the sentencing objective of separating offenders from society with the words "where necessary", thereby indicating that caution be exercised in sentencing offenders to prison... [6]
[10] Section 161 breaches are especially serious because they involve vulnerable members of the community and known offenders. “The predominant sentencing principles that control the disposition in cases involving a breach of a s. 161 order are denunciation and deterrence, both specific and general.” [7] Our Court of Appeal has further declared, “Those who are subject to such orders must realize that contravention comes at a price.” [8]
[11] The Supreme Court has confirmed this principle. “The legislative history, judicial interpretation, and design of s. 161 all confirm that the section has an overarching protective function: to shield children from sexual violence.” [9]
[12] Our Supreme Court has instructed that section 718 requires a sentencing judge to consider more than simply denunciation, deterrence, and rehabilitation. The court 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 by an offender, and attempting to rehabilitate or heal the offender. [10] Although the rehabilitation of the Offender is a secondary consideration in the overall calculus of an appropriate sentence in this case (behind denunciation and deterrence), it is still a factor I must consider.
ANALYSIS
[13] The cases presented by the parties were helpful in reminding the court of the general sentencing principles and the appropriate range of sentence in cases of this nature: R. v. Bale, 2017 ONCJ 4791; R. v. Exell, 2015 ONCA 704; R. v. Friesen, 2020 SCC 9; R. v. Munro, 2016 BCPC 241; R. v. Parent, 2019 ONCJ 6752; and R. v. R.M., 2019 ONCJ 435. I find that general and specific deterrence and denunciation are the primary goals in structuring a fit sentence for this offence.
[14] The Offender did not suggest that imprisonment is not generally appropriate for his offence. Instead, he submits that his pre-trial custody credit and the credit he ought to receive for his conditions on bail merit a suspended sentence.
[15] Where both parties submit that a sentence of imprisonment is warranted, it is trite to note that s. 718.2 provides that “an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances” and “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.” Obviously, as a sentencing tool, imprisonment is to be used only as a last resort when required by the circumstances of the crime and the background of the offender.
[16] Still open is the question of whether any further restriction of the Offender’s liberty is warranted, and the extent of any deprivations.
The Offence and the Offender
[17] Following a trial, the Offender was found guilty of breaching an Order of Justice Bielby of the Superior Court made on 13 October 2016. That Order prohibited contact with any child under 16 years, unless supervised. I found that the breach of that Order occurred on 27 August, less than four years after the Order was made.
[18] The Offender hid the offence from his daughters, with whom he would usually share information about potential breaches of the Order.
[19] He has shown no remorse for this blatant offence.
[20] The Offender is described in the character letters filed on his behalf as “respectful, kind hearted and caring” (Ashma Hamid), “peaceful and law abiding” (Bibi Nesha-Samaroo), “responsible, respectful, caring, and helpful” (Salome Sukhu), “a role model” (Narupa Samaroo-Mohan), “responsible, caring, respectful and helpful” (Abdool Hamid), “kind, respectful, and thoughtful” (Ashmin Hamid), and a “dedicated father” and “very peaceful person” (Bibi Samaroo-Harrybhajan).
[21] During the trial, the Offender was attentive, punctual, well-dressed, and respectful. He appears by all external circumstances to exemplify the traits used by his supporters to describe him.
[22] I accept that the Offender has led a challenging but positive life and he has contributed to our community in several ways until this offence. He is a family-man and he has shown concern for others. According to his character references, the Offender is spiritual, well-liked, and someone upon whom one can count for support.
Aggravating Sentencing Factors
[23] The Offender has a criminal record. He was found guilty of child-luring and sentenced to imprisonment for 15 months. That conviction gave rise to the 10-year prohibition Order that was breached here.
[24] No argument was made that subs. 718.2(a)(iii) of the Code applies, that the Offender was a person in a position of trust or authority as an adult neighbour in relation to the child complainant. Nonetheless, the breach was flagrant, not insubstantial, and it took place when the complainant was especially vulnerable (she had run away from home). The Offender was someone the complainant felt she could trust. Though she would not know of the Order prohibiting their contact, the Offender surely did. The contact occurred behind the closed door of the Offender’s residence after he invited the complainant inside. He hid this conduct from her mother, his daughters, and everyone else. These circumstances are aggravating.
Mitigating Sentencing Features
[25] The offence was not instigated by the Offender. Though his behaviour (inviting a child into his home) created the offence, he did not seek out the initial contact with the complainant.
[26] The Offender is well supported by his family. He is religious. He is unable to work due to physical disabilities suffered in 1997. The Offender has been on a restrictive bail for almost two years. These are significant mitigating factors. [11]
Determining the Proper Sentence
[27] From the authorities submitted, I find that the deliberate nature of the breach, the fact that it was not momentary, and the circumstances of having invited a child into his home are especially serious. The complainant was especially vulnerable and the Offender took advantage of this.
[28] Exhibit 1 on the sentencing hearing is the “victim impact statement” of the complainant. I find that it is inflammatory and inappropriate in parts. I have given these parts no weight. Of significance is the evidence in the statement that this offence left a lasting effect upon the complainant.
[29] This is the type of offence where the entire community suffers the harm. People like this Offender should never have unsupervised contact with our youngest and most vulnerable community members. If the penalty for this blatant conduct is imprecise in any respect, public confidence is likely to be lost in the administration of justice.
[30] I agree with the parties that a jail sentence is warranted. I am satisfied in the circumstances that a jail sentence in the range of 9-12 months fits this offence by this Offender. This is mostly because the Offender has a criminal record, the aggravating circumstances of the offence are significant, and the Order, not even 39% expired, [12] was deliberately breached.
Pre-Trial Custody Credit and Credit for Strict Release Terms
[31] The amount of pre-trial custody credit is variable, as it is a function of several factors, including but not limited to:
i. the period of time spent under house arrest; ii. the stringency of the conditions; iii. the impact on the offender's liberty; and iv. the ability of the offender to carry on normal relationships, employment and activity. [13]
[32] I find that the bail conditions were restrictive, but appropriately so. The case for detention was strong in light of the risk posed by the Defendant and the allegations.
[33] I would note that the Offender has claimed in his affidavit that the restrictive bail has exacerbated his medical conditions. He was not cross-examined on this evidence, but it lacks any substantiation. I would also note that the Offender never sought to review his bail terms. Without any information concerning what bail variations were sought for which the prosecution withheld consent, I am unable to make any determination that the terms were inappropriate. They provided that the surety, or the Defendant’s other daughter, could accompany him outside of his residence. Due to his disability, the Offender does not work. In all, the restrictive bail terms did not preclude the Offender from continuing his life.
[34] I would also note that much of the entire period of judicial interim release took place when the community was urged to stay home due to the global health scare. In these circumstances, the amount of credit earned by restrictive bail conditions is reduced.
[35] The Offender served the equivalent of 12 days of pre-trial custody before his release on bail. When taking account of the duration of the bail and the fact that it required the Offender to move into another apartment, I am satisfied that an additional credit of 2.5 months is appropriate. Accordingly, I am prepared to reduce any sentence of imprisonment by three months.
Collateral Consequences
[36] Several Ontario courts have already considered what, if any, effect the global pandemic should have in fixing a fair sentence: R. v. Dakin, 2020 ONCJ 1749 per C. Applegate J.; R. v. Hearns, 2020 ONSC 2365, [2020] O.J. No. 1648 (S.C.J.) per R. Pomerance J.; R. v. O.K., 2020 ONCJ 1600 per L.C. Pringle J.; R. v. Kandhai, 2020 ONSC 1611, [2020] O.J. No. 1254 (S.C.J.) per D.E. Harris J.; R. v. Laurin, 2020 ONCJ 1266 per K. Crosbie J.; R. v. McConnell, 2020 ONCJ 1514 per R.F. Kwolek J.; R. v. McGrath, 2020 ONCJ 1630 per D. Berg J.; and R. v. Wilson, 2020 ONCJ 1515 per R.F. Kwolek J.
[37] Obviously, a balance must be struck between the potential risk to the community of releasing offenders who pose a safety threat, for whom custody is generally appropriate, and the risk of spreading this potentially lethal virus by ordering people into confines which undermine all public health interventions to maintain social distance and reduce the spread of infection.
[38] Neither party adduced any evidence of known COVID-19 cases in custodial populations or any evidence respecting the Offender’s general health or risk of infection.
[39] It would seem that the initial fears felt during the onset of the global pandemic that congregate living is a potential timber box that could quickly ignite if introduced to a spark have not been realised. Nonetheless, the Ontario Court of Appeal has recently held that the impact of the Covid-19 pandemic represents a collateral consequence which may be considered at sentencing, although not to the point of reducing a sentence beyond what would otherwise be fit in the circumstances. [14]
[40] I am prepared to accept that the Offender’s risk of contracting the coronavirus in prison and the likelihood that he will suffer increased stress as a result of this reality mean that his sentence will be more difficult to endure during the current pandemic than would otherwise be the case. Consequently, it will be appropriate to give some discount to the Offender’s sentence to account for this collateral consequence.
A Conditional Sentence of Imprisonment is Inappropriate
[41] I have considered whether a conditional sentence of imprisonment can send the appropriate message of denunciation and deterrence while favouring other sentencing goals at play.
[42] A conditional sentence of imprisonment is not generally precluded by this offence. [15] I have specifically concluded that the service of a jail sentence in the community would not endanger the community (s. 742.1(a)).
[43] The greater risk in this case, however, is the likelihood that the goals of deterrence (both general and specific) and denunciation would not be met by a conditional sentence. Breaching a court order is always a serious offence. Breaching an Order to refrain from having contact with children is especially egregious. As indicated, the circumstances defy a finding that this offence was trifling, negligible, or momentary.
[44] This offence must be denounced in the strongest of terms.
[45] Moreover, a repetition of this offence by this Offender (who is still under the s. 161 Order for another 51 months) is also a significant risk. Given the Offender’s history for child-luring and his interest in having a pubescent child in his home, this is a risk that requires a sentence which adequately addresses specific deterrence.
[46] I have taken into account the Offender’s age, health status, strong family support, and his impeccable record on bail. However, the needs for a sentence with appropriate penal consequence outweigh the factors favouring domiciliary detention.
[47] In my view, a conditional sentence will not adequately address the specific need for denunciation and deterrence in this case.
SENTENCE IMPOSED
[48] The appropriate sentence in this case is 10 months of imprisonment and three years of probation. The Offender is credited the equivalent of three months of custody in light of his pre-trial detention and the length and restrictions of his release. I have further reduced the amount of time to be spent in prison due to the current health crisis.
[49] Abdul Hamid is sentenced to imprisonment within a provincial reformatory for an additional 5 months. Following this, he is bound by a probation order for three years.
[50] The terms of the probation are:
i. Keep the peace and be of good behaviour; ii. Attend court when required; iii. Notify your probation officer of any change of name, address, or occupation; iv. Within 5 days of your release from prison, you must report to a probation officer and continue to report thereafter as directed; v. You are prohibited from having direct or indirect contact with K.P. [16] or any member of her family; vi. You are not to attend or remain at any place where you know or find K.P.; [17] vii. You must take any treatment or counselling directed by your probation officer; and viii. You must complete releases of information in favour of your probation officer to monitor your attendance and completion of any treatment or counselling that you are directed to take.
[51] During his confinement, the Offender is also prohibited from having any contact with K.P., [18] pursuant to s. 743.21(1) of the Criminal Code.
Released: 12 July 2022
Justice G. Paul Renwick
[1] Breaches of s. 161 are neither primary nor secondary designated DNA offences. Subsection 161(1.1) lists the eligible offences for a prohibition order under s. 161. Inexplicably, s. 161(4) is not included. [2] R. v. Hamilton and Mason, 2004 ONCA 5549, [2004] O.J. No. 3252 (C.A.) at para. 102. [3] Hamilton, supra, at paras. 90-91. [4] R. v. Priest, 1996 ONCA 1381, [1996] O.J. No. 3369 (C.A.) at para. 26, as quoted in Hamilton, supra, at para. 92. [5] See subsection 718.2(b) of the Code. [6] 2000 SCC 5, [2000] S.C.J. No. 6, at para. 17. [7] R. v. Exell, 2015 ONCA 704, at para. 8. [8] Ibid., at para. 9. [9] R. v. K.R.J., 2016 SCC 31, at para. 44. [10] R. v. Gladue, 1999 SCC 679, [1999] S.C.J. No. 19 at paras. 43 and 48. [11] See R. v. Brown, 2015 ONCA 361 at paras. 2-5. [12] 13 October 2016 until 27 August 2020 was 1415 days. The Order was for 10 years or 3652 days. The Order was only 38.75% completed when it was breached. [13] R. v. Adamson, 2018 ONCA 678, [2018] O.J. No. 4104 (C.A.), at para. 107. [14] See R v Morgan, 2020 ONCA 279. [15] See the provisions of s. 742.1 of the Code. [16] The actual name of the complainant will appear in the Probation Order. [17] Ibid. [18] The actual name of the complainant will appear in this Order.