Court File and Parties

DATE: May 27, 2024 COURT FILE No.: 998-23-61101576

ONTARIO COURT OF JUSTICE Central West Region

BETWEEN:

HIS MAJESTY THE KING

— AND —

tabrez khan

Heard Before: Mr. Justice Richard H.K. Schwarzl at Orangeville on May 9, 2024 Reasons released on: May 27, 2024

Counsel: Mr. Ayoub Ansari .................................................................................................. for the Crown Mr. Antar Kahlon................................................................................................ for the Offender

SCHWARZL, J.:

REASONS FOR SENTENCE

1.0: INTRODUCTION

[1] On May 9, 2024 the offender, Tabrez Khan, pled guilty to a single count of criminal harassment, contrary to s. 264(2)(b) of the Criminal Code. A sentencing hearing took place that day. The prosecution seeks a conviction and a suspended sentence; the defence urges me to discharge the offender on conditions. Both sides agree to DNA and firearms prohibition orders.

[2] What follows are my reasons for sentence.

2.0: CIRCUMSTANCES OF THE OFFENCE

[3] Between February 2021 and February 2023, the offender repeatedly sent the victim, S.D., a litany of sexually provocative and disgusting communications. He did so via phone, text, and social media from a variety of different phone numbers and online accounts. The number and frequency of the communications decreased over time, but the content remained unchanged. More than once the victim told him to desist but he did not until it suited him to do so. In some of the communications, the offender mentioned personal information about the victim that she had not shared with anyone.

[4] The offender and the victim did not know each other, but both were students in the same college.

[5] When he was arrested in November 2023, the offender confessed and immediately expressed remorse for his crime.

[6] The impact on the victim was profound. By not knowing who the perpetrator was, what he looked like, or how he came to learn personal details about her, she lived in a constant and heightened state of alarm. For nearly two years she was living like a prisoner who was being terrorized by an unknown, unseen predator. The victim has been deeply scarred by the experience. Her victim impact statement reveals that she has no foreseeable prospect of returning to a state of personal security.

3.0: CIRCUMSTANCES OF THE OFFENDER

[7] The offender is presently 24 years old, being in his early 20s at the time of the commission of this offence. This is his first encounter with the criminal justice system.

[8] The offender was released from the police station following his arrest. The conditions were not onerous. That said, he has by all accounts abided by the terms of his release, including staying away from the victim.

[9] He is an American citizen. At the time of the offences, he was studying in Canada on a student visa which expires in the coming months. His family owns businesses in Connecticut and Ontario. They are currently living in Mississauga and plan to move here. The offender plans to apply for permanent residency. A letter from an immigration lawyer was filed stating that a conviction in this case will lead to the commencement of the offender’s removal from Canada.

[10] At the time of this offence, the offender engaged in heavy drug use. Since then, he has been sober and has undertaken, and completed, significant rehabilitation.

[11] The offender has significant mental health issues including severe depression, generalized anxiety, adjustment disorder, severe drug use (cannabis and hallucinogens). He has had more than two dozen counselling sessions with a clinical psychologist, Dr. Anthony Hutchinson, who the offender continues to see. Since January 2024 the offender has also been seeing a psychiatrist, Dr. Mandeep Singh. According to Dr. Hutchinson, the offender’s current treatment will, if completed, “strongly mitigate risks of recidivism.”

[12] Prior to pleading guilty, the offender has performed 80 hours of community service. The offender presented letters of reference from teachers and family attesting to his general good character.

[13] The offender filed and read two apologies to the victim, which were read in open court. The apologies appear inciteful to not only the offender’s responsibility for his conduct, but also in acknowledging the harm done to the victim. He emphasized that he is no longer “the person I was before, nor will I ever be that kind of person.”

4.0: POSITIONS OF THE PARTIES

4.1: The Prosecution

[14] Taking the case as a whole, the prosecution submits that a conviction is necessary. They submit that the offender be subject to a suspended sentence for two years with a dual focus on protection of the victim and rehabilitation of the offender. They also seek a DNA order and a s.109 firearms prohibition.

4.2: The Defence

[15] The defence submits that a conditional discharge with probation for up to three years is appropriate for this offender after balancing all the competing factors at play. They agree with the proposed DNA and s.109 orders.

5.0: MITIGATING, AGGRAVATING, AND OTHER RELEVANT FACTORS

5.1: Mitigating Factors

[16] There are a number of mitigating factors in this case including the following.

[17] The offender is a first time, youthful defendant.

[18] He is a person of otherwise good character with significant community and family support.

[19] The offender has taken significant and ongoing steps towards rehabilitation of his drug addiction and mental health conditions. He has performed considerable community service prior to being sentenced.

[20] His psychologist describes the offender as a low risk to reoffend if he maintains his programs of therapy and treatment.

[21] The offender took full legal and moral responsibility for his conduct prior to setting a trial. He stated contrition appears sincere and thoughtful.

5.2: Aggravating Factors

[22] There are also several aggravating features about this case including the following.

[23] The offender engaged in an unrelenting campaign of emotional violence by being a vile stalker over a long period towards a defenseless victim who he did not know personally. The nature of his stalking behaviour was not only obscene but included learning, then revealing, personal information about the victim.

[24] The offender’s behaviour has caused profound and long term impact on the victim, whose sense of safety has been shattered by his conduct.

5.3: Other relevant factors

[25] If there is a conviction, the offender faces collateral immigration consequences that will engage a deportation process which may result in his expulsion from Canada and possible separation from his family.

6.0: APPLICABLE LEGAL PRINCIPLES

[26] Much has been written by many courts on the subjects of (a) the principles and purposes of sentencing and (b) the granting of a discharge. The recent case of R. v. Singh, 2023 ONSC 4949, [2023] O.J. No. 3855 (S.C.J.) discusses both issues. Although it involves an offence of assault causing bodily harm, the ratio decidendi in Singh is apposite to the offence of criminal harassment because both are crimes of violence [1]. At paragraphs 47 to 65, Durno, J provided the following summary of law on both areas which I adopt and apply in this case:

The Purposes and Principles of Sentencing

47 There is no mathematical formula for determining what constitutes a just and appropriate sentence. Sentencing is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community:" R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 91.

48 The fundamental and cardinal principle of sentencing is proportionality: Criminal Code s. 718.1 The sentence "must be severe enough to denounce the offence but must not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence" (R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 42; see also R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37): R. v. Bissonnette, 2022 SCC 23, at para. 50.

49 In our criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other:" R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37.

50 Assault causing bodily harm when proceeded by indictment has a 10 year maximum sentence. As the Supreme Court of Canada held in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424 [at para. 96]:

Maximum sentences help determine the gravity of the offence and thus the proportionate sentence. The gravity of the offence includes both subjective gravity, namely the circumstances that surround the commission of the offence, and objective gravity (L.M., at paras. 24-25). The maximum sentence the Criminal Code provides for offences determines objective gravity by indicating the "relative severity of each crime" (M. (C.A.), at para. 36; see also H. Parent and J. Desrosiers, Traité de droit criminel, t. III, La peine (2nd ed. 2016), at pp. 51-52). Maximum penalties are one of Parliament's principal tools to determine the gravity of the offence (C. C. Ruby et al., Sentencing (9th ed. 2017), at s. 2.18; R. v. Sanatkar (1981), 64 C.C.C. (2d) 325 (Ont. C.A.), at p. 327; Hajar, at para. 75).

52 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives set out in s. 718 of the Criminal Code. The relative importance of each objective varies with the nature of the crime and the characteristics of the offender: R. v. Lyons, [1987] 2 S.C.R. 309, at p. 329.

53 Parliament has provided the following objectives in sentencing: s. 718.1 (i) To denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct. (ii) General deterrence, "intended to discourage members of the public who might be tempted to engage in the criminal activity for which the offender has been convicted" (R. v. B.W.P., 2006 SCC 27, [2006] 1 S.C.R. 941, at para. 2).

54 Pursuant to s. 718.01 of the Criminal Code:

When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

55 In R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, the Supreme Court of Canada held [at paragraph 104]:

... while s. 718.01 requires that deterrence and denunciation have priority, nonetheless, the sentencing judge retains discretion to accord significant weight to other factors (including rehabilitation and Gladue factors) in exercising discretion in arriving at a fit sentence, in accordance with the overall principle of proportionality [citation omitted]: Friesen, at para. 104

56 The other objectives may be given significant weight, but neither priority nor equivalency: Lis, at paras. 47-48, 53; R. v. T.J. (2021), 2021 ONCA 392, 156 O.R. (3d) 161. (iii) The second form of deterrence is specific deterrence, "meant to discourage the offender before the court from reoffending." (iv) To separate offenders from society where necessary. (v) To assist in rehabilitating offenders, designed to reform offenders with a view to their reintegration into society so that they can become law-abiding citizens. (vi) To provide reparations for harm done to victims or to the community. (vii) To promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

57 Another principle in the Criminal Code is restraint: s. 718 Prison is the sanction of last resort. When a court is considering other sanctions, the court should seek the least intrusive sentence and the least quantum which will achieve the overall purpose of an appropriate and just sanction: R. v. Hamilton and Mason (2004), 70 O.R. (3d) 1 (C.A.) at para. 96. However, like all principles of sentencing, restraint operates in conjunction with other principles that often pull in a different direction: R. v. Reesor, 2019 ONCA 901, at para. 8.

58 Parliament has directed that similar offenders who commit similar offences in similar circumstances should receive similar sentences, the parity principle: s. 718. Parity is a tool that helps calibrate proportionate sentences because at its core, it is about treating similar offenders who commit similar offences in similar circumstances similarly: R. v. A.J.K., 2022 ONCA 487, at para. 81.

59 Ranges are a form of appellate non-binding guidance, a tool to assist judges, that provide a place to begin the exercise of reaching a fit and proportionate sentence: R. v. Bissonnette, 2022 SCC 23, at para. 1.

60 The range of sentences imposed for assault causing bodily harm is very wide from an absolute discharge to significant penitentiary terms. Given the point of departure for counsel in this case is whether a discharge is appropriate, I will focus on that issue. But first, the examination of caselaw will be put into context by considering the criteria for granting a discharge, absolute or conditional.

The Criteria of a Discharge

61 Pursuant to s. 730 of the Criminal Code,

730 (1) Where an accused ... pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

Effect of discharge

(3) Where a court directs under subsection (1) that an offender be discharged of an offence, the offender shall be deemed not to have been convicted of the offence ...

Where person bound by probation order convicted of offence

(4) Where an offender who is bound by the conditions of a probation order made at a time when the offender was directed to be discharged under this section is convicted of an offence, including an offence under section 733.1, the court that made the probation order may, in addition to or in lieu of exercising its authority under subsection 732.2(5), at any time when it may take action under that subsection, revoke the discharge, convict the offender of the offence to which the discharge relates and impose any sentence that could have been imposed if the offender had been convicted at the time of discharge, and no appeal lies from a conviction under this subsection where an appeal was taken from the order directing that the offender be discharged.

Factors to Consider regarding Discharges Is a Discharge in the Best Interests of the Offender?

62 To satisfy the first criteria, it presupposes specific deterrence is not a relevant consideration, except to the extent required in a probation order, nor is the offender's rehabilitation through correctional or treatment centers required, except to the same extent. Normally the offender is a person of good character, without previous conviction, it is not necessary to enter a conviction to deter them from future offences or to rehabilitate them, and the entry of a conviction may have significant adverse repercussions. In some cases the relatively minor or trivial nature of the offence will be an important consideration and in others the unusual circumstances peculiar to the offender may lead to an order that would not be made in the case of another offender: R. v. Sanchez-Pino (1973), 11 C.C.C. (2d) 53 (Ont. C.A.); R. v. Fallofield (1973), 13 C.C.C. (2d) 450 (B.C.C.A.) However, it is not a prerequisite to imposing a discharge that there be significant adverse consequences: R. v. Myers (1997), 37 C.C.C. (2d) 182 (Ont. C.A.).

Would a Discharge be Contrary to the Public Interest?

63 The usual point of departure between counsel when the issue is whether to grant a discharge involves the second prong of the test - would a discharge be contrary to the public interest. When considering this area, the concern for general deterrence, while it must be given due weight, does not preclude the judicious use of the provisions: Fallowfield, supra. If there is a necessity for a sentence that will deter others, it is a factor telling against the imposition of a discharge: Sanchez-Pino, supra. The general principles of punishment must always be pliable enough to accommodate a careful consideration of the effect of punishment on the individual. Knowledge of speedy apprehension, arrest and trial should be an effective deterrent to persons like the offender who may be tempted to commit such an offence: R. v. Meneses (1974), 25 C.C.C. (3d) 115, at p. 117.

64 Further, an offender who receives a discharge does not get off "Scott-free." They are bound by probation with a conditional discharge and earn their discharge by complying with the terms. Meneses, at p. 117. If there are further offences, the discharge can be vacated: s. 730(5)

65 In R. v Hayes, [1999] O.J. No. 938 (Gen.Div.) at para. 31 Hill J. held: Discharges are not restricted to trivial matters: Regina v. Vincente (1975), 18 Crim. L.Q. 292 (Ont. C.A.). Where an offender has acted entirely out of character, perhaps in the context of unusual pressure or stress, a discharge may be a fit sanction: Regina v. Taylor (1975), 24 C.C.C. (2d) 551 (Ont. C.A.), at 552. Where a criminal record will have a tendency to interfere with employment, a discharge should be given serious consideration: Regina v. Myers (1978), 37 C.C.C. (2d) 182 (Ont. C.A.) at pp. 184-5; Regina v. Culley (1977), 36 C.C.C. (2d) 433 (Ont. C.A.), at p. 435 per. A suspended sentence is not necessarily a greater deterrent to others than a conditional discharge: Regina v. Cheung and Chow (1976), 19 Crim. L.Q. 281 (Ont. C.A.).

[27] A sentencing judge may exercise his or her discretion to take collateral consequences into account, provided that the sentence ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender. The significance of collateral consequences will depend on the facts of the case. However, it remains that they are but one of the relevant factors that a sentencing judge may consider in determining an appropriate sentence: R. v. Pham, 2013 SCC 15, [2013] 1 SCR 739; R. v. Swierszcz, [2006] O.J. No. 1088 (C.A.) at para. 5; R. v. Adamson, [2017] O.J. No. 1454 (C.J.) at para. 43.

[28] Deterrence and denunciation are paramount in cases of criminal harassment. Nearly 25 years ago in the case of R. v. Bates, [2000] O.J. No. 2558 the Ontario Court of Appeal made the following relevant observations at paragraphs 30 and 31 that resonate today:

30 The courts have been made increasingly aware of the escalation of domestic violence and predatory criminal harassment in our society. Crimes involving abuse in domestic relationships are particularly heinous because they are not isolated events in the life of the victim. Rather, the victim is often subjected not only to continuing abuse, both physical and emotional, but also experiences perpetual fear of the offender.

31 In his very comprehensive article on the history of stalking and the criminal law, Bruce MacFarlane ("People Who Stalk" (1997), 31:1 U.B.C. Law Review 37.) vividly describes the profile of a stalker at p. 43:

Many stalkers are not violent but all are unpredictable. The irrational mania that drives them to pursue their victims is beyond comprehension within the normal framework of social behaviour. It is this unpredictability that generates the most fear, coupled with the knowledge that, in some cases, the stalker's behaviour may, without warning or apparent reason, rapidly turn violent. Escalation of the level of threat forms one of the most common features of stalking.

[29] In R. v. Nolan, [2019] O.J. No. 6213 at paragraph 65, the Ontario Court of Appeal reaffirmed the principles stated in Bates, by stating:

65 …[T]his court has made clear that behaviour of this sort must be denounced in clear terms, a heavy sentence is required, and general and specific deterrence are overriding considerations. It is necessary to signal to the offender and the public that this conduct is not to be tolerated: R v. Bates (2000), 134 O.A.C. 156 (C.A.), at paras. 30-31.

[30] I adopt the following observation made by Jones, J In R. v. Clarke, 2024 ONCJ 132 at paragraph 32:

[32] Criminal harassment has thus long been recognized as a gendered crime. The vast majority of its victims are women. Sentencing courts must communicate to the public that the harassment of women who are simply going about their daily lives by men who feel they can abuse, objectify and/or scare them is inexcusable. Such conduct must be emphatically denounced. Offenders who engage in this behaviour will face significant penalties.

7.0: THE SENTENCE

[31] In this case, I accept the defence submission that specific deterrence is not a factor. I accept that rehabilitation in a structured setting is not necessary. I also accept that all of the mitigating factors cited by the defence support their submission for a conditional discharge. The defence relies on a number of cases that have given conditional discharges for criminal harassment. Nevertheless, I find that a conditional discharge in this case is not appropriate for the following reasons.

[32] First, the nature of the offence is one which is inherently violent which, in the commission of this particular crime, requires a sentence that focusses on denunciation and general deterrence. Second, the circumstances of the offence are deeply disturbing in that they involve long term terrorizing of the victim by an anonymous stalker. This is not a minor or momentary offence, and the victim impact is profound. Third, a discharge is disproportionate to (a) the gravity of this offence and (b) the extremely high degree of responsibility of the offender who engaged in a relentless persecution of the victim. Fourth, giving a conditional discharge based on the collateral immigration consequences to the offender would result in an unfit sentence, wrongly skewing the appropriate sentence in favour of the concern about potential deportation. Therefore, a conviction will be registered.

[33] Normally, a custodial sentence would be amply justified in a case like this. However, given the significant mitigating factors present in this case as well as the submissions made by counsel, I will suspend the passing of sentence and place him on probation for a period of 24 months. There will be a victim surcharge, a DNA order, and a s.109 firearms prohibition order.

[34] I will hear from counsel on the details of the conditions to be imposed in each of these sentencing orders.

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice

[1] Assault involves physical violence; harassment is a matter of psychological and/or emotional violence.