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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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: 2024 05 31 COURT FILE No.: BRAMPTON 22-31102118
BETWEEN:
HIS MAJESTY THE KING
— AND —
SALAH-SAOD AL-HANDANI
Before Justice P.T. O’Marra
Heard on February 5, April 11 and May 1, 2024
Reasons for Judgment on Sentence released orally on May 31, 2024
Counsel: Ryan Mushlian.................................................................................... counsel for the Crown Arman Khaki................................................. for the defendant Salah-Saod Al-Handani
P.T. O’Marra J.:
Introduction
[1] After a one-day trial, I found Mr. Al-Handani guilty of sexually assaulting the complainant, LM. The Crown proceeded by way of summary conviction. After I delivered my judgment, a pre-sentence report was ordered. There was an adjournment due to trial counsel leaving her law firm. Mr. Khaki took over the file. Submissions were scheduled for May 1, 2024. After hearing submissions, I advised counsel I would be reserving my reasons for sentence until May 31, 2024.
[2] The facts surrounding the commission of the offence are set out in detail in my reasons for judgment dated February 5, 2024. For the purpose of these reasons, I will set out key facts, which relate to the sexual assault committed by Mr. Al-Handani.
[3] On June 15, 2022, LM attended the Physio Active One clinic located in Mississauga, for a therapeutic massage, with Mr. Al-Handani. At the time Mr. Al-Handani was training to become a Registered Massage Therapist and was employed by Ms. Podsedek. LM was not unfamiliar with Mr. Al-Handani. Mr. Al-Handani had performed therapeutic massages on LM during the previous month on three other occasions. However, on this occasion, during her massage, Mr. Al-Handani, removed LM’s underwear, placed his hands on her bare breasts, including her nipples, and touched her vagina, without her consent. He also commented while he sexually assaulted LM to “relax… this is how a lady is to relax.”
The Positions of the Parties
[4] The Crown is seeking a nine (9) to twelve (12) month jail term to be followed by a one-year period of probation. The following ancillary orders are being sought: a DNA order and a ten (10) year order pursuant to the Sex Offender Information Registration Act (“SOIRA”).
[5] The Defence is seeking a conditional sentence order for a period of four (4) months. In the alternative, the Defence submits that I should not impose more than an intermittent sentence of two (2) months incarceration. The Defence does not oppose a probation order, or the DNA order requested by the Crown, but disagrees with the imposition of a SOIRA Order.
The Victim Impact
[6] LM described those months after the sexual assault. She experienced “heavy anxiety, [was] crying all the time and having angry outbursts.” To treat her depression LM has taken Cognitive Behavioural Therapy and treatment for PTSD.
[7] LM was very vulnerable at the time with a back injury. She trusted Mr. Al-Handani to provide therapeutic relief. Since that trust was breached, she has become reclusive and anti-social.
The Offender’s Background
[8] Mr. Al-Handani is 59 years old. He was born in Babylon, Iraq. His mother was a housewife and his father was employed as a custodian in a hospital. His parents had a very loving relationship, and he was not exposed to any abusive behaviour. Although he grew up poor, he had a very happy childhood.
[9] In 1991, Mr. Al-Handani’s father died in his arms after celebrating the end of the war. There were gunshots that shocked him, and he had a heart attack. His mother passed away in 2023 in Iraq.
[10] He shared a close relationship with his older sister. In 2022, she and his oldest brother passed away. His remaining siblings continue to live in Iraq, and he maintains regular contact with them.
[11] Mr. Al-Handani practices the Muslim faith. He engages in prayer five (5) times a day, attends mosque, and observes Ramadan.
[12] Mr. Al-Handani initially avoided conscription in 1980 by attending four (4) years of education, However, in 1989 he registered in the Iraqi army and was sent to the border to work as an army police officer in communications.
[13] Following his father’s death in 1991, a war broke out again. He fled to a refugee camp in Saudi Arabia. Approximately 70,000 took refuge in the camp. He worked in the kitchen for free and cooked for 460 people. He remained in the refugee camp until 1996. Living in the camp was difficult, with limited food, water, and supplies. There were severe sandstorms which claimed many lives. The temperatures often reached as high as 55 degrees Celsius.
[14] In 1996, Mr. Al-Handani was approved to leave for Canada due to his education and his English language skills. After his arrival, he lived in a refugee shelter in Toronto.
[15] In 1997, Mr. Al-Handani married his wife. They share five children, three daughters (20, 24, 26) and two sons (16 and 22). He has a close relationship with all his children.
[16] In 2013, Mr. Al-Handani was diagnosed with thyroid cancer. He has had several surgeries. Currently, he takes daily thyroid medication. His hyperthyroidism impacts his weight, self-confidence and mood which makes him depressed.
[17] After arriving in Canada, Mr. Al-Handani took English as a second language and information technology courses. In 2017, he commenced a two-year program for massage therapy and graduated two years later. In 2017, he started to buy and sell cars. He then worked in car detailing for a wholesaler and purchased used vehicles. In 2019, he commenced his employment at a physiotherapy clinic for a short period due the outbreak of the COVID-19 pandemic and in 2021 returned on a part-time basis.
[18] Currently, Mr. Al-Handani is unemployed, however, he does do a little car detailing part-time.
[19] Mr. Al-Handani has retired from the massage therapy field due to the current charge. He would like to work for his friend in the United States who owns a tire shop. Another purpose would be to travel to a place where he would not be known to other people. Mr. Al-Handani claims that he has suffered embarrassment and shame since his image was published by the media after his arrest.
[20] From 2008 to 2013, he volunteered at his mosque where he taught Arabic and the Quran.
[21] Mr. Al-Handani does not use alcohol or drugs.
[22] In the pre-sentence report Mr. Al-Handani reiterated that he was innocent and would be appealing my decision. Crown argues that this is a sign of no remorse which could impact Mr. Al-Handani’s rehabilitation. It is my opinion that these comments by the author of the report are unfortunate and mistaken given that Mr. Al-Handani is entitled to maintain this position. The fact that he has not expressed any remorse is not an aggravating circumstance; rather, it reflects the absence of a mitigating factor. The same applies to the fact that Mr. Al-Handani did not plead guilty to the offence; again, this only reflects the absence of a potentially mitigating factor.
Purpose, Objectives and Principles of Sentencing in the Criminal Code
[23] As emphasized in R. v. Friesen, 2020 SCC 9, [2019] SCJ No. 100, s. 718.1 of the Criminal Code provides that the 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. The “gravity of the offence” refers to the seriousness of the offence. The “degree of responsibility of the offender” refers to the offender’s role or culpability in the offence. (See: R. v. Hamilton (2004), 186 C.C.C. (3d) 129 (Ont. C.A.) at paras. 90-91.)
[24] We operate in a common law system. While every case is different, courts should strive to impose sentences which are like sentences imposed on similar offenders in similar cases. This reflects the principle of parity and the role of stare decisis. It is ultimately a question of fairness which requires that the sentence-imposed fall within an acceptable range of sentences for similar offences committed by similar offenders. Differences in sentences should be capable of rational explanation. (See: Ruby on Sentencing, 9th ed., para. 2.29 and R. v. Klemenz, 2015 SKCA 79 at para. 46 (Sask. C.A.).)
[25] Section 718.2 of the Criminal Code deems the following as statutory aggravating circumstances:
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim; and
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.
[26] Both statutory aggravating factors are present in this case. Mr. Al-Handani breached a trust relationship between a massage therapist and patient. LM has been profoundly impacted by this sexual assault.
[27] Section 718.2 of the Criminal Code also expressly directs that:
(a) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; and
(c) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances.
[28] The principle of restraint carries some weight in this case but must be balanced with the primary need for general deterrence, denunciation, and specific deterrence. The principle of restraint is codified in section 718.2(d) of the Criminal Code and is well established in the caselaw. In R. v. Batisse, 2009 ONCA 114 at paras. 32-35, the Court of Appeal held that, included in the principle of restraint, is the notion that in a case where a serious sentence of imprisonment is required; for example, for purposes of general deterrence and denunciation, a court must impose the shortest sentence of imprisonment that will achieve various sentencing objectives. (See: Hamilton at paras. 89-96 and R. v. Sharma, 2019 ONCA 274 at para. 23.)
Aggravating and Mitigating Factors Affecting Sentencing
[29] Listing the applicable aggravating and mitigating features assists me in evaluating this case properly and imposing a sentence that is just and appropriate. I note the following aggravating and mitigating features of this case.
Aggravating Factors
[30] I find that the most aggravating factor is that this offence involved a significant breach of trust. The massage therapeutic profession operates on the notion that trust is necessary and absolute. LM trusted Mr. Al-Handani to provide professional and quality massage therapy services. She had attended on several occasions wherein he provided those services. A trust relationship had been created and developed. Mr. Al-Handani abused that trust. This heightens Mr. Al-Handani’s moral blameworthiness.
[31] A second aggravating feature is that the LM was vulnerable at the time of the offence. She was alone in a small room with Mr. Al-Handani and was completely disrobed.
[32] Finally, this offence has had an enormous impact on LM. She cries and often has angry outbursts. She feels scared, ashamed and has become reclusive.
Mitigating Factors
[33] While the aggravating factors are significant in the case, there are a few mitigating factors that I must consider.
[34] Mr. Al-Handani has no criminal record and is being sentenced as a first-time offender.
[35] The Crown proceeded summarily. The offence was a non-violent offence and on the lower end of the range of seriousness of the physical aspects of the offence. There was no physical penetration.
[36] His PSR was positive. The PSR confirmed that Mr. Al-Handani has had a history of full-time employment and volunteer service. He is a devout Muslim. He prays and attends mosque regularly.
[37] He is married and has a supportive family and friends.
[38] As a result of this offence, Mr. Al-Handani has voluntarily absented himself from working in the massage therapy profession. Having said that, it is unlikely and unrealistic that with this conviction, Mr. Al-Handani will ever receive a massage therapy licence.
Neutral Factors
[39] I also acknowledge that there are neutral factors. As I have already pointed out there is a lack of an expression of remorse or acceptance of responsibility. This simply means that there is an absence of a mitigating factor. As previously mentioned, this is not an aggravating factor. (See: R. v. Valentini (1999), 43 O.R. (3d) 178 at paras. 81-84 and R. v. Khan, 2016 ONCJ 282 para. 18). Furthermore, there are no issues with drugs and alcohol.
Is a Conditional Sentence available?
[40] There is considerable difference between the parties’ positions on sentence, however, they do agree that a custodial sentence is warranted. A conditional sentence is an available sentencing option to the court. Both parties acknowledge that the imposition of a conditional sentence is rare when an offending trained healthcare professional or therapist sexually assaults a patient. The length of a conditional sentence can differ from the appropriate sentence served in a custodial facility. (See: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 at para. 52 and Khan, supra, para. 20.)
[41] Pursuant to section 742.1 of the Criminal Code there are five prerequisites for the imposition of a conditional sentence:
(1) The offender must be convicted of an offence that is not specifically excluded (attempt to commit murder, torture, advocating genocide, or a terrorism offence or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more).
(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 sentence of imprisonment that is less than two years.
(4) The safety of the community would not be endangered by the offender serving the sentence in the community.
(5) The conditional sentence must be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code.
[42] The facts of this case meet the first four pre-conditions. The offence of sexual assault is excluded from the relevant class of offences that precludes the imposition of a conditional sentence order. There is no minimum sentence applicable. The Crown is seeking a nine (9) to twelve (12) month sentence. Mr. Al-Handani has been on a form of release since his arrest with no suggestion that he has not abided by his undertaking or committed any further offences. He is a first-time offender. He is living a prosocial lifestyle. Therefore, I am satisfied that the safety of the community would not be endangered by the Mr. Al-Handani serving his sentence in the community. However, I must impose a sentence that takes into consideration of the fundamental purposes and principles set out in sections 718 to 718.2 of the Criminal Code.
[43] The approach to be taken to make this determination is set out in paras. 113-115 of Proulx, supra:
113 In sum, in determining whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing, sentencing judges should consider which sentencing objectives figure most prominently in the factual circumstances of the particular case before them. Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration. In determining whether restorative objectives can be satisfied in a particular case, the judge should consider the offender's prospects of rehabilitation, including whether the offender has proposed a particular plan of rehabilitation; the availability of appropriate community service and treatment programs; whether the offender has acknowledged his or her wrongdoing and expresses remorse; as well as the victim's wishes as revealed by the victim impact statement (consideration of which is now mandatory pursuant to s. 722 of the Code). This list is not exhaustive.
114 Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravating circumstances, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved by a conditional sentence. Conversely, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of diminished importance, depending on the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances of the offender and the community in which the conditional sentence is to be served.
115 Finally, it bears pointing out that a conditional sentence may be imposed even in circumstances where there are aggravating circumstances relating to the offence or the offender. Aggravating circumstances will obviously increase the need for denunciation and deterrence. However, it would be a mistake to rule out the possibility of a conditional sentence ab initio simply because aggravating factors are present. I repeat that each case must be considered individually.
[44] Any sentence must focus on the protection of the public by the imposition of a penalty that denounces this type of conduct and provides for both general and specific deterrence. At the same time, the sentence must be individualized, as well as reflect and encourage as much as possible any apparent rehabilitative prospects. The appropriate sentence is determined by the circumstances surrounding the commission of the offence, including the nature of the sexual assault, the seriousness of the injury and the impact caused and the individual circumstances of the offender, including the offender's background, mental health issues, addictions, or criminal record. (See: R. v. Gibson, 2017 ONCJ 800.)
[45] The Defence provided the following cases which involve breaches of trust to support the imposition of a conditional sentence or, alternatively, a short sharp jail sentence:
R. v. Ko, 2017 ONSC 1085 - after a guilty verdict following a judge alone trial, Justice Conlan sentenced a 45-year-old husband and father, with no prior criminal record, to a 90-day intermittent jail sentence for sexually assaulting his then 20-year-old daughter during a massage in the family home. This involved a different kind of breach of trust than the case at bar. However, the facts are similar but also have dissimilar features. The offender did momentarily touch his adult daughter’s vagina and massaged her bare breasts and nipples. However, unlike in the case at bar, the offender positioned himself and leaned over to cause her foot to rub against his erect penis. The offender had a positive PSR, and excellent employment history.
R. v. Lai, 2021 ONSC 3795 - after a guilty verdict following a judge alone trial, Justice Miller sentenced a Traditional Chinese Medicine practitioner to a conditional sentence for 60 days for sexually assaulting his patient. The facts were less aggravating than the case at bar. The sexual assault on the patient consisted of removing a small towel that was covering her genitals which was not part of any legitimate clinical interaction. The offence took place in 1992 but was not reported to the police until 2016. The finding of guilt had devastating professional implications to the offender. He was suspended and had to wait five (5) years to reapply to be reinstated.
R. v. Savvateikin, 2020 ONSC 2257 - a summary conviction decision of Justice Harris. I was the trial judge in the matter in which I found the offender, a Registered Massage Therapist, guilty of sexual assault on his patient. The offender had massaged the patient several times over a period of months. While massaging her he touched her vagina and at the same time attempted to kiss her. His hand went under her underwear and was on her clitoris for approximately 5 seconds. I sentenced the offender to a 90-day intermittent jail sentence. The sentence appeal was abandoned. The offender had been suspended and suffered financial devastation. He had a supportive wife and friends.
[46] The lack of remorse or refusal to accept responsibility for the offence does not disentitle Mr. Al-Handani to a conditional sentence, however, it does affect the restorative objectives of sentencing that the imposition of a conditional sentence is meant to achieve. As stated previously, this is not to be treated as an aggravating factor. However, the reality is that absent an acceptance of responsibility, there is very little that can be done to promote Mr. Al-Handani’s rehabilitation or reparations to the victim and the community. There is no treatment program that would be effective if he will not admit to having any problems that led to the offending behaviour. (See: R. v. Khan, 2016 ONCJ 282, para. 22.)
[47] Mr. Al-Handani has the immutable right to refuse responsibility. However, he must be aware of the consequences of this type of behaviour to ensure that he does not engage in it again. (See: Khan, supra, para. 23.)
[48] In my view, I must reject the imposition of a conditional sentence in this case as I do not believe that it would be consistent with the fundamental purpose and principles of sentencing. A conditional sentence would not send a strong and clear message to Mr. Al-Handani, and to others, that this kind of criminal conduct perpetrated by a healthcare provider on a patient will not be tolerated.
What is the appropriate length of sentence?
[49] The issue that is left to be determined is the appropriate length of the term of imprisonment that must be imposed. The Crown proceeded by summary conviction. The maximum penalty that can be imposed is 18 months incarceration. The Crown has provided a few authorities which it relies upon. I have reviewed those decisions.
R. v. Khan, supra - following a trial Justice Schreck sentenced the offender to six (6) months incarceration followed by a twelve (12) month period of probation. Similarly, he was a first-time offender, and an unlicensed massage therapist. The sexual assault was more than momentary. He put his hands under the sheet, cupped both hands on the victim’s breasts and began to squeeze them repeatedly with a pumping motion. The complainant told the offender to stop. However, he moved one of his hands down to her inner thigh, very close to her vagina. The complainant said “no”. The offender then moved his hand up again and brushed his fingers against her clitoris. In my view, this case closely parallels the case at bar. Also, the offender did not stop his sexual assault. The offender held himself out to be a licenced RMT. The complainant believed that he was licenced to provide massage therapy. The fact that the trust relationship was created by the offender through deceit was a further aggravating factor which is absent in Mr. Al-Handani’s case.
R. v. Loewen, 2023 BCSC 2154 - the offender pleaded guilty to six (6) counts of sexually assault involving a total of 12 women. The offences occurred under the guise of massage therapy sessions which targeted women, often pregnant, with social media and other offers of discount or free sessions and services. The offender abused his position of trust as the massage therapist. He encouraged positions of unclothed vulnerability to touch and impose himself on the complainants in a sexual manner and without their consent. He was a first-time offender. The judge sentenced the offender to a total jail sentence of 24 months (4 months consecutive on each count). The facts are far more serious involving multiple victims, However, the takeaway from this decision is that although first time offenders are to be dealt with as lightly as possible, the first-offender principle is not as clearly applied or applicable in offences of breach of trust due to the nature of the crime. If someone has a criminal record it is harder for them to be in positions of trust. The absence of a criminal record permits them to be involved in trust situations. (See: Loewen, para. 34.)
R. v. Lannard, 2018 ONSC 7355 - the complainant went to the offender, a massage therapist, to be treated for spinal pain. The offender pulled down the complainant’s underpants to her knees, massaged her groin, breasts and penetrated her labia with his finger. The summary conviction appeal court dismissed the appeal from conviction but rejected the trial judge’s sentence of three months incarceration. Justice Code did not re-sentence the offender since he had completed his sentence and had resumed his life, commented that the appropriate range for sexual assaults “in the mid range of gravity” was six (6) to twelve (12) months. (See: Lannard, para. 29.) However, this case is distinguishable as this was a significant breach of trust by a medical practitioner and the traumatic impact the repeated assaults had on the complainant.
[50] Mr. Al-Handani is a first-time offender. He has suffered shame and dishonour that he has brought upon himself which I take into consideration (See: R. v. Bunn, 2000 SCC 9, [2000] 1 S.C.R. 183 para. 23 and R. v. Poon, 2012 SKCA 100 para. 135 (Sask. C.A.).) It is unlikely that he will ever be licensed to practice massage therapy. I am mindful of the well-established principle that “a first sentence of imprisonment especially for a first offender should be as short as possible and tailored to the individual circumstances of the accused” (See: R. v. Hayman (1999), 135 C.C.C. (3d) 338 (Ont. C.A.) and Khan, supra, para. 30).
[51] Having regard to the authorities provided, the principles of denunciation and deterrence, the circumstances of this offence and this offender, I feel that a sentence of a period of ninety (90) days in custody, served on an intermittent basis, will appropriately denounce Mr. Al-Handani’s conduct and send a message to him and other massage therapists that this kind of behaviour will not be tolerated.
Intermittent Sentence Probation Order
[52] While serving the intermittent custodial sentence he will be on probation. In addition to the statutory terms, he is to abide by the following terms:
- He must appear at the jail to serve his intermittent sentence on time, in a sober condition, with a blood alcohol concentration of zero, and not under the influence of, or in possession of, any controlled substance unless he is taking that controlled substance pursuant to a lawfully obtained prescription.
- Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with LM, pursuant to section 743.21 of the Criminal Code.
- Do not be within 500 metres of any place where he knows LM to live, work, go to school, frequent, or any place he knows LM to be.
- Do not engage in employment as a massage therapist or in physiotherapy.
- Do not possess any weapons as defined by the Criminal Code.
Probation
[53] Upon completion of his intermittent custodial sentence, Mr. Al-Handani is to be placed on probation for a period of twelve (12) months. In addition to the statutory terms, he is to abide by the following terms:
- Report to a probation officer by telephone within seven (7) days of his release from custody and thereafter as required and directed by the probation officer or any person authorized by a probation officer to assist in his supervision.
- Do not be within 500 metres of any place where he knows LM to live, work, go to school, frequent or any place he knows LM to be.
- Do not possess any weapons as defined by the Criminal Code.
- Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer, including but not limited to a sexual behaviour assessment and healthy relationships/boundaries counselling.
- Sign any releases necessary in order that the supervising probation officer can confirm participation in any counselling programs.
- Do not engage in employment as a massage therapist or in physiotherapy.
Ancillary Orders
SOIRA Order
[54] In October 2023, Parliament passed Bill S-12 enacting new provisions in response to R. v. Ndhlovu, 2022 SCC 38. These new provisions are now in effect.
[55] In this case, the SOIRA order is not mandatory under either s. 490.012(1) or (2) since the sentence is less that two years and Mr. Al-Handani has no prior criminal convictions of any kind. Even though it is discretionary, I am still required to impose the order, unless there would be no connection between making the order and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring registration, or the impact of the order on the person including on their privacy or liberty would be grossly disproportionate to the public interest of protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved through registration of information relating to sex offenders under SOIRA.
[56] The factors to be considered in making the determination are set out in s. 490.012(4) which include:
(a) the nature and seriousness of the designated offence;
(b) the victim’s age and other personal characteristics;
(c) the nature and circumstances of the relationship between the person and the victim;
(d) the personal characteristics and circumstances of the person;
(e) the person’s criminal history, including the age at which they previously committed any offence and the length of time for which they have been at liberty without committing an offence;
(f) the opinions of experts who have examined the person; and
(g) any other factors that the court considers relevant.
[57] Mr. Al-Handani argues that the impact of the order would disproportionally impact him on account that he no longer works in the industry. There is no connection between his presence on the Registry and police detection of crime.
[58] Mr. Al-Handani has not undergone any counselling. His risk level has not been assessed. But, on the other hand, he has not had any contact with the victim, and has not breached any term of his release order.
[59] The Crown urges me to dismiss his application on the grounds that he has not met the high bar of establishing that his inclusion on the Sex Offender Registry would be grossly disproportionate or that his registration bears no relation to the objective of s. 490.012.
[60] Under prior section 490.012 (4), repealed in 2010 in the Protecting Victims From Sex Offenders Act, S.C. 2010, c.17, when sentencing an accused for a designated offence, the court was permitted to decline to make an order of compliance with SOIRA “if it is satisfied that the person has established that, if the order were made, the impact on them including their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act”.
[61] In everyday speech,” grossly” means plainly, obviously, excessively, to a startling degree, flagrantly or glaringly. The term “disproportionate” means simply out of or lacking proportion.
[62] The SOIRA imposes ongoing reporting requirements which are numerous, invasive, and extensive; including that the offender must keep their information up to date, report their plans for any travel lasting seven or more consecutive days and report any change to their home or employment address. The SOIRA also requires annual self-reporting to police and subjection to random police checks.
[63] I have considered the factors set out in s. 490.12 (4). The interaction began as a professional relationship. However, it degraded into an act of sexual aggression. The victim was impacted.
[64] Since his arrest Mr. Al-Handani has been living a law-abiding, prosocial lifestyle, positive support from family and friends, but given the details of the interaction, the absence of counselling, and most importantly the lack of evidence related to future offending, I am of the view that Mr. Al-Handani is still a risk to reoffend. Accordingly, his registration under the SOIRA is likely to prove useful to police in investigating or preventing offences of this nature in the future. I, therefore, conclude that requiring him to register under the SOIRA is not grossly disproportion to the reporting requirements that further the purposes underlying the enactment of the SOIRA.
[65] Mr. Al-Handani has not satisfied me that an order for compliance is grossly disproportionate and that there is a disconnect. Mr. Al-Handani is required to comply with the Sex Offender Information Registration Act.
[66] As required by ss. 490.012(1) and 490.013(1) of the Criminal Code, Mr. Al-Handani is ordered to comply with the SOIRA for a period of 10 years.
DNA
[67] In accordance with s. 487.051(2) of the Criminal Code, Mr. Al-Handani is ordered to provide such samples of bodily substances as may be required for forensic DNA analysis and inclusion in the national databank.
[68] The victim fine surcharge is waived.
Released Orally: May 31, 2024 Signed: Justice P.T. O’Marra
