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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

Court File and Parties

DATE: July 8, 2024 Information No.: 3111-998-21-14043-00 ONTARIO COURT OF JUSTICE

HIS MAJESTY THE KING v. GHASSAN KULLAB

BEFORE THE HONOURABLE JUSTICE P. F. MONAHAN on July 8, 2024, at BRAMPTON, Ontario

APPEARANCES: S. Karim Counsel for the Crown M. Khalil Counsel for Ghassan Kullab

MONDAY, JULY 8, 2024

S. KARIM: And then we also have counsel here on the Kullab matter, which is here for sentencing and... THE COURT: Mr. Khalil. S. KARIM: ...the interpreter’s here, as well. THE COURT: Want to put your name on the record, Mr. Khalil? M. KHALIL: For the record, Khalil, K-H-A-L-I-L, first initial M. Here for Mr. Kullab. THE COURT: And the interpreter, I know, is here, too. INTERPRETER: Good morning, Your Honour. THE COURT: I – I’ll be with – I’ll be with you in just a moment. INTERPRETER: Okay. THE COURT: Yeah, it’s okay. Okay, that’s that one, yes, those are both ready to go. S. KARIM: Yes, those are ready to go.

...OTHER MATTERS ADDRESSED

S. KARIM: So, Your Honour, with respect to the - the sentencing and the judgment are ready to proceed. Madam Interpreter did indicate that she’s also required in another courtroom. THE COURT: She needs to go, yeah. So... S. KARIM: So... THE COURT: ...we should do her first? S. KARIM: ...perhaps if you want to do the sentencing first? THE COURT: Yes. S. KARIM: But I’m in Your Honour’s hands, but.... THE COURT: No, no, that - that would make sense. So – but just so I understand then, it – it looks like the only trial matter we have in here is probably not going. S. KARIM: That’s correct, yes. THE COURT: Okay. Okay. So, I’m going to address the sentencing first, so let’s – let’s just go over that again. Obviously, we’ve got Ms. Karim for the Provincial Crown. S. KARIM: Yes, thank you. THE COURT: Mr. Khalil, K-H-A-L-I-L, initial M., for Mr. Kullab. Mr. Kullab, you can be seated. If you can please find – you can sit with your counsel. GHASSAN KULLAB: Yes, okay. THE COURT: So, I – I am ready to do – do my reasons on that. So, Ms. Interpreter, do you want to put your name on the record, and take your time and get set up? INTERPRETER: He has it... THE COURT: He's got it. INTERPRETER: ...already. Good morning, Your Honour. My name is Tamari, T-A-M-A-R-I, initial I., Arabic interpreter for this matter. THE COURT: And you – can you... INTERPRETER: I’m fully... THE COURT: ...take an affirmation? INTERPRETER: ...accredited. THE COURT: Yeah. Can you take an affirmation you affirm that you understand the English... INTERPRETER: Okay. THE COURT: ...language and the Arabic language, and that you will and truly translate the same to your - best of your ability? INTERPRETER: I do so affirm. THE COURT: Very good. ILHAM TAMARI: INTERPRETER AFFIRMED – Arabic/English THE COURT: Ms. Interpreter, you tell me when you’re ready. Take your time. INTERPRETER: Okay. We are ready. THE COURT: It's okay? Okay, so I'll go slowly... INTERPRETER: Thank you. THE COURT: ...and if I go too quickly, just – just interrupt me. Don't — please don't hesitate. INTERPRETER: Thank you. THE COURT: Okay. I don’t have written reasons. My reasons I have to deliver orally. So, if you need to get a copy of the reasons later, you’ll need to order the reasons. And again, before – before starting, I should mention that there’s a publication ban in this case on the name of the victim. So I’ll begin my reasons.

REASONS FOR SENTENCE

MONAHAN, J. (Orally):

Introduction

After a four-day trial, I found the defendant guilty of a sexual assault on K.P. My written reasons were released on November 24th, 2023. I will not review all of the facts, as they are referred to in my written reasons.

Briefly stated: Mr. Kullab was a “Lyft” driver. Lyft is a ride sharing app, similar to Uber. Ms. K.P. had requested a Lyft driver at about 11:00 p.m. on July 24th, 2021. She needed a ride to a friend's place in Mississauga. She was about 22 years old at the time of this incident. Mr. Kullab was 41 years old at the time. Rather than take her to her requested location, Mr. Kullab drove her to Mineola Road in Mississauga and parked the car, and he got in the back seat with Ms. K.P.

Ms. K.P. testified, and I found as a fact, that Mr. Kullab touched Ms. K.P.'s breasts over her clothing, and tried to touch her breasts under her clothing. He also touched her leg over her clothing near her groin area, all without her consent. He asked her if she wanted to have sex, and she said “no” a number of times. She ultimately pushed Mr. Kullab off of her, and she ran away from the car. The interaction lasted a couple of minutes. It was raining hard, and she ran to a nearby house. She did not know the people living there, and she screamed, “He tried to rape me.” She was hysterical and frightened. When the police arrived, she was screaming and distraught.

Ms. K.P. testified that she had “a few drinks” with her father before getting in the vehicle. She said she was not feeling intoxicated. However, her blood alcohol content was estimated by an expert toxicologist to be between 128 and 178 milligrams of alcohol in 100 millilitres of blood at the time of the contact with Mr. Kullab. The expert toxicologist testified that any person with a blood alcohol content of more than 50 milligrams of alcohol in 100 millilitres of blood, would be impaired to operate a motor vehicle. She also testified, that a person with a blood alcohol content of 100, can have decreased alertness or inattention, and this can also affect the formation of memories. A person with a blood alcohol content of 150 to 200 may have alcohol-induced blackouts.

In addition to my findings of fact, in my reasons for a decision finding Mr. Kullab guilty of sexual assault, the following further evidence was filed before me on the sentencing: 1) a presentence report, 2) a victim impact statement, and 3) letters of support, medical evidence, immigration information, and education documents, all of which were filed by the defence.

Position of the Parties

The Crown seeks a sentence of 9 to 12 months in institutional custody, 2 years probation, a SOIRA order for 10 years, and a s. 110 for 5 years, and a s. 743.21 non-communication with the victim order while he is in custody.

The defence takes no issue with the probation or other ancillary orders. As concerns institutional custody, the defence submits that a conditional sentence of four to six months would be appropriate, or alternatively, if the court determines that institutional custody is required, a sentence a three to five months in custody.

General Principles of Sentencing

In any sentencing, the court considers the objectives and principles of sentencing, the aggravating factors and the mitigating factors, the circumstances of the offence, and the impact on the victim. Ultimately, the role of the sentencing court is to impose a fair and proportionate sentence in all of the circumstances. The court also seeks to impose sentences similar to sentences imposed in other cases.

Law

The primary sentencing objectives here are denunciation and deterrence. Rehabilitation remains an important objective. As I indicated above, the court should consider sentences in similar cases recognizing that no two cases are identical. I note that in R. v. Ali, 2021 ONSC 1648, Justice Harris of the Superior Court of Justice sentenced an Uber driver, who sexually assaulted two women by touching their breasts. As concerns one victim, she saw the defendant touching his own penis. Both women were intoxicated. The sexual assaults in that case were pre-planned. Justice Harris referred to numerous cases, and imposed a sentence of 9 months in jail, for each sexual assault, 18 months in total, and 4 months consecutive on one charge of assault causing bodily harm.

In R. v. Ukumu, 2020 ONSC 3645, affirmed 2021 ONCA 91, the defendant told the victim he was an Uber driver when he was not. He sexually assaulted the victim by touching her vagina and clitoris over her clothing. He was clearly trying to have sexual intercourse with her, but he did not succeed. It was a violent encounter which involved a degree of planning, as he lured the victim back to the car, telling her she had left something in the car. He was sentenced to 12 months in jail, and 2 years probation, which was upheld by the Court of Appeal.

I have also had regard to the cases reviewed by Justice Harris in Ali, and Justice Leach, in the Ukuma case, and further cases provided by defence counsel for Mr. Kullab.

In R. v. Einollahi, 2021 ONSC 6048, Justice Akhtar allowed a Crown appeal against a conditional sentence of 60 days for a sexual assault and substituted a 6-month jail sentence. In that case, the defendant was an Uber driver, took the victim to a dimly lit area, he forcefully kissed the victim, and forcefully touched the victim’s breasts over her clothes, and told her she was “hot”. Justice Akhtar found that the conditional sentence imposed was demonstrably unfit. He noted this was a breach of trust situation.

In R. v. Reslan, 2016 ONSC 6311, Justice Leach of the Ontario Superior Court upheld a conviction and sentence of three months in jail, and two years probation, and other ancillary orders. The defendant was a taxi driver who assaulted an 18-year-old student who he had given a ride to. The appellant had forcibly kissed the victim and touched her breasts, and inserted his fingers into her vagina for about a minute. The appellant appealed his conviction and sentence. Justice Leach upheld the three-month sentence, saying among other things, it was not excessive and was within the acceptable range.

I derive from the case law, that each case turns on its own facts; that the range for a sexual assault by a taxi or Uber driver on a passenger, where the sexual assault does not involve intercourse, is 6 to 18 months. I have considered all of the cases provided by counsel, but I rely primarily on the Ali, Einollahi, and Ukumu cases, as well as the cases referred to in the Ukumu case.

I consider that the three-month sentence upheld in the Raslan case is not within the usual range. I note that Justice Leach did not refer to Raslan in the Ukumu case, and Raslan was before the Supreme Court of Canada's decision in R. v. Friesen, 2020 SCC 9. Ukumu was also pre-Friesen, but the case law was more extensively reviewed in that case.

The Appropriate Sentence in this Case

Let me review the aggravating and mitigating factors in this case. As concerns the aggravating factors, Mr. K.P. was a vulnerable woman. She was approximately 22 years old and was by herself. She was under the influence of alcohol, in my view, not withstanding her own testimony that she was not intoxicated. The expert toxicologist said she would have been too impaired to drive a motor vehicle. In short, she was a vulnerable woman, and Mr. Kullab took advantage of her.

Sexual violence has a disproportionate impact on girls and young women (see R. v. Friesen, 2020 SCC 9 at para. 68). This includes women in their 20s (see R. v. Ali, 2021 ONSC 1648 at para. 12).

I have reviewed the victim impact statement. The incident had a profound negative affect on Ms. K.P. This is an aggravating factor (see s. 718.2 (a)(iii.1)).

Mr. Kullab was a Lyft driver. He was hired by Ms. K.P. to take her safely from her home to her friend's home. He stood in a position of trust vis-à-vis her, and he breached that trust. This breach of trust is a significantly aggravating factor in this case. See s. 718.2(a)(iii). I agree with Justice Leach's observation in Ukumu, at para. 42, that sexual assault by taxi drivers of young and vulnerable passengers, such as young women under the influence of alcohol, is deserving of public outcry and a high degree of public abhorrence.

On the other hand, it is mitigating, that Mr. Kullab has no criminal record. He is now 44 years old and is married with 5 children. He came to Canada in 2017 as a refugee, and is now a permanent resident. He lost his job after this incident and has not worked since. He is on disability benefits from the government, and he has strong family support.

The medical notes, marked as part of Exhibit 3, indicate that he has a major depressive disorder with psychotic features, and anorexia nervosa. The pre-sentence report says that he is taking medication for schizophrenia. This is not mentioned anywhere else and appears to be an error. I note that there appears to be no connection between Mr. Kullab's mental health issues and the offence in this case.

At the time of sentencing submissions, Mr. Kullab expressed some remorse for his actions by asking for “forgiveness” from the victim, and he apologized to his victim and her family. Mr. Kullab had, until that time, taken the position that Ms. K.P. had consented to their encounter, a position I rejected at trial. I am somewhat skeptical of Mr. Kullab's apology, but I am prepared to acknowledge that he does have some remorse for his actions. I note that to the extent that there is a lack of remorse, this is not aggravating. It is merely the absence of a mitigating factor.

I turn now to the issue of collateral immigration consequences. Mr. Kullab is a permanent resident of Canada, and as I understand it, he holds no citizenship with any country. His conviction for sexual assault, because it carries a sentence of up to 10 years, will make Mr. Kullab inadmissible to Canada on the grounds of serious criminality (see s. 36 (1) of the Immigration and Refugee Protection Act, the “IRPA”). If his actual sentence is six months or more, he will not to able to appeal any deportation order that might be made (see s. 64(2) of the IRPA). He would only be eligible for judicial review.

As I understand it, Mr. Kullab's wife and children are Canadian citizens. His citizenship application is on hold due to this case. I understand from his immigration lawyers (see Exhibit 3) that before making a deportation order, the immigration authorities will likely allow him to make the case for a warning letter only. The immigration authorities will consider the seriousness of the offence and the sentence, as well as his family ties.

Let me summarize on the immigration consequences, that by virtue of his conviction for sexual assault, Mr. Kullab may well be deported. If his sentence is six months or more, he will have no appeal rights. I note that immigration consequences can be taken into account in arriving at a sentence, but the sentence imposed must still be a fit one (see R. v. Pham, 2013 SCC 15, [2013] 1 SCR 739).

What happened in this case was a serious crime against Ms. K.P. Considering all of the factors mentioned above, I will impose a sentence of six months less a day in institutional custody. In my view, this case can be distinguished from the Ali and Ukumu cases in a number of ways. The sexual assault in Mr. Kullab's case did not involve planning, like the Ali case. It did not involve Mr. Kullab showing his penis, like the defendant in the Ali case. And it did not involve the same degree of sexual violence as the Ukumu case.

Further, while Mr. Kullab's mental illnesses did not play a role in his crime, they will make the service of his sentence in a jail more difficult than such a sentence would be for a person without these illnesses. I give little weight to the two-sentence letter from Mr. Kullab's psychiatrist, which says being away from his family would result in a major deterioration with his health and safety. The provincial authorities have an obligation to care for Mr. Kullab, and there is no reason to think they will not do so.

The immigration consequences are potentially severe, and a sentence of six months less a day will permit Mr. Kullab to have appeal rights in the event of a deportation order.

Finally, while I consider a sentence of six months less a day to be generous to Mr. Kullab, it is still within the acceptable range. Let me add that I have considered the possibility of a conditional sentence. I consider that Mr. Kullab could serve his sentence safely in the community, but that it would not be consistent with the fundamental purpose and principles of sentencing. The breach of trust, which occurred here, together with the other aggravating factors, requires a sentence of real jail. Further, a conditional sentence would not be consistent with the weight of authority, coming from other courts in Ontario, which point towards requiring institutional jail sentences in cases like this one.

Summary

Accordingly, and by way of summary, the sentence will be 6 months less a day, followed by 2 years probation, a SOIRA order for 10 years, a s. 110 no weapons for 5 years, DNA to be taken in custody, a s. 743.21 non-communication with Ms. K.P. while in custody. Upon his release from custody, he will report to probation within three working days of his release. He can report in person, or by telephone at 905-457-6687. That will be on the papers. There will be no contact, and not to attend any place he knows Ms. K.P. to be. He will take counselling as directed, sign the appropriate releases, and there will be no weapons during the period of probation. Those are my reasons.

MR. KHALIL: Thank you. MS. KARIM: Thank you, Your Honour. THE COURT: Ms. Clerk, we’re going to have to call for officers. Okay. That’s going to take a few minutes obviously. The officers will have to come up.

...ANOTHER MATTER ADDRESSED

THE COURT: Okay. Thank you, Mr. Khalil. Thanks Ms. Karim. M. KHALIL: Thank you, Your Honour.

...WHEREUPON THIS MATTER WAS CONCLUDED

FORM 3 Electronic Certificate of Transcript Evidence Act, subsection 5(2)

I, Helena Tsapoitis-Barbesin, certify that this document is a true and accurate transcript of the recording of Rex v. Ghassan Kullab in the Ontario Court of Justice, held at 7755 Hurontario Street, Brampton, Ontario, taken from Recording No. 3111_302_20240708_092233__30_MONAHAPA.dcr, dated July 8, 2024, which has been certified in Form 1 by T. McIntyre.

September 10, 2024

Date (Authorized Transcriptionist) Helena Tsapoitis-Barbesin ACT ID# 2372561617 416-889-6054 Helena10@hotmail.com Transcriptsontario.ca