Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2024 02 16 COURT FILE No.: 19-45004694 Toronto Region

BETWEEN:

HIS MAJESTY THE KING

— AND —

Hacar KHESRO-MOHAMED-RASHEED

Before: Justice C. Faria

Heard on: February 12, 2024 Reasons for Sentence released on: February 16, 2024

Counsel: Glen Tucker, counsel for the Crown Rupinjit Singh Bal, counsel for defendant Hacar KHESRO-MOHAMED-RASHEED

Faria J.:

I. Overview

[1] I originally found Hacar Khesro-Mohamed-Rasheed (hereinafter Rasheed) guilty of assault causing bodily harm in February 2023. [1]

[2] Before he was to be sentenced, he successfully applied to vacate my finding, re-open the case, and be permitted to call a witness in September 2023. [2]

[3] After having heard from the new defence witness in November 2023, I found Rasheed guilty of assault causing bodily harm in January 2024. [3]

[4] I heard submissions on February 12, 2024, and the time has come for sentence.

II. Facts

[5] The facts were set out in detail in both judgements and need be only summarized here.

[6] On the evening of November 9, 2019, Rasheed attended at his friend Mohamad Sulyman’s apartment with a woman he had just met and at a bar close by. Her name was Kelly Farkas, but she lied and told Rasheed her name was Ashley. Once in the apartment, each person had varying amounts of alcohol, and the couple smoked marijuana. At some point, Farkas felt sick and went into Sulyman’s bedroom to lie down on his bed.

[7] Sulyman testified Rasheed went into the room and tried to be sexual with the unconscious woman. Rasheed testified it was Sulyman who went into the bedroom and was interested in the woman. Farkas testified she felt sick and only recalled a man peeking in, but she did not know who.

[8] Rasheed and Sulyman proceeded to have an argument in the living room about the woman. Rasheed insulted Sulyman. Sulyman slapped Rasheed. Rasheed punched Sulyman repeatedly. Rasheed then fled, leaving Sulyman bleeding on his living room floor. Farkas stepped over the unconscious Sulyman to get her shoes and fled as well.

[9] Sulyman sustained cuts on the bridge of his nose and around his left eye which was bruised, red and swollen shut, a broken nose and a chipped tooth. Sulyman was hospitalized and released.

III. Rasheed’s Circumstances

[10] Rasheed was 24 years old at the time of this offence and just turned 29. He is a permanent resident in Canada as of 2018, after having fled Iraq in 2015 and arrived as a refugee claimant. He was escaping abuse at the hands of family members. Upon arrival, he stayed at a refugee center and a youth shelter.

[11] He completed high school back home and worked with his father until he was forced to leave the country. In Canada, he improved his English skills, worked in the food industry and as a labourer, he did window cleaning, and then took certification courses in construction. He started his own janitorial and painting company for commercial properties that employs four people full time.

[12] He is single and lives alone. However, he has many friends. Four of those friends, spoke to the author of his Pre-Sentence Report (PSR) [4]. They spoke very highly of him. They described him as hard-working, respectful, friendly, and social. They believe this offence to be uncharacteristic of him as he is not aggressive in nature. He has no alcohol or substance use issues, and all four friends remain positively supportive of him.

[13] Thirteen letters of support were filed as exhibits. [5] These supporters included a paralegal, a controller, a business owner, two former managers, a retired police officer, his business partner, an operations manager, a politician, an employee, and long-time friends since his first days in Canada. They all describe Rasheed as generous, helpful, supportive, reliable, understanding, and a positive presence in each of their lives. All are surprised Rasheed is involved with the court.

[14] Although this was not a domestic incident, Rasheed on his own initiative attended 7 counselling sessions at the Men’s Domestic Anger Abuse Program and Relapse Prevention program and is not opposed to further counselling. He received a positive report and is engaged in self improvement and gaining insight into his feelings and how he expresses them. [6]

[15] In addition, Rasheed has completed 100 hours of community service, also on his own initiative, for the Flemingdon Community Food Bank. [7]

[16] Finally, during his conversation with the PSR author, he acknowledged responsibility for his actions, though he believed there were mitigating circumstances.

IV. Victim Impact Statement

[17] Sulyman informed the author of the PSR he was still in “constant fear” of Rasheed and slept with “protection” each night. In his victim impact statement, Sulyman stated he experienced serious emotional damage but is also prepared to forgive Rasheed and move forward in his life. [8]

V. Position of Parties

[18] The Crown submitted the appropriate sentence is one of 3 months in jail, an 18-month probation term, and two ancillary orders. He emphasized denunciation and deterrence are the guiding principles in this case which require the imposition of a custodial sentence. He provided caselaw supporting his position [9]. He also submitted a Conditional Discharge is inappropriate. [10]

[19] The Defence submitted a Conditional Discharge, or in the alternative, a Conditional Sentence in the range of 3 to 6 months is appropriate given the numerous mitigating factors. Although deterrence and denunciation are primary factors, he argued Rasheed’s personal background, character and rehabilitative efforts demonstrate that custody is not required. He too provided caselaw supporting his position [11]. He took no issue with the Crown’s probation and ancillary order recommendations.

VI. Objectives of Sentencing & Principles

[20] Criminal law reflects our values and sentencing is meant to echo and reinforce the basic standards of our society.

[21] Pursuant to the Criminal Code, s.718 (a) to (f), the sanction I impose is to have one or more of the following objectives:

• Denounce unlawful conduct.
• Deter the offender and other persons from assaulting people.
• Separate the offender from society if necessary.
• Assist the offender in rehabilitating himself.
• Provide reparations for the harm done to victims and the community.
• Promote a sense of responsibility and acknowledgment of the harm done to victims and the community.

[22] How much emphasis I place on each of these objectives will vary, according to the nature of the crime and the circumstances of the offender.

[23] 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.

[24] I also note that the following principles apply to this case:

• s. 716.2(d) An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances.
• s. 718.2(e) All available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to the victims or the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
• s. 718.2(b) A sentence should also be similar to other sentences imposed on similar offenders in similar circumstances.
• s. 718.2(a) A sentence should be increased or reduced to account for relevant aggravating or mitigating circumstances relating to the offence or the offender.

Aggravating & Mitigating Factors

[25] There are two main aggravating factors.

i. The nature and extent of the injuries Rasheed caused. Sulyman’s nose was broken, his tooth chipped, and he had cuts, bruising, and swelling all over his face and his head. He was hospitalized and clearly in significant pain when he spoke to police immediately after the beating. So much so, the interview had to be interrupted for medical attention. ii. There was significant psychological impact on Sulyman. He was beat up in his own home by a friend who he often shared his apartment with so that his friend could socialize.

[26] That having been said, Sulyman did, when frustrated, exaggerate his experience when he testified, and both the charge and the finding is that of assault causing bodily harm, not an aggravated assault.

[27] There are many mitigating factors:

i. It was Sulyman who initiated the physical altercation by slapping Rasheed. ii. Rasheed has no criminal record. iii. He is a youthful offender, having been 24 years old at the time of the offence. iv. He acknowledges some responsibility in the PSR. v. He has wide-ranging and meaningful support in the community. vi. He has counselling demonstrating strong rehabilitative potential. vii. He has done 100 hours of community service.

VII. Analysis

[28] I reviewed each case provided by counsel and found them somewhat helpful, but no case is on all fours with the one at bar, as rarely one ever is given the individuality of every offender, and the context of their offence. Individualization is essential. [12]

[29] Here the offence is serious, and the offender, who by all counts was more sober than anyone else at the time is solely to blame.

[30] Consideration of collateral consequences is also required. Pursuant to the Immigration and Refugee Protection Act [13] (IRPA), as a permanent resident, Rasheed may lose his right to appeal a removal order with respect to a crime that is punished in Canada by a term of imprisonment of at least six months or that is described in paragraph 36(1)(b) or (c).” [14] However, the Crown is not recommending a custodial sentence of 6 months or more, therefore Rasheed would not lose the right to appeal a removal order should one issue, if he is incarcerated for the period the Crown recommends. However, the very conviction will place Rasheed in some immigration jeopardy.

[31] On the question of deterrence, Rasheed shows no indication of anti-social behaviour. His work, his friends, his history, his initiative, and his character all indicate that specific deterrence is not a concern.

[32] However, general deterrence is a concern. Our community relies on criminal sanctions to reflect the severity of an offence. A sentence for violence that causes injuries must be a deterrent one.

[33] Defence counsel provided cases where a court sentenced an offender who caused bodily harm to a Conditional Discharge, inferring that such a sentence can have sufficient deterrence value.

[34] In each case, though, there were one or more distinguishing features from the one at bar that favoured such a Discharge. Factors such as inflicting less serious injuries, pleading guilty, being found a party to rather than the sole perpetrator of the assault and having struck the victim only once that were not present here.

[35] The Ontario Court of Appeal in Huh [15] specifically held a Condition Discharge did not reflect the degree of violence of the assault causing bodily harm, the seriousness of injuries inflicted on the victim, or the applicable sentencing principles when reviewing a trial judge sentencing a 21-year-old who (after some encouragement) obtained addiction treatment and performed community service.

[36] Similarly, I find a Conditional Discharge is not reflective of the severity of this offence nor the blameworthiness of this offender. Although it would be in the best interest of Rasheed, a Conditional Discharge is contrary to the public interest, which would, rightly, in this case be concerned that the sentence reflects the appropriate denunciation and deterrence.

[37] I now turn to whether custody is required in this case or a Conditional Sentence is appropriate.

[38] The custodial dispositions in Desgagne, Dinney and Huh reflected the far more significant injuries sustained in those cases then the one sustained by Sulyman. Also, each of those offenders had substance use issues that required specific deterrence and caused a greater concern for public safety.

[39] Before determining if a Conditional Sentence is appropriate however, I must determine if it is available.

[40] The test is articulated by the Supreme Court in Proulx [16]:

Once a sentencing judge has found the offender guilty of an offence for which there is no minimum term of imprisonment, has rejected both a probationary sentence and a penitentiary term as inappropriate, and is satisfied that the offender would not endanger the community, the judge must then consider whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[41] There is no minimum term of custody required for an assault causing bodily harm.

[42] As noted, the given the injuries in this case, a suspended sentence is inappropriate.

[43] The offence does not warrant a penitentiary sentence and the Crown does not recommend one.

[44] Turning to whether Rasheed would endanger the community, he has been on a Release Order for over 4 years without any difficulty or allegation of a breach. He has continued to work and participate in the community. This is a meaningful measure that he is not a danger to the community.

[45] The Supreme Court particularly noted that a Conditional Sentence can be a denunciatory and deterrent sentence: [17]

The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence.

[46] The Superior Court dealt with a similar case to this one in R. v. Samson and sentenced the offender to a 4-month Conditional Sentence. Mr. Samson also had no criminal record, was at a social event, alcohol was involved, the victim initiated the physical contact, the offender’s punches rendered the victim unconscious, and the charge was assault causing bodily harm. That offender too had a positive PSR, community support, no substance issues, and no breaches while on release. Granted there was a guilty plea and the offender did not flee, but the injuries caused were much more serious than those to Sulyman. As I indicated earlier, no case is ever on all fours.

[47] I note in this case tempering denunciation and deterrence is restraint for a still young, first-time offender who acknowledges, in part, his responsibility, has demonstrated rehabilitation potential by taking counselling on his own initiative, and poses little to no danger to the public. Rasheed’s resilience and character is well documented. He arrived in Canada, very young, alone, having fled his family who were perpetrators of violence against him. He learned English, educated himself, started, and operates his own company, and became an employer. He has made good friends, obtained the support of many in the community and demonstrated himself to be otherwise of good character. He will bear the weight of collateral consequences all because of this one evening where his anger overtook him.

[48] In these circumstances, incarceration is not required, and a Conditional Sentence is appropriate.

VIII. Sentence

[49] Mr. Hacar Khesro-Mohamad-Rasheed, I sentence you to a 4-month Conditional Sentence, an 18-month Probation term, and make two ancillary orders as follows:

[50] During your 4-month Conditional Sentence, you will:

• Report within 72 hours and thereafter as required.
• Reside where your supervisor approves.
• Have no contact with Mohamad Sulyman.
• Stay 100m away from where Mohamad Sulyman lives, works, goes to school, worships, or you know him to be.
• Not possess any weapons as defined by the Criminal Code.
• You will remain in your place of residence except:
  • To go to, from and during employment.
  • To go to, from and while you are in your place of worship.
  • To attend any legal, medical, or dental appointments.
  • During 4 hours on Saturday and Sunday for personal necessities.
  • With prior written approval from your Conditional Sentence Supervisor which you will carry with you.

[51] During your 18-month probation, you will:

• Report within 24 hours after you server your Conditional Sentence and thereafter once a month to your probation officer.
• Reside where approved by your probation officer.
• Have no contact with Mohamad Sulyman.
• Stay 100 m away from where he lives, works, goes to school, worships or you know him to be;
• Not possess any weapons as defined by the Criminal Code.

[52] You will be prohibited from possessing weapons for a period of 3 years pursuant to s. 110 and you will provide a sample of your DNA pursuant to s. 487.05(1) of the Criminal Code.

Released: February 16, 2024 Signed: Justice Cidalia C.G. Faria

Footnotes

[1] R. v. Khesro-Mohamed-Rasheed, 2023 ONCJ 88. [2] R. v. Khesro-Mohamed-Rasheed, 2024 ONCJ 30. [3] R. v. Khesro-Mohamed-Rasheed, 2024 ONCJ 80. [4] Exhibit 1: Pre-Sentence Report, Hacar Khesro-Mohamed-Rasheed, June 1, 2023, author: Jenneni Logeswaran. [5] Exhibit 6: letters from Jenna Warman, Dmitry Serpukhov, Robert Warman, Nevan Pajkic, Tony Mantas, Jerry McGroaty, Tom Parmigiano, George Patsiopoulos, Nnanyere Obiorah, Maksim Grigorenko, Danny DeSantis, First Dolasmaz, and Abdullah Kilic. [6] Exhibit 3: Just For Today report, placement agency for Faculty of Medicine (University of Toronto), November 28, 2020, authored by J.L Stein and R. Guifarro. [7] Exhibit 4: Flemingdon Food Bank letter, November 9, 2020, FFB manager, Chadi Abedalrazek. [8] Exhibit 2: Victim Impact Statement, Mohamad Sulyman. [9] R. v. Desgagne, 2013 ONSC 6319. R. v. Dinney, 2012 ONCA 497. R. v. Samson, 2015 ONSC 523. [10] R. v. Huh, 2015 ONCA 356. [11] R. v. Peterson, 2008 ONSC 1373, R. v. Parker-Ford, 2020 ONSC 5951, R. v. Epure, 2019 ONSC 772, R. v. Vicente, 2018 ONCJ 716, and R. v. Cruz, 2018 ONCJ 8. [12] R. v. Lacasse, 2015 SCC 64, [2015] 3 SCR 1089 at paras. 54, 58, 59, 128, 140, and 143. [13] Immigration and Refugee Protection Act, S.C. 2001, c.27. [14] Faster Removal of Foreign Criminals Act, S.C. 2013, c. 16, s. 24 and Exhibit 5: letter Mark Herman, Barrister & Solicitor, Herman & Herman, February 8, 2024. [15] R. v. Huh, 2015 ONCA 356 at para. 11. [16] R. v. Proulx, 2000 SCC 5 at para. 77. [17] R. v. Proulx, 2000 SCC 5 at para. 22.