R. Rotenberg

The Ontario Court of Justice acquitted Islam Elmajbri of two counts of sexual assault involving a patient, MC, in the emergency department of Toronto Western Hospital.

The court found significant credibility and reliability issues with the complainant, particularly due to his alcohol dependency and inconsistent testimony.

The judge accepted Elmajbri’s evidence that the touching was incidental and part of routine cleaning services provided by personal service workers (PSWs) in the ED, and that MC consented to being cleaned.

The court also ruled that the two incidents could be treated as a single transaction and admitted evidence of the second incident as similar fact evidence.

Ultimately, the Crown failed to prove beyond a reasonable doubt that Elmajbri’s conduct was sexual in nature or that consent was vitiated by his position.

The defendant was found guilty by a jury of sexually assaulting his former spouse.

This decision outlines the reasons for sentencing, considering aggravating factors such as breach of trust and physical restraint, and mitigating factors including the defendant's first-time offender status, positive community support, and health issues.

The court imposed a 2.5-year custodial sentence, a 10-year weapons prohibition, and a non-communication order, declining DNA and SOIRA orders due to low re-offense risk.