SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 11-10000036-00AP
DATE: 20120725

RE: R. v. Mohammad Butt

BEFORE: M.A. Code J.

COUNSEL:
Jason Gorda, for the Appellant/Crown
Heather Pringle, for the Respondent

HEARD: July 19, 2012

ENDORSEMENT

A. OVERVIEW

[ 1 ] The Respondent Mohammad Butt (hereinafter Butt) pleaded guilty to one count of sexual interference, contrary to s. 151 of the Criminal Code , on March 26, 2010. Almost a year later, on February 16, 2011, he was sentenced to fourteen days in jail and three years probation by Bentley J. The admitted facts were that Butt had lured a twelve year old boy off the street and into his apartment where he then performed fellatio on the boy.

[ 2 ] The Crown proceeded summarily. The fourteen day sentence imposed by the trial judge was the mandatory minimum required by s. 151 (b). The maximum sentence, when proceeding summarily, is eighteen months imprisonment. The Crown now appeals from the sentence imposed and submits that the trial judge made a number of errors in principle and that the sentence was manifestly unfit.

[ 3 ] The appeal came on for hearing before me on June 15, 2012. This date is sixteen months after Butt had been sentenced. Ms. Pringle, counsel for the Respondent Butt, advised the Court that an ethical issue had arisen and that she required a short adjournment to investigate the matter and to seek advice from senior counsel. She could not divulge the nature of the ethical issue to the Court without breaching solicitor and client privilege. I granted a one week adjournment.

[ 4 ] On June 22, 2012, Ms. Pringle advised the Court and the Crown in writing that her client, the Respondent Butt, had been diagnosed as HIV positive in late April 2012. She assumed, correctly, that the Crown would want to contact the family of the twelve year old boy who had been the victim of the offence in this case, in order to have the boy tested for HIV. I granted a further one month adjournment of the appeal to allow the Crown to take these steps. On July 19, 2012, Mr. Gorda reported back that the boy had now been notified and tested and he is not HIV positive. The appeal then proceeded and I reserved judgment.

[ 5 ] Ms. Pringle is to be commended for her appreciation of her ethical obligations in this difficult matter. The “public safety” or “future harm” exception to solicitor and client privilege, and any reporting duties that arise from that exception, are not easy areas of law to apply. Ms. Pringle deserves great credit for the approach she took and, fortunately, no harm had been done to the victim. See: Smith v. Jones , 1999 674 (SCC) , [1999] 1 S.C.R. 455; Michel Proulx and David Layton, Ethics and Canadian Criminal Law , Irwin Law Inc. 2001, at pp. 230-250; Law Society of Upper Canada, Rules of Professional Conduct , Rule 2.03(3).

B. FACTS

[ 6 ] As noted above, the Respondent Butt pleaded guilty on March 26, 2010 and admitted the following facts:

On Monday, July 27, 2009 at about 7:45 in the morning the victim Mr. R.A., who is twelve years old, exited the Sherbourne subway station in the city of Toronto walking to a day camp facility he was to attend that day. While on route he was approached by a male stranger, the accused before the Court, who struck up a conversation with him. Mr. Butt asked the young man, “do you speak Hindi” to which the victim replied, “a little”. Mr. Butt then said to the victim, “are you from Nepal”? To which the victim replied, “how do you know”?

At this point, Mr. Butt advised the victim that he was a fortune teller. Mr. Butt put his arm around the victim’s shoulder and he asked him to accompany Mr. Butt to his apartment where he would read the boy’s fortune. The boy went with Mr. Butt and was taken to apartment 1105 at 700 Ontario Street in the city of Toronto. Once inside the apartment Mr. Butt began to read the victim’s palm making notations in a notepad with a pen.

Mr. Butt then informed the victim that he was lucky and he put his hand on the boy’s forehead. Mr. Butt then told the boy to be asleep and encouraged the boy to lay down on a blanket with his head back in order that Mr. Butt could read the boy’s feet. Mr. Butt then began to rub the boy around his genital area over the top of the boy’s clothes. The boy began to feel scared and uncomfortable about what was happening and was beginning to believe that Mr. Butt was a bad man.

Mr. Butt asked the boy if he could feel under, referring to his clothes, and the boy said okay. Mr. Butt then reached underneath the victim’s pants and began to feel the boy’s genital area. Mr. Butt told the victim that he was big and that he was a lucky man. Mr. Butt then began to kiss the victim in the genital area and progressed to the point where he took the victim’s penis into his mouth and performed fellatio on the victim. The boy asked Mr. Butt what he was doing or why he was doing what he was doing and Mr. Butt told him that it was to connect with his heart.

At this point the boy asked Mr. Butt what time it was. Mr. Butt said it was around eight o’clock in the morning. The boy told Mr. Butt that he was late for camp and he had to go. Mr. Butt removed his shirt and informed the boy that he was a woman. Mr. Butt then cupped his own breast area and invited the boy to touch him in that area. The boy got dressed and left the apartment to get to the elevators. Mr. Butt followed him. The boy, who was very frightened, made his exit from the building via the stairs. Upon exiting to the street, the boy went to his day camp, he notified the staff there as to what happened to him, the police were called and an investigation was commenced.

[ 7 ] The Crown filed a Victim Impact Statement that had been prepared by the father of the twelve year old boy. It stated that the boy could not sleep alone for a few months after the incident and that he suffered from a loss of sleep and inability to concentrate. He also had to drop out of the summer camp program and he then stayed at home. Since the incident, the boy has been unwilling to attend any outside activities.

[ 8 ] The Pre-Sentence Report set out the Respondent Butt’s antecedents. He was forty years old at the time of the offence and forty-one years old when he pleaded guilty. He had no prior criminal record. He was born in Pakistan, the youngest of seven siblings, and he immigrated to Canada at age seventeen. He has always lived with his now eighty-two year old mother, including after his arranged marriage to his twenty-three year old wife who arrived in Canada one month after the present offence. He is very religious and is close to his family. He has little education, having finished grade ten, and he has rarely worked. He has been supported by his older siblings who do work. His wife has not worked, since her arrival in Canada, and she was pregnant at the time of Butt’s guilty plea. The family is supported by welfare.

[ 9 ] Butt explained the offence to the author of the Pre-Sentence Report as a fatalistic event, stating that it was “meant to happen” because “God probably wanted to punish me”. He denied any forethought or planning and denied any deviant sexual interests, stating that “it just happened”. He asked for “forgiveness” and stated that he prays regularly at home and at the mosque.

[ 10 ] Defence counsel had Butt assessed by Dr. Mark Pearce, a staff psychiatrist at the Centre for Addiction and Mental Health. Dr. Pearce’s thorough report noted that Butt attended for the assessment with his mother. He had limited insight and gave an account of the offence that minimized what had happened. He was likely untruthful with Dr. Pearce as he denied any sexual interest in the boy and explained “it just happened, I don’t know why” and suggested, “maybe Satan made me do it”. Family members were also unable to explain the incident. One older brother stated that “my brother could not have done this” and that “Muslims don’t do those type of things”.

[ 11 ] Dr. Pearce carried out phallometric testing during which Butt prayed out loud and did not attend well to the visual stimuli. The results were negative but of limited value. Dr. Pearce concluded that Butt does not suffer from a major mental illness, does not abuse alcohol or drugs, and does not have a personality disorder. He likely suffers from a deviant sexual preference, namely, pedophilia and/or hebephilia. Dr. Pearce’s opinion was that Butt “represents a moderate risk of future sexual offence” and that he “should not have unsupervised access to children”. Butt required treatment from a trained therapist as well as vocational assistance to improve his sense of self-worth.

[ 12 ] Butt was arrested on July 30, 2009, and was released on bail on July 31, 2009, after one day in custody, on strict terms of “house arrest”. He complied with this bail order for almost nineteen months, until he was sentenced on February 16, 2011.

[ 13 ] I admitted fresh evidence on the appeal indicating that Butt served nine days of his fourteen day sentence and then commenced his three years probation on February 24, 2011. He was directed to attend Sex Offender Relapse Prevention programming at CAMH, as a term of probation, and he completed eleven out of thirteen sessions from June to September, 2011. He reported and continues to report to probation, as directed, having now completed seventeen months of the thirty-six month probationary period. He also completed fifty hours of community service that was ordered as a term of probation. The Salvation Army supervisor described him as a “good worker”. Finally, he has registered with the Ontario Sex Offender Registry, as ordered by the trial judge.

[ 14 ] I will set out the explanations for the various periods of delay in this case, both at trial and on appeal, when discussing whether the appeal should be allowed.

C. LAW

[ 15 ] At the sentencing hearing, the Crown sought a jail term of nine to twelve months followed by three years probation. The defence sought a jail term of fourteen to thirty days followed by three years probation, including a term requiring treatment. I will set out the main points in the trial judge’s reasons below, when analyzing the alleged errors.

[ 16 ] I am satisfied that the trial judge made four distinct errors in principle. The result of these errors is that he arrived at a sentence that was manifestly unfit. See: R. v. Shropshire (1995), 1995 47 (SCC) , 102 C.C.C. (3d) 193 (S.C.C.); R. v. C.A.M. (1996), 1996 230 (SCC) , 105 C.C.C. (3d) 327 (S.C.C.).

[ 17 ] First, the trial judge misapprehended Dr. Pearce’s psychiatric report. The Crown had submitted, correctly, that the assessment in the report was an aggravating feature because of the diagnosis that Butt likely suffered from pedophilia or hebephilia, he was a moderate risk to re-offend, he lacked insight, and he minimized the offence. The trial judge appeared to acknowledge some of these features of the report, early in his reasons, but then went on to refer to the psychiatric report as a mitigating factor because it stated that the “risk of recidivism falls in the lower end of this range”. This part of the report was quoted out of context by the trial judge. Dr. Pearce was referring to a particular test result which placed Butt “in a moderate to high risk category” but within “the lower end” of that moderate to high risk category. There was no reasonable way to construe this part of the report, or the report as a whole, as a mitigating factor on sentence. The trial judge therefore erred in this regard.

[ 18 ] Second, the trial judge accurately set out the mitigating features in the case, in particular the following: Butt had no criminal record; he had entered an early guilty plea, shortly after the judicial pre-trial and without setting a date for trial; he had a supportive family; he had been on strict terms of bail and had not breached them; and the offence was a single incident, after which Butt allowed the child to leave his apartment without restraining him or threatening him. However, the trial judge failed to balance these legitimately mitigating factors with an appreciation of the significant aggravating features. At most, the trial judge referred indirectly to one aggravating feature when he acknowledged that sexual interference “with a person under eighteen years requires both denunciation and deterrence”. He failed to mention and consider the following aggravating aspects of the case which the Crown had properly emphasized: Butt was a stranger who had lured a child off the street; he had used dishonesty and trickery, and had exploited the fact that both he and the child were of South Asian heritage, in order to befriend and entice the child; the assault was invasive and did not involve mere external touching or fondling over clothes, as seen in some less serious cases; and finally, Butt had no insight into his sexual deviancy and had significantly minimized the facts of the offence during the psychiatric assessment. It was an error in principle to fail to consider these aggravating features of the case.

[ 19 ] Third, the trial judge concluded that “this offence is at the low end, in considering all the factors detailed above”. It is not surprising that the trial judge concluded that the offence was “at the low end” of the range of gravity of sexual interference offences, given that he had misapprehended the psychiatric report and he had failed to appreciate the aggravating features in the case. There are many far less serious offences of sexual assault and sexual interference than this one. In my view, this case fell somewhere in the mid-range of gravity and could not properly be characterized as “at the low end”.

[ 20 ] Finally, the trial judge failed to apply the principle relating to mandatory minimum sentences set out by Arbour J. (McLachlin C.J.C. concurring) in R. v. Morrissey (2000), 2000 SCC 39 () , 148 C.C.C. (3d) 1 at para. 75 (S.C.C.). Although it is a concurring judgment of only two members of the Court, the point of law made by Arbour J. in the relevant passage does not differ from anything said in Gonthier J.’s reasons on behalf of the other five members of the Court who heard the appeal in Morrissey . Arbour J. stated the following:

To the extent possible, mandatory minimum sentences must be read consistently with the general principles of sentencing expressed, in particular, in ss. 718 , 718.1 and 718.2 of the Criminal Code : Wust , supra , at para. 22. By fixing a minimum sentence, particularly when the minimum is still just a fraction of the maximum penalty applicable to the offence, Parliament has not repudiated completely the principle of proportionality and the requirement, expressed in s. 718.2 (b), that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Therefore, in my view, the mandatory minimum sentences for firearms-related offences must act as an inflationary floor, setting a new minimum punishment applicable to the so-called “best” offender whose conduct is caught by these provisions. The mandatory minimum must not become the standard sentence imposed on all but the very worst offender who has committed the offence in the very worst circumstances . The latter approach would not only defeat the intention of Parliament in enacting this particular legislation, but also offend against the general principles of sentencing designed to promote a just and fair sentencing regime and thereby advance the purposes of imposing criminal sanctions. [Emphasis added].

[ 21 ] Applying these principles to the case at bar, Butt was certainly not the “best” offender and the offence was not the least serious form of sexual interference. It was, therefore, inappropriate to impose the minimum sentence. Even defence counsel appeared to recognize this reality, in submitting that a range of fourteen to thirty days imprisonment would be appropriate.

[ 22 ] In light of the above four errors in principle, I am satisfied that the sentence of fourteen days imprisonment was manifestly unfit. A range of sentence of six to twelve months would have been consistent with sentences imposed in reasonably comparable cases, after factoring in the inevitably different aggravating and mitigating factors in the individual cases. See: R. v. Hutchinson (2006), 69 W.C.B. (2d) 272 (Ont. C.A.) ; R. v. Levert (2001), 2001 8606 (ON CA) , 159 C.C.C. (3d) 71 (Ont. C.A.); R. v. Manjra (2009), 2009 ONCA 485 () , 250 O.A.C. 257 (Ont. C.A.); R. v. Toten (1993), 1993 3427 (ON CA) , 83 C.C.C. (3d) 5 at pp. 11-12 and 49-50 (Ont. C.A.).

[ 23 ] Had this appeal been brought on in a timely way, I would have set aside the sentence imposed at trial and substituted a fit sentence. However, as noted above, there have been significant delays on appeal which have compounded earlier delays at trial. The Respondent Butt pleaded guilty on March 26, 2010, shortly after the judicial pre-trial, and the psychiatric assessment and report was completed by June 23, 2010. There were then four attempts to bring on the sentencing hearing that all failed, either because of congestion in the trial judge’s court or because of an inability to obtain interpreters. Sentencing submissions were finally made over parts of two separate days on September 8 and October 18, 2010, almost seven months after the guilty plea. The trial judge then reserved judgment for another four months, before sentencing Butt on February 16, 2011. This eleven month delay in sentencing the accused is unacceptable. He remained on “house arrest” throughout, without any breaches.

[ 24 ] The appeal was launched immediately, on February 18, 2011, but rather than expediting it, the Crown delayed it. The original Crown counsel assigned to the file, who was not Mr. Gorda, ordered only two transcripts and they were not prepared until September 2 and October 16, 2011. Mr. Gorda was then assigned to the file, he realized that there were two missing transcripts and he ordered them. They were not prepared until February 2, 2012. None of these four transcripts were lengthy. On March 9, 2012, the Court set a three month schedule for the filing of both parties’ facta and for hearing the appeal. That schedule was complied with, subject to the five week delay caused by the disclosure of Butt’s HIV status. Had the Crown been serious about pursuing this appeal, Crown counsel would have ordered all of the necessary transcripts in a timely way and would have sought an order from this Court expediting preparation of the transcripts.

[ 25 ] Butt has now been before the courts for three years, from July 30, 2009 to July 25, 2012, waiting for this matter to be finally resolved. He has either been in custody, on “house arrest” bail, or under the supervision of a probation officer during the entire three years. He has fully complied with the terms of his bail and his probation. He has carried out all the terms of his sentence except for the nineteen months of probation that still remains. He has not re-offended during this period. He and his wife now have a young child. He entered an early guilty plea and he has not been responsible for any of the delays except for the three months required for the psychiatric assessment and the five week adjournment caused by the HIV disclosure. He is now receiving treatment from his doctors for HIV, a discovery that has obviously shaken him and his family.

[ 26 ] In all these circumstances, it would be unfair and unproductive to re-incarcerate him at this stage. As Goodman J.A. put it, giving the judgment of the Court in R. v. Symes (1989), 1989 7173 (ON CA) , 49 C.C.C. (3d) 81 at 96-7 (Ont. C.A.):

At the time this appeal was heard, the respondent had completed the custodial portion of his sentence and had been out of custody for a period of approximately one and one-half years and had completed approximately one-half of his probationary period. To impose a lengthier custodial term at this time would be far more crushing than if it had been imposed at the time of trial and would undoubtedly have a serious deleterious impact on the rehabilitation of the respondent: see R. v. Shaw and Brehn (1977), 36 C.R.N.S. 358 at p. 363 (Ont. C.A.) . Having regard to the extenuating circumstances that are present in this case, coupled with the perceived unfairness of re-incarceration after serving the custodial portion of the sentence originally imposed, I am of the view that I would not interfere with the sentence imposed except for the imposition of an order pursuant to the provisions of s. 100 (formerly s. 98).

Also see: R. v. Boucher (2004), 2004 17719 (ON CA) , 186 C.C.C. (3d) 479 at para. 33 (Ont. C.A.).

[ 27 ] It should also be noted that delay falling short of a s. 11(b) Charter violation can be a mitigating factor on sentence. Any sentence imposed now would have to take this new circumstance into consideration, in determining the length of the sentence. As Doherty J.A. put it, speaking for the Court in R. v. Bosley (1992), 1992 2838 (ON CA) , 18 C.R. (4 th ) 347 (Ont. C.A.):

I would add that excessive delay which causes prolonged uncertainty for the appellant but does not reach constitutional limits can be taken into consideration as a factor in mitigation of sentence: R. v. Cooper (No. 2) (1977), 1977 2103 (ON CA) , 35 C.C.C. (2d) 35 (Ont. C.A.). The trial judge expressly held that the delay occasioned in this case served as a mitigating factor in his determination of the appropriate sentence. The sentence he imposed reflected that mitigation.

Also see: R. v. Sheng (2010), 2010 ONCA 296 () , 254 C.C.C. (3d) 153 at para. 60 (Ont. C.A.); R. v. Williams (2009), 2009 ONCA 342 () , 244 C.C.C. (3d) 138 at paras. 29-32 (Ont. C.A.).

[ 28 ] For all these reasons I am satisfied that the Crown’s appeal against sentence did have merit but that it should not be allowed because of the delays in sentencing the Respondent and the delays in pursuing the appeal.

[ 29 ] The appeal is dismissed.

M.A. Code J.

Date: July 25, 2012