Court File and Parties

COURT FILE NO.: CR/15/100000/8100AP DATE: 20160916 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HER MAJESTY THE QUEEN, Respondent - and - Dean Alsafi, Appellant

BEFORE: B. L. Croll J.

COUNSEL: S. Malik, for the Crown, Respondent I. Kasper, for Dean Alsafi, Appellant

HEARD: September 14, 2016

Endorsement

Introduction

[1] On February 25, 2015, Dean Alsafi (the “Appellant”) pled guilty to one count of criminal harassment and one count of failure to comply with an undertaking. After hearing sentencing submissions, on September 16, 2015, the Appellant was given a suspended sentence and 12 months’ probation.

[2] The Appellant appeals his sentence on the following grounds:

i. the sentencing judge erred by relying on unadmitted allegations made against the Appellant within the pre-sentence report (“PSR”) for their truth;

ii. the sentencing judge erred in her assessment of whether a conditional discharge was not contrary to the public interest by failing to consider relevant factors or by overemphasizing certain factors;

iii. the sentencing judge erred by failing to give the Appellant enhanced credit for his time spent in custody; and

iv. the sentence imposed is harsh and excessive, in regard to all of the circumstances.

Background facts

[3] The Appellant and his former wife (the “Complainant”) have two young daughters. The Appellant was bound by a family court order, as of June 2012, with a condition not to come within 500 meters of the Complainant’s home, the Complainant, or the children. Included in the restraining order was a provision that the Appellant stay away from the Complainant on her way to and from the Catholic Children’s Aid Society, as well as other access locations.

[4] On July 13, 2013, from a window in her home, the Complainant observed the Appellant standing at a nearby gas station. She took a photograph of the Appellant using her cell phone. On July 16, 2013, the Complainant was scheduled to attend the Catholic Children’s Aid Society. The Complainant again saw the Appellant standing at the gas station. Minutes later, the Appellant was observed inside the Complainant’s apartment complex, close to the front door, and the Complainant contacted the police. The Appellant was charged with criminal harassment and breach of a restraining ordering. He was released on a Promise to Appear, with conditions to abstain from contacting the Complainant and to remain 500 meters away from her.

[5] It is also the case that, after another application by the Complainant to the family court, the Appellant was subject to a further temporary restraining order issued on December 20, 2013.

[6] On February 3, 2014, the Appellant started a fourteen (14) session Partner Abuse Response (“PAR”) program which concluded on May 31, 2014.

[7] On December 19, 2014, the Appellant approached the Complainant as she was walking to her home with her daughters. Among other things, he told her not to listen to anyone and that nobody could protect her as he could. Upon noticing a cross in the front entryway, he told her that his children should not be taught the Catholic way, but rather, the Muslim way. The Appellant apparently asked the Complainant if the family wanted to go to eat with him, an overture the Complainant refused. She then entered her home with her daughters. The incident was reported to the police on December 31, 2014.

[8] The Appellant pled guilty on February 25, 2015 to the charges of criminal harassment and failure to comply with his recognizance. A PSR was ordered and completed on April 17, 2015.

[9] The Crown and defence made sentencing submissions in which the Crown sought a suspended sentence and the defence submitted that a conditional discharge was appropriate. On September 16, 2015, the Appellant received a suspended sentence and 12 months’ probation.

Did the sentencing judge rely on uncharged, unadmitted allegations made against the Appellant within the PSR?

[10] It is well established that information contained within a PSR that relates to the offence or other alleged misconduct not before the court is improper and should be disregarded. It is wrong to consider more serious allegations contained within a PSR when the Crown has limited the nature of the offences to which the accused pleaded guilty: see R. v. Brown (1985), W.D.F.L. 846, 19 C.C.C. (3d) 43 (MB CA), at paras. 108-114, aff’d on other grounds [1987] 2 S.C.R. 693; R. v. Green, 2006 ONCJ 364, 71 W.C.B. (2d) 64, at paras. 12-14; R. v. McPherson, 2013 ONSC 1635, 105 W.C.B. (2d) 332, at paras. 10-12; and R. v. Rudyk (1975), 11 N.S.R. (2d) 541, 1 C.R. (3d) S-26 (NS CA), at para. 17.

[11] The Appellant submits that the sentencing judge relied on allegations of abuse and harm in the PSR, and that the Appellant had not pled guilty to these allegations.

[12] Among other things, the PSR indicates that the Complainant reported that the Appellant was physically, verbally, mentally, and emotionally abusive to her, and that as their marriage continued, the incidents of physical abuse increased in frequency to the point that she was experiencing some type of physical abuse on a daily basis. The PSR also indicates that the Complainant reported that the Appellant would physically punish her for simple things, such as poor housekeeping or not disciplining their children. The PSR notes that the Complainant advised that she did not contact the police and endured the relationship for the sake of the children. The PSR further notes that the Complainant advised that the Appellant was a jealous and obsessive person who controlled every aspect of the family’s life, including visits to and communication with her own family, use of the telephone, and finances.

[13] In her reasons for sentence, R. v. Alsafi (16 September 2015), Toronto, 15/AP1-81 (Ont. Ct. J.), the sentencing judge stated that it was the Appellant’s controlling, abusive behaviour towards his wife and two daughters that was in issue. The sentencing judge went on to say:

The blatant breaches of multiple legal orders, the severe harm his behaviour affected upon his eldest child, and the continuing apparent lack of insight into the heart of the issue before me, that being his abusive, controlling behaviour towards his wife and daughters, all work against the granting of a discharge.

[14] The context of the criminal harassment conduct is rooted in the acrimonious marriage breakdown of the Complainant and the Appellant. That said, there was no evidence of abusive and controlling behaviour in the facts agreed to at the time of the plea. While the Crown submits that the sentencing judge’s reliance on “abuse and control” is drawn from the persistent and unwanted contact that formed the basis of the criminal harassment charge, in my view, it is a leap unsupported by the facts to characterize the Appellant’s conduct as abusive and controlling.

[15] I am satisfied that the sentencing judge erred in principle in considering the Appellant’s unproven abusive, controlling behaviour set out in the PSR. It cannot be said that this error did not impact the Appellant’s sentence: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 44ff. This is particularly so as the sentencing judge stated that the abusive, controlling behaviour was in issue, and found that the apparent lack of insight into the abusive, controlling behavior was the heart of the issue. As such, the sentence imposed by the sentencing judge is no longer entitled to deference and a reviewing court may impose the sentence it thinks fit: R. v. Rezaie (1996), 31 O.R. (3d) 713 (C.A.), 33 W.C.B. (2d) 218, at para. 20.

The Fitness of the Sentence

[16] In considering the appropriate sentence, I note the following:

i. It was agreed at the time of the plea that the Complainant had become increasingly fearful of her safety from seeing the Appellant close to her residence on several occasions, although only two sightings were reported to the police.

ii. The PAR program report identified the consistent, intense, and unacknowledged anger the Appellant holds towards the Complainant, and his tendency to blame her for their family breakdown.

iii. The PAR program report noted that the Appellant believed that the Complainant would want him back as a partner as soon as the court case was completed, despite her request for a non-contact order. The PAR program report went on to express the concern that if the Appellant’s expectation about reconciliation is not realistic, it could result in dire consequences at the point the Appellant is forced to recognize the truth.

iv. The Appellant had violated two family court orders and his criminal release undertaking, and continued to attempt to reconcile in December 2014, even after having been arrested the previous July.

v. The PSR noted that the Complainant reported that the eldest daughter was affected by abuse in the home and has been diagnosed with post-traumatic stress disorder, and selective mutism as a result of witnessing the abuse. This information was confirmed by a social worker with the Children’s Aid Society. Counsel at the sentencing hearing stated the following with respect to this portion of the PSR:

We fully acknowledge the seriousness of the factual background, and I take no issue with the content of the PSR. The children have struggled throughout this process. Mr. Alsafi's eldest daughter is, obviously, in a dire situation as a result of Mr. Alsafi’s conduct, but to be fair, potentially not Mr. Alsafi’s conduct in isolation.

[17] As always, mitigating and aggravating factors must be considered.

[18] The Appellant was 63 years-old at the time of the offences, and has no criminal record. He has demonstrated remorse by a guilty plea. He works part-time as a cook, and has volunteered for different community agencies. He has taken steps towards rehabilitation: he participated in the PAR program on his own undertaking, and took counselling while in custody. I also accept the relatively minor nature of the offences; in fact, the sentencing judge described the conduct, with some hesitation, as “benign.” The Appellant spent 54 days in pre-trial custody for these offences.

[19] There are also aggravating factors that must be addressed. While this is a fresh determination of the appropriate sentence, I share the views of the original sentencing judge that the Appellant appeared oblivious to his actions by his responses to the author of the PSR when he was asked about his situation, and by the comments found in the PAR program report. Indeed, I also agree with the original sentencing judge that the Appellant’s personal history shows that he does not have a generalized anger issue, but rather, has particular issues with the Complainant.

[20] However, in my view, the most significant aggravating factor for consideration is the Appellant’s blatant disregard of two family law restraining orders and the terms of his release, coupled with the severe impact that his conduct, at least in part, has had on his eldest child.

[21] The Appellant submits that a conditional discharge, followed by probation, is the appropriate sentence. Under s. 730(1) of the Criminal Code, R.S.C 1985, c. C-46, a discharge may be ordered where it is in the accused’s interest and is “not contrary to the public interest.” A discharge would be in the Appellant’s interest. While there is no evidence of the impact of a criminal record on his future, it will in all likelihood impact his employment opportunities.

[22] However, in considering whether a discharge would not be contrary to the public interest, I return to the fact that there was troublesome repetition in the Appellant’s conduct. As stated, he disregarded two family law restraining orders, and returned to the Complainant’s home after completion of the PAR program. He was sentenced on two counts ‑ criminal harassment and breach of the terms of his release which prohibited him from being within 500 meters of the Complainant’s residence. There is a strong public interest in ensuring that individuals follow court orders, especially in those cases which are rooted in highly acrimonious family breakdowns: see R. v. Louison, 2008 SKCA 69, 243 W.A.C. 217, at para. 14. In R. v. Singh, 2007 CarswellOnt 2078 (S.C.J.), [2007] O.J. No. 1319, a case in which the appellant was found to have contacted and followed the complainant against her wishes and a court order, Durno J. stated at para. 41:

I am not persuaded that the imposition of a discharge is in the public interest. The most important principles in sentencing for this offence are general deterrence and denunciation…While the complainant was not his spouse, this was akin to a domestic relationship on the appellant's account, a significant aggravating factor on sentence.

[23] Similarly, in a case like this, where the Appellant and the Complainant are embroiled in a bitter family law dispute, there is a need for effective general deterrence and denunciation. A conditional discharge, while in the Appellant’s interest, would be contrary to the public interest.

[24] Accordingly, while the error in principle made by the sentencing judge required this Court to consider a fit sentence to impose on the Appellant, I share the view of the sentencing judge that a suspended sentence followed by 1 year of probation, on the terms imposed by the sentencing judge, is a fit sentence in the circumstances.

Conclusion

[25] For these reasons, the appeal on sentence is dismissed.

Croll J.

Date: September 16, 2016