Court File and Parties

Court File No.: CR-16-10000375-0000 Date: 20170424 Ontario Superior Court of Justice

Between: Her Majesty The Queen – and – Sammatar Hassan

Counsel: Sonia Beauchamp, counsel for the Crown Maurice Mattis, counsel for the Accused

Heard: April 11 and 12, 2017

Before: M.A. Code J.

Reasons for Judgment on Gardiner Hearing

A. OVERVIEW

[1] The accused Sammatar Hassan (hereinafter Hassan) is charged in a five count Indictment with various offences that all relate to an assault on one H.S. on December 21, 2015. He appeared before me for trial on April 10, 2017 and was arraigned on Count Two in the Indictment, which alleges the offence of aggravated sexual assault. Hassan pleaded not guilty to the offence as charged but guilty to the lesser included offence of aggravated assault. The plea was accepted by the Crown. As a result, the scheduled trial on the Indictment did not proceed.

[2] An Agreed Statement of Fact was read in, and filed as an Exhibit, and a conviction was entered for the offence of aggravated assault. The parties then conducted a Gardiner hearing in relation to a number of disputed aggravated facts. The hearing was completed in less than two days and I reserved judgment. These are my Reasons in relation to the Gardiner hearing.

B. FACTS

[3] The facts relating to the offence are set out in the Agreed Statement of Fact filed on the guilty plea. In addition, the victim H.S. testified on the Gardiner hearing and the parties filed a number of documentary exhibits, such as a map of the area where the assault occurred, a police sketch of the crime scene showing where various items were found, and the police photographs of the crime scene and of both the victim and the accused, all taken shortly after the assault. Finally, the parties negotiated a further Agreed Statement of Fact, after Ms. H.S. had been cross-examined. No defence evidence was called on the Gardiner hearing except for the further Agreed Statement of Fact. I am grateful to both counsel for the responsible way in which they arrived at the two Agreed Statements of Fact, in relation to issues that were not realistically in dispute, because it expedited the Gardiner hearing.

[4] It can be seen that a substantial number of facts relating to the offence are not in dispute. I will summarize the facts that are obvious, or that are not disputed. I will then address the disputed factual issues in the next section of these Reasons.

[5] The initial Agreed Statement of Fact, filed in support of Hassan’s guilty plea, states that H.S. is a 54 year old sex trade worker who went for a walk near her home in the west end of Toronto on December 21, 2015. It was late at night, around 12:00 or 12:30 am, and she needed $20 in order to buy something to eat. I infer that Ms. H.S. and her husband lived in very poor circumstances. She was walking on the north side of Dundas Street West, near her home, when she encountered the accused. She asked, “How are you?” and offered him a “date” in return for $20, stating that it would involve a “blow job.” The accused said, “Okay,” and they walked into a laneway that runs north off Dundas Street. Ms. H.S. testified that she usually worked in laneways or in cars.

[6] Once Ms. H.S. and Hassan were in the laneway, at a dark corner towards the back of an adjacent building, Hassan began making inconsistent statements as to whether he did or did not have the $20 required for the transaction. Ms. H.S. advised Hassan that he had to pay her prior to the sex act. When the money was not forthcoming, she turned away. At this point, he suddenly struck her “really hard in the head with his fist.” She fell to the ground and he “continued to beat her while she was on the ground.” He “hit her and punched her,” including “kicking her in the face more than once.” In the course of the assault, Hassan called Ms. H.S. various “bad names” and she pleaded with him to “leave me alone” and to “have a heart.”

[7] At various points during the assault, Ms. H.S. was able to get away but Hassan “would grab her and drag her back down the laneway” and “throw her to the ground.” He would then “continue to beat her which would include kicking her.” As a result of this ongoing attack, she lost hair. The medical evidence confirmed that there was a “large amount of hair removed” from her scalp.

[8] After these repeated assaults and failed attempts to escape, Ms. H.S. said, “If you want to have sex with me, have sex with me.” Hassan did not initially accede to this attempt to get him to stop assaulting her and “continued to hit her,” but he then said, “Okay.” They were now at the front of the laneway, near Dundas Street. At this point, Hassan grabbed her, pushed her, “slapped her on the side of the face and in the head” and “threw her to the ground.” Fortuitously, Ms. H.S. and Hassan both heard the voices of young people in the laneway at this point and Hassan ran away along Dundas Street. Ms. H.S. was now dressed only in her black underwear and a shirt, which was covered in blood. Her pants and shoes had undoubtedly been removed, at some point during the altercation, because the police found them at the back of the laneway. Ms. H.S. spoke to one of the people in the laneway and he called the police.

[9] Ms. H.S. described Hassan as being “cold” during the attack and smelling of alcohol. He told her that he had been drinking. He was seen nearby shortly after the attack, coming out of an alleyway on Dundas Street, and he was arrested by the police at 12:45 am. There was blood from the complainant on Hassan’s jacket, pants, sweatshirt, socks, hands, and shoes. His right hand appeared to the police to be slightly swollen. There were a number of hairs stuck to his right shoe. He had $4 and change on his person. He was on probation at the time and was in violation of his curfew term.

[10] The complainant’s injuries are plainly visible in the police photographs, including bleeding, swelling and abrasions to the scalp, a broken and bleeding nose, a cut under her left eye that required stitches, a cut above her right eye, a cut to her chin, and abrasions to both knees. She was treated at the hospital and released later in the afternoon of that same day, December 21, 2015. Her neck was put in a brace, pending examination by a specialist. It took three weeks for the facial injuries to heal.

[11] The police found Ms. H.S.’ pants and shoes at the back of the alleyway, just beyond the back corner of the adjacent building in a parking area behind the building. The police also found blood and clumps of hair at various locations in the laneway and in the parking area at the back of the adjacent building. From the locations of the blood and the clumps of hair, it can be inferred that the assault on Ms. H.S. took place both in the laneway and in the back parking area, as she tried to escape. The photographs of Ms. H.S.’ face shortly after the attack show significant bleeding and bruising, prior to her treatment at the hospital. The laces on Ms. H.S.’ running shoes were still tied, when the police found them in the parking area at the back of the laneway. Her pants appear to be straight leg jeans.

C. ANALYSIS

[12] There are a number of aggravating circumstances alleged by the Crown and disputed by the defence on the Gardiner hearing. In particular, the Crown alleges that Hassan attempted to choke Ms. H.S. and that he was beginning to remove his belt at one point during the attack. Indeed, there is a separate count in the Indictment alleging the s. 246(a) offence of choking with intent. In addition, the Crown alleges that Hassan forcibly removed Ms. H.S.’ jeans and running shoes at some point during the attack. This would provide evidence of an objectively sexual character to the assault, as alleged in the original aggravated sexual assault count to which Hassan pleaded not guilty on arraignment. Finally, the Crown alleges that Hassan struck multiple blows to Ms. H.S.’ ribs while she was on the ground, causing her somewhat more lasting injuries that have still not healed completely. Aside from these three main issues, there were a number of less significant issues that were either abandoned or not vigorously pursued.

[13] The common law was clear that the Crown has the burden of proving disputed aggravating facts at a sentencing hearing. Although the strict rules of evidence are somewhat relaxed at a sentencing hearing, the degree of proof of aggravating facts remains beyond reasonable doubt. See: R. v. Gardiner (1982), 68 C.C.C. (2d) 477; R. v. Albright (1987), 37 C.C.C. (3d) 105. The 1995 amendments to the sentencing provisions of the Criminal Code had the effect of codifying this common law rule in s. 724(3)(e), while adding a requirement in s. 724(3)(d) that the defence has the burden of proving any disputed mitigating facts on a balance of probabilities. See: R. v. Ferguson, 2008 SCC 6; R. v. Smickle, 2013 ONCA 678.

[14] Accordingly, I must be satisfied that the disputed aggravating facts have been proved beyond reasonable doubt before they can be relied on in relation to sentence.

[15] One of the three main disputed allegations is relatively easy to resolve and that is Ms. H.S.’ testimony concerning the forcible removal of her jeans and running shoes. She was somewhat unclear as to exactly when, in the course of the ongoing assault, this clothing was removed. She believed that it occurred at a point when she and Hassan were near Dundas Street, towards the front of the alleyway, shortly before he ran away. The jeans and shoes were not found by the police in this specific area. Rather, they were found in the parking area at the back of the laneway. It is possible that one of the young people who arrived in the area towards the end of the assault moved the clothing after Hassan ran away. However, it is far more likely that Ms. H.S. is simply mistaken as to exactly when and where her clothing was removed in the course of what must have been a chaotic, frightening, and traumatic series of events.

[16] Ms. H.S. insisted in her testimony that Hassan forcibly removed her jeans and shoes while she was lying on the ground. No prior inconsistency was put to her or was alleged in relation to this issue, either from her videotaped police statement made a few days after the incident (on December 26, 2015) or from her preliminary inquiry testimony given some five months after the incident (on May 12, 2016). The defence concedes that Ms. H.S.’ pants and shoes may have come off during the struggle, and that Hassan may have played some role in this. However, the defence disputes any act of deliberately removing these articles of clothing.

[17] In my view, the only rational inference from all the evidence, both direct and circumstantial, is that Hassan must have deliberately and forcibly removed Ms. H.S.’ shoes and pants in the course of the ongoing assault. Ms. H.S. testified to this effect and her account is supported by the following circumstances: the whole purpose of the encounter between Hassan and Ms. H.S. was sexual; the assault by Hassan began when Ms. H.S. refused him sex because he had insufficient funds to pay for it; her running shoes were still tied when they were found, and so some force was likely required in order to remove them; her jeans were reasonably straight-legged and had a zipper and a snap at the waist and so some effort was likely required in order to remove them; a large part of the ongoing assault took place in the parking area at the back of the laneway, according to both Ms. H.S.’ testimony and the location of the blood and clumps of hair found at the crime scene; the jeans and running shoes were found in this same area, close to the location of much of the ongoing assault; Ms. H.S. was repeatedly and admittedly thrown to the ground by Hassan, which is the position that would facilitate removal of her pants and shoes; and finally, Ms. H.S. was admittedly found wearing only her black underwear and a shirt, which is a state of undress that would facilitate sexual contact.

[18] In all these circumstances, I am satisfied beyond reasonable doubt that the Crown has proved that Hassan forcibly removed Ms. H.S.’ clothing during the course of the assault.

[19] Turning to the allegation that Hassan struck Ms. H.S. in the ribs, while she was on the ground, Ms. H.S. testified that Hassan repeatedly kicked her in the ribs. This is the one injury that continues to cause her pain to this day. She testified that her ribs still hurt when she lies down to sleep. The defence relies on the fact that Ms. H.S. did not mention being hit in the ribs in her statement to the police on December 26, 2015, and on the medical examination at the hospital on December 21, 2015, which was to the effect that there were no rib fractures and there was no bruising to the rib area. The lack of bruising is not significant because bruising “would normally not be apparent so quickly,” according to the Agreed Statement of Fact. Finally, there is no evidence, one way or the other, as to whether there was any swelling to the rib area. However, if Ms. H.S. had complained about blows to the ribs or about pain in the rib area, and if there was swelling to this area, I assume that it would have been noted in the medical reports.

[20] In all the above circumstances, I have a reasonable doubt as to whether the Crown has proved the alleged blows to the ribs. I should add that I do not presently understand the significance of this issue. It is admitted that the assault began when the accused “hit her really hard in the head with his fist,” that he “continued to beat her while she was on the ground,” that he “kicked her in the face more than once” while she was on the ground, and that after dragging her and causing her hair to come out he “would then continue to beat her which would include kicking her.” Given these admissions, it is unclear to me whether it would add much, by way of aggravation at the time of sentencing, to prove that some of these blows were landing specifically on the ribs.

[21] The third and last allegation concerns choking and it is the most difficult to resolve. Ms. H.S. testified that there were three different kinds of choking or attempted choking that occurred. She described Hassan wrapping his legs around her neck, early in the ongoing assault, at a point when she had been taken to the ground. After she managed to briefly get away, and after he once again threw her to the ground, she described how he used the knuckles between his index and middle fingers to squeeze her throat at the front of her neck. He repeated this squeezing motion a number of times, to the point where she could not breathe. She described this act as hard squeezes, but she agreed that it did not leave a mark or any bruising. Finally, she described Hassan reaching for his belt at one point and starting to unbuckle it. She believed that he was going to use his belt to strangle her. He never did remove his belt or use it to strangle her.

[22] The defence relies on the fact that Ms. H.S. never told the police in the December 26, 2015 statement about Hassan wrapping his legs around her neck. In addition, there is no medical evidence of any injury to the neck. Finally, it is admitted that Hassan was not wearing a belt when he was arrested nearby, shortly after the assault. No prior inconsistency was put to Ms. H.S. or was alleged in relation to her detailed and unusual description of Hassan squeezing her throat with two fingers, other than a minor point concerning whether he did this five or six times, as opposed to three or four times, or four or five times. In all of these descriptions, she was simply giving an estimate of the number of repetitions. The defence also submitted that photograph number 10, which shows Ms. H.S.’ throat, does not show any marks or bruising. This point is not clear to me, as there appears to be either a shadow or a bruise in the relevant area. If there was a bruise on the throat, which the photographer was trying to capture in this picture, then it would have been helpful to hear evidence from the photographer to that effect.

[23] It is a close call as to whether the alleged choking has been proved. However, there is some unreliability in Ms. H.S.’ account, both in relation to this narrow issue and more generally, which is hardly surprising given the traumatic events that she is trying to recall and describe. In light of the high burden of proof on the Crown, I am not satisfied that the choking and attempted choking have been proved beyond reasonable doubt.

D. CONCLUSION

[24] In the result, the Crown has proved the one aggravating fact concerning forcible removal of the victim’s pants and shoes. The other two aggravating facts — the alleged choking incidents and the alleged blows to the ribs — have not been proved to the requisite degree.

M.A. Code J. Released: April 24, 2017