COURT FILE NO.: CR-17-70000093-0000 DATE: 20171128 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – Zaheer Ahmad Defendant

Counsel: A. Grady, for the Crown L. Riva, for the Defendant

HEARD: September 11-14, 2017

REASONS FOR SENTENCE

Carole J. Brown, J. (orally)

Overview

[1] On October 17, 2017, Zaheer Ahmad was found guilty of criminal harassment pursuant to section 264(2)(b) of the Criminal Code.

Circumstances of the Offences

[2] Tara Everett, sign language interpreter, met the accused, Zaheer Ahmad on the subway in 2012. They chatted, became casual friends and got together on a few occasions. In the spring of 2013, Mr. Ahmad advised Ms. Everett that he needed a place to stay and asked if he could stay with her for a short while. He lived in her apartment as a roommate for four months, until he was arrested. They did not have a romantic relationship.

[3] Following Mr. Ahmad’s release from custody for criminal harassment unrelated to Ms. Everett, Mr. Ahmad was released and began to email Ms. Everett frequently. He wanted to get together, then to live in her apartment again, as he did not have a stable place to live. She made it clear to him that he could not live with her. Initially, however, Ms. Everett remained in contact with him by email, although she described the relationship as “a loose friendship”, as she was “done with him” in terms of having him as a roommate. She attempted to give him moral support as a friend, given that she understood he was living in a shelter, did not have a job and may have some mental issues. They met on one occasion for breakfast, but within five minutes he began shouting at her and she left.

[4] He persisted in emailing her and requesting and later demanding that she permit him to live with her. She made it clear to him that he could not do so. He continued to email. Through mid-2015, she initially responded, although she was careful in her emails due to her concerns and suspicions concerning his mental health. She testified that he seemed to have an attitude of entitlement and would become abusive in his emails when she said “no”. From January 2016, she stopped responding to any emails. She made it clear to him that she did not want him to bother her further or to correspond with her. His barrage of emails continued. They became more random, insistent and often threatening, profane and sometimes lewd. When he began to threaten to kill people with firearms or Molotov cocktails, she went to the police and he was arrested.

Circumstances of the Offender

[5] Mr. Ahmad is 38 years of age. At the time of the offences he was aged 34 to 37.

[6] Based on the pre-sentence report (“PSR”), he has been found guilty of three charges, including mischief and obstructing justice on January 16, 2007 for which he received 12 months’ probation; failure to comply with a probation order on November 26, 2014 for which he served 38 days pre-sentence custody and was fined $100 and, on May 28, 2014, criminal harassment pursuant to section 264(2)(b) and breach of recognizance (x2), for which he served four months pre-sentence custody and one month on each of the breaches of recognizance, plus 2 years’ probation. He was therefore on probation through May 2016, at the time of the present offences.

[7] Further, the Crown submitted Mr. Ahmad’s Criminal History, which indicated the following further offences: June 14, 2005-threatening death pursuant to Criminal Code 264.1(1)(a), which resulted in an 810 peace bond; June 6, 2012-criminal harassment pursuant to section 264(1), (2)(b), which resulted in an 810 peace bond; November 1, 2010-criminal harassment pursuant to section 264(1), (2)(b), which resulted in an 810 peace bond.

[8] Based on the PSR, Mr. Ahmed was born and raised in Edmonton, Alberta, resided for 2 years in Vancouver and then moved to Toronto in 2002. His parents separated and divorced when he was approximately nine years old. He was raised by his mother, but his father remained an active parent in his life.

[9] According to the PSR, Mr. Ahmad had remained in communication and connected with his brother and mother, although both have now discontinued communications with him over the last few years due to his inappropriate and aggressive communications with both his mother and brother as documented in the September 2015 report of Dr. Ginsberg. Based on the Consent and Capacity Board (“CCB”) Reasons for Decision which cited Dr. L. Ginsburg’s report, as well as the PSR, his mother feared for her safety and the safety of her elder son and his family, which fears stemmed from threatening emails in which Mr. Ahmad expressed his desire to have sex with his mother and threatened to kill his older brother. According to the CCB Reasons, those emails also attached photographs of male and female genitalia.

[10] According to the CCB Reasons, which cited the report of Dr. L. Ginsburg, following Mr. Ahmad’s involuntary confinement in September 2015, Mr. Ahmad was diagnosed with a delusional disorder induced by cannabis abuse and dependence, and a narcissistic personality disorder which can exacerbate the cannabis-induced delusions. Dr. Ginsberg’s Report stated, inter alia, that Mr. Ahmad believed the court system was set up against those who are charged. He believed that the courts were specifically biased against him due to his frequent appearances, that there was no justification for all of the charges and convictions he had incurred over the past 10 years and that he never did anything wrong. Further, Dr. Ginsberg stated that Mr. Ahmad revealed a history of extreme sensitivity in response to real or perceived slights or insults leading to his becoming enraged. A sense of entitlement and being special lead to rage reactions when his desires were not gratified. He observed that these reactions were characteristic of a narcissistic personality, likely intensified in the context of severe cannabis intoxication leading to paranoia.

Impact on the Victim

[11] Ms. Everett provided a Victim Impact Statement which was read by the Crown counsel.

[12] Ms. Everett stated that she had experienced a loss of confidence in some of her daily decision-making skills. She experienced self-doubt when faced with important decisions, coming from her having allowed Mr. Ahmad to stay in her apartment as a roommate initially. Further, as a result of that initial decision, she experiences shame and bouts of mentally and emotionally “beating herself up”. She has isolated herself for periods of time because she felt that she could not share the harassment she was experiencing with family or friends, as she was fearful of being judged.

[13] She experiences periods of depression and anxiety around the harassment experienced at the hand of Mr. Ahmad.

[14] She is very wary and apprehensive when passing through areas that Mr. Ahmad could frequent and will not answer her telephone if the caller identification comes up as “private number” or “unidentified caller” for fear it is Mr. Ahmad. She reacts internally when she sees men who have a similar appearance to Mr. Ahmad. There are times when she is unable to sleep due to worry regarding Mr. Ahmad.

[15] She described Mr. Ahmad as belligerent, unrelenting in his disregard for women, unable to regulate his emotional responses to being told “no”, as a result of which she continues to fear for her security when Mr. Ahmad is not in custody.

[16] She indicated that she is self-employed and missed a four day sign language interpretation contract as a result of this trial, for which she experienced a total financial loss of $1423.80, for which the Crown seeks restitution.

Position of the Crown

[17] It is the position of the Crown that an appropriate and fit sentence in the circumstances of this case is two years less one day, and less pre-sentence custody at 1.5-1. The Crown submits there are aggravating factors which must be considered in imposing sentence.

[18] As regards a fit and appropriate sentence in the context this criminal harassment offence, the Crown sites and relies on the case of R v Brown (Court CR-14-70000697, dated August 21, 2015). In that case, McCombs J, in sentencing the offender, took into consideration that the offender had no insight into his acts. McCombs J found that the sentence he imposed was at the lower end of the range of appropriate and fit sentences for the number of convictions.

[19] The Crown also relies on R v Bates, [2000] O.J. No. 2558 (ONCA), a leading case regarding criminal harassment and its impact on victims, R v Blake, 2016 ONCA 508 (CA), R v Doherty, 2012 ONCA 855 (CA), where the Court of Appeal observed that the offender was incapable of functioning appropriately toward others.

[20] As regards the Victim Impact Statement, it is clear that the criminal harassment had significantly impacted the victim, Tara Everett. She continues to be fearful, to have self-doubt, shame and there was also a financial impact for which the Crown seeks restitution.

[21] The Crown submits that the criminal history in this case is particularly aggravating, as the offender displayed no sense of what “no” means, no insight regarding the impact of his conduct on his victims and, particularly, Ms. Everett. Based on the emails submitted during the trial, the offender’s emails included derogatory comments regarding the victims of his previous criminal harassment. He had received six months’ custody, as well as a period of probation, but displayed no insight. He persisted in his harassment by email.

[22] The Pre-Sentence Report (“PSR”) indicated that the offender provided no collateral contacts. He indicated to the author of the PSR that he had worked from 2004, but was on support in 2014. The evidence of Tara Everett was that he was not employed while he was residing in her apartment.

[23] The Crown submits that anything from the accused should be cautiously viewed. Throughout the PSR, there was reference to the CCB Report and Dr. Ginsberg’s diagnosis of Mr. Ahmad having a “delusional disorder provoked by substance abuse” and a narcissistic disorder. The Crown submits that this latter diagnosis of a narcissistic personality disorder is consistent with Ms. Everett’s observations of the offender as having a sense of entitlement. The Crown submits that he appears to have displayed no expression of remorse, which is not to be considered an aggravating factor, but that this also speaks to his lack of insight. He believes that the courts are biased against him. He expressed extreme anger and there was unpredictability in his behaviour. He was particularly sensitive to slights, as also referenced by Ms. Everett.

[24] As regards aggravating factors, the Crown submits that it was particularly aggravating that Ms. Everett was a friend who attempted to support him, after which he focused on victimizing her. The Crown submits that a pervasive sense of entitlement and sensitivity to perceived slights against him, as observed by Dr. Ginsberg, could also be seen from his outburst in Court and the intimidation and veiled threats, which he directed at this Court after the finding of guilty.

[25] The Crown submits that the Court of Appeal has outlined principles regarding sentencing of repeat criminal harassers. Deterrence, denunciation and protection of the victim are paramount. In Bates, the court endeavored to prevent future offending.

[26] The Crown submits that Mr. Ahmad is a clear risk to reoffend, based on his past offences and current events, his veiled threats, profanity, nude photos and references to machine guns and Molotov cocktails. The Crown submits that he is unpredictable, does not respect boundaries, and that he continued to harass Ms. Everett even after she told him to stop communicating with her. The sentence must address specific deterrence in this case.

[27] When considering all of the aggravating factors together, the Crown submits that a sentence of 2 years less a day, less the pre-sentence custody already served, with credit at 1.5-1 is an appropriate and fit sentence, with a three year probationary period to follow on the following conditions:

i. That Mr. Ahmad report to a probation officer as directed; ii. That Mr. Ahmad have counselling, as required by the probation officer, and sign the necessary releases therefore; iii. That he take courses in relationships, healthy boundaries and anger management; iv. That there be no contact, direct or indirect with the victim, Tara Everett; and v. That the offender is to remain 500 m from Ms. Everett, from her residence, her place or places of work, and from the places she frequents or happens to be, as known to the offender.

[28] The Crown further seeks ancillary orders as follows:

(a) A DNA order (primary designated defence); (b) Section 109 for life; and (c) Based on the victim impact statement, a freestanding restitution order for $1423.80.

Position of the Defence

[29] The defence submits that the 18 months already served in pre-sentence custody is well within the range of an appropriate and fit sentence in this case. It is the position of the defence that this is not a case for further incarceration. Counsel for the defence submits that an appropriate sentence would be a suspended sentence or one month incarceration with probation. The defence submits that this meets the denunciation and deterrence factors to be considered.

[30] The defence relies on the following case law. In R v Ahmad, [2017] O.J. No. 4053, the bail review in this action, it was argued that the fact that Mr. Ahmad had served time constituted a material change. Himel J reviewed the case law, his past history, and the emails and found that he had served what would likely be time representing an appropriate sentence. While she found the strength of the Crown’s case was strong and the seriousness of the offence grave, she granted bail and required him to report to a bail officer following his release.

[31] The defence further referred to the CCB decision regarding Mr. Ahmad, which also referenced the Dr. Ginsberg report, also noted in the PSR. The Board considered whether there was any potential for Mr. Ahmad to cause physical injury to others in the future.

[32] The defence conceded that there were different tests applied as regards the decisions of the CCB and the bail review.

[33] The defence relies on R v Valentini, [1999] O.J. No. 251 (CA), p.16, para. 82 as regards a “lack of remorse” and observes that a lack of remorse cannot be used as an aggravating factor. The defence submits that this must be considered as regards the decision of McCombs J.

[34] As regards the cases relied upon by the Crown, the defence submits that all the cases involved significant prior criminal histories, while Mr. Ahmad only has two prior convictions. As regards the PSR, Mr. Ahmad was 37 years of age, born in Edmonton, completed grade 12. He had been employed prior to 2014 in a restaurant and in retail. At the time of the pre-sentence report he was living in a backpacker’s hostel on Dundas. Dr. Ginsberg had diagnosed a delusional disorder. Ms. Everett had testified that he was, at times, marginalized.

[35] The defence reiterated Mr. Ahmad’s psychiatric history, the Dr. Ginsberg Report and the CCB report. Due to his mental health issues, the defence submits that Mr. Ahmad is a candidate for rehabilitation efforts. He does not have a lengthy history of criminal harassment defences. The PSR has set forth recommendations. It must be considered that he has had no contact with Tara Everett since he is arrest.

[36] The defence invokes the “jump principle”. His last conviction for criminal harassment resulted in incarceration for 6 months total, plus probation. He has already been incarcerated for 18 months and anything more than that would be a significant and serious jump.

[37] The defence submits that Himel J’s decision is persuasive and includes a good review of the law. Mr. Ahmad has served a significant amount of time already.

[38] The defence also submits that there was stigmatizing media attention regarding the Ahmad case, which this Court can take into account. However, there was no evidence of this before this Court and I do not take this into account.

[39] The defence submits that 18 months is denunciatory and any more would be excessive. She agrees, in general, with the conditions proposed by the Crown, but also seeks some sort of mental health counselling.

General Sentencing Principles

[40] The fundamental purpose of sentencing, as set forth at section 718 of the Criminal Code of Canada, is to protect society and to contribute, along with crime intervention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sentences that have one or more of the following objectives:

i. to denounce unlawful conduct in the harm done to victims or to the community that is caused by unlawful conduct; ii. to deter the offender and other persons from committing offences; iii. to separate offenders from society where necessary; iv. to assist in rehabilitating offenders; v. to provide reparations for harm done to victims or to the community; and vi. to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[41] The fundamental principle of sentencing pursuant to section 718.1 is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Further, in imposing a sentence, consideration must be taken of the principles set forth in section 718.2.

Aggravating and Mitigating Factors

Aggravating Factors

[42] There are a number of aggravating factors in this case.

[43] Mr. Ahmad sent unwanted and unwelcome emails to Ms. Everett from March 2014. She told him clearly that he could not stay with her. He continually asked to stay at her apartment and she refused him on each occasion. By August 2015, she sent a lengthy email telling him categorically that she would not have him in her apartment and that she would no longer respond to his requests. Nevertheless, he continued to email her as well as asking her in person. By October 2015, she emailed telling him to leave her alone; that she wanted nothing to do with him. Nevertheless, he continued to email her through 2016, requesting that she permit him to live with her, demanding that she respond or requesting they get together. The emails escalated in intensity with time and her refusal to respond, and became increasingly irrational, threatening, profane and at times lewd.

[44] He displayed a complete lack of insight into the impact of his actions on others and the psychological and emotional impact on Ms. Everett. He would not respect boundaries and refused to accept or understand “no”. Such refusals appeared to provoke him and make him angry. He appeared to have a sense of entitlement as observed by Dr. Ginsberg and Ms. Everett.

[45] In addition, based on the PSR, he has no supportive family. Based on the evidence, he had alienated his family by sending threatening emails to members of his family, including his mother and brother. He appears to have no support network, and is “marginalized”; he has been unemployed for a number of years.

Mitigating Factors

[46] As a mitigating factor, Mr. Ahmad did not attempt to contact the victim, Ms. Everett, after his arrest.

Analysis and Conclusions

[47] Each sentencing case differs and each offender must be sentenced based on the particular offence or offences that he or she committed. However, other cases, such as those cited by counsel for the Crown and defence, are of assistance in determining an appropriate range of sentence for similar offences and offenders, in conjunction with consideration for the sentencing objectives to be considered.

[48] In this case, denunciation and deterrence, both specific and general, are of significant importance. Predominant sentencing objectives in this matter are, in my view, denunciation, deterrence, both specific and general, and protection of the public.

[49] I have considered Mr. Ahmad’s age and the objective of rehabilitation. I have considered that in determining a sentence, consideration must be had for a sentence that constitutes the minimum necessary intervention that is adequate to the circumstances. In my view, the offence in this case is of a serious nature and the effect on the victim was significant.

[50] I have considered the aggravating and mitigating factors in this case. I have considered that Mr. Ahmad refused to take “no” for an answer from the victim, but continued with a barrage of emails, requesting that she permit him to stay in her apartment, that she meet with him, that she respond to his emails, well after she had told him not to communicate with her anymore. As she refused to respond to any of his emails after 2016, his emails began to escalate in tone and substance, becoming threatening, profane, lewd and, at the end, threatening not only herself but other members of the public.

[51] Both the report of Dr. Ginsberg and the PSR indicate that he has little insight into his conduct, to the impact that his conduct has on others, and more particularly to the psychological impact that said conduct had on Ms. Everett; that he continues to blame others for his present circumstance and that he feels betrayed by the justice system. His later emails were threatening not only to Ms. Everett, but to society in general when he wrote of walking into “52 Division with a machine-gun and opening fire and then Molotov cocktail that stupid cunt dyke Nigger to the ground. Heil Hitler”. Thus, both specific and general deterrence are necessary in this case.

[52] The Reports further indicate that he is highly sensitive to perceived slights which cause him to react unpredictably and become enraged. His outburst in Court after the finding of guilt further supports the observations made in the above-mentioned reports: see Transcript of Reasons for Judgment dated October 17, 2017.

[53] In this case, based on the Victim Impact Statement, Ms. Everett experiences ongoing fear of Mr. Ahmad, his threats and his irrational conduct.

[54] As stated in R v Bates, supra, citing R v Wall (1995), 136 Nfld & P.E.I.R. 200 at 203,

“The fact an offender shows any propensity toward this kind of [harassing] conduct… is cause for great concern and for a very careful and judicious approach to sentencing.…

The focus of sentences must be to send a message to the offender, and the public, that harassing conduct against innocent and vulnerable victims is not tolerated by society and most importantly, the court must ensure, as best it can, that the conduct of the offender never happens again recognizing that, if it does, a far more serious offence could be committed. The principles of sentencing must be applied with this focus squarely in mind.

[55] I am satisfied that, in all of the circumstances of this case, the principles of denunciation and deterrence, general and specific, must take precedence in determining a fit and appropriate sentence, together with concern for the safety and security of the victim and the public.

[56] In determining an appropriate sentence, I have considered the submissions of counsel for the defence that, in the bail review, bail was granted on the ground that the pretrial detention would likely exceed the range of sentence. I have also considered counsel’s submissions as regards the CCB Decision that Mr. Ahmad was unlikely to harm himself or, except for his mother and brother, others. However, the tests in those two proceedings are different from the principles to be applied in sentencing after a trial and a finding of guilt.

[57] In determining a sentence, I have also taken into consideration the “jump” principle as argued by counsel for the defence. I have further, in this regard, considered the case of R v Blake, supra.

[58] The offender appears to lack any insight into the effect of his conduct on Ms. Everett. His previous charges for criminal harassment seem to have brought no greater realization to him as regards the effects of such conduct on others. Three previous criminal harassment charges were resolved by a peace bond. The fourth resulted, on May 28, 2014, with a sentence of six months, plus 2 years’ probation. I have further taken into consideration that based on the criminal history of Mr. Ahmad, his previous finding of guilt for criminal harassment did not prevent the continuation of such behaviour. Indeed, his harassment of Ms. Everett proceeded following that conviction, indicating that he had, in the words of the Court of Appeal in Blake at paragraph 7 “still not gotten the message in terms of his criminal harassment of women”. I am of the view that a sentence of two years less a day does not violate the jump principle in all of the circumstances of this case. I have considered, as well, his lack of insight into the seriousness of his conduct.

[59] I am satisfied, taking into consideration all of the foregoing, that an appropriate sentence is two years less a day, less the pre-sentence custody already served. Mr. Ahmad was incarcerated from June 23, 2016 to May 31, 2017, or 343 days prior to the trial and thereafter from October 17 to his sentencing on November 28, or 42 days. Both Counsel agree that, at 1.5-1, this amounts to a total of 19 months served. Therefore, Mr. Ahmad will serve an additional 5 months less one day.

I further order that Mr. Ahmad will not communicate directly or indirectly with Tara Everett during his time in custody pursuant to section 743.21 of the Criminal Code.

[60] Additionally, I impose a three year probationary period, with the following conditions:

i. Mr. Ahmad is to report to a probation officer weekly, or as directed; ii. He is to take counselling, as required by the probation officer, and to sign the necessary releases therefore; iii. He is to take courses in relationships, healthy relationship boundaries and anger management; iv. Mr. Ahmad will have no contact whatsoever, direct or indirect, with the victim, Tara Everett; v. Mr. Ahmad is to remain 500 m from Ms. Everett, from her residence, her place or places of work, and from the places she frequents or happens to be, as known to Mr. Ahmad; vi. Further, given the threats involving machine guns and Molotov cocktails, I impose a section 109 order prohibiting Mr. Ahmad from possessing any weapons pursuant to that provision for life; vii. Mr. Ahmad is to take mental health counselling.

[61] Further, I make a freestanding restitution order, based on the Victim Impact Statement, in the amount of $1423.80 to be paid by Mr. Ahmad to Ms. Everett.

Carole J. Brown, J. Released: November 28, 2017