Court File and Parties

COURT FILE NO.: CR-17-70000545-0000 DATE: 20181219 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – MUHAMMAD IQBAL Accused

Counsel: Cara Sweeny, for the Crown Robert Lockhart, for the Accused

HEARD: December 4, 2018

B.A. ALLEN J.

Reasons for Decision on Sentence

Background to Convictions

[1] On October 11, 2018, I convicted the offender, Muhammad Iqbal, on four counts: count 1, assault with a weapon, count 2, possession of a weapon, count 3, break and enter and count 4, theft under $5,000.00.

[2] The allegations were that early in the morning on October 26, 2015, the complainant, Anjun Fatima, was asleep in her bed with her young son and daughter. She and Mr. Iqbal lived in the same condo building at 43 Thorncliffe Blvd. in Toronto, he on the 21st floor and she on the first floor. Ms. Fatima was awakened in the early morning hours by being shaken on the shoulder by a man standing beside the bed.

[3] Ms. Fatima saw a man standing next to the bed. When she saw him she began to scream. Ms. Fatima said the man put his forefinger to his lips, moved close to her face, and made the sound, "Sh-sh-sh" to stop her from screaming. Ms. Fatima continued screaming loudly.

[4] Ms. Fatima testified the man got very close to her face and took out a knife and put it to his lips to signal her to be quiet. She could see only the blade which she estimated was about three inches long. He pointed the knife towards her close to her chin. The knife did not touch her body. Ms. Fatima explained that the knife touched the comforter that covered her. She began yelling and screaming madly. The man then fled the room. That man was Muhammad Iqbal.

[5] Ms. Fatima left the bedroom and called 911. Shortly thereafter the police arrived to speak to Ms. Fatima. It was discovered that the knife that Mr. Iqbal used was a knife he found in Ms. Fatima’s apartment which the police did not locate on the premises afterwards.

Victim Impact Statement

[6] Ms. Fatima prepared a victim impact statement in which she describes the devastating effect Mr. Iqbal’s crime had on her life. She has suffered emotionally and financially. She described the invasion into her home as the worst experience of her life. Ms. Fatima became fearful to be out in public when she had previously moved about with great confidence. Her confidence has been shattered. Ms. Fatima has found it difficult to move on with her life over the course of this criminal process as her involvement has just served to make her relive her fears. She has even doubted whether she should have called 911 that morning.

[7] Ms. Fatima’s family has suffered financially because, for safety reasons, her husband had to relocate the family to Edmonton where he was seeking qualification in pharmacy. He then had to move the family back to Toronto, all of which created a financial burden for the family.

Principles on Sentencing

[8] Section 718.2 of the Criminal Code sets down the objectives for sentencing: denunciation, deterrence and the separation of the offender from society.

[9] The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other potential future offenders from committing offences; and (c) to separate offenders from society.

[10] Proportionality is also a guiding principle for sentencing. A sentence must be proportionate to the gravity of the offence, determined on the particular facts of the case. The narrow focus of the sentencing process is directed to imposing a sentence that reflects the circumstances of the specific offence and the attributes of the specific offender: [Criminal Code, s. 718.1 and R. v. Hamilton (2004), 186 C.C.C. (3d) 129, 72 O.R. (3d) 1 (Ont. C.A.)].

[11] The parity principle requires a sentence be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. Sentencing is however an individualized process which necessarily means that sentences imposed for similar offences might not be identical: [R. v. Cox, 2011 ONCA 58 (Ont. C.A.) and R. v. L.M., [2008] 2 S.C.R. 163, 2008 SCC 31 (S.C.C.)].

[12] Section 718.2 addresses the totality principle. It provides that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. The principle applies with a sentence for multiple offences and requires the court to craft a global sentence of all offences that is not overly excessive.

The Immigration Issue

[13] Mr. Iqbal immigrated to Canada from Pakistan ten years ago with members of his family and remains a permanent resident in Canada. As I understand it, he has a wife and young children residing in Pakistan who he has planned to sponsor to Canada.

[14] The defence requested that I consider on sentencing the collateral consequence of deportation on Mr. Iqbal which could follow depending on the prison sentence imposed.

[15] Under the Immigration and Refugee Protection Act, S.C. 2001, c 27 if a person who is not a Canadian citizen is convicted of an offence punishable by a maximum term of imprisonment of at least ten years, or of an offence for which there is a term of imprisonment of more than six months, the person is subject to deportation from Canada. Breaking and entering is an offence punishable by a maximum life sentence and assault with a weapon is an offence punishable by a maximum sentence of ten years.

[16] If a prison term of more than six months is imposed Mr. Iqbal will face the federal deportation process.

[17] The Supreme Court of Canada considered the collateral consequence after conviction of an offender who is not a Canadian citizen being deported. It held that the sentencing court has the discretion to consider collateral consequences such as deportation in tailoring a fit sentence. The weight to be given collateral consequences in tailoring a sentence is fact-specific, to be decided on a case-by-case basis. The court has the discretion to consider collateral consequences in the totality of the circumstances: [R. v. Pham, [2013] S.C.R. 739, at paras. 17 – 19, (S.C.C.)].

[18] The basic rule remains applicable, that a sentence must be fit considering the gravity of the offence and the blameworthiness of the offender. The collateral consequence cannot be given inordinate weight over general sentencing principles to skew a sentence in favour of or against deportation. The fundamental principles of sentencing, as set out in the Criminal Code, cannot be compromised because of a risk of deportation: [R. v. Pham, at paras. 17 – 19].

Aggravating and Mitigating Factors

The Law

[19] Section 718.2 of the Criminal Code provides that a sentence shall be increased or reduced to take into account any relevant aggravating or mitigating circumstances related to the offence or the offender. This provision sets out a non-exhaustive list of examples of possible aggravating factors to consider.

[20] Mitigating factors can include such considerations as whether the offender has family support and responsibilities and whether they enjoy a connection to the community. Employment is also a consideration. Any expression of remorse or acceptance of responsibility by an offender for the harm done is a mitigating factor. Youthful age of an offender can also be a mitigating factor.

Mitigating Factors

[21] Mr. Iqbal, his brother and father testified briefly at the sentencing hearing. They spoke of the close family ties. They pointed to the fact that several close family members reside in the same condo building as Mr. Iqbal who lives with his parents in that building. His brother testified that he has relied on his older brother throughout his life. The father expressed great love and closeness to his son. Mr. Iqbal has a wife and small children in Pakistan who he has hoped to sponsor to Canada to live as a family together.

[22] Mr. Iqbal has had steady employment as a taxi driver until his arrest when as a result he lost his taxi licence. He has had a steady residence living with his parents. He stated that he is willing to participate in any rehabilitative programs recommended and to get involved in any community service for any time period the court finds appropriate.

[23] I agree with Crown counsel’s submission that rehabilitation measures are not suitable in a circumstance where it is not clear what conduct is sought to be rehabilitated. Mr. Iqbal broke into Ms. Fatima’s apartment but it is not at all clear why he did this. There were items in the apartment that he could have stolen besides the knife. But he did not commit a robbery and quickly fled when Ms. Fatima screamed.

Aggravating Factors

[24] The features of Mr. Iqbal’s break and enter fit into what the courts have called a “home invasion”. Courts have described a “home invasion” as a serious and increasingly prevalent crime in our communities. The term home invasion is not defined in the Criminal Code but s. 348.1 of the Code provides some guidance in defining the concept. The factors to consider are:

• the fact that the dwelling-house was occupied at the time of the commission of the offence and that the person in committing the offence.
• knew that or was reckless as to whether the dwelling-house was occupied; and
• used violence or threats of violence to a person or property.

[R. v. S. (J.), 2006 CarswellOnt 3999 (Ont. C.A.)]

[25] Mr. Iqbal’s actions clearly met the description of a home invasion and present an obviously aggravating scenario.

[26] Mr. Iqbal broke into Ms. Fatima’s home around 3:30 a.m. when she was at home alone and in bed with her small children. Her husband was away in Edmonton. I find it is reasonable for Mr. Iqbal to have expected Ms. Fatima and her family to be at home at that hour in the morning. If he did not actually know they would be at home, he was reckless as to whether they would be there when he broke in.

[27] When Ms. Fatima screamed Mr. Iqbal heightened her fear and the fear of her crying daughter by retrieving a knife on the premises and pointing it close to Ms. Fatima’s face and touching the knife on the comforter that covered her. While no direct physical violence occurred, the use of the knife represented a clear threat of violence.

[28] Also aggravating is the fact that Mr. Iqbal has a criminal record for domestic assault from March 2011 for which he received a suspended sentence and probation. That offence was also an assault in relation to a woman. He was also convicted for failure to comply with his suspended sentence and probation and was sentenced to a 12-month consecutive sentence.

[29] While not to be considered an aggravating factor, Mr. Iqbal did not plead guilty and has shown no remorse for his crimes. Offenders are entitled to maintain their innocence. However, Mr. Iqbal will not enjoy the benefit on sentence as a mitigating factor that he would have had with a guilty plea.

The Parties’ Positions

The Crown

[30] Crown counsel seeks a four to five-year prison term. She seeks a mandatory DNA order, and a s. 109 firearm prohibition for life.

[31] The Crown presented cases in which it was determined that penitentiary terms are warranted for home invasions. Those cases recognize the importance of the sanctity and security of the home and that an invasion is all the more egregious when the occupants are at home and there is violence or threats of violence: [R. v. Wright, 2006 O.J. No. 4870, paras. 13 and 14, (Ont. C.A.)].

[32] In R. v. Wright five armed men wearing disguises committed a home invasion at the residence of the complainant intending to rob his business. The robbers forced the complainant into his home and confined all members of his family in the living room for 45 minutes while they threatened to hurt the family and robbed the business. The offender received an 8-year sentence: [R. v. Wright, at para. 16 and 33].

[33] The Court of Appeal in R. v. Wright noted that sentences for home invasion range from 5 to 13 years imprisonment with the high end reserved for cases involving violence or sexual assault. The Court recognized that the length of sentence very much depends on the varying fact situations in the cases: [R. v. Wright, at paras. 18 and 19].

[34] In R. v. Hill the offender committed a home invasion and robbery on the home of an 86-year old blind woman who he confined for several hours, and threatened kicked and choked. The offender received an 8-year prison sentence: [R. v. Hill, [2013] O.J. No. 6043 (Ont. C.A.)].

[35] In a recent case the offender sexually assaulted two women during a home invasion. He was charged with a home invasion, sexual assault with a weapon, unlawful confinement, and possession of proceeds of crime. The offender received a 9-year prison term: [R. v. Hejazi, 2018 ONCA 435 (Ont. C.A.), [2018] O.J. No. 2416 (Ont. C.A.)].

The Defence

[36] In terms of a custodial sentence, defence counsel seeks four consecutive sentences of six months less a day, or a global sentence of two years less four days. Mr. Iqbal served three days pre-trial custody for which he seeks credit on sentencing. He also seeks three years’ probation, and up to 500 hours of community service. He does not oppose the DNA order or firearm prohibition.

[37] The defence presented some cases to the court the facts of which bear no relation to the law or the facts of Mr. Iqbal’s case on sentencing. Two were Federal Court of Appeal immigration removal cases; one case involved a youth and firearm offences; another involved a guilty plea on drug offences; and another case involved a breaking and entering decided by the British Columbia Supreme Court where the facts differ widely from the facts before me. The other cases equally did not assist with sentencing in Mr. Iqbal’s case, one being an Alberta Provincial Court case dealing with parole and sentencing and a further case, a sentencing decision involving different offences and sentencing considerations.

Conclusion

[38] The sentencing principles of denunciation and deterrence are applicable for such serious crimes as a home invasion and assault with a weapon. Applying the proportionality principle, the sentence must be appropriate to the seriousness of the offence. The principle of parity requires a sentence be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances, bearing in mind that sentencing is an individualized process.

[39] In arriving at a fit sentence, I took into account that Mr. Iqbal did not use physical violence against Ms. Fatima. Unlike the cases with higher sentences, he did not break into her apartment with a weapon. He obtained a knife on the premises. Although his intention is not clear, it appears he did not break in intending to use a knife to commit a crime once inside her apartment. He resorted to a knife when Ms. Fatima would not stop screaming.

[40] I find there is no basis on which to impose a sentence which has rehabilitation as a goal. As noted above, it is not clear what Mr. Iqbal’s plan was when he entered Ms. Fatima’s dwelling that morning. It is not clear from defence counsel’s submissions what any rehabilitative measures would be directed to remedy.

[41] Applying the principles to the facts of this case, I find a global sentence of four years’ imprisonment on all charges is a fit sentence, broken down as follows: 3 years for breaking and entering, 6 months for assault with a weapon, 5 months for possession of a weapon and one month for the theft under $5,000.00. The sentences shall be served consecutively.

[42] Credit of 1.5:1 shall be given for the 3 days’ pre-trial custody amounting to 5 days’ credit.

[43] I also impose a mandatory DNA order and a lifetime Criminal Code s. 109 firearm prohibition.

[44] I believe the sentence is in keeping with the governing principles.

[45] To impose a sentence of six months or less for the crimes before the court would be to compromise the fundamental principles of sentencing in favour reducing a risk of deportation. That is not within my proper authority to do.

Sentence

[46] I shall now impose sentence. Muhammad Iqbal, will you please stand?

[47] You have been convicted on the four counts on the indictment: count 1, assault with a weapon, count 2, possession of a weapon, count 3, breaking and entering and count 4, theft under $5,000.00.

[48] I sentence you to a global sentence of four years’ imprisonment on all counts.

[49] The sentences shall be served as follows: 3 years for breaking and entering, 6 months for assault with a weapon, 5 months for possession of a weapon and one month for theft under $5,000.00. The sentences shall be served consecutively.

[50] You shall receive credit of 5 days for the three days’ pre-trial custody you served.

[51] I also make the following ancillary orders: (a) an order for a DNA sample under s. 487.051(1) of the Criminal Code. (b) a firearm prohibition under s. 109 of the Criminal Code.

B.A. ALLEN J.

Released: December 19, 2018