Court File and Parties

Court File No.: 16-RA19457 Date: 2019-06-10 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Applicant And: Naoum Abi-Samra, Respondent

Counsel: A. Kortenaar, for the Applicant N. Weinstein, for the Respondent

Heard: April 2 and 29, 2019 (at Ottawa)

Restriction on Publication

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this application as the complainant may not be published, broadcasted or transmitted in any manner. This application complies with this restriction so that it can be published. By court order made pursuant to section 539 of the Criminal Code, evidence taken at the preliminary inquiry shall not be published in any document or broadcast or transmitted in any way until the end of the trial.

Reasons for Sentence

Before: Kane J.

Convictions

[1] Mr. Abi-Samra at trial was convicted under s. 271(a) of the Criminal Code, R.S.C., 1985, c. C-46 of sexually assaulting S.L. and K.M. who were two 15-year-old female students in his high school mathematics class at the time of the sexual assaults which occurred between January and March, 2016.

[2] The sexual assault of S.L. involved the defendant placing his hand with pressure on her upper thigh on one occasion as he commented upon her math work, even after she responded that she understood his explanation. The defendant on another occasion lifted her lowered arm and placed his hand against her right breast as he looked at the math work she and two other students had written on a white board. The defendant then closed his fingers of that hand into a fist shape but left his closed hand under her arm against her breast. The s. 151 charge of sexual interference as to the above touching was dismissed.

[3] The sexual assault of K.M. involved the defendant placing his hand with pressure on her upper thigh on two or three occasions including once as charged as the complainant and the defendant listened to another student speak. The s. 151 charge of sexual interference as to that touching was dismissed.

[4] The charges of sexually assaulting and sexual interference regarding a third female student were dismissed.

[5] Mr. Abi-Samra pled not guilty to the six charges. The defence called no witnesses at trial.

Position As To Sentence

[6] The Crown submits that on the facts and evidence in this case:

(a) a suspended sentence as sought by the defence is inappropriate; (b) incarceration is the appropriate sentence; (c) the appropriate range of incarceration for these sexual assaults are between 6 to 15 months, and it seeks 12 months incarceration to be followed by 2 years of probation; (d) a primary DNA sample; (e) SOIRA registration for life, being mandatory upon conviction of these two designated offences of sexual assault; (f) a ten year s. 109 weapons prohibition; (g) a ten year s. 161 order prohibiting employment or volunteer activity placing him in a position of trust regarding children under 16 years of age; and (h) a ten year prohibition of contact or communication with children under 16 years of age, unless in the presence of that person’s legal guardian.

[7] The defence seeks a non-custodial sentence for these two convictions of sexual assault.

[8] The defence acknowledges that a conditional sentence is not available upon these convictions for sexual assault, as provided in s. 742.1(f)(iii) of the Code. The defence accordingly is seeking a suspended sentence.

Background

[9] The defendant was born and raised in Lebanon and has resided in Canada since 1999. He is married and has three older children. He is currently 60 years of age.

Pre-Sentence Report

[10] In discussion with the author of the Pre-Sentence Report (the “PSR”), the defendant positively described his childhood, having a religious upbringing, having a positive and close relationship with his parents and extended family members. He obtained a Bachelor and a Master’s degree in mathematics at Beirut University as to which he reported doing well in school, had many friends and a positive relationship with his teachers. He completed a Bachelor of Education in Ottawa and was been employed as a high school teacher of mathematics in the Ottawa area for approximately twelve years before being let go due to the allegations in this case. The defendant advised that he currently has no income and is being financially supported by his three children with whom he has a close relationship.

[11] There is no history of illegal drug use or excessive consumption of alcohol.

[12] The defendant describes himself as family-oriented and dedicated to his family and children who he has raised with good guidance and taught them the importance of respect, hard work and the importance of family and education. He describes himself as a great teacher who had a good relationship with his students and acted as a father figure in helping his students during difficult times. He stated he exceeded the efforts of other teachers in assisting students.

[13] The defendant takes medication for a heart condition. He has experienced feelings of depression including isolation and stayed at home until now since the laying of these charges in 2016.

[14] There is no evidence of breach of conditions since the laying of these charges in 2016.

[15] Mr. Abi-Samra’s three children in the PSR positively describe their father as dedicated, generous, a great parent, who taught them strong positive values including respect towards all, the need to help others, someone who makes a difference in people’s lives, who treats his students as his own children and a very dedicated teacher towards his students. His son-in-law was similarly positive in this description of the defendant.

[16] The defendant as part of the PSR, indicated that he accepts the two convictions in the present case but feels he was misunderstood as he had no sexual or bad intention in touching the two complainants. He states that he can accept and respect how victims feel and acknowledges his actions had a negative impact on them but maintains his intentions were good and he never meant to hurt or make anyone uncomfortable. He apologizes that his actions had an impact on the victims and recognizes that the victims could have perceived his touching as inappropriate.

[17] The sexual touching of these two 15-year-old victims was entirely inappropriate and legally prohibited. It is not simply the complainants’ perception that the sexual touching of them was inappropriate.

[18] The two complainants did not respond to the telephone calls by the author of the PSR. The only collaterals provided to the PSR author were the above family members and Mr. Abi-Samara’s medical doctor. The PSR acknowledges it is therefore less complete and is to that extent one-sided.

[19] With the above qualifications, the PSR concludes that the defendant is a suitable candidate for community supervision with the following recommended conditions, namely to:

(a) report as direct to a Probation Officer; (b) actively participate in any assessment or counselling recommended by the Probation Officer including the execution of any release forms associated with counselling referrals; (c) not associate or communicate, directly or indirectly with either of the two complainants or members and their family nor be within 100 meters of their place of residence, place of employment or education; (d) not be in the presence of females under the age of eighteen except in the company of a trusted adult; and (e) refrain from seeking, obtaining or continuing any employment or volunteer positions that involve being in a position of trust or authority regarding persons under the age of eighteen.

Letters of Support

[20] The defence filed eleven letters of support from former students of the defendant which are very complementary regarding Mr. Abi-Samra, including his effectiveness and dedication as their mathematics high school teacher. The defendant clearly was a talented and effective mathematics teacher who related well with many of his students.

[21] Seven of those support letters from former students are from males. Four are from females. There was no trial evidence as to inappropriate touching of males.

[22] The trial evidence was that Mr. Abi-Samra touched many students at school but the nature of such touching of other students was different from that experienced by the complaints, namely the touching of male students and many female students was less personal and did not, for example, involve touching their faces, upper thighs, their breast or hugging them.

[23] There are no letters of support from former teaching associates.

[24] The fact remains that the defendant was a very qualified and effective mathematics high school teacher who was dedicated to his work.

Victim Impact Statements

[25] Each complainant presented a victim impact statement at the sentence hearing. A confirming statement was filed from one parent of each complainant. A community statement was also filed by the then principal of the high school where the defendant taught mathematics to the two complainants.

[26] In her statement, S.L. indicates this sexual assault at the age of 15 caused and continues to negatively affect her in numerous ways, including:

(a) she cannot understand how the teacher who she looked up to could do this to her; (b) her subsequent attendances as a student in the classroom where she was sexually assaulted caused her to cry, prevented her focussing on the academic course, led to her questioning her ability in mathematics despite the defendant’s former assurances thereof, and caused her hurt, anger and frustration to the point she stopped studying mathematics; (c) the sexual assault of her at age 15 has caused her fear, pain, anger, frustration, terrible memories she is forced to live with, many sleepless nights, caused her to cry many times and emotional distress which have led to her working with a therapist; (d) she is constantly fearful and on guard in public places to ensure that others will not touch her inappropriately; (e) she is fearful of employment where male employees might remind her of the accused, as occurred on one occasion; (f) she is fearful of and is constantly questioning males she encounters as to whether they will touch her as the defendant did, such that she takes cautionary measures to ensure her safety in dealing with some of them; and (g) her attendance to testify at the preliminary inquiry and again particularly at trial when the defendant was present in the same room caused her fear.

[27] The statements by S.L.’s mother indicates S.L. has been receiving psychological counselling for her emotions related to this sexual assault and describes how S.L. sobs when she talks about this sexual abuse.

[28] In her impact statement, K.M. states this sexual assault of her at age 15 continues to negatively affect her in numerous ways, including:

(a) she was sexually assaulted at school which should have been a safe zone, taught her that she is never safe which she continues to believe to be the case; (b) occurred while she was trapped in fear as her mother was dying of cancer and is now deceased; (c) resulted in her feeling victimized, preyed upon and taken advantage of, which led to constant feelings of discomfort, weakness, fragility, oppression and being powerless; (d) resulted in her becoming overcome with stress particularly upon going to school which negatively impacted her commitments to her studies; (e) socially, she became a victim of cruel rumours, mockery, intimidation, experienced nightmares and increased anxiety which led to her inability to trust anyone; and (f) she continues three years later to experience the above negative impacts of this sexual abuse in the form of paranoia and anxiousness, which makes it difficult for her to be positive, to let her guard down and to trust others.

Analysis

Application to Strike S. 271(a) Mandatory Minimum 1 Year Prison Sentence

[29] The defence pursuant to s. 12 of the Canadian Charter of Rights and Freedoms, s 8, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11., brought an application constitutionally challenging the validity of the s. 271(a) minimum punishment of imprisonment for one year for sexual assault of a complainant under the age of 16 years. In support of this application, the defence relies upon the decision in R. v. M. (L.) 2016 ONSC 7082.

[30] This issue will be determined with upon this court’s consideration of the sentencing range and the appropriate sentence in this case.

Sentencing Principles

[31] Section 718 of the Code states that the fundamental purpose of sentencing is to protect society, to contribute to respect for the law and the maintenance of a just, peaceful and safe society by the denunciation of unlawful conduct and the harm it causes by imposing just sanctions with the objectives of:

• denouncing unlawful conduct;
• deterring the offender and others from committing offenses;
• separating offenders from society, where necessary;
• assisting in rehabilitating offenders;
• providing reparations for harm done to victims or the community; and
• promoting a sense of responsibility in offenders and acknowledgement of harm done to victims and/or the community.

[32] S. 718.01 of the Code states that amongst the s. 718 objectives, denunciation and deterrence are the primary considerations in imposing sentence for an offence that involved the abuse of persons under eighteen years of age as in this case.

[33] The primary objectives of denunciation and deterrence and the need to separate sexual predators from society are for the well-being of society and its children is affirmed in several decisions including R. v. Woodward, 2011 ONCA 610, [2011] O.J. No. 4216 (C.A.), para 76.

[34] Regardless of the definition of predator as referred to in Woodward, it was these otherwise attractive female high school students in this case that were intimately being touched by the defendant and the male and other female students in their class.

[35] Section 718.1 requires the sentence to be proportional to the gravity of the offence and the degree of responsibility of the offender, thereby requiring a review of comparable sentencing case law.

[36] The defence submits the gravity of these sexual assaults is at the lower end of sexual assaults. That is true to the extent there are other cases of more intimate and invasive acts of sexual assault.

[37] The defence submits that degree of responsibility is equivalent to “moral culpability” as to which this court made no finding of fact as it determined that the Crown had failed to prove on the criminal standard that the defendant intentionally touched each of the two complainants for a sexual purpose. The defence submits that the absence of this evidence as to moral culpability results in these sexual assaults being of a less serious or less morally culpable nature. I disagree with this conclusion.

[38] The Supreme Court in R. v. Chase, 1987 SCC 23, [1987] 2 S.C.R. 293, p. 302, affirmed R. v. V. (K.B.), [1992] O.J. No. 561 (C.A.) para 22, and stated that the intention of a person doing the touching is but one of all of the circumstances to consider in determining whether the act is a sexual assault. Other circumstances to consider include but are not limited to:

(a) the part of the body touched; (b) the nature of the contact; (c) the situation in which it occurred; (d) any accompanying words and gestures; (e) any threats; and (f) any application of force.

[39] The presence or absence of intention to touch for a sexual purpose relates to the determination whether a sexual assault occurred. A determination that there was such sexual purpose intention is an aggravating factor on sentencing for sexual assault. The absence of a determination that the touching was for a sexual purpose because the circumstantial evidence thereon was insufficient on a criminal standard results in the absence of that circumstance as an aggravating factor. That does not reduce the seriousness of a sexual assault offence nor reduce the appropriate severity of a sentence which are to be determined upon all other circumstances: R. v. Chase p. 302 and V. (K.B.), paras 10, 15 and 22.

[40] Numerous courts have emphasized the need to deter sexual misconduct against children and the harm caused to those victims which increases with the severity of the misconduct: R. v. D. D., 2002 ONCA 1061, [2002] O.J. No. 1061 (C.A.), paras. 34-37, Woodward, para. 72 and R. v. Hajar, 2016 ONSC 6094, [2016] O.J. 5886 (S.C.J.), paras. 62, 67 and 68.

[41] The breach of trust by a teacher is considered particularly serious: R. v. Bedard, [2006] O.J. No. 5886 (S.C.J.) para. 13, aff’d [2007] O.J. No. 4884 (C.A.)](https://www.canlii.org/en/on/onca/doc/2007/2007onca840/2007onca840.html) and R. v. Forde, [1992] O.J. No. 1698 (Gen. Div.), p. 2-5.

[42] The other principles pursuant to s. 718.2 to be considered in determining sentence in this case are:

(a) aggravating or mitigating circumstances related to the offence or the offender which should increase or reduce the sentence; (b) aggravating circumstances in the commission of the offence include the abuse of a person under the age of eighteen years, abusing a position of trust or authority in relation to a victim, evidence that the offence had a significant impact on the victim considering their age or other personal circumstances; (c) the sentence should be similar to those of similar offenders for similar offenses and circumstances; the accused should not be deprived of liberty on sentencing if less restrictive sanctions in the circumstances are appropriate; and (d) sanctions other than imprisonment, if reasonable in the circumstances and consistent with the harm done to victims or the community, should be considered.

[43] The level of harm stated by these two victims endures three years later, their younger age at the time, the breach of trust by this teacher and the normal safety inside a school where these assaults occurred confirm the serious level of these sexual assaults.

Aggravating Factors

[44] Aggravating factors include the position of trust and authority of this or any high school teacher and the then young age of each complainant. Those two factors made these complainants more trusting and vulnerable because this was their teacher who was in a position of trust and authority, who would judge their academic performance and success in this subject and who because of their age, may be more negatively impacted by such sexual assault by this authority figure than might an older, perhaps more experienced and self-assured female in a relationship which did not involve a position of trust, authority and subordination.

[45] Aggravation includes the fact that:

(a) there are two assault victims and three combined sexual assaults; (b) the intimate parts of the bodies touched; (c) the now three year ongoing negative impact of these assaults on the victims; (d) the mother of one of the victims was dying of cancer at the time of the sexual assault which made the victim more vulnerable and susceptible to harm from the sexual assault; (e) these three sexual assaults were not the only or isolated acts of touching the victims by the defendant. The defendant stroked K.M.’s face, drew a heart on her paper and stated he would like to kiss her. The defendant very often twirled S.L.’s hair and stroked her face; and (f) these sexual assaults occurred in a school which should be a safe environment during an academic program which involved no physical activity which might otherwise lead to touching by a teacher.

Mitigating Factors

[46] Although not diminishing the gravity of these sexual assaults, there are more forceful acts of sexual assault.

[47] The evidence is clear that Mr. Abi-Samra was a talented, popular and otherwise successful teacher. I acknowledge that many students benefited from Mr. Abi-Samra’s commitment and ability as a teacher. Success in one’s profession is and should not necessarily be a mitigating factor as to the sentencing for the criminal misconduct in issue, particularly given the dependant position and young age of these victims.

[48] Mr. Abi-Samra made a qualified apology in the PSR that his touching in issue, although not intended as such, could have been interpreted or understood by the complainants as being inappropriate. This is not a mitigating factor for the reasons stated below.

[49] Mr. Abi-Samra lost his employment as a teacher and although his Master’s degree in mathematics may present future employment opportunities, he has been unemployed since 2016, lost that income and pension credits and likely will be unable to teach school children again. He has also suffered emotionally as a result of these charges and the trial thereof.

[50] The court, despite noting the circumstantial evidence as to what the defendant’s intention may have been in committing these sexual assaults, concluded that it was not satisfied on a criminal standard that the defendant’s sexual assaults were intended for a sexual purpose, which is an essential element under s. 151. The absence of such determination excludes touching for a sexual purpose as an aggravating factor.

[51] To be clear however, the court did not determine that Mr. Abi-Samra had no such intention, as determined in R. v. Cook, 2006 ONCJ 470 p. 17 and 22.

[52] The defendant’s intention therefore as to these sexual assaults remained undetermined.

Criminal Record

[53] On February 25, 2019, Mr. Abi-Samra pled guilty and was convicted of assaulting J.M. in 2009 under s 266 of the Criminal Code, for which he received a suspended sentence with twelve months of probation.

[54] That February 2019 conviction does not constitute a prior criminal record as to this sentencing for these December 28, 2019 convictions of sexual assault which occurred in 2016: Sentencing, 9th Ed. (Ruby, Chan, Hasan), (“Sentencing, 9th Ed.”) para. 8.79 and R. v. Skolnick, 1982 SCC 47 at p. 58-59.

[55] The conduct which led to his guilty plea and conviction for assaulting J.M. remains relevant as to Mr. Abi-Samra’s current reliance upon his teaching performance and his good character as mitigating factors on this sentencing.

[56] The court accordingly agrees with the following submissions of the defendant that the February 25, 2019, conviction for the November, 2009 assault of J.M.:

(a) is not a prior conviction on this sentencing, thereby increasing the gravity of the sentence as to sexually assaulting these two young female students, as the defendant was neither convicted nor sentenced as to his assault of J.M. before committing the 2016 sexual assault of the two students under consideration; and (b) the assault of J.M. is relevant and may be considered in reviewing the character of the defendant, the extent to which there has been any rehabilitation, the likelihood of future rehabilitation, the extent to which the defendant is likely to be deterred by the fact of conviction, brief incarceration or a term of probation and the extent to which incarceration is appropriate for the protection of the public against the commission of future similar offenses by the defendant.

[57] The 2009 conduct of Mr. Abi-Samra towards J.M. which led to his plea of guilty to the included offence of assault on February 25, 2019, while not constituting a prior criminal record, is relevant in regards to the above factors regarding the defendant and his submission and current reliance upon his lengthy successful past performance as a teacher as a mitigating factor on this sentencing and as to his PSR statement that his touching of these two young victims was regrettably misinterpreted.

[58] J.M. in 2009 was a younger teacher in the same school mathematics department headed up by Mr. Abi-Samra.

[59] According to the statement of facts introduced on February 25, 2019, the defendant hugged J.M. at a school social event in October 2009 and in doing so placed his hand on her buttocks. Several weeks later, J.M. hugged the defendant in response to some assistance he had provided to her, whereupon he placed his hands on and squeezed her buttocks.

[60] J.M. reported this inappropriate touching of her buttocks by the defendant to their employer. The employer initiated disciplinary proceedings against the defendant which included mediation and the requirement that the defendant complete training as to his conduct.

[61] The defendant’s touching of J.M. was not reported to police in 2009. That did not occur until the complainants in this case reported being sexually assaulted by the defendant to school authorities and then police in 2016.

[62] The defendant was thereupon charged with sexually assaulting J.M. between October 1 and November 30, 2009 and sexually assaulting the victims in 2016. The charge related to J.M. proceeded separately.

[63] Mr. Abi-Samra was convicted of the two counts of sexual assault now before this Court on December 28, 2018. Submissions as to sentence proceeded on April 2 and 29, 2019. During those submissions, this Court was advised that:

Mr. Abi-Samra on February 25, 2019, pled not guilty to the charge of sexually assaulting J.M. but guilty to the lesser and included offence of assault as to the second incident of his touching her buttocks. That other court accepted that the joint submission as to sentence regarding the guilty plea of assault and imposed a suspended sentence pursuant to s. 731, together with 12 months of probation.

[64] Independent of any criminal charge, conviction and sentencing thereof, J.M. reported inappropriate touching by Mr. Abi-Samra to their joint employer in 2009. That employer responded by requiring Mr. Abi-Samra to participate in mediation and to complete training as to his conduct. Mr. Abi-Samra from that experience knew or should have known long before sexually assaulting these two students in 2016 that inappropriate touching of females at school was unacceptable to his employer and if repeated, would or could likely lead to further intervention and disciplinary corrective action by his employer. This 2009 experience with his employer, whether or not justified, was part of the defendant’s information base underlying his character in 2016 when he sexually assaulted these victims.

[65] The actions constituting the assault of J.M. in 2009 indicate that his touching of these victims in 2016 were not actions out of character by Mr. Abi-Samra.

Remorse and Risk of Future Similar Conduct

[66] There is no evidence of remorse in the form of a guilty plea or statement of such by the defendant at the conclusion of the sentencing submissions. There is no legal requirement as to either.

[67] The evidence of remorse relied upon by the defence is Mr. Abi-Samra’s following statement in the PSR:

He advised that he accepts the convictions and what was said in court, however, he stated that he feels sad he was misunderstood as he had no sexual or bad intentions he stated that he can accept and respect how they feel and acknowledges his actions had a negative impact on them, but maintain that his intentions were good and that he never meant to hurt or make anyone uncomfortable. He added that he is sorry his actions had that impact on them and recognizes that they could have been perceived as inappropriate. (emphasis added)

[68] Mr. Ab-Samra, as is his right, did not testify at trial. Evidence as to intention regarding a charge for which he has been convicted, cannot be introduced through the PSR: R. v. Brown, 1985 MBCA 241, 1985 CarswellMan 241 (C.A.) paras 31 and 32. His intention is not an essential element on a charge of sexual assault of which he was convicted.

[69] Sentencing, 9th Ed., as to matters that should not be in a PSR states:

3.209 The facts relating to the offence for which the offender is to be sentenced, ………, ought not to be included in any presentence report.

3.212 Similarly, it has been suggested that statements inconsistent with the finding of the court in respect of guilt ought not to be included. …

[70] Mr. Abi-Samra’s above statement that his touching of these two victims was not for a sexual purpose broadly relates to the touching or offences for which he is to be sentenced, but is not inconsistent with the court’s determination that the sexual purpose of such touching was not an essential element as to sexual assault charges and was not proven beyond a reasonable doubt as to the s. 151 charges.

[71] The defendant’s above statements as to having no sexual purpose does not on these authorities prohibit the court’s consideration of his PSR statement.

[72] Although not proven on a criminal standard at trial, there was some circumstantial evidence supporting the Crown’s then position that the sexual assault touching of these victims was done for a sexual purpose. That issue once again remains undetermined.

[73] The defendant was convicted of two charges of sexual assault of two young girls as he had intentionally applied force of a sexual nature when he placed his hand on the upper thigh of each victim and for placing his hand on the side of the breast of one of the victims.

[74] These two convictions of sexual assault, independent of whatever the defendant’s intentions were, are based on his illegal sexual touching, which were correctly understood as such by the complainants.

[75] These sexual assaults were illegal conduct in fact. Those sexual assaults are not limited simply to the perception by the victims, who in any event, accurately perceived the touching as sexually inappropriate.

[76] Mr. Abi-Samra’s emphasis in his PSR statement that he never intended anything improper in so touching the complainants sidesteps his culpability for his sexual assault of these young girls. The defendant’s above PSR apology is thereby qualified and does not acknowledge his misconduct independent of his intention.

[77] The inability to admit that his touching of these young girls was inappropriate and criminally wrong, regardless of whatever his intent may have been, is a relevant consideration as to the issues of rehabilitation and the risk of further offence, particularly in light of the evidence of:

(a) the other occasions of uncharged, and even if not criminal misconduct, inappropriate touching of these two students as indicated in paras. 29 to 44 and 82, 84, and 87 of the trial decision; and (b) despite the employer’s 2009 discipline of the defendant for his touching of J.M.

[78] The physical inappropriate touching of these victims and of J.M. is to that extent related.

[79] The defendant’s qualified apology in the PSR does not acknowledge the underlying problem, namely that regardless of his intention, he is prohibited from touching females and particularly young females, in an inappropriate or sexual manner.

[80] The risk is that Mr. Abi-Samra continues to believe that his touching of females remains a question of interpretation and does not constitute wrongdoing if he, subjectively, had no improper motive.

[81] There remains a risk of similar future inappropriate touching of females which relates to denunciation and rehabilitation.

Appropriate Sentencing Principles

[82] Appellate courts have repeatedly stated as to the sexual assault of children that:

(a) children are our most valued and vulnerable asset; (b) society is obliged to protect children; (c) younger children are very susceptible to abuse as they are easy prey; (d) recognized damage to children caused by such sexual misconduct includes immediate physical and/or psychological harm thereby causing injury including their subsequent difficulty as adults to form a loving and caring relationship; (e) such abused children are prone to become adult abusers; (f) denunciation and deterrence including the need to separate offenders from society, absent exceptional circumstances, take precedent over the other recognized sentencing objectives in the case of adult predators; and (g) adult predators who seduce and violate young children must face the prospective of a significant period of incarceration: R. v. Woodward, 2011 ONCA 610, [2011] O.J. No. 4216 (C.A.), paras. 72, 75 and 76, R. v. D.D., 2002 ONCA 1061, [2002] O.J. No. 1061 (C.A.), paras 34 to 38 and R. v. Hajar, 2016 ONSC 6094, [2016] O.J. 5886 (S.C.J.), paras 63, 66 and 67.

[83] The above principles apply in this case.

[84] The word predator encompasses a broad spectrum of misconduct. There are many cases such as Woodward and D.D. of more direct predatory behaviour than occurred in this case. The intimate touching however in this case was of selective attractive female students, not all females and not males. Such touching of these victims occurred despite the prior intervention and discipline of the defendant by his employer some 7 years earlier for his touching of a female teacher.

[85] I would not classify this defendant as a predator however his repetitive touching misconduct indicates a serious pattern.

Authorities as to Sentence

Crown Cases

[86] The Crown relies upon the following case law as to sentencing principles and in support of its position as to the appropriate sentence in this case. In particular, the Crown relies upon several decisions which involved teachers as to the 12-month period of incarceration now sought.

[87] R. v. Bedard, [2007] O.J. No. 4884 (C.A.) involved touching under the victim’s clothing. The sentence of 9 months incarceration was upheld on appeal. The nature of the touching in Bedard was more intrusive than the facts in this case resulting in a higher sentence.

[88] The court in Bedard noted the sexual assault and interference was a serious breach of the parents’ and the communities’ delegated position of trust to a teacher, and that denunciation of such breach warranted a harsh sentence.

[89] Bedard also involved grooming. Grooming can take various forms. Although less direct, grooming can include creating repeated physically close proximity occasions and a resulting relationship with the victim as in this case as these students strived to improve their mathematics performance in order to avoid scholastic failure.

[90] Mr. Bedard was sentenced to 9 month incarceration for both sexual assault and for sexual interference. That contradicts Mr. Abi-Samra’s submission that these sexual assault convictions justify a suspended sentence because this court did not, on a criminal standard, determine such acts, pursuant to s. 151, were done for a sexual purpose.

[91] Despite the above differences, the reasoning in Bedard contradicts a suspended sentence as appropriate in the present case.

[92] The sentence of 4 months incarceration and 3 years of probation in R. v. Forde, [1992] O.J. No. 1698 (Gen. Div.), was for two s. 153 convictions of sexual exploitation by a teacher of two students, aged 16 and 14. The misconduct in Forde developed into full sexual relationships. The sexual misconduct in Forde was clearly more invasive than in the present case.

[93] The Court of Appeal in Forde stated that adolescents depend upon adults establishing boundaries, are extremely vulnerable to adults in a position of trust and that any breach of that trust is serious. Mr. Abi Samra breached his trust position with these students.

[94] The conditional sentence of 2 years less a day at trial in R. v. Cromien, 2002 ONCA 354, [2002] O.J. 354 (Ont. C. A.) for a then s. 156 indecent assault conviction, was increased on appeal to incarceration for 2 years less 1 day.

[95] The defendant in Cromien was a priest and pled guilty. The victim was a 13-year-old altar boy. The sexual misconduct over three years included masturbation, oral sex and attempted anal intercourse. That is more serious sexual misconduct that in the present case.

[96] The Court of Appeal in Cromien stated that the defendant’s expression of remorse involved damage control more than general contrition. There is some similarity to the qualified acknowledgement of wrongdoing and remorse by the defendant as contained in the PSR in the present case.

[97] The high school teacher in R. v. Graziano, 2015 ONCA 491, was convicted of sexual interference and sexual assault of a 14-year-old student and was sentenced to six months incarceration. The teacher on one occasion in response to assisting the student suggested the student was thereby indebted to the teacher and should masturbate the teacher. On another occasion, the teacher asked the student as to the size of his penis and asked to see the victim’s penis. The student said no. The teacher then touched the victim’s penis over his clothes. This is more overt sexual misconduct warranting the six months incarceration and supports a lower sentence in this case.

[98] The defendant’s elementary school custodian in R. v. Aquitania, 2014 ABPC 240, [2014] A.J. No 641, pled guilty to sexual assault of a 12-year-old female student who the defendant hugged and kissed on three occasions. He also pulled down the victim’s shirt to expose her cleavage on another occasion. The defendant was sentenced to six months incarceration and two years of probation. That court determined that the sexual misconduct was less severe however there was a high position of trust involving a young victim.

[99] The court in Aquitania held that the breach of trust by a parent or teacher is likely to have a greater effect on a child and was worse given the breach of trust by that custodial defendant.

[100] The present case involves two somewhat older victims and less invasive sexual misconduct which supports a lower sentence in this case.

[101] The defendant in R. v. Rao, 2017 ONSC 5696, [2017] O.J. 5696 (S.C.J), was not a teacher but an adult who accompanied and cared for a 14-year-old on a school trip during which, on one occasion, he fondled the breasts of the victim over her clothing and then massaged them under her clothing. The defendant was sentenced to 10 months incarceration followed by 12 months of probation. That sexual misconduct is more overt and invasive than in the present case thus warranting a lower sentence in this case.

Defence Cases

[102] The court in R. v. Cook, 2006 ONCJ 470, 2006 OJ No. 4701, granted a one year conditional sentence. That court acknowledged that sexual assault involving a breach of trust by that teacher as a general rule warranted a custodial sentence. That court determined the appropriate sentence for the sexual assault of the two boys was one year incarceration however that sentence was to be served in the community, including 30 days of house arrest.

[103] In reaching that conclusion, that court had no victim impact statements as to the harm caused, which this court has.

[104] The court in Cook held that placement of the catheter on the penis of the students as part of the mock operation “was done in a good faith effort to improve the mock operation” which was part of the academic course. No such determination was made as to the sexual assaults in the present case.

[105] The court in Cook placed great weight on that defendant’s impressive academic and professional achievements as confirmed by his former colleagues, his contributions as a community volunteer and his testified understanding of his position of trust and authority with the resulting responsibility associated thereto.

[106] My concern whether Mr. Abi-Samra’s fully appreciates his wrongdoing in this case independent of whether his touching was for a sexual purpose, leaves the court with less risk assurance as to the future.

[107] Sentencing should not be determined based upon one’s professional success as that risks leading to a double standard of harsher sentences for those with less successful careers.

[108] Convicted persons with successful careers and the not uncommon assets associated to that success may risk losing more financially than a less successful convicted accused. Career success may provide financial capacity to contribute more than other convicted persons were able to. Successful careers however are often the result of a combination of factors which can include abilities from birth, educational opportunities and occasionally some good luck.

[109] This risk of a double standard warrants caution in considering career success and losses upon sentencing.

[110] The decision in Cook is not comparable for the above reasons.

[111] R. v. Corbett, 2008 CarswellOnt 8860, involved one student and one occurrence of rubbing the student’s foot and leg towards but without touching the groin area. The court in Corbett interpreted the defendant’s guilty plea as a sign of his remorse.

[112] The court in Corbett granted a 15 month suspended sentence while on probation, for conviction of one count of s. 271 sexual assault.

[113] A victim impact statement addressing the level of harm is not mentioned.

[114] The nature of the touching, the number of occasions and the number of victims in the present case are more serious than in Corbett thereby distinguishing that case.

[115] The defendant in R. v. D.L., 2018 ONSC 3409, was sentenced to 6 months incarceration less 1 day, plus 2 years of probation for convictions under s. 151. The convictions under s. 271 were stayed. D.L. had touched the vagina of a 6 year old twice on one day.

[116] The court in D.L. noted that the former minimum sentences demonstrated the need of incarceration: para 35.

[117] The very young age of the victim and the touching of the vagina on two occasions in D.L. warranted a more serious sentence than in this case.

[118] The defendant teacher in R. v. Semchuk, 2011 BCSC 1553, was given a suspended sentence and 2 years of probation upon conviction of sexual assault for rubbing the back and then the chest of a 9 year old student once.

[119] The court in Semchuk, like Corbett, accepted the joint submission of a suspended sentence and two years of probation.

[120] I recognize the court’s responsibility to satisfy itself as to the appropriateness of a joint submission as to sentence however, as demonstrated in the sentencing decisions submitted, judges have discretion in determining the appropriate sentence. A judge is also conscious that counsel often are more knowledgeable about the parties and the strengths and weaknesses of the case should it proceed to trial. There should be concrete reasons for a court’s rejection of an otherwise reasonable joint submission as to sentence.

[121] The number of victims and occurrences are higher in the present case as compared to Semchuk thereby supporting a more severe sentence.

[122] R. v. K.R.S. involved one 18-year-old victim and one occasion of the defendant rubbing her leg and then giving her an intrusive kiss. That resulted in a sexual assault conviction and a suspended sentence plus 12 months of probation. The younger ages, the number of victims, the sexual nature of the touching and the number of occurrences are more serious in the present case.

[123] The court in R. v. Anderson, 2017 ONSC 1322 granted a six month conditional sentence for sexual assault of one 16 year old victim, 18 months conditional sentence for sexual assault and sexual interference of a second 16-year-old victim and a 30 day intermittent sentence for two sexual assaults of the 24-year-old third victim. The misconduct by the defendant photographer during photo sessions involved him:

(a) pulling the underwear open of the first victim to look at his penis; (b) lowering the underwear and attempting to arouse and masturbate the second victim for five minutes; and (c) adjusted the penis of the third victim on one occasion and rubbed that penis over and then under the clothing on another occasion for five minutes.

[124] Conditional sentences are no longer available in this case. The basis of the 18 month conditional sentence as to the second victim in Anderson is unclear.

Appropriate Sentence

[125] The caselaw from the Crown and from the defence, respectively, exceed and understate the nature and severity of the sexual assaults of these victims.

[126] The appropriate sentence in the present case given there are two 15-year-old victims, three occurrences of sexual assault, the intimate nature of that touching, the continuing harm to the victims after three years and the important breach of trust as a teacher during school is two months incarceration followed by two years of probation.

[127] Incarceration for any period of time is severe. Two months of incarceration is appropriate and severe.

Application to Strike S. 271(a) Mandatory Minimum 1 Year Prison Sentence

[128] The appropriate sentence of 2 months incarceration in this case is below the 1 year minimum period of incarceration currently required pursuant to s. 271(1) for sexual assault given the age of these victims.

[129] The Crown, while reserving its discretion to argue the issue in other courts, does not oppose the defence application in this case if this sentencing below 1 year is determined before the Court of the Appeal has ruled upon the constitutionally of the similar mandatory minimum 1 year sentences under s. 151(a) in R. v. B.J.T., 2016 ONSC 6616. That ruling remained undetermined.

[130] The court in R. v. B.J.T., 2016 ONSC 6616 sentenced the defendant to 1 day and 9 months incarceration upon conviction of two charges under s. 151 and granted a stay of the two convictions under the s. 271 convictions. The defendant upon request shaved the pubic area, commented upon and digitally penetrated his daughter who was 13 and then 15-years-old.

[131] The court in B.J.T. articulated the principles and approach on an application to strike a mandatory minimum sentence and declared that the mandatory minimum sentence of 1 year under s. 151 in the circumstances of that case resulted in a violation of s. 12 of the Charter of Rights and Freedoms and was therefore invalid: paras 41 to 50.

[132] The Crown points to the similar conclusion reached in R. v. M.L., 2016 ONSC 5864, O.J. No. 5864 (S.C.J.) and the determination that such authority is binding on this court, as decided in R. v. Sarmales, 2017 ONSC 1869, R. v. Hussein, 2018 ONSC 4202 and R. v. Ali, 2017 ONSC 4531.

[133] The minimum sentence of imprisonment for 1 year contained in s. 151(a) and s. 271(a) are virtually identical. Each section involves reprehensible misconduct particularly in the case of children and breaches of positions of trust.

[134] One year incarceration in the present case would be excessive. There are hypothetically many similar fact scenarios in which a one year custodial sentence would be excessive in other cases involving charges under s. 271 dependent upon the facts in those cases.

[135] Given the similarities between sections 151(a) and 271(a) on this issue and the fact that the convictions in this case warrant a custodial sentence below 12 months, the court adopts the reasoning in the above four decisions in concluding that the 1 year minimum sentence in s. 271(a) is constitutional invalid pursuant to section 12 of the Charter and is therefore of no force and effect pursuant to s. 52(1) of the Constitution Act, 1982.

Conclusion

[136] Mr. Abi-Samra is sentenced as follows:

(a) two months incarceration to be served intermittently between Friday at 6 PM until Monday at 6 AM and commencing on Friday, May 31, 2019; (b) plus two years of probation, including the periods in between the periods of serving his intermittent sentence, which probation shall include the following terms and conditions: i. to report regularly to a probation officer; ii. to attend counselling for sexual behaviour as directed by the probation officer; and iii. to have no contact of any kind with K.M. or S.L. and not knowingly be within 100 meters of either of them; (c) the requirement to provide a DNA sample; (d) a lifetime SOIRA registration; (e) a ten year s. 109 weapons prohibition; and (f) a ten year s. 161 order that he: i. not seek, obtain or continuing any employment, with or without remuneration, or be a volunteer, if such employment or volunteer activity involves being in a position of trust or authority towards persons under the age of sixteen years; and ii. have no contact of any kind with the person under sixteen years of age except in the presence of that child legal guardian.

Released: June 10, 2019 Paul Kane J.