Court File and Parties

COURT FILE NO.: CR-16-RD19615 DATE: 2020/05/22 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen – and – Hussein Ali Kelkas

Counsel: Aquilas Kapend for Her Majesty the Queen Self-Represented Biagio DelGreco, amicus

HEARD: May 19, 2020 (Ottawa)

REASONS FOR DECISION - SENTENCING (RENDERED by AUDIO LINK ON May 22, 2020)

Pursuant to s. 486.4 of the Criminal Code there is a continuing order in place making it an offence for any person to publish information that might lead to disclosure of the identities of the complainants.

O’Bonsawin J.

Overview

[1] On March 4, 2020, I found Mr. Kelkas guilty of three charges of sexually assaulting two complainants, Ms. G and Ms. A.

[2] By way of background, Ms. G is currently 26 years old and Ms. A is 22 years old. Mr. Kelkas is 33 years old. I found that Mr. Kelkas sexually assaulted Ms. G when he penetrated her vaginally without her consent. I also found that Mr. Kelkas sexually assaulted Ms. A on two occasions: on the first, he forced anal penetration and on the second, he penetrated her vaginally, both without her consent.

Circumstances of Mr. Kelkas

[3] Mr. Kelkas was born in Lebanon and moved to Canada when he was 12 or 13 years old. He has been in a relationship with his partner for the past three and a half years and has one daughter from a past relationship. He has family support by way of his mother, sister and partner. Mr. Kelkas is a mechanic and has continued to work, even through the current pandemic.

Impact on Ms. G

[4] Ms. G provided a Victim Impact Statement at the sentencing hearing that was read into the record by the Crown. Ms. G was present for the hearing. She describes how Mr. Kelkas’ sexual assault has impacted her emotionally, physically and economically. “It has echoes in my life like a large stone thrown into a pond, rippling outward and outward: the waves of it have affected me emotionally, physically, economically and psychologically, time after time.” The fact that Mr. Kelkas sexually assaulted Ms. G in her own home has had a very detrimental effect on her. After Ms. G was sexually assaulted by Mr. Kelkas, she turned to excessive drinking and unsafe, unhealthy and out of character behaviour in other relationships. The STD and HIV medications she was provided made her ill.

[5] On two occasions, Ms. G incurred costs because she had to cancel her Dental Board Certification exams that are only held every four months. In addition, she lost wages because she was not able to enter the work force earlier. She incurred costs related to the charges against Mr. Kelkas: unpaid time off work to attend hearings, etc. Ms. G also lost motivation to build on her success.

[6] Ms. G ended her Victim Impact Statement with powerful comments:

I want you to know, that despite costing my life in so many ways, I forgive you. By no means to excuse or pardon what you’ve done, but so that I no longer need to carry with me the hate and resentment which takes so much energy. My soul is tired of carrying it any further, and deserves peace. Forgiveness is not an attribute to the weak, but of the strong, and the greatest gift I can give myself.

Impact on Ms. A

[7] Ms. A provided a Victim Impact Statement at the sentencing hearing that was read into the record by the Crown. Ms. A was present for the hearing. She describes how Mr. Kelkas’s sexual assaults have “stolen almost every special moment in my life that was supposed to be happy. You have ruined and affected my growth and time after highschool”. Ms. A has suffered from anxiety that left her unable to get out of bed and shower. At one point, she felt like life was not worth living anymore and was confused for years.

[8] Ms. A found out she was required to attend the pre-trial just one week prior to her wedding day. Ms. A is now married and pregnant with a son. Her joy of being pregnant has at times been overtaken by her anxiety related to this matter.

[9] Ms. A also ended her Victim Impact Statement with powerful comments: “As of today, I am no longer a victim of your disgusting attacks Hussein. I am a survivor. Knowing that I was able to dig myself – with lots of hard hard work – out of this deep dark hole you have put me in, means I can conquer anything life throws my way from now on.”

Evidence

[10] Seven exhibits were provided at this hearing: Mr. Kelkas’s criminal record, Dr. Gray’s Sexual Behaviours Assessment Report dated March 30, 2020, Ms. G and Ms. A’s Victim Impact Statements and letters of support from Mr. Kelkas’s mother, sister and partner.

[11] Mr. Kelkas has a criminal record for obstructing a peace officer in 2010 and failing to appear in 2011.

[12] Dr. Gray’s report states that Mr. Kelkas described having dating relationships with the complainants that lasted a few weeks. Dr. Gray notes that since Mr. Kelkas scored high on the self-deceptive enhancement subscale, his total score was highly elevated. “Because of this high total score, his responses to self-reported questionnaires should be taken with a degree of caution” (Dr. Gray Report, p. 9). Notwithstanding, Dr. Gray concludes that Mr. Kelkas is at an average relative risk level to reoffend as compared to other sexual offenders. Dr. Gray finds that

Mr. Kelkas’ pattern of behaviour constituting the index offences does not suggest a psychiatric diagnosis in the sexual disorders category of the DSM-5. Rather, he acted out due to a combination of opportunity, willful blindness to the effects of his actions on his victims, and likely underlying cognitive distortions around women and consent in the context of sexual activities. In order to help reduce his risk of reoffence, the main area of need for Mr. Kelkas is in his cognitive distortions in the area of women and sexuality (Dr. Gray Report, p. 16).

[13] Dr. Gray also notes that if Mr. Kelkas is sentenced to a federal term of incarceration, he will be recommended for sexual offender treatment groups due to his multiple convictions of sexual offences and due to the fact he is not at a low risk to reoffend. Dr. Gray offers that Mr. Kelkas could attend the Sexual Behaviours Clinic at the Royal Ottawa Mental Health Centre upon his release from incarceration. However, he does not recommend attendance at the Clinic be made a mandatory condition of release.

[14] The letters of support from Mr. Kelkas’s family and partner describe him as someone who has had to overcome obstacles in his life; he is hardworking, thoughtful, helpful, family oriented and a loving father and partner.

Position of the Parties

[15] The parties have presented with a joint position. They seek a sentence of five and a half years of penitentiary less credit for pre-sentence custody of 32 days.

[16] In addition, the Crown seeks, and the Defence agrees to the following orders:

• a mandatory DNA order;
• registration as per the Sex Offender Information Registration Act, S.C. 2004, c. 10, which applies for a period of life;
• weapons prohibition for life; and
• non-communication order with Ms. G and Ms. A.

Sentence as per Section 271 of the Code

[17] I must sentence Mr. Kelkas as per the applicable sections of the Criminal Code, R.S.C., 1985, c. C-46. There is no mandatory minimum sentence for s. 271 of the Code. The maximum sentence for s. 271 is of ten years.

Factors to be Considered Regarding Sentencing

[18] I will review the factors to be considered regarding sentencing. The sentencing principles according to s. 718 of the Code are denunciation, deterrence, rehabilitation and the protection of society. More specifically, according to s. 718 of the Code, the purpose and principles of sentencing are to:

• denounce unlawful conduct and the harm done to victims or to the community;
• deter the offender and other persons from committing offences;
• separate offenders from society, where necessary;
• assist in rehabilitating offenders;
• provide reparations for harm done to victims or to the community; and
• to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[19] Section 718.1 of the Code provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[20] Section 718.2 of the Code lists other sentencing principles that are relevant in this matter, such as:

• a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
• where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
• an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
• all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to the victims or to the community should be considered for all offenders.

Mitigating and Aggravating Factors

[21] In Mr. Kelkas’ case, the fact that he has a supportive family can be considered a mitigating factor.

[22] The aggravating factors in this matter are as follows:

• Mr. Kelkas threatened violence and penetrated Ms. G’s vagina with his penis;
• Mr. Kelkas anally penetrated Ms. A;
• Mr. Kelkas threatened violence and penetrated Ms. A’s vagina with his penis;
• Mr. Kelkas ejaculated without a condom onto Ms. A’s chest;
• Mr. Kelkas’ criminal record; and
• Ms. G and Ms. A suffered physical and emotional harm as a result of these offences.

Caselaw

[23] I will turn to the caselaw. The Crown refers me to the following cases: R. v. Paulin, 2011 ONSC 5027, R. v. G (T.L.), 2006 ABCA 313, 214 C.C.C. (3d) 353, R. v. Profit, [1993] 3 S.C.R. 637, R. v. Thurairajah, 2008 ONCA 91, 229 C.C.C. (3d) 331, R. v. Garrett, 2014 ONCA 734, and R. v. O.B..

[24] In R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, the Supreme Court provided the following helpful guiding points for sentencing judges:

• the inquiry must focus on the fundamental principle of proportionality;
• individualization and parity of sentences must be reconciled for a sentence to be proportionate;
• the trial judge must properly weigh the various principles and objectives of s. 718;
• sentencing is an inherently individualized process;
• sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve as guides for the application of all the relevant principles and objectives;
• sentencing ranges should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion; and
• sentencing ranges are primarily guidelines, and not hard and fast rules.

Analysis

[25] At the time in question, Mr. Kelkas and Ms. G were in the early stages of dating. The same could be said with regards to Mr. Kelkas and Ms. A. Mr. Kelkas intimidated both complainants and they felt scared when they were sexually assaulted by him. He was aggressive and threatening during the sexual assaults. He put his hand over Ms. G’s mouth and told her to shut up and that she was talking too much. When she tried to block his passage into her vagina, he forcefully pushed her hand aside. When Ms. A told Mr. Kelkas that she did not want to have sex with him, he got angry, lifted his hands up to her head, and told her to remove her hands or he would “smack” her. The complainants both described afterwards that they felt confused and angry. Specifically, with regard to Ms. G, Mr. Kelkas went into the sanctity of her bedroom and sexually assaulted her. Ms. G should have felt safe and protected in her own bedroom; instead, her sexual integrity was violated by Mr. Kelkas. With regards to Ms. A, sexual assault by anal penetration is inherently violent, invasive and degrading. Clearly, Mr. Kelkas’ actions are very serious in nature.

[26] The Victim Impact Statements provided by both complainants demonstrate that Mr. Kelkas’ actions have had severe negative impacts on their lives. The sexual assaults have deeply psychologically and physically affected the complainants.

[27] According to Dr. Gray’s report, Mr. Kelkas is at an average relative risk level to reoffend as compared to other sexual offenders.

[28] At the beginning of this hearing, Mr. Kelkas addressed the court and apologized for his actions.

[29] I find that the parties’ joint submission of 5.5 years of imprisonment less pre-sentence custody is appropriate.

[30] Mr. Kelkas is still a relatively young man. I hope that with some assistance of the sexual offender treatment groups while incarcerated, he will gain insight into his unacceptable behaviours towards women and return to the community in better stead.

Final Disposition

[31] In coming to my decision, I have kept in mind the sentencing principles, the mitigating and aggravating factors, and all the circumstances of this matter.

[32] Consequently, I proceed with the final disposition. I will begin with Count #1, sexual assault contrary to s. 271 of the Code; I sentence Mr. Kelkas two and a half years of imprisonment.

[33] With regard to Count #3, sexual assault contrary to s. 271, I sentence Mr. Kelkas to three years to be served consecutively to the sentence on Count #1.

[34] With regard to Count #2, sexual assault contrary to s. 271, I sentence Mr. Kelkas to one and a half years to be served concurrently to the sentence on Counts #1 and 3.

[35] As a result, Mr. Kelkas’s total sentence is for a period of five years and a half less the pre-sentence custody of 32 days.

[36] I also make the following ancillary orders:

• a mandatory DNA order pursuant to s. 487.051(1) of the Code;
• registration as per the Sex Offender Information Registration Act, which applies for a period of life as per s. 490.013(2.1) of the Code;
• a weapons prohibition for life as per s. 109 of the Code; and
• Mr. Kelkas must not have any contact or communicate directly or indirectly with Ms. G and Ms. A as per s. 743.21 of the Code.

[37] The Defence has asked that Mr. Kelkas be permitted to turn himself at the end of July due to the impact of COVID-19 on the jail system. The Crown has opposed this request due to the negative impact on the complainants. We are in uncertain times as a result of the pandemic. Court staff have verified with the jail and they are unsure if they can accept an admission to the federal penitentiary at this time. Further investigation is required with Correctional Service of Canada. Consequently, Mr. Kelkas will not turn himself in at the end of July. Instead, we will reconvene on August 24, 2020 at 9:00 a.m. in order to receive a status update and next steps can be determined at that time.

Justice M. O’Bonsawin Released: May 22, 2020