COURT FILE NO.: 22/20 DATE: 20210107 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – MEHMOOD SIDDIQUI Respondent

Counsel: Laurie Gonet, for the Appellant Anser Farooq, for the Respondent

HEARD: September 28, 2020

Stewart, J.

Nature of the Appeal

[1] On December 5, 2019 Mehmood Siddiqui was convicted by Madam Justice Doorly of the Ontario Court of Justice following his trial on charges of assault and uttering a threat.

[2] On February 27, 2020 Siddiqui was sentenced by Doorly J. to a conditional discharge with conditions, probation for a period of 3 years, a DNA order, and a s. 110 order for a period of 5 years. Siddiqui was given credit of 20 days for the 13 days he had spent in pre-trial custody.

[3] The Crown appeals from this sentence and submits that the trial judge erred in law by imposing a sentence that was demonstrably unfit and erred in principle by failing to adequately emphasize the principles of denunciation and deterrence.

[4] It is Siddiqui’s position on this appeal that the sentence imposed by the trial judge was fair and just in all of the circumstances.

The Facts

[5] Neither party takes issue with the determination of the trial judge that Siddiqui was guilty of the charges against him. The only issue is the fitness of the sentence imposed by her following trial.

[6] The charges against Siddiqui arose from an incident that occurred on March 24, 2018. The assault and threat were directed toward Siddiqui’s wife, Mussarat Naheed.

[7] Siddiqui and Naheed and their three children have lived in Canada since moving here in 2003 from Pakistan by way of the United States.

[8] At the time of the events giving rise to the charges, Siddiqui was 60 years old. He and Naheed had been married for over 30 years.

[9] There had been an ongoing disagreement between Siddiqui and Naheed over concerns relating to their daughter’s marriage. On March 24, 2018 this disagreement continued and ultimately became physical.

[10] The trial judge found that during this disagreement Siddiqui got up and pushed Naheed onto the sofa, stood in front of her and did not let her get up. He hit her on the head and upper back area with his hands and then choked her with his hands. While he was hitting and choking her, Siddiqui yelled at Naheed that he was going to kill her and burn her.

[11] Naheed testified that she closed her eyes during this assault but remained conscious throughout. She urinated while being choked and told Siddiqui that she had done so. She then went to the washroom to clean herself.

[12] When she returned, Naheed recorded the further arguments between her and Siddiqui. This recording was interpreted and transcribed, and considered by the trial judge. The recording was found by the trial judge to have demonstrated that Siddiqui had continued to berate and insult Naheed and was threatening and oppressive in his words and tone.

[13] Photos of Naheed’s injuries taken by police on March 25, 2018 showed two scratches under Naheed’s chin, some redness under her left eye, and an area of redness between her shoulders. None of these injuries required medical treatment.

[14] Siddiqui was arrested on March 28, 2018 and remained in custody until he was released on bail on April 4, 2018. The terms of his release required him to reside with his surety and to have no contact or communication with Naheed or to be near the matrimonial home.

[15] Since his arrest Siddiqui has abided by the terms of his release and has had no contact with Naheed.

Standard of Review

[16] The standard of review for an appeal against sentence is well settled. Absent an error in principle, a failure to consider a relevant factor, or an overemphasis of a relevant factor, an appellate court should only intervene to vary a sentence imposed by the sentencing judge if the sentence is demonstrably unfit. It falls to the sentencing judge to determine which objectives merit the greatest weight, given the particulars of the case. While a judge should consider similar sentences in similar cases, a sentence outside the normal range is not necessarily unfit (see: R. v. Nasogaluak, [2010] 1 S.C.R. 206).

[17] Appellate courts may not intervene lightly, nor should they be given free rein to modify a sentence simply because the reviewing court feels a different order ought to have been made. Further, an appellate court may not intervene simply because it would have weighed the relevant factors differently. Deference should be shown to the sentencing judge’s exercise of discretion (see: R. v. Lacasse, 2015 SCC 64).

[18] An appellate court may intervene if the sentence is not fit in that it is clearly unreasonable or where the sentencing judge makes an error of law or in principle that has an impact on the sentence. An error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor can justify appellate intervention, permitting that court to inquire into the fitness of the sentence and replace it with the sentence it considers appropriate.

Discussion

[19] A Victim Impact Statement from Naheed was provided to the court at the sentencing hearing. In it, she describes the impact of the incident and injuries on her as well as her wish that Siddiqui be ordered by the court to stay away from her.

[20] A pre-sentence report was also put before the Court for the purposes of providing information on sentencing. In it, reference is made to Siddiqui’s steady work history as a physiotherapy assistant for patient rehabilitation, his absence of any prior involvement with police, his strong religious beliefs and practice, and his continuing financial support for Naheed. The PSR also indicated that Siddiqui lost a lucrative employment contract as a result of his arrest and has suffered financial distress as a result. Nevertheless, he has continued to pay the mortgage on the matrimonial home and has contributed to payment of household and other expenses to provide financial support for Naheed.

[21] Siddiqui expressed his anguished regret to the Court for what happened between him and Naheed. He apologized profusely, maintaining his love for her and their children from whom he has been estranged since the assault. Although he appeared to nurture a hope for their reconciliation, that had not yet happened and remains highly unlikely.

[22] At the sentencing hearing, the Crown sought a further 90 days in custody in addition to the 13 days of pre-trial custody Siddiqui had served, followed by a 2-year period of probation. The Crown was not opposed to the service of the sentence intermittently to accommodate Siddiqui’s work schedule. In support of the custodial sentence, the Crown cited the aggravating nature of the assault in a domestic context, and the fact that it was accompanied by threats.

[23] Siddiqui relied upon his previous good character, his age, and the absence of any prior criminal involvement in support of his request for a conditional discharge. He also referred to the negative effect the criminal charges had on his employment and income, and the further financial devastation he would suffer from a criminal record that would hamper his ability to continue working in his chosen field. He had undertaken significant relevant counselling and had already sought out and completed in excess of 1000 hours of volunteer service through the Islamic Foundation of Toronto.

[24] In her detailed oral reasons for sentencing, the trial judge demonstrated keen awareness of the aggravated nature of the offences as being of a domestic violence nature and that general deterrence and denunciation are paramount principles of sentencing in such a case. She was also alert to the availability of a discharge on conditions under s. 730(1) of the Criminal Code if the circumstances deemed that to be appropriate.

[25] The trial judge accepted the sincerity of Siddiqui’s apology and expression of remorse for what he had done, as well as his assurances that he would abide by all conditions the Court might impose upon him.

[26] The trial judge sentenced Siddiqui to the following:

i. A conditional discharge;

ii. A three-year Probation Order, with the following conditions:

1. Keep the peace and be of good behaviour;
2. Attend before the Court when required to do so;
3. Notify the Court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change in employment or occupation;
4. Report in person to a probation officer within 7 working days and after that, at all times and places as directed by the officer or any person authorized by a probation officer to assist in your supervision;
5. Advise the Court or your probation officer of change of address within 48 hours of changing your address;
6. Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with Mussarat Naheed except in the presence of or through legal counsel;
7. Do not be within 100 metres of any place where you know Mussarat Naheed to live, work, go to school, frequent or any place you know her to be except for required court attendances in the presence of or through legal counsel;
8. Do not be within 100 metres of 12 Clappison Blvd, Toronto, Ontario;
9. Do not possess any weapons as defined by the Criminal Code;
10. Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer;
11. You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed;
12. You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

iii. A DNA order was also made.

[27] The trial judge recognized that the sentence imposed on Siddiqui was comparatively lenient. Her reasons for the sentence reflect an appreciation of the need for general deterrence and denunciation and a serious consideration of same as having been achieved by the professional, financial and personal consequences and shame sustained by Siddiqui as a result of his conduct. In those same reasons, however, she justified the sentence she had imposed by reference to Siddiqui’s age, absence of any criminal record, sincere regret for his actions, and the negative impact a criminal conviction would have on him and his ability to support his family.

[28] As prescribed by the case law referred to herein, the judgment and discretion of the trial judge is to be afforded deference upon review. In my opinion, there has been no error of law or principle in sentencing identified, nor can I conclude that the sentence is clearly unreasonable such that it may be described as demonstrably unfit.

[29] As a result, although I agree that the sentence is comparatively lenient, it is grounded in the facts as found by the trial judge and the considerations properly canvassed and weighed by her. Accordingly, I do not see any basis upon which interference on appellate review with the sentence imposed on Siddiqui would be warranted.

[30] For the above reasons, the appeal is dismissed.

Released: January 7, 2021

COURT FILE NO.: 22/20 DATE: 20210107 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – MEHMOOD SIDDIQUI Respondent REASONS FOR JUDGMENT Stewart J. Released: January 7, 2021