R. v. Reza, 2021 ONSC 1808

Court File and Parties

COURT FILE NO.: CR-18-06385-00 DATE: 20210311 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – DANIEL REZA Defendant

Counsel: Ivana Denisov, for the Crown Laurence Cohen, for the Defendant

HEARD: February 11, 2021

Publication Restriction Notice

Pursuant to subsection 486.4 of the Criminal Code, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person. This Judgment complies with this restriction so that it can be published.

Reasons for Sentence

CAMERON J.:

A. Overview:

1On September 17, 2020 I convicted Daniel Reza of six offences. Hereinafter, I will refer to Daniel Reza as Ms. Reza at her request.

2I found Ms. Reza guilty of assault and assault with a weapon in relation to events that took place on May 24, 2018 wherein she grabbed her then girlfriend, A.Y., in an effort to prevent her from leaving and wherein she threw A.Y.’s cellphone at her during the course of this argument. These assaults left A.Y. with bruising on her arms.

3I also found Ms. Reza guilty of sexually assaulting A.Y. by penetrating her without her consent on two occasions near the campus where they were attending school in September 2017.

4Further, I found Ms. Reza guilty of sexually assaulting A.Y. by having sexual intercourse with her without her consent while she slept on numerous occasions while they lived together in the spring of 2018. I found as a fact that on some of these occasions, A.Y. would awaken to find Ms. Reza inserting a vaping tube into her vagina without her consent.

5Finally, I found Ms. Reza guilty of threatening to kill A.Y.’s father.

B. Facts Relating to the Offences:

6A.Y. and Ms. Reza met in September 2017 when they attended the same program at Seneca College. Shortly after they met, they went for a long walk. While sitting under a tree talking, Ms. Reza suddenly pulled down A.Y.’s pants and underwear and penetrated her with her penis. A.Y. screamed, “stop” and “no”.

7A.Y. continued to see Ms. Reza after this incident because Ms. Reza sent her messages that made her feel badly for her. When A.Y. next saw Ms. Reza at school, everything went back to normal between them. A.Y. believed Ms. Reza understood that she didn’t want anything sexual to happen between them.

8On September 24, 2017 A.Y. and Ms. Reza went for another walk. They ended up in a forest across from campus. Ms. Reza suddenly pulled A.Y.’s pants and underwear down and then penetrated her from behind. This only lasted for a few seconds. Once again, A.Y. did not report this to anyone. She didn’t understand that what happened was a crime. She was embarrassed. At some point Ms. Reza apologized to A.Y. and told her that she thought A.Y. had “wanted it.” Therefore, the relationship continued.

9From December 21, 2017 until May 26, 2018 A.Y. lived with Ms. Reza in Ms. Reza’s mother’s home. During this time period, Ms. Reza displayed extremely aggressive behaviour towards A.Y. Ms. Reza screamed at her, threw things, and kicked her dog. Ms. Reza regularly used steroids. Although A.Y. was afraid of Ms. Reza, there were times when Ms. Reza showered her with love and attention. It was during those times that A.Y. tried to forget about the other behaviour.

10During the time period where A.Y. lived with Ms. Reza, Ms. Reza encouraged her to try smoking marijuana. Ms. Reza was smoking marijuana quite often. Although initially she resisted, A.Y. eventually started using marijuana regularly as well. Marijuana made her very tired and sleepy. Whenever her and Ms. Reza would have an argument, Ms. Reza would encourage her to smoke marijuana which would diffuse the situation.

11In and around April 2018, there were numerous occasions where A.Y. had smoked marijuana, fallen asleep and then awoken to Ms. Reza having sexual intercourse with her without her consent. This happened around 15 times. When this would happen, A.Y. would explain to Ms. Reza that she didn’t want it to happen again but then they would smoke marijuana and she would forget why she was upset.

12At some point in the months of April or May, Ms. Reza started talking to A.Y. about how she wanted to see inside her vagina with something. Approximately five or six times A.Y. woke up and discovered that Ms. Reza had inserted a tube from their vaping device into A.Y.’s vagina. This was very painful.

13Ms. Reza told A.Y. that if she ever left her, she would kill A.Y.’s parents in front of her so that A.Y. would feel the pain. Ms. Reza sent text messages in which Ms. Reza threatened to stab A.Y.’s father 98 times with a screwdriver, videotape the stabbing and put the video on the internet. In this series of text messages, Ms. Reza also wrote, “man gets stabbed 100 times with rusty screwdriver before getting eyes removed from their sockets” and “revenge from daughter’s boyfriend.”

14Ten audio-recordings from the months of April and May 2018 were entered into evidence. In these recordings Ms. Reza can be heard screaming at A.Y. and sometimes at both A.Y. and Ms. Reza’s mother. The audio recordings demonstrate how Ms. Reza abused and manipulated A.Y. For example, she told A.Y. that what she is worth is “eating shit”. She threatened to punch A.Y. and throw her off the couch. She told A.Y. that her dog was better than her. Ms. Reza called A.Y. a “fucking whore and bitch”. Ms. Reza said that she “fucking hates women”. She told A.Y. that it was A.Y.’s fault that she didn’t understand testosterone use because she has a “fucking vagina”.

15Ms. Reza called A.Y. a “stupid, retarded fucking stupid bitch”. Ms. Reza blamed A.Y. for making her in a bad mood. Ms. Reza accused A.Y. of ruining her life and professed to be a good “boyfriend” to her. Ms. Reza accused A.Y. of starting the fight by knowing Ms. Reza’s testosterone level was too high not to fight. Ms. Reza threatened A.Y. that she was going to “get all of this” and “this is coming for you”. Ms. Reza attempted to intimidate and manipulate A.Y. by pretending to cut up and destroy A.Y.’s jacket. On May 7, 2018 Ms. Reza called A.Y. a “fucking cow” and “fucking stupid and useless”. Ms. Reza told A.Y. that she was a “fucking weak bitch” who doesn’t deserve a man. Ms. Reza told her that any other girl wouldn’t have caused any problem for her.

16On May 24, 2018 after assaulting A.Y., Ms. Reza again tried to manipulate and intimidate A.Y. into staying in the relationship by throwing herself in front of a moving vehicle. On May 26, 2018, A.Y. left the home and reported the abuse to the police.

17A.Y. read her victim impact statement to the court. She recounted that although it has been a few years since these offences, she is still traumatized. The names Ms. Reza called her throughout their relationship still resonate in her head. Since these events she has suffered from an eating disorder. She is nervous about leaving her home and frightened that Ms. Reza will make good on the threats she made to A.Y.’s family. She suffers from post-traumatic stress disorder.

C. The Facts Relating to the Offender:

18Ms. Reza was 18 years old at the time of these offences. She is now 21 years old. She has no criminal record. A pre-sentence report was prepared by Aisha Taylor of the Richmond Hill Probation and Parole Office. Ms. Reza reportedly had a happy childhood. She grew up with her mother as her father moved out when she was five years old. Ms. Reza is one credit shy of obtaining her high school diploma. Ms. Reza abuses marijuana and testosterone.

19Ms. Reza was diagnosed with ADHD at a young age. She continues to suffer from mental health issues including anxiety and obsessive compulsive disorder. She was hospitalized under a Form 1 in November 2020. Her family doctor believes that she has an undiagnosed mental illness. Ms. Reza’s family doctor believes that with adherence to a strict mental health plan, she would be a suitable candidate for community supervision.

20Medical records from the Centre for Addiction and Mental Health relating to Ms. Reza’s recent admissions were also provided to the court. Once of the doctors that treated Ms. Reza during this time indicated that there are clear psychotic symptoms that may or may not be related to cannabis use.

D. The Position of the Parties:

21The Crown submits that the appropriate sentence is a custodial sentence of six years broken down as follows: 5.5 years on each count of sexual assault to be served concurrently and a further 6 months on the assault and threatening counts to be served consecutively.

22The Crown points to numerous aggravating factors. The abusive and assaultive behaviour took place in the context of a domestic relationship. There was not a single event of sexual assault but a multitude of sexual assaults over a prolonged period of time. Some of the sexual assaults involved the inserting of an object into A.Y.’s vagina. Ms. Reza manipulated A.Y. by encouraging her to smoke marijuana as a means of placating her. Finally, these offences have had a significant and lasting impact on A.Y.

23The Crown acknowledges the mitigating factors of Ms. Reza’s age, lack of criminal record and mental health and addiction issues.

24The defence submits that a global custodial sentence of 2 years is appropriate. The defence points to Ms. Reza’s underlying mental health issues as a mitigating factor, along with her young age and lack of criminal antecedents. The defence submits that a sentence of any longer duration would be crushing given Ms. Reza’s emotional instability.

E. Analysis:

25The principles of sentencing are set out in ss. 718, 718.1 and 718.2 of the Criminal Code of Canada. I am bound by these principles. The most fundamental principle of sentencing is proportionality. The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

26In my view, the aggravating circumstances in this case include the following:

• The fact that these offences took place in the context of a domestic relationship, one in which A.Y. should have felt safe and protected;
• Ms. Reza’s repeated manipulation and degradation of A.Y. as evidenced by the audio recordings;
• The fact that A.Y. was asleep during a number of the sexual assaults throughout the spring of 2018;
• The fact that Ms. Reza repeatedly used an object to penetrate A.Y. while she was sleeping;
• The lasting impact on A.Y.; and
• The repetition of the offences over a prolonged period of time.

27On the other hand, the mitigating circumstances in this case include the following:

• The fact that Ms. Reza is a youthful first offender;
• She has no criminal antecedents; and
• Ms. Reza has mental health and addiction issues.

28I appreciate and have considered the position of Ms. Reza’s family doctor that with adherence to a strict mental health plan that involves treatment for addiction, she would be a suitable candidate for community supervision. This speaks positively to her prospects of rehabilitation.

29In my view, absent exceptional circumstances, the case law in this province is to the effect that three to five years is the appropriate range of sentence for a serious sexual assault such as the ones committed in this case. See R. v. A.J., 2018 ONSC 5153 at para. 34; R. v. A. (S.), 2014 ONCA 266; R. v. M.M., 2017 ONSC 1829; R. v. D.L., 2016 ONSC 733; R. v. Rand, 2012 ONCA 731, R. v. Bradley, 2008 ONCA 179; R. v. P.M., 2020 ONSC 4600; R. v. R.C., 2020 ONSC 1360; and R. v. N.H., 2017 ONSC 2900. A sentence within this range of sentence can be appropriate even where the offender has no criminal record. See Bradley, supra; N.H., supra and R.C. supra.

30Sentencing is a highly individualized process. Exceptional cases can fall outside the range. This range is a guideline for the application of relevant sentencing principles and objectives. Although the sentencing range for like offences is helpful in determining the appropriate sentence, the ultimate question is whether or not the imposed sentence is fit. See R. v. S.M.C. 2017 ONCA 107 at para. 7 and R. v. Niyongabo, 2020 ONCA 490 at para. 49.

31In addition to two distinct sexual assaults at the beginning of their relationship, Ms. Reza repeatedly sexually assaulted A.Y. while she slept. These sexual assaults occurred in the context of an abusive domestic relationship that was pervaded with continual verbal beratement and threats. These offences have had a profound effect on A.Y. In my view, denunciation and both specific and general deterrence must be the primary objectives influencing sentencing in this case.

32There is authority for the defence position that sentences for similar offences can fall outside the above noted range. In R. v. Ghadghoni, 2020 ONCA 24, [2020] O.J. No. 169, the Ontario Court of Appeal reduced the imposed custodial sentence of 30 months in a sexual assault case involving a sleeping victim to one of two years less a day. However, this case is factually distinct. The trial judge had, in fact, determined that the appropriate sentence was one of three years. Given the disability of the accused who had suffered a severe head injury as a child, the trial judge reduced this sentence to one of 30 months. In so finding the trial judge relied on an aggravating factor that was not borne out on the evidence in sentencing the accused, the Court of Appeal reduced the sentence by a further six months.

33In my view a sentence of two years cannot adequately address the principles of deterrence and denunciation. I have considered all of the aggravating and mitigating factors, as well as Ms. Reza’s prospects for rehabilitation. I find that a fit sentence in all of the circumstances of this case is a global sentence of 4 ½ years in jail.

34For all of the reasons set out above, Ms. Reza is sentenced as follows:

• on Count 7 which relates to sexual assaults throughout the months of April and May, 2018, Ms. Reza is sentenced to a total of 4 years and 6 months in jail;
• on Counts 1, 2 and 6 which are assault, assault with a weapon and threatening respectively, Ms. Reza is sentenced to six months in jail on each count to run concurrently and concurrently with Count 7;
• on Counts 3 and 4 which are both counts of sexual assault from September 2017, Ms. Reza is sentenced to 3 years in jail on each count to run concurrently with each other and concurrently with all other counts.

35Ms. Reza has served the equivalent of 6 days in pretrial custody. This will be deducted from her sentence leaving a global sentence of 4 years and 174 days.

36I am also imposing the following ancillary orders:

• Ms. Reza will have no contact or communication with A.Y. or R.Y. pursuant to s. 743.21 of the Criminal Code.
• There will be orders that Ms. Reza provide samples of her DNA on all counts.
• There will be a SOIRA order for life.
• There will be a s. 109 order for 10 years.