SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-20-40000038-00AP
DATE: 20210427
ONTARIO
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
kararu Mustafa
Appellant
Peter van den Berg, for the Respondent
Phillip Mota, for the Appellant
HEARD at Toronto: February 24, 2021
On appeal from the decision of Madam Justice C. Brewer dated June 24, 2020.
DAVIES J.
A. Overview
[1] Mr. Mustafa was convicted of one count of sexual assault following a trial in the Ontario Court of Justice.
[2] Mr. Mustafa was hit by a car in June 2018. After his release from hospital, Mr. Mustafa received nursing care for his wounds in the community three times per week. The victim of the sexual assault was his nurse. The trial judge found that at the end of his appointment on September 10, 2018, Mr. Mustafa tried to kiss the victim, but she pulled away. The victim told Mr. Mustafa to stop and he apologized. However, as Mr. Mustafa was getting ready to leave the treatment room, he lunged at the victim. He put her in a headlock, squeezed her breast and kissed her on the side of her neck. The victim again told Mr. Mustafa to stop and he eventually let her go. Mr. Mustafa again apologized to the victim. Mr. Mustafa lunged at her a second time but she was able to escape.
[3] Mr. Mustafa was given a suspended sentence with 18-months probation. Mr. Mustafa appeals his sentence only. Mr. Mustafa argues that the trial judge failed to give adequate reasons for not granting him a conditional discharge and, therefore, her sentencing decision is not entitled to deference on appeal. Mr. Mustafa also argues that the trial judge erred in finding that a conditional discharge was contrary to the public interest because she placed too much weight on the aggravating factors and failed to give adequate consideration to the mitigating factors. Finally, Mr. Mustafa argues that his sentence is demonstrably unfit.
[4] Sentencing is a highly discretionary, individualized process. Wide latitude is given to trial judges to fashion a sentence they consider to be just and appropriate: R. v. Lacasse, 2015 SCC 64 at para. 11. I cannot change Mr. Mustafa’s sentence on appeal simply because I think a different sentence should have been imposed at trial: R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227 at para. 46. I can only intervene to vary Mr. Mustafa’s sentence if the trial judge made an error in principle, failed to consider a relevant aggravating or mitigating factor, overemphasized an aggravating or mitigating factor, or imposed a demonstrably unfit sentence: R. v. Proulx, 2000 SCC 5 at para. 123, R. v. M.(C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500 at para. 90, R. v. Lacasse at paras. 39-44, 51-52.
[5] For the reasons that follow, Mr. Mustafa’s appeal is dismissed.
B. Adequacy of Reasons
[6] Mr. Mustafa argues that the trial judge’s sentencing decision is not entitled to deference on appeal because she failed to give reasons for not granting a conditional discharge.
[7] Trial judges have a duty to give reasons that explain the result to the parties and to the public. A trial judge’s reasons must also allow for meaningful appellate review: R. v. Sheppard, 2002 SCC 26 at para. 55. However, trial judges are not held to a standard of perfection. The question is whether the reasons, considered together with the evidentiary record, the submissions of counsel and the live issues at trial, explain the basis for the decision reached: R. v. R.E.M., 2008 SCC 51 at para. 55. When considering the adequacy of the reasons, the appellant court should also consider the “time constraints and general press of business in the criminal courts”: Sheppard at para. 55, R. v. Haller, 2008 ONCA 517 at para. 2. If the trial judge appears to have recognized and dealt with the important issues, her reasons will be adequate even if they lack detail or are less than perfect: R. v. R.E.M. at para. 55-56.
[8] Applying these principles in the sentencing context, a sentencing judge has a duty to give reasons that explain why the sentence imposed is proportionate and consistent with the relevant sentencing objectives having regard to the mitigating and aggravating factors. Again, sentencing judges are not held to a standard of perfection. The reasons must be read together with the evidence adduced at the sentencing hearing and the submissions of counsel. If the reasons demonstrate that the sentencing judge understood and dealt with the live issues on sentencing, the reasons will be sufficient and the decision will be entitled to deference. However, if the reasons do not address the issues raised by the parties or explain the sentence imposed, the sentencing decision will not be entitled to deference on appeal: R. v. Guha, 2012 BCCA 423 at para. 22.
[9] In my view, the trial judge did provide adequate reasons for her decision. The trial judge correctly set out the positions of the parties. She clearly understood that the issue was whether a discharge was appropriate in the circumstances of this case. The trial judge also correctly set out the test for granting a discharge under s. 730 of the Criminal Code, R.S.C., 1985, c. C-46 in her reasons:
In order to give a person a conditional discharge, I have to be satisfied of two things. First, that it is in Mr. Mustafa’s interests, and I do not think there is any doubt about that. Second, I have to be satisfied that it is not contrary to the public interest, and there, I am concerned.
[10] The trial judge had earlier explained the case-specific factors that were causing her concern:
What is troubling about this situation is that Mr. Mustafa persisted in his inappropriate behavior, despite [the victim] telling him that their relationship was purely professional. He tried to kiss the complainant, and when she rebuffed him, grabbed her in a headlock and squeezed her breast. It is clear that this offence has had a significant impact on [the victim].
[11] Read as a whole, the trial judge’s reasons make clear that she found that a conditional discharge would be contrary to the public interest because the offence was not an isolated incident and because it had a significant impact on the victim.
[12] The trial judge’s finding that the sexual assault was part of a pattern of sexual misconduct by Mr. Mustafa is consistent with the evidence at trial. The victim testified that Mr. Mustafa flirted with her and made sexual comments to her before the day of the sexual assault. The victim had reminded Mr. Mustafa that they had a nurse-patient relationship and nothing more. It was open to the trial judge to accept the victim’s evidence on this point. The trial judge was, therefore, entitled to consider the persistent nature of Mr. Mustafa’s conduct as an aggravating factor on sentencing.
[13] The trial judge was also entitled to consider the impact of the sexual assault on the victim as an aggravating factor in this case. The trial judge fairly described the impact the offence had on the victim in her reasons. The victim was scared, insecure and anxious at work after the sexual assault. She even blamed herself for the assault. The initial impact of the sexual assault on the victim was significant. The trial judge recognized that the victim’s fear and anxiety have decreased over time and she has forgiven Mr. Mustafa. The fact that the victim has worked hard to overcome the effects the sexual assault is a testament to her resilience but it does not diminish the initial impact of the offence on her.
[14] The trial judge’s reasons adequately explain the sentence she imposed and allow for meaningful review. Her decision is, therefore, entitled to deference on appeal.
C. Trial judge considered all the relevant aggravating and mitigating factors
[15] Mr. Mustafa argues that the trial judge erred in concluding that a conditional sentence was not in the public interest because she gave unreasonable weight to aggravating factors and failed to give sufficient weight to the mitigating factors. I disagree.
[16] The trial judge considered all the mitigating factors raised by Mr. Mustafa’s counsel during the sentencing hearing. She noted that the sexual assault was at the low end of the spectrum in terms of its seriousness because it involved a touching only. She considered the physical and mental health issues Mr. Mustafa was experiencing at the time of the offence. She considered the evidence that the sexual assault was out of character.
[17] The trial judge also considered the immigration consequences of imposing a suspended sentence rather than granting a discharge. Mr. Mustafa has a prior criminal conviction for fraud from 2017. The trial judge received evidence that if Mr. Mustafa were convicted of another offence, his immigration status would be reviewed and he might be subject to a deportation order. The trial judge took this evidence into account, noting as follows:
One of the issues that Mr. Mota has raised is that Mr. Mustafa has a prior conviction for fraud in 2017. At that time, he received a letter from the Canada Border Services Agency. That letter, which is part of the materials filed on behalf of the defence, says that his situation, if he is found guilty of a further criminal offence, would be reviewed, and could potentially lead to a deportation order.
[18] In terms of aggravating factors, the trial judge considered the persistence of Mr. Mutsafa’s conduct and the impact of the offence on the victim. She also noted that Mr. Mustafa has a criminal record. In addition, this sexual assault took place in the context of a nurse-patient relationship in the victim’s workplace. These are all important aggravating factors and the trial judge was correct to consider them.
[19] The trial judge did not over-emphasize any aggravating factor or fail to consider any mitigating factor. She weighed and balanced all the aggravating and mitigating factors identified by counsel in reaching her conclusion that a conditional sentence was not in the public interest in this case.
D. A suspended sentence is not demonstrably unfit
[20] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Criminal Code, s. 718.1. A sentence will be demonstrably unfit if it “constitutes an unreasonable departure from this principle”: R. v. Lacasse, at para. 53. While conditional discharges have been granted in sexual assault cases, a suspended sentence with probation is not a demonstrably unfit sentence in this case having regard to the aggravating and mitigating factors. Nor is a suspended sentence with probation outside the range of sentences imposed in comparable cases involving a relatively minor sexual assault.
[21] The trial judge noted that the sentence she imposed must be proportionate to the gravity of the offence and Mr. Mustafa’s degree of responsibility. She considered all the mitigating factors identified by Mr. Mustafa’s counsel that decreased the seriousness of the offence and Mr. Mustafa’s level of responsibility. She also considered the aggravating factors that increased the seriousness of the offence and Mr. Mustafa’s level of responsibility. The trial judge also set out the applicable sentencing principles:
In sentencing you, I also have to consider a number of sentencing objectives. These include denouncing your unlawful conduct, trying to deter you and others from committing offences of this kind, and to assist in your rehabilitation. As well, it is important to promote a sense of responsibility in you, in acknowledgement of the harm done to the victim and the community.
[22] The trial judge expressly relied on a case, R. v. A.Z., 2019 ONSC 6256, where a suspended sentence was upheld on appeal in similar circumstances. In R. v. A.Z., the appellant touched the victim’s breast without her consent and repeatedly tried to kiss her. The appellant also made sexually explicit comments to the victim. On appeal, A.Z. argued that the trial judge erred by failing to impose a conditional discharge. The reviewing judge rejected this argument and upheld the suspended sentence and probation.
[23] The Crown provided several other cases where courts have declined to grant a discharge in relatively minor sexual assault cases. For example, in R. v. Mohammadi, 2007 ABPC 43, Mr. Mohammadi grabbed the breast of a nurse at a Calgary hospital, kissed her on the neck and tried to kiss her on the lips. In that case, the accused had no criminal record. The trial judge found that the sexual assault was an isolated event. Nonetheless, the trial judge imposed a one-day sentence followed by 12-months probation. The trial judge found that there were two significant aggravating factors that justify a term of imprisonment: first, the sexual assault occurred at the victim’s place of employment and second, the sexual assault had a major impact on the victim.
[24] Here, Mr. Mustafa sexually assaulted the victim in her place of employment. The sexual assault had a significant impact on the victim, at least initially. In addition, Mr. Mustafa has a criminal record. And the sentencing judge found that the sexual assault was not an isolated incident but part of a pattern of unwanted, sexually aggressive conduct towards the victim. Although the sexual assault itself was at the lower end of the spectrum of seriousness, the trial judge fairly considered the seriousness of the offence along with the other mitigating factors. Having weighed the relevant mitigating and aggravating factors and applying the relevant principles of sentencing, the trial judge concluded a suspended sentence with probation was the just and proportionate sentence. The sentence imposed was within the range of appropriate sentences in this case and was not demonstrably unfit.
[25] Mr. Mustafa’s sentence appeal is, therefore, dismissed.
Davies J.
Released: April 27, 2021
COURT FILE NO.: CR-20-40000038-00AP
DATE: 20210427
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
kararu Mustafa
Appellant
REASONS FOR JUDGMENT
Davies J.
Released: April 27, 2021