COURT FILE NO.: CR-21-50000011

& CR-21-10000007-00AP

DATE: 20210915

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

FARHAD EINOLLAHI

M. Shumka, for the Crown, respondent on conviction, cross-appellant on sentence

C. Hurley, for Mr. Einollahi, appellant on conviction, respondent on sentence

HEARD: 23 June 2021

S.A.Q. AKHTAR J.

On appeal from the conviction entered on 23 November 2020 by Justice R. Grinberg of the Ontario Court of Justice and on cross-appeal by the Crown of the sentence imposed.

FACTUAL BACKGROUND

The Crown’s Case

[1] Farhad Einollahi was convicted of sexual assault following a three day trial in the Ontario Court of Justice.

[2] At the time of the offence, Mr. Einollahi had been employed as an Uber driver. He was hired by the victim, a 22 year old woman, and two sets of friends to drive them to their respective homes after leaving a nightclub in downtown Toronto in the early hours of the morning. After the victim’s friends had been dropped off, the victim was the sole remaining passenger.

[3] Mr. Einollahi drove a to a dimly lit Hydro field close to the victim’s home before stopping the car. It was approximately 3:00 am. He asked whether the victim had a boyfriend to which she responded by saying “No”. Without warning, Mr. Einollahi pulled the victim towards him by the back of the neck and forcefully kissed her without her consent.

[4] Fearful for her safety, the victim told Mr. Einollahi that she needed to go home and asked him to complete the journey. However, he ignored the request and again forced himself on her. Mr. Einollahi forcibly touched the victim’s breast over her clothes and told her that she was “hot”. The victim told Mr. Einollahi she was “not interested”. Not wanting Mr. Einollahi to know where she lived, the victim left the car and Mr. Einollahi drove away at speed.

[5] The victim ran to her parents’ home and immediately texted her friends to tell them what had happened. She testified that she was very upset, crying and hyperventilating. The victim’s reactions roused her mother and she was taken to a police station to report the incident.

The Defence

[6] Mr. Einollahi testified in his defence. He told the court that he picked up the victim and her friends near the end of his shift. Mr. Einollahi thought his passengers were loud and smelt of alcohol. At some point during the ride, the victim held his hand and told him it was cold. Mr. Einollahi said that during the ride, the victim held his hand three to five times and also caressed his cheek, complimenting him on his looks. Mr. Einollahi testified that he did not reciprocate in any way.

[7] Shortly before reaching their destination, the victim asked Mr. Einollahi to stop the car because she needed some fresh air. Mr. Einollahi stopped and the victim got out, before returning to the car and being dropped off at her house.

[8] As Mr. Einollahi felt that he had not earned sufficient money for the shift he drove back downtown to get more rides. He found he was unable to continue working because his software had been turned off.

[9] Mr. Einollahi denied sexually assaulting the victim and claimed that he was unable to carry out the described acts because of prior back surgeries which left him some physical limitations.

Conviction and Sentence

[10] The judge rejected Mr. Einollahi’s evidence and found that the Crown had proven his guilt beyond a reasonable doubt. She imposed a 60-day conditional sentence with 18 months probation. The judge also made Mr. Einollahi the subject of an order under the Sexual Offences Information Registration Act (SOIRA) for a period of 10 years.

THE CONVICTION APPEAL BY MR. EINOLLAHI

Grounds of Appeal

[11] Mr. Einollahi appeals his conviction on two grounds: an uneven scrutiny of evidence by the trial judge and misapprehension of the evidence used to convict him.

Uneven Scrutiny

[12] The appellant submits that the judge overlooked deficiencies in the victim’s evidence such as: her denial of physical contact with Mr. Einollahi prior to the sexual assault; the victim’s failure to remember many of the details of the evening due to the quantity of alcohol consumed; and an inconsistency concerning the conversations she may have had during the Uber ride. Mr. Einollahi argues that the trial judge “downplays or entirely ignores, the multitude of issues that are apparent in the complainant’s testimony”.

[13] Mr. Einollahi contrasts the judge’s approach to his evidence and alleges she overemphasised issues in his testimony, for example, his failure to describe the victim’s house; the question of who took his son to play hockey; and his difficulty in identifying the exact location of his stop on a map.

[14] The uneven scrutiny argument is a difficult one to make on appeal because a trial judge’s findings attract a very high degree of deference and courts view the argument as an invitation to re-litigate the trial judge’s credibility findings: R. v. George, 2016 ONCA 464, 349 O.A.C. 347, at paras. 35-36. An appellant advancing this ground cannot rely on an argument which amounts to a submission that another judge might have done things differently. To succeed, the appellant must point to clear evidence that the judge “actually applied different standards of scrutiny in assessing the evidence of the appellant and complainant”: R. v. Radcliffe, 2017 ONCA 176, 347 C.C.C. (3d) 3, at paras. 22-26, leave to appeal refused, [2017] S.C.C.A. No. 274.

[15] Moreover, an appellate court may only interfere with a trial judge’s determination of the facts in the event of palpable and overriding error: George, at para. 35; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20.

[16] Here, the judge evaluated all the evidence in the appropriate manner. Mr. Einollahi advanced his arguments in closing submissions and the trial judge dealt with all of the material points. The judge provided full reasons for her decisions. It is trite law that a judge is not required to go through each and every inconsistency alleged by an accused at trial: R. v. R.A., 2017 ONCA 714, 355 C.C.C. (3d) 400, at paras. 44-45, aff’d 2018 SCC 13, [2018] 1 S.C.R. 307.

[17] The judge dealt with the material issues and decided they did not substantially impact the victim’s credibility. She was entitled to come to that conclusion based on the evidence.

[18] Accordingly, this ground of appeal fails.

Misapprehension of Evidence

[19] A misapprehension of evidence involves an error about the substance of evidence, a failure to take into account evidence relevant to a material issue, or failure to give the appropriate effect to an item of evidence: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 538; R. v. Mahmood, 2011 ONCA 693, 107 O.R. (3d) 641, at para. 46.

[20] Not every misapprehension of evidence is fatal to a verdict. The misapprehension must be material and play an essential role in the reasoning of the trial judge, not just in the narrative of the judgment: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 2-6; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 5, per Fish, J. (dissenting, but not on this point); R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 19.

[21] With respect to findings of credibility, great deference is owed to the trial judge. An appellate court can only intervene in the face of these findings where it is shown that the finding was unreasonable, or based on a material misapprehension of the evidence: R. v. Cloutier, 2011 ONCA 484, 272 C.C.C. (3d) 291, at para. 80; R. v. Jones (2006), 2006 CanLII 28086 (ON CA), 81 O.R. (3d) 481 (C.A.), at para. 7.

[22] Here, Mr. Einollahi relies on two supposed misapprehensions which he argues were essential to the guilty verdict. The first relates to whether he was physically able to commit the acts described by the victim. The second concerns Mr. Einollahi’s evidence of what happened after he left the scene.

Mr. Einollahi’s Physical Capability to Commit the Offence

[23] In evaluating the evidence, the judge concluded that Mr. Einollahi had “acknowledged he is able to reach his arm in the middle of the passenger seat at chest height and in front of the headrest. Therefore, he is in fact able to carry out what is alleged by the complainant”.

[24] Mr. Einollahi submits that this is not a fair representation of his testimony.

[25] Mr. Einollahi argues that his evidence was that if he grabbed the victim and she resisted he would not be physically able to bring the victim close enough to kiss her. Mr. Einollahi maintained this position when cross-examined by the Crown.

[26] As a result, Mr. Einollahi argues the judge’s finding that he acknowledged that he was able “to carry out what is alleged by the complainant” was clearly a material misapprehension of the evidence. I disagree.

[27] The judge’s observation that Mr. Einollahi was “able to carry out what is alleged by the complainant” was not a recounting or summary of the appellant’s evidence; it was the judge’s conclusion, based on Mr. Einollahi’s evidence, that he could reach into the passenger seat and for that reason was able to commit the assault. In other words, the judge used Mr. Einollahi’s evidence to provide support for the victim’s account. The conclusory nature of the statement is borne out by the word “[t]herefore” at the beginning of the sentence.

[28] Accordingly, this was not a misapprehension of the evidence but the judge’s rejection of Mr. Einollahi’s denials. The judge was entitled to come to that conclusion which must be granted deference.

The Drive Downtown

[29] The second alleged error relates to the judge’s finding of inconsistency rooted in Mr. Einollahi’s testimony that although he wanted to go home to sleep, he ended up driving downtown Toronto to pick up another customer.

[30] Mr. Einollahi argues this was an erroneous understanding of his evidence. Mr. Einollahi submits that he testified that he wanted to go home and “get some sleep” but later clarified that after the victim left, he realised his earnings were not what he wanted. As a consequence, he drove downtown to get “one or two more rides” on the way home.

[31] Once again, I disagree.

[32] The appellant did testify as he argues on this appeal. He first said that he wanted to go home and then said he went to pick up another fare because he had not made enough money. However, in cross-examination he repeated his claim that he wanted to finish the ride to the victim’s house and go home.

[33] Faced with these differing accounts, the trial judge was entitled to find an inconsistency in Mr. Einollahi’s evidence and reject his explanation for why he continued to pick up more fares. Again, that finding is entitled to deference on appeal.

[34] Even if I were to agree with Mr. Einollahi and find a misapprehension of evidence, it is difficult to understand how that error could be described as material or essential to the reasoning used by the judge to convict. The judge conducted a comprehensive review of the evidence and found no basis for reasonable doubt. This evidence played a minor role in her analysis of Mr. Einollahi’s credibility, which she found to be lacking.

[35] For these reasons, Mr. Einollahi’s conviction appeal is dismissed.

THE SENTENCE APPEAL BY THE CROWN

The Sentencing Judge’s Reasons

[36] At the time of the offence, Mr. Einollahi was 34 years old and had no prior criminal record. He is a Canadian citizen who is married and has three children. At the time of the offence, he had two jobs, one of which was as a Team Lead at Black and Decker. The other was his employment as an Uber driver.

[37] The sentencing judge found that the crime had been “opportunistic” and not planned, as Mr. Einollahi could not have known which passenger would leave his car first. In addition, she found that Mr. Einollahi’s lack of familiarity with the neighbourhood undermined the notion of a pre-planned assault.

[38] In determining sentence, the judge considered a positive pre-sentence report and numerous letters of support from his family and friends.

[39] At the sentencing hearing, the Crown sought a term of imprisonment in the range of 12 to 15 months whilst the defence argued a conditional sentence was the appropriate sanction.

[40] The sentencing judge agreed and imposed a conditional sentence order of 60 days followed by probationary period of 18 months. In addition, the respondent was made the subject of a 10 year SOIRA order. No other ancillary orders were made.

[41] The Crown appeals the sentence pointing to numerous errors in the sentencing judge’s reasons. It argues the sentencing judge failed to properly consider the serious breach of trust owed by the respondent to the victim; ignored the predatory nature of the assault; and used an erroneous employment consideration as a mitigating factor.

[42] In the alternative, the Crown submits that even in the absence of errors the sentence imposed is demonstrably unfit.

Analysis

[43] The standard of review on appeal of sentences is strict: substantial deference is owed to sentences imposed by trial judges. Intervention is only justified if the sentence is demonstrably unfit or the judge has committed an error in principle, failed to consider a relevant factor, or overemphasised appropriate factors which have led to an impact on the sentence: R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, at paras. 46-50; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 41; R. v. Friesen, 2020 SCC 9, 391 C.C.C. (3d) 309, at paras. 25-26; R. v. Scholz, 2021 ONCA 506, [2021] 5 C.T.C. 29, at para. 15. In other words, an appellate court cannot modify a sentence simply because it feels a different penalty ought to have been imposed: Shropshire, at para. 46.

[44] However, it is possible for a sentence to be demonstrably unfit even in the absence of judicial errors. What is important is that the sentence be “proportionate to the gravity of the offence and the degree of the responsibility of the offender” taking into account the sentencing principles set out in s. 718 of the Criminal Code: Lacasse, at paras. 52-53.

[45] Ranges of sentence previously set out by appellate courts are jurisprudential guidelines not straitjackets. A sentence falling outside the range cannot automatically be deemed unfit but may raise a question of its fitness: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 44.

[46] For the following reasons, I agree that the judge made a number of errors in this case.

[47] First, though the judge referred to the breach of trust committed by Mr. Einollahi by taking note of his professional duty to drive the victim home safely, there was no discussion of the seriousness of that breach and its impact on the sentence as a whole. I return to this subject later on in these reasons.

[48] Second, with respect to the predatory nature of the offence, I disagree with the Crown’s submissions that the judge incorrectly concluded that Mr. Einollahi had not planned the assault in her sentencing reasons. The judge discussed the evidence and ultimately held the offence arose from opportunity rather than pre-planning. Although another jurist might have found otherwise, the judge’s conclusion is entitled to deference. In saying this, it should be noted the opportunistic nature of the offence is not an aggravating or mitigating factor in the sentencing process.

[49] However, I agree that the judge erred when considering the trial Crown’s argument regarding the victim’s state of intoxication. The Crown suggested that it was an aggravating factor that the respondent believed the victim to be drunk. The judge dismissed this submission by stating that the victim had testified that she was not drunk but “competent”. The judge decided that the “Crown cannot have it both ways, that Ms. S. was too drunk and therefore the accused was predatory and that at the same time Ms. S. was competent”.

[50] With respect, this was a misapprehension of the Crown’s position: it was not suggesting the victim was intoxicated. Rather, the Crown was arguing that Mr. Einollahi believed her to be drunk and had seized the opportunity to sexually assault someone whom he considered vulnerable. The sentencing judge’s erroneous conclusion led to her failing to take account of what is, in my view, an aggravating factor.

[51] The judge committed a further error by considering Mr. Einollahi’s loss of employment with Black and Decker as a mitigating factor. At the outset, it is worth noting that Mr. Einollahi’s job loss would not, strictly speaking, amount to mitigation but could be considered a collateral consequence of his criminal actions. The judge was entitled to take into account these consequences in determining the appropriate sentence. In such a case, the mitigating impact of the potential consequence is greatly diminished where the consequence was so directly linked to the offence “as to be almost inevitable”: R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at paras. 49-50.

[52] Here, there was no basis for considering Mr. Einollahi’s loss of employment. The error arose because the sentencing judge wrongly read the pre-sentence report as confirming the respondent “will be fired from his job if incarcerated and the family will lose their home”.

[53] However, although this line appeared in the pre-sentence report, it was based on Mr. Einollahi’s comments to the author of the report that he had not told his employers of his conviction “because he is not sure what they would do in terms of his employment but is ‘fairly confident’ that he will be fired”.

[54] In other words, there was no factual basis to find that Mr. Einollahi would be fired from his job as a result of the conviction. Nor could there be because Mr. Einollahi’s employers were unaware of that fact, as he had never told them.

[55] Moreover, as correctly identified by the Crown on this appeal, according to the pre-sentence report, Mr. Einollahi made clear to the author of the report that his concerns stemmed from Black and Decker’s policy of “zero tolerance” for inappropriate and criminal behaviour. In other words, it would be the fact of conviction, not sentence, that would lead to Mr. Einollahi’s losing his job.

[56] The judge’s erroneous interpretation of the report converted an unfounded opinion (from the author) based on speculation (from Mr. Einollahi) into an established fact used to attenuate the sentence.

[57] The cumulative impact of these errors warrant appellate intervention.

The Sentence Was Demonstrably Unfit

[58] Even in the absence of these errors, I would find the sentence imposed to be demonstrably unfit.

[59] Section 718.2(a)(iii) of the Criminal Code makes the breach of trust owed to a victim an aggravating factor in sentencing. As I have already stated, even though the sentencing judge may have referred to a breach of trust, there was nothing in her reasons detailing how it impacted the sentence.

[60] There are a number of precedents identifying assaults by professional drivers as being a breach of trust: R. v. Ali, 2021 ONSC 1648 at paras. 15-24; R. v. Ukumu, 2020 ONSC 3645, at para. 42; R. v. Reslan, 2016 ONSC 6311, at para. 96; R. v. Gill, 2015 BCSC 1907, at paras. 48, 51.

[61] The sentencing judge acknowledged this principle and the authorities provided by the Crown on this point. However, she concluded that these cases could be distinguished on the basis that they were far more serious in factual terms.

[62] There can be no question that the cases cited by the trial Crown differed from Mr. Einollahi’s in their degree of seriousness.

[63] In Ali, for example, an Uber driver was given a global sentence of 22 months after sexually assaulting two intoxicated semi-unconscious victims. The sentencing judge explicitly found the offender’s actions to be pre-planned.

[64] In Ukumu, the offender followed his victim to her apartment after she had paid for her ride and lured her back to his car on false pretences before trying to have sex with her. His attack caused bruising to her thighs and cuts to her fingers. The judge sentenced him to 12 months imprisonment.

[65] In Gill, the victim fell asleep in the offenders taxi. The offender digitally penetrated her with two fingers and pulled her towards him, kissing her without consent. The victim suffered injuries including a tear to her vagina. The conviction resulted in a three year prison sentence.

[66] In R. v. Malik, 2012 BCSC 502, a taxi driver with no criminal record picked up the 17 year old victim with a friend in the early hours of the morning. Both had consumed alcohol after attending two house parties. They requested to be taken to a third party where they would meet an acquaintance who the pair said would pay the offender the fare for the ride. However, the location of the party could not be determined. With some reluctance, the offender agreed to take the two women home, dropping off the victim’s friend first. He drove to his home, telling the victim that he needed to change cars. When they arrived, the victim asked to use the offender’s bathroom and, after doing so, discovered the offender in a bathrobe. He attempted to kiss her, tried to force her to perform oral sex and, as a result of their struggle, ended up on top of her on the floor. She escaped and contacted the police. The sentencing judge imposed an 18 month sentence.

[67] In Mir, [2012] O.J. No. 6438 (C.J.), the court imposed an eight month sentence on a first time offender with a favourable employment record and strong community support. The offender sexually assaulted a 19 year old woman who had used his taxi to get home by rubbing her leg and putting his hands down her shorts.

[68] Although some of these cases contain more aggravating features, the common thread that runs through them is that the breach of trust committed by a professional driver must be taken seriously and warrants a significantly higher sentence than that imposed by the sentencing judge in this case.

[69] In Friesen, at para. 30, the Court made clear that s. 718 of the Code provided as a fundamental principle of sentencing that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”.

The Appropriate Sentence

[70] This was a case where a young woman entered a cab with the expectation of being driven to her home safely and without fear. She was entitled to that expectation. Instead, she was attacked in an opportunistic fashion by the very person entrusted with this task. On Mr. Einollahi’s own evidence he believed the victim to be drunk. The manner of the assault and the way in which it was executed - by driving to a secluded area with little lighting - were aggravating factors. The psychological impact felt by the victim is eminent in her testimony and victim impact statement.

[71] Mr. Einollahi’s actions warranted a prison sentence. In coming to the sentence that she did, the judge failed to refer to any factor justifying a departure from the range of sentence typical of this offence, or to the significant aggravating effect of the conduct by someone in Mr. Einollahi’s position.

[72] Under the principles set out in s. 718.1 of the Criminal Code the judge was required to balance deterrence and denunciation against Mr. Einollahi’s prospects of rehabilitation. This was especially important in light of the serious breach of trust.

[73] With great respect, the sentence imposed failed to (1) reflect the required denunciation of Mr. Einollahi’s conduct and (2) impart the all-important message to every professional driver that any sexual abuse committed on vulnerable members of the community will be severely punished.

[74] For these reasons, I conclude the sentence imposed was demonstrably unfit.

[75] Using the precedents already cited and applying them to the circumstances of this case, I find the appropriate sentence to be within the range of 6-9 months imprisonment. I would sentence Mr. Einollahi to the lowest end of that spectrum based on the mitigating factors in this case.

[76] From that period of time I would deduct the 60 days already served by the respondent, leaving a residue of four months to be served in custody.

CONCLUSION

[77] The Crown’s sentencing appeal is allowed.

[78] I would impose a six month sentence of imprisonment and allow credit for the length of the conditional sentence, a period of two months. This leaves a remainder of four months imprisonment to be served.

[79] I would also order that the Mr. Einollahi provide a DNA sample pursuant to s. 487.051(1) of the Criminal Code and be barred from possessing any weapons under s. 110 of the Code for a period of five years. For some reason, these ancillary orders were not imposed by the judge. Mr. Einollahi properly concedes that this was an error and that these orders should have been made.

[80] I would not interfere with the period of probation or SOIRA order imposed by the judge.

S.A.Q. Akhtar J.

Released: 15 September 2021

COURT FILE NO.: CR-21-50000011

& CR-21-10000007-00AP

DATE: 20210915

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

FARHAD EINOLLAHI

REASONS FOR JUDGMENT

S.A.Q. Akhtar J.