Court File and Parties

COURT FILE NO.: SCA(P) 763/21 DATE: 2022 04 21 ONTARIO SUPERIOR COURT OF JUSTICE (SUMMARY CONVICTION APPEAL)

B E T W E E N:

HER MAJESTY THE QUEEN R. Prihar, for the Respondent Respondent

- and -

SALIM MOHAMAD C. Truscello, for the Appellant Appellant

Heard: October 15, 2021, at Brampton, Ontario

REASONS FOR JUDGMENT

[On appeal from the Reasons for Judgment by Justice K.A. Fillier of the Ontario Court of Justice at Brampton, ON, delivered April 30, 2021]

BARNES J.

Introduction

[1] On October 5, 2020, after a four-day trial, Fillier J. found the appellant guilty of sexual assault on complainant A.J., contrary to section 271 of the Criminal Code, R.S.C., 1985, c. C-46. On April 30, 2021, Fillier J. sentenced him to 16 months custody minus one month of pre-trial custody followed by one year of probation, a SOIRA order for 10 years, a DNA order and a section 109 weapons prohibition for 10 years. The appellant appeals the sentence.

[2] After considering the material filed and the submissions of counsel, I shall dismiss the appeal.

Overview

[3] The appellant had a birthday party on March 3, 2018. The complainant and four mutual friends attended. The party was hosted at a mutual friend’s condo. All parties in attendance consumed alcohol in excess. After the party, the complainant planned to take an uber to her boyfriend’s home. The appellant offered to take her to her destination. She agreed. She was heavily intoxicated.

[4] The appellant took the complainant to two hotels, finally settling on a Super 8 Motel in Mississauga. The appellant digitally penetrated the complainant, washed his penis in cold water, rubbed hair conditioner from the hotel on himself and the complainant’s buttock, and rubbed himself between the complainant’s buttock until he ejaculated.

[5] Fillier J. rejected the appellant’s position that he had a reasonable belief that the complainant was an active and consensual participant and found him guilty of one count of sexual assault.

[6] After his conviction, the appellant was diagnosed with schizophrenia. He was hospitalized due to mental illness on three occasions. On one occasion, he was in in-patient treatment for one and a half months. On the second occasion, he was under psychiatric supervision for one month and on the third occasion, he was hospitalized for three weeks, after which he was released from Oakville Trafalgar Memorial Hospital. He was placed on medication as part of his treatment.

[7] The Crown sought a sentence of 16 to 18 months in custody, one year probation, a SOIRA order for 10 years, a DNA order, and a section 109 weapons prohibition for 10 years. The appellant sought a conditional sentence or a 90-day intermittent sentence.

[8] As noted, on April 30, 2021, Fillier J. sentenced the appellant to 16 months custody minus one month of pre-trial custody followed by one year of probation, a SOIRA order for 10 years, a DNA order, and a section 109 weapons prohibition for 10 years.

[9] The appellant takes no issue with the ancillary orders. Neither does he submit that the sentence imposed was outside the general range for this type of sexual assault. However, he submits that in his particular circumstance, a conditional sentence or an intermittent sentence should have been imposed.

Issues

[10] The appellant describes the question to be answered on appeal as:

1. Is the sentence appropriate and did the trial judge adequately consider the circumstances of the appellant, namely the significance of the appellant’s mental illness?

[11] I will answer the question in the affirmative. The sentence imposed was a fit sentence. I will dismiss the appeal.

Analysis

[12] An appellate court shall not interfere with a sentence unless the sentence is demonstrably unfit or there is an error in principle, a failure to consider a relevant factor, or there has been erroneous consideration of an aggravating factor such as to impact the fitness of the sentence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11, 41, 44, 49; R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at paras. 3; 25-27.

[13] The appellant’s position can be succinctly summarised as that the trial judge failed to consider the principle in section 718.2 of the Criminal Code, which required the trial judge to consider available sanctions other than imprisonment, that are reasonable in the circumstances.

[14] Specifically, that the trial judge either failed to consider or failed to give appropriate consideration to the appellant’s mental illness; that the appellant had been suffering from an undisclosed mental illness for at least ten years before the offence; his efforts to obtain treatment; the progress he had made in treatment and the adverse impacts of incarceration on his treatment and recovery.

[15] According to the appellant, these errors are further compounded by the trial judge’s palpable and overriding error in her factual determination that the appellant’s crime was premeditated. Overall, the appellant submits that the trial judge failed to properly consider the principles of proportionality and restraint.

[16] The appellant’s submission that the trial judge failed to consider the principles of proportionality and restraint is premised on a finding of palpable and overriding error in the finding of premeditation and the trial judge’s heavy reliance on the report of the physician treating the appellant’s mental illness, which noted that the appellant “had reached the maximum benefit of acute in-patient care”.

[17] I will first consider the submission of the palpable and over riding error. The trial judge’s findings of fact included: that the complainant was very intoxicated at the end of the party; The appellant assured the party hosts that he would ensure that she got home safely; All the parties were friends; It was not uncommon for the appellant and the complainant to carpool since they lived in the same area; The appellant took the complainant to two different hotels trying to find a room; Surveillance video showed the complainant unable to walk or stand without assistance; The appellant took the complainant to the room he rented; He digitally penetrated her and then slid his penis between her buttocks until he ejaculated; and the complainant did not consent to the sexual activity.

[18] Considering all the evidence, the finding of premeditation was open to the trial judge. In fact, based on the overwhelming nature of the evidence in support of such a finding, a strong argument can be made that a contrary finding would have constituted a palpable and overriding error warranting appellate intervention. Fillier J. concluded that the appellant’s actions constituted a serious sexual assault. There is no basis to interfere with this finding.

[19] There was no evidence that the appellant suffered from mental illness before the offence. The trial judge noted that his mental illness had been diagnosed after she had found him guilty. There was no evidence before the trial judge of any connection between the appellant’s mental illness and the offence. In a letter dated January 17, 2021, the appellant’s family physician stated that there were no incidents or problems or altercations with others. There was no basis for the trial judge to consider a link between the mental illness and the offense.

[20] The trial judge had the benefit of a report on the appellant’s progress while receiving treatment for his mental illness. Fillier J. was entitled to rely on the report of medical experts in assessing the impact of incarceration on the appellant’s mental health treatment. Contrary to the appellant’s submission, Fillier J. was entitled to place significant weight on the April 16, 2021, report of the appellant’s acute physicians that the appellant had reached the maximum benefit of acute inpatient care.

[21] When the reasons for sentence are considered overall, the trial judge carefully considered the appellant’s mental illness, his treatment, progress in treatment and the impact of incarceration on his treatment. After careful consideration, the trial judge recommended that the appellant serve his sentence in an institution where his mental illness treatment could continue. The submission of inadequate consideration of the impacts of the appellant’s mental illness is unwarranted.

[22] The trial judge carefully considered these aggravating factors: the significant trauma on the victim; the egregious circumstances of the offence; the appellant betrayed and took advantage of a long-standing friendship; the offence was premeditated; the sexual violence was highly invasive and involved penetration; and the appellant attempted to gas light the victim.

[23] Fillier J. considered these mitigating factors: the appellant is a first-time offender; he has community and family support; and the appellant led a pro social life prior to the offence. Fillier J. considered that post conviction, the appellant had been diagnosed with schizophrenic spectrum disorder and residual hallucinations and a substance abuse disorder.

[24] Fillier J. considered the aggravating and mitigating factors in order to impose a “sanction that is proportionate to the gravity of the offence committed, and the degree of responsibility of the person who committed it”. Referring to R. v. Thurairajah, 2008 ONCA 91, 89 O.R. (3d) 99, Fillier J. noted denunciation and general deterrence as the paramount sentencing principles.

[25] Fillier J. concluded that a conditional sentence will be insufficient to address the paramount sentencing principles of denunciation and deterrence. Fillier J. also considered the important principle of rehabilitation. She was careful to consider the impacts of Covid 19 and to recommend treatment in a correctional institution suited to continuing the appellant’s treatment.

[26] The appellant provided fresh evidence indicating challenges the institution is facing making treatment opportunities available due to Covid 19. However, there is a treatment plan in place to enable treatment to continue. The appellant has identified certain available out of custody treatment options, however, rehabilitation is not the only sentencing principle to be considered. On balance, this factor does not render the trial judge’s sentence demonstrably unfit.

[27] There is no basis to interfere with the trial judge’s sentence and therefore, the appeal is dismissed.

Barnes J. Released: April 21, 2022