COURT FILE NO.: CR-19-1048 (Walkerton)

DATE: 20220527

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

-and-

Soheyl Tahan

H. Adair, for the Crown

S. Cowan, for Mr. Tahan

Sentencing submissions: April 4, 2022 by videoconference

Sentencing: May 27, 2022, in person

Justice R. Chown

Reasons for Sentence

These reasons are subject to a publication ban under s. 486.4 of the Criminal Code prohibiting the publication, broadcast or transmission, in any way, of any evidence that could identify the victim.

[1] Mr. Tahan has been convicted of sexual assault. The facts surrounding the offence are set out in detail in my reasons for judgment. Very briefly, the complainant remembers pre-drinking with her friends and walking with them towards a bar at around 11:00 p.m., and next remembers walking home at around 4:00 a.m. Due to her continued state of intoxication, she thought while she was walking home that she was with her friend’s boyfriend, but in fact it was Mr. Tahan.

[2] The complainant’s friends testified that they parted company with her at around 11:00 p.m. after concluding she was too intoxicated to get into the bar, and she was last seen by them walking in the direction of her home. She was sexually assaulted by the accused, with both vaginal and anal penetration, at the home where the accused was staying. I found that the complainant lacked the capacity to consent and that the accused knew she lacked capacity to consent.

Positions on Sentence

[3] Ms. Adair, on behalf of the Crown, submitted that the appropriate range of sentence for a sexual assault of this nature is three to five years in custody, and that in this case a sentence of no less three years would be appropriate. The Crown also seeks an order that Mr. Tahan’s name be added to the Sex Offender Registry for twenty years, pursuant to s. 490.012 of the Criminal Code, as well as a mandatory DNA order pursuant to s. 487.051(1), and a mandatory weapons prohibition for 10 years pursuant to s. 109(1)(a). The Crown also seeks an order that Mr. Tahan have no contact with the complainant pursuant to s. 743.21 of the Code.

[4] Mr. Cowan, on behalf of Mr. Tahan, submitted that a sentence of 12 months is appropriate.

[5] Mr. Cowan reminded me that under s. 718.1 of the Code, a fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[6] Counsel agree that, in sentencing for sexual assault, courts have given denunciation and deterrence prominent consideration relative to the other purposes of sentencing set out in s. 718 of the Code.

Moral Blameworthiness

[7] Mr. Cowan stated that he was unable to find cases with similar facts and submitted that the Crown’s cases were all distinguishable. He noted that there is no difficulty finding sentencing decisions in cases where the victim had been completely unconscious. Similarly, there is no difficulty in finding sentencing decisions in cases where the victim had been actively saying no or resisting. However, he submitted that he had been unable to find cases in which the accused had been willfully blind to the victim’s incapacity or in which, effectively, the finding was that he ought to have known that the victim was not consenting. With this submission, Mr. Cowan was in part alluding to para. 126 of my reasons for judgment where I found that there was a reasonable doubt as to whether the complainant ostensibly consented to the sexual activity. However, it should be noted that I found that the Crown had proven beyond a reasonable doubt that Mr. Tahan knew the complainant was incapable of consenting (para. 148).

[8] Mr. Cowan also noted that a distinguishing feature in this case from some of those presented by the Crown was that there was no evidence of additional violence, apart from the violence which is inherent in sexual assault. Mr. Tahan had helped the complainant look for her belongings, he walked her home, and he reached out to her after the sexual assault to see if she had found her belongings. He did not abandon his victim.

[9] Mr. Cowan submits that these features point to less moral blameworthiness on the part of Mr. Tahan than the offenders in the cases cited by the Crown.

[10] Ms. Adair submitted that Mr. Tahan took advantage of a highly intoxicated vulnerable female.

[11] Ms. Adair also argued that this was a stranger assault, in that the parties did not know each other prior to the evening of the assault. Ms. Adair further argued that Mr. Tahan’s conduct was predatory, and she based this on my finding that the complainant was extremely intoxicated, while Mr. Tahan had exaggerated his level of intoxication in his police interview. I agree that there is an element of predation found in the facts of this case.

[12] On the issue of violence accompanying the sexual assault, Ms. Adair noted that sexual assault is in itself a violent crime and that what occurred in the bedroom at the Falconer residence is unknown. I did find that there was both vaginal and anal penetration based on the complainant’s evidence with respect to her vaginal and anal pain the following day. Ms. Adair notes that there was no finding one way or the other whether additional violence occurred in the bedroom and submitted that this factor cannot be seen as either an aggravating or mitigating factor. She said that the uncertainty regarding the details of what occurred is likely to be troubling to the complainant. Ms. Adair directed me to R. v. Friesen, 2020 SCC 9, at para. 89, where it was said that sexual violence is morally blameworthy because “the offender is treating the victim as an object and disregarding the victim's human dignity.” I agree that this feature is engaged here.

[13] I am not persuaded that there is necessarily less moral blameworthiness to Mr. Tahan’s actions than there would be in the case of a sexual assault of a fully unconscious person. Certainly from the victim’s perspective, both would be horrifying.

Aggravating Factors

[14] The Crown advises that the complainant did not wish to give victim impact statement.

[15] None of the aggravating factors listed in s. 718.2(a) are present in this case.

[16] I consider Mr. Tahan’s concocted story to the police as a modest aggravating factor. I am mindful that “sentencing judges must be careful not to punish an offender for exercising his right to have a trial, and the manner in which an accused chooses to present his defence should not be treated as aggravating”: R. v. Apetrea, 2017 ABCA 348, at para. 20; R. v. Bradley, 2008 ONCA 179, at para. 16; R. v. Kozy (1990), 1990 2625 (ON CA), 58 C.C.C. (3d) 500 (Ont. C.A.), at p. 505 to 506. There is a difference, however, between an offender giving untruthful evidence at trial and an offender lying to police prior to being charged. The former cannot be treated as an aggravating factor for the purposes of sentencing (although it may have its own consequences for perjury). The latter is, however, an appropriate consideration on sentencing (see, for example, R. v. Lu, 2013 ONCA 324 at paras. 25 and 51). It is parallel to trying to cover-up a crime, which is an aggravating factor on sentence: Clayton C. Ruby, Sentencing, 10th ed. (Toronto: LexisNexis, 2020), at §5.132.

Mitigating Factors

[17] No pre-sentence report is available. Mr. Cowan advises that this was in part because Mr. Tahan had not informed his family or his employer about the conviction and has chosen to keep this matter as private as possible. He has elected not to involve collateral sources in his sentencing hearing.

[18] Mr. Tahan did provide a letter dated June 14, 2018 from his employer prepared in support of a bank request. This letter confirmed Mr. Tahan’s employment and income. Mr. Tahan is a welding inspector certified in ultrasonic and radiographic inspection methods.

[19] As mitigating factors, Mr. Cowan pointed to Mr. Tahan’s age (22 at the time of the offence), absence of criminal record, and his very good education and work history. I agree that these are mitigating factors.

[20] Mr. Cowan referred me to R. v. Priest (1996), 1996 1381 (ON CA), 30 O.R. (3d) 538 (C.A.), in which the Court of Appeal said that “ordinarily for youthful offenders, as for first offenders, the objectives of individual deterrence and rehabilitation are paramount.” The court also said that “a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence.” Ms. Adair agreed that a custodial sentence should be as short as possible, but submitted that it must also be a fit sentence.

[21] Mr. Cowan also submitted that serving a sentence during the pandemic is more difficult because of the lockdown conditions and the limitations on visitation rights. He cited R. v. Aden, 2021 ONSC 2370, at para. 20. Mr. Cowan further submitted that Mr. Tahan’s family is in British Columbia, and it may be difficult for Mr. Tahan to be visited by his family when in custody. Ms. Adair submitted that the pandemic restrictions must be subsiding or will soon be subsiding given the fact that restrictions everywhere are gradually diminishing. I agree with both sides’ submissions on this point. The pandemic is a minor element but is an element in the assessment of an appropriate sentence.

Remorse

[22] Ms. Adair submitted that Mr. Tahan has not shown any remorse. She submitted that his police statement reflects a lack of remorse. She did not suggest this was an aggravating factor, but that remorse should not be considered here as a mitigating factor.

[23] Ms. Adair further submitted that the fact that Mr. Tahan has not told his family or his employer about his conviction shows a lack of remorse and suggests he has a diminished capacity to be rehabilitated. She acknowledged that rehabilitation was not a major element in the consideration for what should be a fit sentence in this case, but submitted it is a factor to consider. Her position reflects the law as expressed in R. v. Shah, 2017 ONCA 872, at para. 8, that:

Lack of remorse is not ordinarily a relevant aggravating factor on sentencing. … Absence of remorse is a relevant factor in sentencing, however, with respect to the issues of rehabilitation and specific deterrence, in that an accused’s absence of remorse may indicate a lack of insight into and a failure to accept responsibility for the crimes committed, and demonstrate a substantial likelihood of future dangerousness.

[24] I am unwilling infer that, because Mr. Tahan has not demonstrated remorse, he has none. Similarly, I am unwilling to conclude that, because he has not demonstrated remorse, Mr. Tahan has a diminished capacity for rehabilitation. Just as there is a danger in placing weight on a demonstration of remorse, there is a danger in placing weight on a lack of demonstration of remorse.

[25] Lack of demonstration of remorse is not a meaningful factor in sentencing Mr. Tahan in my view.

Range of Custodial Sentence

[26] Ms. Adair referred me to three sentencing cases in sexual assault convictions in which the complainant was incapacitated by intoxication. The facts in this case do not rise to the same level of seriousness as the facts in R. v. Kaczmarek, 2021 ONCA 771. The Court of Appeal upheld a three-year sentence in that case.

[27] R. v. McCaw, 2019 ONSC 3906, is a very helpful decision of Spies J. It provides a significant review of sexual assault sentencing cases. Spies J. concluded that the appropriate range for sentence is three to five years for a sexual assault involving a fully completed (to ejaculation) act of intercourse. Spies J. was heavily influenced in this conclusion by the decision of the Court of Appeal in R. v. Bradley.

[28] R. v. Forsellino, 2022 ONSC 262, 2022 ONSC 0262 is a very helpful decision of Leibovich J. He concluded that “generally an accused, even one of good character, who forces sexual intercourse on a victim will receive either a significant reformatory sentence or a penitentiary sentence anywhere from two to five years.” With this said, Leibovich J. also cited the following passage from R. v. Lacasse, 2015 SCC 64, at para. 57

Where sentencing ranges are concerned, although they are used mainly to ensure the parity of sentences, they reflect all the principles and objectives of sentencing. Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered “averages,” let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case.

[29] The Supreme Court in Lacasse went on to say, at para. 60, that deviation from a sentencing range is not synonymous with an error of law or an error in principle.

[30] Mr. Cowan referred me to four sentencing cases.

[31] In R. v. Ghadghoni, 2020 ONCA 24, the accused and complainant had just met in a gym. They slept at his home after becoming extremely intoxicated. She awoke to him having sex with her and told him to stop. He did not, insisting that she “hold on.” The trial judge imposed a 30-month sentence. The Court of Appeal reduced this to two years less a day because the trial judge had erred by finding that the offence was methodically planned when this was not proven beyond a reasonable doubt. In the course of its reasons, the Court of Appeal stated, at para. 48, that “the usual range identified in past jurisprudence for sexual assaults committed in similar circumstances has been between 18 months and three years.” Ms. Adair sought to distinguish Ghadghoni on the basis that the accused in that case had sustain a head injury with cognitive impairment, which was a mitigating factor. However, the Court of Appeal did not include the head injury as a mitigating factor, stating at para. 46: “On this record, however, it cannot be determined whether this offence was committed impulsively or whether the appellant’s cognitive deficits otherwise contributed to his commission of the offence.”

[32] In R. v. Colbourne, 2013 ONCA 308, the offender was sentenced to 14 months’ imprisonment followed by two years’ probation for sexually assaulting the complainant after she passed out from drinking too much. The complainant was confused and groggy throughout the assault and afterwards, and the trial judge found she was incapable of consenting. The Court of Appeal denied the offender’s sentence appeal, stating that “If anything the sentence was at the low end of the range.” Mr. Cowan submits that Colbourne most closely resembles the facts in this case. Ms. Adair distinguishes Colbourne on the basis that the act of intercourse was stopped part way through and the offender’s health conditions played a role in the sentence. She referred me to Spies J.’s comments in McCaw, at para. 41, where she said this case “has been considered an outlier.”

[33] In R. v. D.D., 2015 ONSC 1312, the complainant woke to find the offender penetrating her with his penis from behind. She was frightened. She attempted to feign waking and wiggled until his penis fell out of her. He then proceeded to masturbate. A 12-month sentence was imposed. Ms. Adair distinguished this case on the basis that the facts were less aggravating, a P.S.R. showed support from family and friends, and the accused showed remorse. In McCaw, Spies J. commented on this case and noted that the trial judge had said the offender was not a predator but had misread the complainant’s intentions. Spies J. said it is impossible to reconcile the finding that the complainant was asleep at the outset of the sexual assault and the offender misreading her intentions. She also distinguished the case on the basis that the offender did not complete the sexual assault to ejaculation inside the complainant.

[34] In R. v Cubillan, 2015 ONSC 2747, the accused had sexual intercourse with the complainant while she was extremely drunk to the point of having limited memory of the events. A sentence of two years less a day was imposed. Ms. Adair distinguishes this case on the basis that the accused demonstrated remorse and the conviction was likely to result in serious immigration consequences.

[35] In Cubillan, Mew J. referred to R. v. J.R., 2008 ONCA 200. The accused in that case was convicted of sexually assaulting the complainant, who lacked the capacity to consent due to intoxication. The Court of Appeal found that the two-year sentence imposed by the trial judge was “at the low end of the appropriate range.”

[36] McCaw and Forsellino are both instructive and persuasive. Both cases dealt with “a single offence of sexual assault that was a completed act of unprotected vaginal intercourse.” In McCaw, the complainant was intoxicated and lacked capacity to consent. The accused was a friend of the complainant’s boyfriend. The sentence was 40 months. In Forsellino, the accused and the complainant had met the evening of the assault in a bar. It was a case involving forced sexual intercourse. The sentence was 23 months.

[37] There is a one-year difference between the findings of Spies J, and the findings of Leibovich J. as to the appropriate range of sentence: three to five years, per Spies J.; and two to five years, per Leibovich J. The facts of these cases differ (just as they differ from the facts here) but the stated ranges are nevertheless hard to reconcile.

[38] In a decision released last week, R. v. P.M., 2022 ONCA 408, at paras. 8-9 and 23-24, the Court of Appeal noted that the trial judge in that case had found Bradley inconsistent with R. v. Smith, 2011 ONCA 564. Bradley suggests a range of three to five years where the sexual assault involved forced intercourse of a non-intimate partner (i.e., stranger/friend). Smith suggests a range of 21 months to four years where the sexual assault involves forced intercourse with an intimate partner. The Court of Appeal in P.M. said that it was not necessary to resolve any conflict in the ranges as the sentence given was a fit sentence.

[39] In this case I do not think it is overly difficult to determine a fit sentence which:

a. is proportionate to the gravity of the offence and the degree of responsibility of Mr. Tahan;

b. reflects the principle of restraint and is the “minimum necessary intervention that is adequate”; and

c. adequately reflects the sentencing purposes which are primary here, being denunciation and deterrence.

[40] I did not make a finding that the sexual act in this case was unprotected or that it was completed to ejaculation; however, I did find that there was both vaginal and anal penetration. The complainant was in a vulnerable state. There was a predatory element to the offence. On the other hand, Mr. Tahan is young, has no criminal record, and has a good education and work history. There is good reason to think he can be a contributing member to society.

Disposition

[41] Mr. Tahan would you please stand.

[42] Weighing the competing considerations and considering the sentences imposed by other judges for similar cases, I sentence you to a term of imprisonment of 28 months.

[43] In addition, there will be a mandatory weapons prohibition order pursuant to section 109(1) (a) of the Criminal Code for ten years and a mandatory DNA order pursuant to section 487.051(1) authorizing the taking of a DNA sample.

[44] There will also be an order under s. 743.21 of the Code prohibiting Mr. Tahan from communicating, directly or indirectly, with the complainant.

[45] In addition, pursuant to sections 490.011, 490.012(1) and 490.013(2) (b) of the Criminal Code, I make an order that your name be added to the Sex Offender Registry and that you comply with the Sex Offender Information Registration Act for 20 years. My reason for making this order is that you have been convicted of sexual assault which is a designated offence under section 490.011(1)(a)(xvi) and your counsel has not suggested that this order would have a disproportionate impact on your privacy or liberty interests.

Chown J.