COURT FILE NO.: CR-20-0370-0000 DATE: 2023 05 30

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Gursharn Gill for the Crown

- and –

ASHIR MAHMOOD Richard O’Brien for Mr. Mahmood

HEARD: April 3, 2023

PUBLICATION OF ANY INFORMATION THAT WOULD IDENTITY THE COMPLAINANT IS BANNED PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE. THIS JUDGMENT CONFORMS WITH THIS BAN.

REASONS FOR SENTENCE

D.E HARRIS J.

[1] Mr. Mahmood was found guilty by a jury of sexually assaulting C.A. Sentence for this crime must now be imposed. The Crown asks for between 3.5 and 4 years incarceration. The defence argues for a one-year sentence.

THE OFFENCE

[2] The complainant C.A. and A.C. were best friends, having met as undergraduate students at the University of Toronto. On vacation in 2018 in Cuba together, they met Mr. Mahmood and his fiancé Kavita Dayl (“Kavi”) and became friendly. Back in Toronto, Kavi invited the two women to her birthday party to be held in a hotel in Mississauga on the night of July 14, 2018.

[3] The arrangement was that Mr. Mahmood and Kavi would have a room of their own to sleep in and that the party would take place in a room across the hall. It was agreed that C.A. and A.C. would sleep over and would sleep in the room that was used for the party.

[4] Both women testified that C.A. drank too much that night; A.C. was not drinking at all. The two women slept in the same bed in their room. When they fell asleep on the bed, there were still some people in the room. At around 5 a.m., A.C. was woken up by C.A. kicking her. According to A.C.’s evidence, C.A. “gestured with her eyes” behind her. A.C. looked over and Mr. Mahmood was in the bed, behind Ms. A. Ms. C. mouthed, “is he touching you?” Mr. Mahmood then moved onto his back. The TV was on and Mr. Mahmood was responding out loud to the commercials. Ms. A. kicked Ms. C. again and looked behind her again. Ms. C. got out of bed and told Mr. Mahmood that he was in the wrong bed. There was a partially smoked marijuana joint laying in the bed. She walked Mr. Mahmood back to his room across the hall.

[5] Ms. A. testified. She is now 25 years old and was 20 years old at the time. She probably fell asleep at about 3:15 a.m. She was not drunk. When they fell asleep, Ms. C. was on her left and Ms. A. was sleeping on her left side as usual. Ms. A. was wearing a pair of spandex shorts with underwear and a pad as it was the fifth day of her period.

[6] She was awoken by the touch of a hand on her right hip. Ms. Mahmood was behind her, whispering in her right ear: “This feels so good, so tight, better than Kavi.” She felt a mushy feeling inside her vagina. There was some minimal thrusting. Ms. A. was in shock. She was frozen and could not move. She thought that she was safe in the room. She did not know what to do. Ms. A. kicked her friend Ms. C. Ms. C. woke up and at the same time Ms. A. felt Mr. Mahmood’s penis leave her body. It was limp, not fully erect. She pulled her shorts up quickly. Her underwear and shorts had been pulled down, exposing her vagina. As Ms. A. testified, Ms. C. got up, told Mr. Mahmood that he was in the wrong bed, and walked him across the hall to his room. Mr. Mahmood later phoned and said that he wanted to talk to the two women downstairs but they did not accept the invitation. They later received a text from him, apologizing for the night.

THE VICTIM IMPACT STATEMENT

[7] Ms. A.’s victim impact statement reminds us once again of the evils of sexual assault offences on victims. The severe emotional harm inflicted on Ms. A., a very young woman at the time, has had a major detrimental effect on her life, a very unfortunate although common aftermath of a sexual assault. Ms. A. wrote in part in her victim impact statement:

After this offence, I had trouble sleeping for a while. It was hard to fall asleep and stay asleep because this happened to me while I was asleep. I lost my appetite for a while, and it hasn’t been the same since before this offence. I have been more stressed than normal ever since, and I started feeling symptoms of anxiety after this happened, but I was never anxious before.

My friend A. that was in the bed with me when it happened couldn’t look at me, talk to, or be around me for 2-3 years after this incident because she felt so much guilt feeling like this happened to me because of her not being able to stop it even though we were both asleep when it occurred. She was my closest friend at the time, so not having her around made dealing with the trauma so much harder because I felt more alone.

That summer, I felt so numb, I almost dropped out of university even though I was only a year away from finishing. I also wanted to quit my job because I felt like I lost my purpose and I couldn’t feel anything emotionally for a while. I was so anxious that I didn’t want to continue anything and just wanted to crawl up into a ball and be alone.

After this offence happened to me, I felt so angry, stressed, anxious, traumatized, and even numb. I was mostly angry because I went to a girl’s birthday party to be a good friend to her and I woke up to her boyfriend in me. I felt so violated and scared when I woke up to that.

I had to do a rape kit alone for 5 hours that day… I became so anxious after this offence. I was so nauseous frequently because of this. I felt so weak, and I’d catch myself shaking sometimes.

I was alone getting my rape kit done, and the sexual assault victim specialist doing it for me used a speculum on me and cranked it open so wide, I couldn’t stop crying.

I had to take 2 HIV pep pills everyday for a month because I didn’t know if the offender had unprotected sex with other men and I woke up that day to his penis in me with no protection. These pills were so strong, they hurt my stomach and I felt so nauseous everyday that month, on top of the nausea from my anxiety. The nausea from my anxiety lingered for the longest time after and still comes and goes frequently.

I had to get tested for STI’s so much that month, it was so painful because my veins are so tiny in my arms and hands, and it took so many tries every time to draw even the smallest amount of blood.

I had to attend three sets of court dates and missed out on unpaid days of work to fight for this. I had to attend so much therapy and counselling after this offence. I went to 41 therapy and counselling sessions that first year and had to pay for some of it out of pocket.

THE OFFENDER

[8] Mr. Mahmood is 29 years old and has no prior record. The pre-sentence author stated that he does not accept responsibility for the offence.

[9] Mr. Mahmood and his family came to Canada from Pakistan when he was a toddler. Mr. Mahmood recalls his parents constantly arguing when he was young. His mother was physically and verbally abusive towards his father. His mother had an affair with another man who became his stepfather. His parents divorced when he was about eleven years old. Mr. Mahmood described feeling “broken” as his father was a role model to him, honest and hardworking. His stepfather was an alcoholic and was abusive towards his mother. Mr. Mahmood did not have a relationship of any kind with him. Mr. Mahmood told the pre-sentence report author that no one cared about him when he was growing up and he was outside most of the time, often on his bike.

[10] Mr. Mahmood now lives with his father whom he has a close relationship with. He has an “ok” relationship with his mother. They care about each other. Mr. Mahmood has three siblings. He has a two-year old daughter that lives with Kavi, her mother. Because of Mr. Mahmood’s substance abuse problem, the two agreed that he should not see his daughter for the meantime.

[11] Mr. Mahmood received his General Education Development in 2012. He was not a particularly avid student, often skipping classes. He did not have many friends. Mr. Mahmood earned a welding techniques and fabrication degree in 2020. He was working as a machine operator and welder for two months before being charged. He stated that prior to this employment, he was receiving social assistance for nine months. There is no information as to what Mr. Mahmood was doing from the end of his work in 2020 up to the present time. He hopes to move out to Alberta and get a welding job there.

[12] Substance abuse has been a problem for him and figured into the commission of the sexual assault in this case. He admits to an alcohol problem from years ago but says that he stopped drinking in October, 2022. Mr. Mahmood used marijuana twice a day in the period 2012-2019. He starting using cocaine in 2020 and stopped using in December, 2022. At one time, he was using cocaine three or four times a week. His father, Arshad Mahmood, reported that after finishing college, his son began abusing cocaine and was consuming alcohol every night until recently.

[13] Mr. Mahmood testified at trial that he was between tipsy and drunk on the night of the incident. He drank about 9 beers. He smoked part of the marijuana joint found in the bed at about 4:00 a.m. The marijuana, despite his experience with the drug, made him feel dizzy and disoriented. He was out of his comfort zone.

[14] Mr. Mahmoud claimed to be diagnosed with bipolar disorder and depression. The pre-sentence report author however obtained medical records which indicated that Mr. Mahmoud had a history of chronic depression and stimulant use disorder. Mr. Mahmoud said that he had attempted suicide three times, twice in 2012 and once in December, 2022 when he overdosed on cocaine and had a seizure. His father, Arshad Mahmud, suggested that his son receive mental health treatment. He confirmed that he has attempted suicide. Mr. Mahmood acknowledged that he would benefit from a substance use treatment program.

FINDINGS OF FACT

[15] In finding Mr. Mahmood guilty, the jury must have found that Mr. Mahmood’s penis touched Ms. A.’s vagina. The jury were instructed in the jury charge that the Crown did not have to prove penetration in order to prove sexual assault. The instruction was based on some uncertainty in Ms. A’s police statement and preliminary hearing evidence that Mr. Mahmood’s penis was ever inside her.

[16] It is now my obligation under section 724(2) of the Criminal Code to make a finding with respect to whether there was penetration in this case: R. v. Ferguson, 2008 SCC 6 at paras. 17-18; R. v. Moreira, 2021 ONCA 507 at paras. 45–51; R. v. Aragon, 2022 ONCA 244 at paras. 103-126. Mr. Mahmood in his evidence denied any touching whatsoever. That evidence was rejected by the jury as evident in their guilty verdict and there is no need to consider it. I only must examine Ms. A’s evidence in the context of the surrounding circumstances.

[17] I have no hesitation in finding that there was penetration beyond a reasonable doubt. There are two main factors. One, Ms. A. testified to being in shock at the time of the police statement and the preliminary hearing when she gave this testimony. She explained that was why she was hesitant and uncertain about the penetration. Given the circumstances, the shock Ms. A. felt in having a man insert her penis into her vagina when she was sleeping is a typical, normal, fully understandable reaction. She was still traumatized by the time of the preliminary hearing to the point of being unable to read her prior statement in preparation for her testimony. I find that the hesitation and initial uncertainly was a result of an inability to believe that such a terrible thing was actually happening to her.

[18] Two, Ms. A. testified that she was sure that his penis was inside of her because she was acutely aware when it left her body. This observation was quite detailed and specific. Having watched and listened to her while testifying, I trust her familiarity and sensitivity to her own body. She was able to accurately discern what she was feeling despite being woken from sleep and having drunk too much the night before.

[19] In making findings of fact around the issue of penetration, the risk of returning to the old rape law in which penetration became an issue of such overwhelming importance is a real one. It is clearly much less prejudicial when it is a judge examining the issue on sentence rather than as standing as a key facet of guilt or innocence. Nonetheless, it can be demeaning and potentially distracting and may not always be critical to the imposition of a proper sentence. In any case, in this instance, the fact-finding exercise is relatively simple and there is no real prejudice to the complainant or the process in making the finding.

THE APPROPRIATE SENTENCE

[20] It is a matter of fundamental principle that a sentence must be proportionate to the gravity of the offence and the responsibility of the offender: section 718.1 of the Criminal Code. Considering first the gravity of the offence, sexual offences are particularly injurious. The case law and judicial experience bear this out: R. v. Friesen, 2020 SCC 9. Sexual offences are predominately committed by men against women: Friesen, para. 68. It is an offence of domination and control by men against women. A sexual assault is all about the accused, a profoundly and thoroughly selfish act. [1]

[21] For a woman, the loss of control over her own body and sexual integrity even for a brief time inflicts deep, long lasting harm. A man committing a sexual assault by a forced and invasive sexual act objectifies the victim. This objectification is a major reason for the pernicious consequences of a sexual assault. The invasion of sexual privacy carries with it the denial of the victim’s personhood and status as a human being: R. v. Mabior, 2012 SCC 47 at para. 45.

[22] The incidence of sexual assault against women in our society is shocking. That has led many women to not feel safe in many avenues of their lives. In this case, in making the arrangements for the two women to sleep over at the hotel, Kavi texted that they would be safe because they would have their own room. There was also some reference in the evidence of the women concerning safety concerns they had. Sadly, it turns out despite the attention paid to it, they were not safe after all. This apprehension about safety and sexual assault is one that males in our society do not have to cope with and lack a visceral understanding of.

[23] In this case, Mr. Mahmood did not wear a condom. This caused very serious additional trauma to Ms. A. as conveyed in her victim impact statement. Ms. A.’s evidence about the numerous steps she had to take to ensure she was not infected is sobering. The anxiety she felt and the worry that she might be infected with HIV or an STD was excruciating. Ms. A. had not only to endure the sexual invasion but was dogged for quite a long time with the gripping fear that she may become ill, including with HIV.

[24] This offence was brazen. Mr. Mahmood somehow viewed a sleeping woman as an invitation to sexually abuse her. Mr. Mahmood purposely used the key to the womens’ room to enter after they were asleep. Despite his contrary evidence in front of the jury, he knew full well it was not his room which was across the hall. Mr. Mahmood sidled into bed behind Ms. A. despite knowing that the two women were sleeping in the bed. He pulled down her underwear in order to sexually assault her. He then entered her with his penis. He got out of the bed and was escorted to his room by Ms. Chen after being found out. Those series of acts were anything but spontaneous or impulsive. The aforethought required is an aggravating feature.

[25] Also brazen and aggravating was that this was an assault upon a sleeping woman. From the point of view of the offender, this is the ultimate objectification. In terms of the impact of the offence on C.A., being woken from sleep to a sexual assault can only increase the unreality of the situation and the trauma.

[26] This offence was bizarre. Why any man would deliberately get into bed with two women and sexually assault one of them with the other there to witness it is irrational and inexplicable. Generally criminal acts are committed with some eye to evading apprehension. In this instance, that cannot be said.

[27] The consequences to the victim are a major factor on sentencing for sexual offences: Friesen, at para. 74; R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81 (Ont. C.A.) at para. 76. And see R. v. Stuckless, [1998] O.J. No. 3177 (Ont. C.A.) at para. 44 in which the devastating psychological impact of sexual assault offences is considered. In another recent sexual assault sentencing, the victim’s impact statement resonated. She said: “No matter how much you put in to heal your mind, the body never forgets.” (R. v. A.G., 2023 ONSC 3049 at para. 10). That is one salient aspect of the difficulty in recovering from sexual assault and I am sure reflects Ms. A.’s experience too.

[28] Breach of trust as an aggravating factor on sentence as specified in section 718.2(a)(iii) of the Criminal Code. It goes well beyond traditional breach of trust situations such a loco parentis. There was a trust element between Mr. Mahmood and Ms. A. in this situation. She was staying overnight in a hotel at his fiancé’s birthday party which he was involved in organizing. Rather then ensure that she was content and comfortable as a host should, he sexually assaulted her. That is an aggravating factor.

[29] I view the ruptured friendship between C.A. and A.C. as a casualty of the repercussions of the sexual assault. They were best friends before this incident but their bond was somehow broken in the aftermath of the sexual assault. The explanation given by C.A. was that A.C. felt terrible guilt that she was unable to prevent the sexual assault. But clearly she did everything she possibly could. Speculation is unnecessary. The fact is, the sexual assault against C.A. destroyed their friendship. It is one sad consequence of the sexual assault on Ms. A.

[30] In terms of mitigation, Mr. Mahmood was relatively young at the time of this offence, 24 years old. He has no previous criminal record. He has some family support from his parents. Like so many other cases post-pandemic, the delay in getting this case completed is of great concern. Some of that is because of the chronic delays in Central West Region, some is because of the pandemic, some is a result of the prior mistrial. The almost five-year delay from charge to sentence is of substantial mitigation: R. v. Hartling, 2020 ONCA 243 at paras. 115–122.

[31] I do not find that the alcohol and marijuana use by Mr. Mahmood is mitigating. That might be the case if the use was out of character and the effects were unexpected. But Mr. Mahmood regularly abused drugs and alcohol at this time. This was nothing new. Mr. Mahmood responsibility for his actions is not diminished by substance abuse.

CONCLUSIONS

[32] The paramount sentencing principles are denunciation and general deterrence. In my view, individual deterrence is not without some significance. Substance abuse was a factor in this offence. Mr. Mahmood has struggled for years with substance abuse. Moreover, there are mental health issues. There is a prospect that continued substance abuse and untreated mental health issues could lead to a re-occurrence of this type of offence.

[33] Rehabilitation is important with a man of Mr. Mahmood’s age and previous character. The prospects for Mr. Mahmood’s rehabilitation are good.

[34] Looking at all the evidence and the pertinent sentencing principles, the defence position of one year in jail fails to meet the public demands in relation to denunciation and deterrence. It is disproportionately low in relation to the gravity of the offence and the consequences to Ms. A.

[35] Recently, Associate Chief Justice Fairburn in R. v. A.J.K., 2022 ONCA 487 at paragraphs 68-79, after summarizing the relevant jurisprudence, reiterated that the general range for both non-intimate and intimate partner sexual assault involving penetration is three to five years. In my view, there is nothing in this case with would make this range inapplicable or inappropriate.

[36] In my view, the appropriate sentence, factoring in the almost five year delay since the offence was committed, is three years. That will be the sentence imposed.

[37] This is my second sentencing in two weeks in which the offender has had mental health issues and there have been previous suicide attempts (see A.G. at paras. 36-37). Public awareness of how mental health can affect criminality is growing. So too is the understanding of the importance of treating mental illness and addiction in prison: see “Do we need to be ‘tough on crime’? Maybe. Mostly we need to get smarter about crime.” editorial by Tony Keller, Globe and Mail, May 2, 2023: (https://www.theglobeandmail.com/business/commentary/article-do-we-need-to-be-tough-on-crime-maybe-mostly-we-need-to-get-smarter/)

[38] Short term thinking leaving mental health and addiction issues untreated during incarceration is a poor and ultimately costly societal choice. It makes no sense for an offender to be released from jail either no better than when he went in or worse off, as is often the case: R. v. Proulx, 2000 SCC 5 at paras. 16-17.

[39] Like the last sentencing, I recommend in the strongest terms that Mr. Mahmood be monitored closely in custody. He should also get immediate and thorough mental health and addiction assessment and treatment if needed. I will include that endorsement on the indictment.

[40] There will be the following ancillary orders: DNA databank, SOIRA for 20 years, non-communication with A.C. and C.A. during the custodial period under section 743.21 of the Code and a section 109(2)(a) order for 10 years and a section 109(2)(b) order for life.

D.E HARRIS J.

Released: May 30, 2023

[1] For a particularly incisive and poignant account illustrating the profoundly damaging effects of sexual assault on a victim's identity and sense of self-worth see "Know My Name: A Memoir" by Chanel Miller, Viking, 2019.