Court File and Parties
COURT FILE NO.: CR-21-10000205 DATE: 20230915 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – A.Z.A. Defendant
Counsel: Cara Sweeny, for the Crown Stephen DiClemente, for the Defendant
HEARD: April 21 and June 23, 2023
Schabas J.
REASONS FOR SENTENCE
NOTE: This case is subject to an order that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way.
Overview
[1] On December 19, 2022, following a trial, I found the accused, A.Z.A. (“Z.A.”), guilty of three counts of threatening to cause death, one count of sexual assault and one count of sexual assault causing bodily harm. My Reasons for Judgment can be found at R. v. A.Z.A., 2022 ONSC 7052.
[2] The matter was adjourned to obtain a pre-sentencing report (“PSR”). On April 21, 2023, I received the PSR and victim impact statements from the accused’s wife, Y.A., and their daughters, V.A. and S.A. The daughters read their statements aloud to me in the courtroom. Ms. Sweeny read the statement of Y.A.
[3] On June 23, 2023, I heard submissions respecting the appropriate sentence.
Relevant facts
[4] My Reasons for Judgment explain the facts of this case. Put briefly, I was satisfied beyond a reasonable doubt that Z.A. had threatened to kill his wife and daughters when the couple separated in 2016. I also found that the Crown had proven beyond a reasonable doubt that Z.A. sexually assaulted Y.A. in their apartment on many occasions between January 1, 2009, and June 1, 2016, and that at least one of those sexual assaults caused Y.A. bodily harm.
Positions of the parties
[5] The Crown submitted that Z.A. should receive a sentence of 12 years imprisonment. Z.A.’s counsel did not seek a specific term but argued that the term sought by the Crown was too long.
The circumstances of the defendant
[6] My Reasons for Judgment set out some of Z.A.’s background and details about his marriage and family life. I received more information from the PSR.
[7] Z.A. was born in Kabul, Afghanistan, in August 1973. He is now 50 years old. Although he is one of five children, he is not in close contact with any of his siblings. His parents died in 2019. Z.A. left home at the age of 16 and moved to Azerbaijan. He met Y.A. in 1994 when they were both students, and they married. In 2006, with two young daughters, they immigrated to Canada. They initially lived in Sherbrooke before moving to Toronto. Z.A. and Y.A. separated in 2016. Around that time, or shortly after the separation, Z.A. entered a romantic relationship with F.K. It is not clear if that relationship is continuing.
[8] Z.A. has been in custody since prior to this trial commencing on other matters, which I do not consider in my determination of an appropriate sentence, nor have I been asked to consider any of that time spent in custody in reducing the sentence or time to be served.
[9] According to the PSR, Z.A. obtained a bachelor’s degree in international law in Azerbaijan. He worked while completing his studies, including in a bakery and a restaurant. In Canada, he has worked in landscaping, cleaning, as an Uber driver and as an installer of counter-tops. He filed for bankruptcy in 2015 or 2016, and relies on social assistance. His daughters described him as hardworking. Despite the violence in the home, the family seems to have had a stable living situation for several years in an apartment in Thorncliffe Park, and their daughters were able to attend and complete school in Toronto.
[10] Y.A. testified that Z.A. regularly drank alcohol and smoked marijuana. Z.A. did not deny drinking and smoking, but there is no indication he is addicted, or that his intoxication caused the criminal behaviour.
[11] Although, as I heard at the trial, police had previously been involved in possibly violent incidents between Z.A. and Y.A., both in Azerbaijan and in Canada, Z.A. has no prior criminal record.
Applicable sentencing principles
[12] Section 718 of the Criminal Code states:
The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[13] Sentencing is highly case-specific and must be tailored to the individual circumstances of the accused and the offences. The sentence imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”, as set out in s.718.1 of the Criminal Code. It must also take into account aggravating and mitigating circumstances, including those set out in s. 718.2 of the Criminal Code. These factors direct consideration of, among other things, any breach of trust or abuse of authority by the offender, and any significant impact on the victim having regard to their age and other personal circumstances. Section 718.04 also requires that in imposing a sentence for an offence involving the abuse of a person who is vulnerable because of personal circumstances, “the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.”
[14] Of particular relevance is the direction in s. 718.2 (a)(ii) to consider, as an aggravating circumstance, “evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family.” This is due to the fact that victims of such violence are in a position of trust and vulnerability with the perpetrator. As the Court of Appeal recently observed in R. v. Cunningham, 2023 ONCA 36 at para. 26:
In a domestic context, the objectives of denunciation and deterrence gain added significance and require heightened attention to the moral blameworthiness of the offender. The sentence must reflect the individual harm to the victim and the court’s response to the heinous effects of domestic violence.
[15] Section 718.2 also directs that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” Judges must exercise restraint in imposing imprisonment to ensure that sentences are not “unduly long or harsh” and that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances.”
[16] Sexual assault, even absent intimate partner situations, is an offence that requires an emphasis on denunciation and deterrence. It is pervasive and notoriously under-reported, and has devastating impacts on victims. As the Supreme Court stated in R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 37:
Sexual assault is still among the most highly gendered and underreported crimes…. Even hard-fought battles to stop sexual assault in the workplace remain ongoing …. As time passes, our understanding of the profound impact sexual violence can have on a victim’s physical and mental health only deepens.… Throughout their lives, survivors may experience a constellation of physical and psychological symptoms including: high rates of depression; anxiety, sleep, panic and eating disorders; substance dependence; self-harm and suicidal behaviour. A recent Department of Justice study estimated the costs of sexual assault at approximately $4.8 billion in 2009, an astonishing $4.6 billion of which related to survivors’ medical costs, lost productivity (due in large part to mental health disability), and costs from pain and suffering. The harm caused by sexual assault, and society’s biased reactions to that harm, are not relics of a bygone Victorian era. [Citations omitted, emphasis in original]
Aggravating and mitigating circumstances
[17] There are a number of aggravating factors in this case. The crimes are serious and occurred over a lengthy period of time. The sexual assaults were numerous and violent against an intimate partner who was particularly vulnerable as an immigrant, living in very challenging circumstances with limited English, in a household that was effectively terrorized by Z.A. Although I heard evidence from the daughters of Z.A.’s softer side as a loving father, it is clear from the evidence, including the prior discreditable conduct, at least some of which was confirmed by V.A.’s evidence, that they lived in a violent home with a man who was abusive, controlling and violent towards all of them.
[18] The seriousness of Z.A.’s crimes and their impact is seen in the long-term trauma it has caused to Y.A. She has contemplated and threatened suicide, lives in constant fear, and is haunted by the violence she has been subjected to by her husband. She continues to have counselling and therapy but, as she told the court in her victim impact statement, she “cannot pull herself together.”
[19] The violent conduct of Z.A. has also affected Y.A.’s relationships with her daughters who, as is often the case, feel torn between their parents. The daughters are also victims of the violence.
[20] On the mitigating side, Z.A. has no prior criminal record. He is an immigrant to Canada who has worked and managed to support his family despite difficult circumstances and challenges. He and Y.A. raised two daughters who are now young adults embarking on their own lives. They did, however, grow up in a violent home, which can have lifelong impacts.
[21] In the PSR there is reference to friends and acquaintances of Z.A., some of whom spoke to Z.A.’s good character, at least as far as they knew him.
[22] Z.A. continues to maintain his innocence. He has expressed no remorse and has not shown any appreciation of the harm he has caused. Although he did not contest the threats at trial, he continues to deny them, according to the PSR. This is not an aggravating factor, but is mentioned because in other cases, where there has been a guilty plea or expression of remorse, courts recognized it as a mitigating circumstance.
Analysis and appropriate sentence
[23] The Crown puts forward three cases to support its position. The first case, R. v. A.J.K., 2022 ONCA 487, upheld a five-year sentence for a brutal sexual assault on a woman who could be described as an intimate partner given their previous, consensual sexual activity. The Court of Appeal rejected setting a particular range for sexual assaults which are “serious acts of violence.” Ranges are not to be “straightjackets” and can be departed from in appropriate circumstances and “as societal understanding of offences and the severity of harm arising from those offences deepens”: A.J.K. at para. 71. Nevertheless, the Court stated at para. 77:
Absent some highly mitigating factor, the forced penetration of another person will typically attract a sentence of at least three years in the penitentiary. While Bradley and the cases following it suggest that the range is three to five years, this is of course just a range, a quantitative sentencing tool designed to assist busy trial judges with where to start: Parranto, at paras. 15-17 [R. v. Parranto, 2021 SCC 46, 436 D.L.R. (4th) 389]. Accordingly, there will be circumstances where a departure from the range, either above or below the range, is entirely appropriate.
[24] The second case relied on by the Crown has facts closer to those in this case. In R. v. D.S., 2013 ONCA 244, the accused was convicted of 32 counts relating to sexual assaults against his partner and violence against both his partner and four children over a ten-year period. The offences included six counts of sexual assault, 14 counts of assault with a weapon, one count of assault causing bodily harm, four counts of assault, five counts of uttering threats, one count of possession of a prohibited weapon, and one count of breach of a recognizance.
[25] A sentence of six years was found to be “manifestly unfit” and a sentence of 12 years was substituted by the Court of Appeal.
[26] I agree with the Crown that Z.A.’s conduct has similarities to that of the offender in D.S., as both engaged in violence over a long period of time against their partner and children in the home. Although Z.A. was only convicted of five offences, the evidence supports a finding that he sexually assaulted Y.A. on many occasions, and made threats and committed assaults on many occasions, often terrifyingly, such as holding S.A. over the balcony.
[27] R. v. D.K., [2003] O.J. No. 562, is the third case cited by the Crown. There, the accused pleaded guilty to five counts of sexual assault with a weapon involving attacks on his wife whom he terrorized over a period of 12 years. A sentence of 10 years was upheld by the Court of Appeal.
[28] Counsel for Z.A. did not cite any cases to counter the Crown’s position; instead he sought to distinguish them, especially D.S and D.K., to argue that a sentence below those imposed in those cases, of 12 and 10 years respectively, should be imposed.
[29] I am not persuaded that the differences are so compelling that a sentence in that range is inappropriate. In D.S., as here, there was also a violent reign of terror against the accused’s wife and children. Although Z.A.’s children still love both their mother and father, they grew up in a dangerous and violent home, ruled by their father. Such conduct should not be normalized and must be condemned. It causes lasting harm.
[30] D.K., which dates back to 2003, involved a guilty plea but still warranted a lengthy sentence because of the accused’s significant criminal record, which negated much of the impact of his plea because of the poor prospects for rehabilitation. Here, Z.A. does not have a criminal record, which is a significant mitigating factor, but he has also taken no responsibility for his actions which are serious, and which must be denounced and deterred.
[31] I accept that Z.A. has the support of his daughters, who do not want to see their father spend the rest of his life in prison, but it is not clear to me what support they would provide to him in other respects, or upon his release. He has limited support from friends.
[32] In my view, the sentences in D.S and D.K. are relevant and instructive for this case and support a lengthy sentence of imprisonment. I give weight, as I must to the principles of denunciation and deterrence. Z.A. committed serious violent offences over a lengthy period of time. He committed them on his intimate partner, his wife, who was particularly vulnerable to his assaultive behaviour. At the same time, I must also give weight to the lack of a prior criminal record, which is significant, and the direction that sentences should not be “unduly long or harsh.” Weighing all these factors, and comparing Z.A.’s circumstances to those in D.S. and D.K., and the sentences there, I conclude that the appropriate sentence in this case is a term of imprisonment of 8 years.
[33] There shall also be a DNA order, a 10-year weapons prohibition under s. 109 of the Criminal Code, and an order that A.Z.A. comply with the Sex Offender Information Registration Act for the minimum period of 20 years pursuant to s. 490.012 of the Criminal Code.
Paul B. Schabas J.