COURT FILE NO.: CR-22-10000305

DATE: 20230209

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

UBAIDULLAH PATEL

Emma Evans, for the Crown

Rishma Gupta, for Ubaidullah Patel

HEARD: December 16, 2022 in person and February 8, 2023 by videoconference

REASONS FOR SENTENCE

P.J. Monahan J.

[1] On June 16, 2022, a jury found Ubaidullah Patel guilty of two counts of sexual interference, contrary to s. 151 of the Criminal Code, and one count of invitation to sexual touching, contrary to s. 152 of the Criminal Code. These three offenses took place in two separate incidents in late summer 2017. Mr. Patel is before the court today for sentencing.

[2] The Crown and defence have put forward a joint position on sentence, namely, a period of incarceration of two years less a day, followed by 18 months of probation. For the reasons that follow, I accept the joint position.[^1]

Circumstances of the Offenses

[3] Given that this was a jury trial, I must begin by determining the material facts required for sentencing. In R. v. Aragon,[^2], the Court of Appeal for Ontario confirmed that this is a two-step process. First, s. 724(2) of the Criminal Code directs that I must “accept as proven, all facts, express or implied, that are essential to the jury’s verdict”. This means that I “must identify any relevant factual determinations the jury has made by examining what facts were essential to the jury’s verdicts, and then apply those facts when sentencing the offender.”^3 Second, s.724(b) directs that I may “find any other relevant fact that was disclosed by evidence at the trial to be proven”.

[4] In this case, the issue was simply whether the incidents alleged by the Crown took place. To find Mr. Patel guilty of the offences alleged, the jury necessarily had to reject Mr. Patel’s denials and accept the evidence of the victim that the incidents took place as he described. There is thus no ambiguity in terms of the facts as found by the jury.

[5] I therefore proceed on the basis that the facts as described by the victim form the factual basis for my sentencing decision. Those facts can be summarized as follows.

[6] In August 2017, Mr. Patel was a senior student at an Islamic society in the greater Toronto area, studying to be a religious scholar. As a senior student, Mr. Patel was sometimes asked to lead regular prayers at the mosque, and he also counselled other students. In addition, Mr. Patel would sometimes drive younger students home after a Friday evening program offered to youth in the community.

[7] The first incident involving the victim, who was then 14 years old, occurred on a Friday evening on August 4, 2017. The victim and his father had arrived at the mosque late that evening and happened to run into Mr. Patel. An arrangement was made for Mr. Patel to give some advice to the victim and then drive him home.

[8] After their meeting, Mr. Patel and the victim got into Mr. Patel’s van for the drive home. By this time, it was after midnight. Instead of taking the victim home, Mr. Patel drove to a dark parking lot. After he had parked the vehicle, Mr. Patel told the victim that he wanted to show him something in the back seat. Once there, Mr. Patel told the victim that he wanted him to perform fellatio on him and that if he did so he would give him all the pleasures of life. The victim told him no. Mr. Patel then took off his own pants and told the victim that if he did not perform fellatio on him, Mr. Patel would threaten him for the rest of his life. Mr. Patel tried to push the victim’s head towards his penis, but the victim resisted, although the victim’s face or lips may have briefly touched Mr. Patel’s penis.

[9] Mr. Patel tried to take off the victim’s pants but the victim said “no do not touch me” and started to get out of the van. While the victim was exiting the van, Mr. Patel touched the victim in the region of his anus, over the top of his clothing. Mr. Patel then drove the victim home.

[10] Mr. Patel was convicted of sexual interference and invitation to sexual touching in relation to this first incident.

[11] The second incident occurred on a Friday evening a few weeks later. After the conclusion of a youth program, Mr. Patel told the victim to come into a guest room at the mosque because Mr. Patel wanted to show him something. Once they were in the room, Mr. Patel showed the victim a picture of himself smoking on a yacht. Mr. Patel told the victim that if he performed fellatio on him, he would give him the pleasures of life. The victim said no. Mr. Patel then hugged the victim and threw him onto a bed while holding him. The victim struggled with Mr. Patel, was able to get him off, and left the room.

[12] Mr. Patel was convicted of sexual interference in relation to this second incident.

Circumstances of Mr. Patel

[13] A Pre-Sentence Report (“PSR”) was prepared which provides helpful background information about Mr. Patel’s current circumstances.

[14] Mr. Patel, along with his four siblings, was raised by his biological parents in Scarborough, Ontario. Mr. Patel says that he has a close relationship with his parents and siblings, and his family has always been supportive of him. Although he attended public schools in Toronto, in grade nine he spent the year in India with his grandfather completing the first year of a theology program. After returning to Toronto, he continued studies in a theology program on a part-time basis throughout the remainder of high school. Upon his graduation from high school, he enrolled in the theology program on a full-time basis and completed it in 2020. He is now considered to be a religious scholar and gives lectures and leads prayers in multiple mosques in Toronto. However, due to these criminal proceedings, he does not currently counsel or teach individuals. Mr. Patel also earns income from two part-time jobs

[15] Mr. Patel continues to reside with his parents in Scarborough, Ontario. Neither Mr. Patel nor any of his other family members consume alcohol or drugs, as to do so would be against their faith.

[16] Mr. Patel claims that he has no sex drive, nor has he experienced any sexual urges, now or at any time in the past. He says that while he is not attracted to men, he also does not look at women in a sexual or romantic way and maintains that he has never felt a sexual urge towards a woman. He stated that he has never viewed pornography, nor has he ever masturbated. Mr. Patel attributes his absence of sexual urges to the fact that he remains focused on his religious studies. He also wants to keep himself “pure” for his potential future spouse.

[17] At trial, Mr. Patel denied any accountability for the offenses of which he has been convicted, maintaining that he “never touched the victim” and “had never done anything wrong with him”. He also indicated that he does not believe he has any need for counselling, although if he ever did need counselling it would be because of what the victim has put him through, rather than the other way around. Although Mr. Patel does not believe he needs counselling, he would attend if so directed by the court. He has been told by one of his teachers that there is no point in being angry toward the victim and that, instead, he should continue to pray for the victim and the victim’s family.

[18] The author of the PSR recommended that Mr. Patel attend and actively participate in all assessment, counselling or rehabilitative programs as directed by his probation officer. This programming should include counselling to address inappropriate sexual behaviour.

Victim Impact Statements

[19] Both the victim and his mother submitted Victim Impact Statements (“VIS”).

[20] The victim’s VIS indicated that these incidents traumatized him. They have affected him physically and mentally, impacting all areas of his life, including his education, family, and peers. He has had difficulty attending school and lost many friends. Both he and his parents live in fear of something like this happening to him again and, whenever he goes out, his parents worry about him.

[21] Prior to these incidents, the victim used to go to the mosque frequently but now he rarely does so. He was also bullied and ridiculed by his classmates because of what happened. He has lost trust in people and has become very antisocial. When in public, the victim is fearful that he will see Mr. Patel. He is also fearful because Mr. Patel threatened him with severe consequences if he reported these incidents to his parents or to the authorities. He is afraid that either Mr. Patel or someone sent by Mr. Patel will beat him up.

[22] Late at night he has often cried himself to sleep, feeling terrified and worthless because of what happened to him. However, he feels that he did the right thing by putting his own life at risk so that no other young boys could be sexually molested and assaulted by Ubaidullah Patel.

[23] In her VIS, the victim’s mother, TM, relates the fact that she constantly worries about how these incidents have impacted her son. Her son was so fearful of what would happen to him if he disclosed the sexual assaults, that he cried for almost an hour before finally breaking down and telling her about what Mr. Patel had done to him. TM was horrified, shaken, terrified and traumatized. She says that the last five years have been traumatic for the victim and the entire family, all of whom have experienced agony and pain.

Applicable Sentencing Principles

[24] All sentencing starts with the principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.[^4] A proportionate or just sentence must 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 the 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 acknowledgement of the harm done to victims or to the community.[^5]

[25] Section 718.01 of the Criminal Code provides that in imposing a sentence for an offence that involves the abuse of a person under the age of 18, primary consideration shall be given to the objectives of denunciation and deterrence. This principle is reinforced by s. 718.2(a), which provides that evidence that the offender abused a person under age 18, or that the offender abused a position of trust or authority in relation to the victim, are aggravating factors for sentencing purposes.

[26] In R. v. Friesen,[^6] the Supreme Court found that these statutory sentencing principles reflect the fact that sexual offenses against children cause profound harm to the victims and that, accordingly, sentences for such offenses must increase to match Parliament’s view of their gravity. The Supreme Court found that an upward departure from prior sentencing ranges in cases involving sexual offenses against children was required by virtue of the fact that sexual violence against children invades a child’s personal autonomy, violates their bodily and sexual integrity, and gravely wounds their dignity. Moreover, not only does sexual violence against children risk damaging their relationships with their families, but it also has “ripple effects” that can make the child’s parents and family members secondary victims who also suffer profound harm as a result of the offence.[^7] For these reasons, amongst others, sexual offenses against children should generally be punished more severely than sexual offences against adults, and “[s]exual interference with a child should not be treated as less serious than sexual assault of a child.”[^8]

[27] The court in Friesen also identified significant factors to be considered in determining a fit sentence for sexual offenses against children. These include the likelihood of reoffending; whether the offence involved the abuse of a position of trust, since any breach of trust is likely to increase the harm to the victim as well as inhibit the child from reporting sexual violence; and the duration and frequency of the sexual violence, since the long-term emotional and psychological harm to the victim can become more pronounced where the sexual violence is repeated.[^9]

[28] At the same time, while denunciation and deterrence are the primary objectives that must be considered in sentencing those who commit sexual offenses against children, it remains appropriate for a sentencing court to have regard to other sentencing principles and objectives. The words “primary consideration” in s. 718.01 require “a relative ordering of sentencing objectives,” such that denunciation and deterrence must be given priority over other objectives but are not the sole or exclusive considerations that may appropriately be taken into account.[^10] This is consistent with the fundamental and overarching principle of proportionality, which applies to all sentencing decisions.[^11] Indeed, it would be inconsistent with the principle of proportionality to treat an offender who has demonstrated significant insight into his behaviour and is at a low risk for reoffending, no differently from the offender who lacks these positive characteristics.

Analysis

[29] As noted above, the parties have put forward a joint submission on sentence, namely, a period of incarceration of 2 years less a day followed by 18 months of probation.

[30] In considering whether this is a fit sentence for Mr. Patel, I note that there are a number of significant aggravating factors in this case.

[31] First, since the offences involved the sexual abuse of a person under the age of 18, Parliament has mandated that denunciation and deterrence must be given primary consideration in fashioning a fit sentence.

[32] Second, Mr. Patel abused a position of trust in committing these offenses. As described above, because Mr. Patel was a senior scholar at the mosque, he was frequently asked to provide counselling or advice to younger students. It was precisely because of this position of trust in relation to younger students that Mr. Patel was given the opportunity to commit the first offence. The victim’s father left his son with Mr. Patel late at night so that Mr. Patel could counsel his son and then drive him home. This led to the victim being driven home alone by Mr. Patel after midnight on a Friday night, a time when it was unlikely that anyone would observe Mr. Patel’s actions.

[33] Mr. Patel’s breach of this position of trust was exacerbated by the fact that he told the victim he would threaten him for the rest of his life if the victim ever reported the abuse. In Friesen, the Supreme Court specifically notes that threats and emotional manipulation of the victim will not only discourage reporting of the offence but also instill feelings of fear and shame.[^12] That clearly happened in this case, as reflected in the VIS filed by both the victim and his mother. The victim in particular reports that even today, over five years after the abuse, he is still fearful of retribution from Mr. Patel for disclosing the abuse to his parents and the authorities.

[34] A further aggravating factor is that there were two separate incidents of abuse. As mentioned, the long-term emotional and psychological harm to the victim can become more pronounced where the sexual violence is repeated. This increased harm magnifies the severity of the offence and increases the offender’s moral blameworthiness because additional harm to the victim is a reasonably foreseeable consequence of multiple assaults.[^13] In this case, the victim reports continued feelings of shame and withdrawal from social activity with his peers and from his religious community, which is clear evidence of the harm that he has suffered.

[35] At the same time, I note that there are a number of significant mitigating factors in this case.

[36] Most importantly, Mr. Patel is a youthful first offender. He was just 18 years old at the time he committed these offenses and is now in his mid-20s. He is also strongly committed to his religion. The PSR does not comment on Mr. Patel’s likelihood to reoffend, and I have no reliable, independent evidence upon which to make a finding in that regard. Nevertheless, I proceed on the basis that Mr. Patel’s religious values will likely constrain and limit any tendency he might have to commit similar offences in the future. Mr. Patel also has strong support from his family and the community which will assist him going forward.

[37] Mr. Patel did not plead guilty and maintains his innocence. Moreover, as the PSR makes plain, he lacks insight into the consequences of his actions on the victim and, instead, blames the victim for having caused him harm by reporting these offenses to the authorities.

[38] It is well established that lack of remorse is not an aggravating factor and is merely the absence of a mitigating factor, and I treat it as such in this case. Nevertheless, as I will explain below, Mr. Patel’s lack of insight and remorse is a relevant consideration in fashioning the terms of his probation, particularly in relation to the terms upon which counselling should be mandated, and in determining the duration of the s. 161 order to be imposed.

[39] Taking all these factors into consideration, I regard the joint submission on sentence to be appropriate for Mr. Patel. The offenses he has committed are extremely serious and clearly merit a significant period of incarceration. Nevertheless, as a youthful first offender who has a strong commitment to his religion and strong support from the community, I find a sentence of two years less a day gives appropriate weight to the principles of denunciation and deterrence while also taking into account other relevant factors.

[40] Although the parties are largely agreed on the terms of Mr. Patel’s probation and of the associated ancillary orders, two issues remain in dispute:

(a) whether, during the term of his probation, Mr. Patel should be required to undergo phallometric testing as part of his participation in sexual behaviour counselling at the Centre for Addiction and Mental Health (“CAMH”); and

(b) the duration of the s. 161 order that should be imposed.

[41] Regarding the first issue, Mr. Patel argues that because phallometric testing is done to evaluate sexual interests and arousal patterns, it would be contrary to his religious values to participate in it.

[42] I accept and respect Mr. Patel’s commitment to his religious values and do not wish to impose probation terms which would unduly conflict with those values. At the same time, given Mr. Patel’s lack of insight into his behaviour and, indeed, his position that he has no sexual urges of any kind, I believe it is important to ensure that he receives effective counselling as part of his probation.

[43] It is agreed that Mr. Patel should participate in counselling involving child exploitation and child pornography at CAMH (or some other similar institution, approved by Mr. Patel’s probation officer). The professionals who will be responsible for delivering such counselling are in the best position to determine whether ensuring such counselling is effective in achieving its purpose requires that Mr. Patel participate in phallometric testing. Those professionals should make that determination after they have met with Mr. Patel and conducted a preliminary assessment of his counselling needs.

[44] Accordingly, I direct as a term of his probation that Mr. Patel participate in counselling as directed by his probation officer including, to the extent determined necessary by relevant professionals responsible for delivering such counselling, participation in phallometric testing.

[45] Regarding the second issue, while the parties agree that the issuance of a s. 161 order would be appropriate and, further, agree on the terms of that order, they disagree on its duration. The Crown’s position is that the order should be imposed for 10 years, while Mr. Patel argues that the term of the s. 161 order should mirror his probationary term, i.e., 18 months after his release.

[46] Mr. Patel relies on the Supreme Court’s decision R. v. K.R.J.,[^14] as well as on a number of other cases[^15] which state that an order under s. 161 can only be imposed where there is an evidentiary basis upon which to conclude that the offender poses a risk to children.[^16] Given that these offences occurred over six years ago and there is no evidence that Mr. Patel has re-offended in the interim, there is no justification for continuing the s. 161 order beyond the term of his probation.

[47] The Crown’s position is that the facts of the case provide the evidentiary basis for the order. In addition, unlike the offenders in the cases he relies upon, Mr. Patel has been under strict conditions since being arrested in 2018. The Crown therefore argues that the fact he has not reoffended since 2018 is not necessarily a reliable basis to assess his risk once those conditions have been lifted. Further, as outlined in the PSR, Mr. Patel has not displayed any insight into his behaviour, and has yet to undergo counselling. In the Crown’s view, it is not possible at this stage to conclude that Mr. Patel is at a low risk to reoffend.

[48] I agree with the Crown that the facts and circumstances of the offences in this case provide a sufficient evidentiary basis to justify the imposition of a s. 161 order. [^17] Moreover, Mr. Patel concedes that a s. 161 order would be appropriate, albeit for a shorter term, thereby conceding that there is sufficient evidence to justify imposition of the order in this case.

[49] Moreover, I am unable to conclude the risk posed by Mr. Patel to persons under age 16 will likely be sufficiently addressed by the end of his probation. I acknowledge and commend the fact that Mr. Patel has not reoffended while he has been on bail. Nevertheless, given the strict bail conditions that have been in place, it is not possible to confidently assess his risk of reoffending once those conditions are removed. I am also concerned that Mr. Patel denies that he has any need for counselling and seeks to avoid phallometric testing, which would provide a more accurate basis to evaluate his risk. Given these concerns, I am unable to conclude that after only 18 months the risk he poses will have been mitigated.

[50] The terms of the s. 161 order have been carefully tailored to be no more restrictive than necessary. I note that no restriction will be imposed on Mr. Patel’s use of the internet and the other terms have been crafted in such a way as to allow religious practice and recreational activity, albeit with certain conditions.

[51] In the circumstances of the case, I find that a 10-year term for the s. 161 order is appropriate and justified and would so order.

Disposition

[52] Mr. Patel’s sentence shall be entered as follows:

a. Count 1 – Sexual Interference: a sentence of 2 years less a day of incarceration, followed by 18 months of probation.

b. Count 2 – Invitation to Sexual Touching: a sentence of 2 years less a day of incarceration, followed by 18 months of probation, to be served concurrently with the sentence for Count 1.

c. Count 3 – Sexual Interference: a sentence of 2 years less a day of incarceration, followed by 18 months of probation, to be served concurrently with the sentence for Count 1.

[53] I further order that while in custody, Mr. Patel, you shall not communicate, directly or indirectly with the victim, pursuant to s. 743.21(1) of the Criminal Code.

[54] The terms of your 18 month period of probation, Mr. Patel, are as follows:

a. Report to a probation officer within two working days following your release from custody, and thereafter when required by the probation officer.

b. Live at an address approved by your probation officer, and do not change that address, unless you receive the permission of your probation officer in advance.

c. Do not go within 100 metres of any place where the victim is known to ordinarily reside, work or attend school;

d. Attend, actively participate in, and complete to the satisfaction of your probation officer all assessment, counselling or rehabilitative programs as directed by your officer including, without limitation, programs on the topics of child exploitation and child pornography.

e. After consultations with the professionals delivering the above-mentioned counselling, participate in phallometric testing if the relevant professionals determine that such testing is necessary to ensure that the counselling achieves its intended purpose.

f. Sign any releases that will enable your probation officer to monitor your attendance and completion of any assessments, counseling, or rehabilitative programs as directed above.

g. Do not possess any weapons as defined in s. 2 of the Criminal Code.

[55] Mr. Patel, I also make the following ancillary orders:

a. Have a sample of your blood taken for inclusion of your DNA profile in the national DNA data bank, pursuant to s. 487.051(1) of the Criminal Code.

b. Comply with the Sex Offender Information Registration Act[^18] for a period of 20 years, pursuant to ss. 490.012(1) and 490.013(2) of the Criminal Code, taking into account the Supreme Court’s declaration, with immediate effect, that s. 490.013(2.1) is unconstitutional.[^19]

c. For a period of 10 years, you shall comply with an order under s. 161(1) of the Criminal Code prohibiting you from:

i. attending a public park unless you do so under the supervision of a person over the age of 18 who is aware of this order;

ii. attending a public swimming area where persons under the age of 16 are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;

iii. seeking, obtaining, or continuing any employment, remunerated or not, or becoming or being a volunteer, in a capacity that involves being in a position of trust or authority towards persons under the age of 16;

iv. communicating directly or indirectly with the victim;

v. being within 100 metres of any dwelling house where the victim is known to ordinarily reside, or any place where he is known to work or attend school; and

vi. having any contact, including by means of telecommunication, with a person who is under the age of 16, unless you do so under the supervision of a person over the age of 18 who is aware of this order, with the following exceptions:

1. you may attend a mosque for personal prayer or organized religious events unsupervised, as long as you do not have direct contact or directly communicate with any person under the age of 16 years;

2. you may only attend social events at the mosque under the direct supervision of an adult over the age of 18 who is aware of this condition; and

3. you may be in the company of your brother, Salman Patel, unsupervised.

P. J. Monahan J.

Released: February 9, 2023

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

UBAIDULLAH PATEL

REASONS FOR SENTENCE

P. J. Monahan J.

Released: February 9, 2023

[^1]: I note that the parties differ on one aspect of the terms of Mr. Patel's probation, as well as on the length of the s. 161 order to be imposed in this case. Those issues are considered and resolved in the manner set out below.

[^2]: 2022 ONCA 244, 413 C.C.C. (3d) 79, at para. 106.

[^4]: See Criminal Code, s. 718.1.

[^5]: Criminal Code, s. 718.

[^6]: 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 95.

[^7]: Ibid, at para. 63.

[^8]: Ibid, at para 107.

[^9]: Ibid, at paras. 121-33.

[^10]: R. v. Lis, 2020 ONCA 551, 152 O.R. (3d) 125, at para. 47.

[^11]: Ibid, at para. 48.

[^12]: See Friesen, at para. 127.

[^13]: Ibid, at para 131.

[^14]: 2016 SCC 31, [2016] 1 S.C.R. 906.

[^15]: See R. v. Schulz, 2018 ONCA 598, 142 O.R. (3d) 142; R. v Miller, 2017 NLCA 22; 354 C.C.C. (3d) 58; R. v. C.F., 2020 ONSC 5975; R. v. D.K., 2013 ONSC 1851; R. v. Hamilton, 2022 ONSC 779; R. v. I.B., 2013 ONCJ 19.

[^16]: See K.R.J., at para. 48; Schulz, at para. 41.

[^17]: See Miller, at para 11, citing R. v. A.(R.K.), 2006 ABCA 82, 384 A.R. 222, at para. 28.

[^18]: S.C. 2004, c. 10.

[^19]: See R. v. Ndhlovu, 2022 SCC 38, 474 D.L.R. (4th) 389, at para. 12.