Court File and Parties

Court File No.: CR- 22-30000132 Date: 2024-03-20 Ontario Superior Court of Justice

Between: His Majesty The King And: S. S. S.

Counsel: B. Olesko, for the Crown T. Khan, for S. S. S.

Heard: January 12, 2024

Reasons for Sentence

P.J. Monahan J.

[1] On June 6, 2023, I found S.S.S. guilty of one count of sexual assault and one count of inviting a person under the age of 14 to touch him for a sexual purpose. These offenses were committed on three separate occasions in 2003 and 2004 against a female complainant (the “Complainant”) who was between two and four years old at the time. S.S.S. is before the court today for sentencing.

[2] S.S.S. is the Complainant’s relative. Along with a number of other family members, S.S.S. immigrated to Canada from Pakistan in December 2002 when he was 22 years old. After their arrival in Canada, S.S.S. and the other immigrating family members moved into the Scarborough townhouse where the Complainant resided with her family.

[3] The sole issue at trial was whether the incidents took place. S.S.S. argued that he had no opportunity to commit the offenses alleged by the Crown. He further argued that the Complainant, either on her own or at the urging of her parents, had concocted these allegations because S.S.S. had been seeking the return of some money he had loaned to the Complainant’s father.

[4] The Complainant denied having fabricated her allegations, either on her own or at her parents’ urging. Although the Complainant was unable to remember many of the surrounding circumstances, she testified that she had a vivid memory of the actual incidents of sexual touching. The Complainant further said that she was unaware of the details of any financial dealings between her father and S.S.S. She denied that these financial dealings had anything to do with her allegations against S.S.S.

[5] For the reasons explained in my reasons for judgment, [^1] I rejected S.S.S.’s evidence and found that it did not leave me with a reasonable doubt as to his guilt in relation to the offenses charged. I accepted the evidence of the Complainant as well as that of her parents, all of whom testified in a credible and consistent manner. I specifically rejected the suggestion that the Complainant fabricated these allegations, either on her own or at the urging of her parents. On this basis, I found that the Crown has proven beyond a reasonable doubt that S.S.S. sexually touched the Complainant and invited her to sexually touch him on three separate occasions in the Scarborough townhouse. [^2] I therefore found S.S.S. guilty of both counts in the indictment.

[6] The parties made submissions on sentence on January 12, 2024. The Crown seeks a sentence of five years imprisonment, along with a number of ancillary orders. The defence’s primary sentencing position is a conditional sentence of 2 years less a day, followed by 2-3 years of probation. In the alternative, if a sentence of imprisonment is to be ordered, the defence suggests a term of 12 – 15 months, followed by 2-3 years probation. Defence counsel did not take issue with the ancillary orders sought by the Crown.

[7] For the reasons that follow I sentence S.S.S. to three years imprisonment, along with the ancillary orders sought by the Crown.

Circumstances of the Offences

[8] S.S.S. lived in the Scarborough townhouse with the Complainant and her family from December 2002 until October 2004, when he returned to Pakistan for a family wedding. During that time, S.S.S. sexually assaulted the Complainant on three different occasions.

[9] The first incident occurred one day when the Complainant’s parents were away at work. S.S.S. took the Complainant down into the basement of the townhouse. The basement was not finished but there was a bed in the corner of the room, right underneath a window. S.S.S. lay down on the bed, unbuttoned his pants, and took out his penis. He also pulled down the Complainant’s pants and pushed her underwear to one side. He began stroking his penis and told her to begin stroking it, while he touched her vagina with his fingers. She did as she was instructed and began stroking his penis back and forth with her hand. The Complainant said that Mr. Sajjad began moaning. He then told her to put her mouth on his penis, and she put the tip of his penis in her mouth. He reached around behind her head and began pushing her head towards his penis, which forced more of his penis into her mouth.

[10] The Complainant testified that at this point, the door leading down to the basement opened, and her aunt began coming downstairs. The Complainant said that S.S.S. immediately pulled his pants up, as did she. S.S.S. got up from the bed, took her over to the nearby desk and sat on the chair at the desk, while the Complainant stood beside him. The Complainant said that S.S.S. gave her a piece of paper and told her to draw what she had seen. She said that she drew a stick figure. S.S.S. asked her to draw his penis on the stick figure, which she did.

[11] The second incident of sexual touching occurred in the living room of the townhouse. The Complainant was alone with S.S.S. in the living room and sitting with him on some cushions on the floor. S.S.S. turned on the television and the Complainant saw pictures of naked people on the screen. The Complainant said that S.S.S. removed his pants and underwear and began stroking his penis. He instructed her to stroke his penis and began touching her chest and vagina. She touched his penis with her hand and was stroking it back and forth. This assault was interrupted when S.S.S.’s father, who was living with the family in the townhouse at the time, returned home unexpectedly.

[12] The third incident took place in an upstairs bedroom of the townhouse. The Complainant said that S.S.S. would take her upstairs because he told her he wanted to teach her the Qur’an. On one occasion when she and S.S.S. were in her parents’ bedroom, he told her to go to the washroom and clean her vagina. She went into the bathroom and washed herself while sitting on the toilet. After she came back, S.S.S. began touching her chest area as well as her vagina. He reached underneath her top to touch her chest and touched her vagina by pulling down her pants and pushing her underwear to the side.

Circumstances of S.S.S.

[13] A presentence report (“PSR”) was prepared in respect of S.S.S. This material provides insightful information related to his background and present circumstances.

[14] S.S.S. was born in Pakistan in June 1980 and is currently 43 years old. Both he and his brother reported a positive childhood home where the basic needs of the family were always met. No domestic violence was reported, rather, S.S.S. recalls his parents maintaining a positive marriage throughout his life.

[15] When he was 22 years old, S.S.S.’s brother sponsored S.S.S., their sister and their parents to come to Canada.

[16] S.S.S. informed the PSR author that he is on speaking terms with all but one of his siblings, the Complainant’s father. This estrangement, according to S.S.S., stems from these proceedings. S.S.S. explained that he has previously given this brother a significant amount of money, and when he asked for the money back, his brother refused to return it. S.S.S. speaks to his parents regularly, despite the fact they currently live in Pakistan.

[17] In 2012, S.S.S. and his current wife were brought together through an arranged marriage. S.S.S.’s wife is a doctor and is currently looking for a placement for her residency. According to S.S.S., his wife is aware of the ongoing court proceedings and is supportive of him. This was confirmed during the submissions on sentence, when S.S.S.’s wife participated via Zoom and expressed her support for S.S.S.

[18] S.S.S. and his wife have two young children, a nine-year-old and a seven-year-old. S.S.S. advises that his wife has not expressed any concerns over his caretaking of their two young children which, again, was confirmed during the sentencing submissions. One of S.S.S.’s brothers, who is also his surety, explained that he does not have concerns for S.S.S.’s children and believes that their mother supervises the children and ensures they are never left in the care of S.S.S. alone.

[19] When asked about domestic violence incidents in his marital relationship, S.S.S. advised the author of the PSR that the police were called once. However, he did not remember the circumstances surrounding that call.

[20] S.S.S. graduated high school while residing in Pakistan. When he immigrated to Canada, he enrolled at the University of Lethbridge for a Business Management degree. However, he dropped out of the program for a business opportunity from Shell Canada. He reports owning a Shell gas station in Calgary, Alberta but eventually had to sell it due to a franchising policy change.

[21] S.S.S. currently works at a warehouse serving Wal-Mart Canada. He has been working with the company since 2021.

[22] S.S.S. does not have a criminal record. He reports that he has never consumed alcohol or illicit drugs. He states that he resorts to smoking cigarettes when stressed.

[23] The author of the PSR notes that S.S.S. struggled to take responsibility for the offences and deflected any blame.

Impact on the Complainant

[24] The Complainant provided a moving statement that eloquently captures the incidents’ impact on her life.

[25] The Complainant has had prominent memories of the place of the offence for a long time, without realizing their significance. Although she was consumed by how vivid these memories were, she could not understand why her mind kept recalling them.

[26] Once the Complainant recalled the offences, she says they have never left her. Tragically, her first reaction was to feel anger towards herself for not speaking up. Many otherwise mundane aspects of life continue to trigger memories of the abuse, and she laments how the happy moments from her childhood have been fully displaced in her mind by recollections of the offences. She feels robbed of a beautiful childhood.

[27] The Complainant is also conscious of how the offences have affected her relationships. She and her immediate family have been ostracized from their extended relatives due to these proceedings. Some members of her extended family do not believe her, and she has stated that a number of them have threatened her. This has caused her to suffer from panic attacks. The Complainant has become instinctively distrustful of the men in her life and of familial relationships more generally.

Applicable Sentencing Principles

[28] 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.” [^3] 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. [^4]

[29] 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 ss. 718.2(a)(ii.1) and (iii), which provide that evidence that the offender abused a person under the age of 18 or that the offender abused a position of trust or authority in relation to the victim are aggravating factors for sentencing purposes.

[30] In R v. Friesen, 2020 SCC 9, the Supreme Court found that these statutory sentencing principles reflect the fact that sexual offences against children cause profound harm to the victims and that, accordingly, sentences for such offences must increase “to match Parliament’s view of their gravity.” [^5] The Supreme Court found that an upward departure from prior sentencing ranges in cases involving sexual offences 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, 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. [^6] For these reasons, amongst others, sexual offences 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.” [^7]

[31] Friesen sent a clear message that courts must impose sentences that are commensurate with the gravity of sexual offences against children. In particular, courts must recognize and give effect to the inherent wrongfulness of these offences; the potential harm to children that flows from these offences; and the actual harm that children suffer as a result. [^8] The Supreme Court emphasized that sexual offences against children are inherently wrongful and always put children at risk of serious harm, even as the degree of wrongfulness, the extent to which potential harm materializes, and actual harm varies from case to case. [^9]

[32] Friesen also identified significant factors to be considered in determining a fit sentence for sexual offences 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. [^10]

[33] While denunciation and deterrence are the primary objectives that must be considered in sentencing those who commit sexual offences against children, it remains appropriate for a sentencing court to have regard to other sentencing principles and objectives. Nevertheless, following Friesen, it is no longer open to a sentencing judge to elevate other sentencing objectives such as rehabilitation to greater or even equivalent priority relative to the principles of denunciation and deterrence. [^11] Thus, in R. v. T.J., 2021 ONCA 392, 156 O.R. (3d) 161, the Court of Appeal set aside a sentence of nine months that had been imposed in respect of a single count of sexual assault committed against a six or seven-year-old girl by an offender who had no prior criminal record. The Court of Appeal substituted a sentence of 24 months on the basis that the trial judge had given undue weight to the consequences for the offender of a significant custodial sentence and failed to give appropriate weight to his inherently wrongful conduct.

Positions of the Parties

[34] As noted above, the Crown proposes a sentence of five years imprisonment along with various ancillary orders. The Crown argues that there are a number of significant aggravating factors in this case, including the fact that S.S.S. assaulted the Complainant on three separate occasions, and in doing so abused a position of trust or authority. It is also aggravating that the assaults occurred in the complainant’s home, a location where she is entitled to feel safe. The assaults have caused extreme harm to the Complainant. Not only does she live with the constant memory of the abuse, but she has had multiple panic attacks when her memory of the assaults is triggered. Her relationships with her family and with romantic partners have been severely impacted.

[35] The Crown acknowledges that there are a number of relevant mitigating factors, including the fact that S.S.S. has no criminal record, has been continuously employed over the past two decades and has the support of his family. Nevertheless, the Crown says, the principles of denunciation and deterrence, which are primary considerations in this case, require a substantial penitentiary sentence.

[36] The defence does not dispute the aggravating circumstances identified by the Crown. Nevertheless, the defence argues that it is relevant and significant that S.S.S. has lived a prosocial life in the two decades since these assaults occurred. He has been employed throughout this period of time and has positive relationships with his wife and two children, whom he supports financially, as well as with most of his extended family. He has no criminal record and is at little or no risk to reoffend. On this basis, the defence’s primary position is a conditional sentence of two years less a day to be served in the community, followed by 2 to 3 years of probation. Alternatively, the defence proposes a term of imprisonment of 12 to 15 months, followed by 2 to 3 years of probation.

Analysis

[37] While the parties differ on the appropriate sentence, they are largely ad idem in relation to the relevant aggravating and mitigating considerations.

[38] The primary aggravating considerations are that S.S.S. assaulted the Complainant on three separate occasions in her home, abusing his position of trust or authority. The Complainant was just three years old at the time and the harm she has suffered has been profound and long-lasting. Her relationships with her family and romantic partners continue to suffer as a result of the assaults. She has yet to come to terms with her memories of the abuse, which continue to haunt her.

[39] The relevant mitigating factors include the fact that S.S.S. has lived a prosocial life in the two decades since these assaults. He has a wife and two children who depend on him for financial support and who have stood by him. He has been employed continuously and has no criminal record.

[40] I note that the fact that S.S.S. has not accepted responsibility for these offenses is not an aggravating factor but rather the absence of a mitigating factor.

[41] In considering a fit sentence, I begin with the observation that in my view a conditional sentence would be manifestly unfit in this case. Friesen expressly directs an upward departure from prior precedents and sentencing ranges to give proper effect to society’s deepening understanding of the gravity and harmfulness of sexual offenses against children. While conditional sentences remain legally available post- Friesen for offenders who have committed sexual offenses against children, the clear import of Friesen is that such sentences are only appropriate in exceptional cases.

[42] One such exceptional circumstance might be where the moral culpability of the offender is reduced. [^13] Another might be where a period of incarceration would impose exceptional hardship on the offender. [^14] But there are no such exceptional circumstances present in this case, with the result that a conditional sentence would be manifestly unfit.

[43] Given this finding, the remaining question is what length of incarceration is fit in the circumstances.

[44] In my view, the most helpful reference points in answering this question are provided by a number of recent Court of Appeal decisions dealing with fit sentences for sexual offences against children. Those decisions have upheld or imposed sentences of four years or more in circumstances that in my view were somewhat more aggravating than those present here. For example, in R. v. P. S., 2019 ONCA 637, the Court of Appeal upheld a sentence of 54 months imposed on an offender who had sexually abused a six- to eight-year-old victim on numerous occasions over a two-year period. Not only were these assaults more frequent than occurred here, a further aggravating factor in P. S. was that the offender had told the victim that he was a ghost and could kill him.

[45] In R. v. P. C., 2022 ONCA 19, the Court of Appeal upheld a sentence of four years imposed on an offender who had sexually abused his niece on several occasions when she was between seven and 10 years old. The sentencing judge found that the abuse involved penetration, a factor which the Crown agrees did not occur in the present case.

[46] Conversely, as noted above, in T. J. the Court of Appeal imposed a 24-month sentence on an offender who had sexually assaulted a six-year-old child on one occasion. The offender took the victim’s hand and placed it on his penis, causing the offender to become aroused. When the offender told the victim that she could put her mouth on his penis, she pulled away and left the room. The circumstances in T. J. are somewhat less aggravating than those present here, particularly because in that case the abuse occurred on a single occasion.

[47] These recent decisions suggest that a fit sentence for S.S.S. would lie somewhere between two- and four-years’ incarceration. A sentence within this range would give effect to the principles of denunciation and deterrence, which Friesen mandates are the primary objectives in sentencing offenders who have committed sexual offenses against children. At the same time, such a sentence would also take into appropriate account the mitigating considerations discussed above.

[48] Taking all of the relevant considerations into effect, I find that a fit global sentence for S.S.S. to be three years incarceration. I would also make the ancillary orders requested by the Crown, and which are not opposed by the defence, as set out below.

Disposition

[49] The sentence shall be entered as follows:

a. Count 1 – sexual assault, Criminal Code s. 271: three years’ incarceration.

b. Count 2 – invitation to sexual touching, Criminal Code s. 152: three years’ incarceration, to be served concurrently with the sentence for Count 1.

[50] I also make the following ancillary orders:

a. That you 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. That you do not communicate with the Complainant while incarcerated, pursuant to s. 743.21 of the Criminal Code;

c. that, for a period of 10 years following your release from incarceration, you do not seek, obtain or continue any employment, whether or not remunerated, or become or be a volunteer, in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years, pursuant to s. 161 of the Criminal Code; and

d. That you comply with the provisions of the Sex Offender Information Registration Act for a period of 20 years, pursuant to s. 490.013 (2) (b) of the Criminal Code.

P. J. Monahan J.

Released: March 20, 2024

Footnotes

[^1]: See R. v. S.S.S., 2023 ONSC 2464. [^2]: Note that I was not satisfied that the Crown has proven beyond a reasonable doubt that certain other incidents alleged by the Complainant to have occurred between 2005 and 2008 actually occurred in the manner described. However, since the indictment alleged a single count of sexual assault and a single count of invitation to sexual touching, my findings in relation to the incidents in the Scarborough townhouse are sufficient to establish S.S.S.’s guilt on both counts in the indictment. [^3]: Criminal Code, s. 718.1. [^4]: Ibid, s. 718. [^5]: R. v. Friesen, 2020 SCC 9, at para. 95. [^6]: Ibid, at para. 63. [^7]: Ibid, at para 107. [^8]: Ibid, at para. 76. [^9]: Ibid. [^10]: Ibid, at paras. 121-33. [^11]: See R. v. Lis, 2020 ONCA 551, 152 O.R. (3d) 125, at para. 53. [^12]: 2021 ONCA 392, 156 O.R. (3d) 161. [^13]: See, for example, R. v. P. R. J., 2023 BCCA 169, where the offender had serious cognitive and/or social deficits. [^14]: See, for example, R. v. P S., 2021 ONSC 5091, where the 71-year-old offender, who had accepted responsibility for the offences, suffered from serious health issues which required constant monitoring, and which could not be properly addressed in a custodial facility. [^15]: 2019 ONCA 637. [^16]: 2022 ONCA 19.