COURT FILE NO.: CR-21-50000681-0000

DATE: 20240628

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

- and -

LIBSOM HIBAB

Ken Lockhart, for the Crown

Michael Fairney, for the accused

HEARD: June 7, 2024

WARNING

Subject to any further order of a court of competent jurisdiction, an order has been made in this proceeding, pursuant to s. 486.4(2) of the Criminal Code, directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way.

J.M. Barrett J.:

Reasons for SENTENCE

Overview

[1] Mr. Libsom Hibab was found guilty of being a party to a sexual assault, contrary to s. 272(1)(d) of the Criminal Code, R.S.C., 1985, c. C-46, in a judge alone trial.

[2] The sexual assault occurred in the back seat of Mr. Hibab’s car after Mr. Hibab agreed – at his girlfriend’s request – to drive the complainant home at the end of a Saturday evening. In convicting Mr. Hibab, I accepted the complainant’s testimony that Mr. Hibab digitally penetrated her vagina while she was physically restrained by another male passenger known only as “Tinsay”.

Circumstances of the Offence

[3] I will not set out all of the details of this incident as they are reported in full at R. v. Hibab, 2024 ONSC 1590.

[4] The offence for which Mr. Hibab was convicted, is an aggravated form of sexual assault which is punishable by a maximum of 14 years of imprisonment, in contrast to the maximum punishment of 10 years’ imprisonment had Mr. Hibab been convicted of sexual assault simpliciter under s. 271: R. v. F.I., 2020 ONSC 6356, at para. 50.

Circumstances of the Offender

[5] Following his conviction, a pre-sentence report was ordered. I inquired as to whether a Morris report ought to be ordered. The defence declined the need for a Morris report. I am satisfied that I have sufficient information to determine a fit sentence for Mr. Hibab.

[6] Mr. Hibab is now 30 years old. He has no prior criminal record. He has no dependents. He was born in Eritrea. He came to Canada in 2016. He is currently a permanent resident.

[7] The pre-sentence report provides very helpful information regarding Mr. Hibab’s background and present circumstances. These details can be summarized as follows:

• His mother passed away in 2013 due to illness. His father and siblings live in Eritrea.

• His childhood was free of any trauma or abuse.

• He married in 2015. He and his wife divorced in 2019.

• He and his present girlfriend have been together for about four to five years and have a good relationship.

• He currently lives with his cousin who is his surety.

• He has a grade 11 education. He would like to return to school and is interested in an auto mechanic program. He hopes to one day start his own business.

• His last employment ended in March 2024. He is presently receiving Employment Insurance. His last job was from August 2022 to March 2024, when he worked at a window assembly plant.

• He reported no substance use issues. However, a close relative, Mr. Ermiaes Eman, believes that alcohol use may be an issue, although Mr. Eman has never witnessed Mr. Hibab consume alcohol.

• He does not have any mental health issues.

• He is agreeable to attending counselling.

• He is at risk of being deported if sentenced to more than six months of jail. However, he will remain eligible for a pre-removal risk assessment and may apply to remain in Canada on humanitarian and compassionate grounds should he lose his permanent residency status.

[8] During the sentencing hearing, defence counsel provided further details concerning Mr. Hibab. This included the following three character letters:

(i) Dr. A. A. Berih: Mr. Hibab has been under Dr. Berih’s medical care since March 7, 2017, during which time he has had “multiple visits” to Dr. Berih’s office. Mr. Hibab has always been respectful and courteous to staff.

(ii) Ms. Berhanawit Redie: Ms. Redie is Mr. Hibab’s ex-wife. She regards Mr. Hibab as a person of good character who is kind and compassionate. She notes that since the incident, Mr. Hibab has taken “significant steps to make amends and improve his behaviour” by attending church seminars and being active in his community. She believes that he has the potential to be a “positive and productive member of society”.

(iii) Ms. Azieb H Demsas: Ms. Demsas is Mr. Hibab’s great aunt. She too describes the incident as out of character. She described Mr. Hibab as “very humble, soft-spoken and very respectful towards his elders and people in general”. She has leaned on Mr. Hibab since 2018 when her husband was diagnosed with cancer. Her husband passed away in February of this year and Mr. Hibab has provided much care and assistance to her.

Victim Impact

[9] The complainant’s physical injuries were the subject of evidence at the trial. Following her 911 call, the complainant underwent a sexual assault examination at St. Joseph’s Hospital. The examination showed bruising and abrasions to several areas of her body. After this examination, the complainant went to Toronto Police Service, 12 Division where photographs were taken of the bruising and abrasions to her hands, legs, face and neckline.

[10] The psychological and emotional impact of the offence on the complainant was detailed in the complainant’s victim impact statement. The Crown read her statement at the sentencing hearing. It describes how the assault continues to impact the complainant’s day-to-day life. She no longer trusts people. There are days she does not sleep. She is afraid to be outside as she lives in fear of being attacked. After the assault, she left school and has not returned to her studies because of her fear. She believes the impact of the assault will linger for the rest of her life.

[11] The emotional impact of the offence was also evident from the 911 call the complainant made to the police immediately after the assault. During the call, the complainant is very obviously emotionally distraught.

Positions of the Parties

[12] The Crown seeks a jail sentence of four years’ incarceration, less credit for presentence custody. Mr. Hibab was arrested on February 24, 2020, and released on February 25, 2020. The parties agree that applying the standard credit of 1.5 days for each of these days, Mr. Hibab is entitled to three days’ credit: R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575.

[13] The Crown also seeks the following ancillary orders: a DNA order under s. 487.051(2) of the Criminal Code;[^1] a mandatory 10-year weapons prohibition under s. 109(2) of the Criminal Code; a 20-year order under s. 490.012(3) of the Criminal Code which will require Mr. Hibab to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”); and a non-communication order pursuant to s. 743.21 of the Criminal Code, for the period in which Mr. Hibab is in custody, prohibiting communication with the complainant, Mr. Yesakor Kebede and Mr. Tinseaw Teckle.

[14] The Crown relies on the following decisions in support of its position: R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721; R. v. Allen, 2017 ONCJ 405; R. v. De Jesus-Carrasco, 2021 ONSC 6891; R. v. F.I., 2020 ONSC 6356; R. v. Henderson, 2018 ONSC 3550; R. v. J.D., 2023 ONSC 1088; R. v. McCraw, 1991 CanLII 29 (SCC), [1991] 3 S.C.R. 72; R. v. Oshodin, 2011 ONSC 1152; R. v. Smith, [2001] O.J. No. 4512 (C.J.); R. v. Stuckless, 2019 ONCA 504, 146 O.R. (3d) 752; R. v. Thakoordeen, 2019 ONSC 1540; R. v. Thurairajah, 2008 ONCA 91, 89 O.R. (3d) 99; and, R. v. Vaughan, 2020 ONSC 3942.

[15] The defence takes no issue with the ancillary orders sought by the Crown. However, the defence argues that the Crown’s position of four years is inappropriate. A more appropriate range is 18 months to two years less a day given Mr. Hibab’s youthfulness, his potential for rehabilitation, and the need for restraint. The defence argues that the primary considerations are rehabilitation and restraint, not deterrence and denunciation.

[16] In support of his position, counsel for Mr. Hibab relies on the following authorities: Vaughan; Thakoordeen; R. v. Priest (1996), 1996 CanLII 1381 (ON CA), 30 O.R. (3d) 538 (C.A.); R. v. Cacdac, 2022 ONCJ 492; R. v. Hall, 2023 ONSC 5291; and, R. v. T.M., 2023 ONCJ 131. Interestingly, the parties jointly rely on the decisions of Vaughan and Thakoordeen.

Sentencing Principles

[17] The “fundamental purpose” of sentencing is to “protect society and to contribute […] 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” as set out in s. 718 of the Criminal Code:

(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 acknowledgement of the harm done to victims or to the community.

[18] In crafting an appropriate sentence, regard must also be given to the fundamental principle of sentencing: proportionality. Section 718.1 directs that any sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Imposing a proportionate sentence is a highly individualized exercise; one that is tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime: see R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at pp. 557-59.

[19] Section s. 718.2 of the Criminal Code directs sentencing courts to consider a number of other statutory principles, including the following: a sentence should be increased or reduced to account for any mitigating or aggravating circumstances relating to the offence or the offender (s. 718.2(a)); a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (also known as the principle of parity set out in s. 718.2(b)); where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (also known as the principle of totality set out in s. 718.2(c)); and, courts should exercise restraint in imposing imprisonment (ss. 718.2(d) and (e)). In other words, all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.

[20] One potential mitigating factor that the parties agree ought to be considered is whether Mr. Hibab’s moral responsibility is impacted by race and systemic discrimination as recognized in R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641. In Morris, at para. 13, the Court of Appeal for Ontario recognized that “[s]ocial context evidence relating to the offender’s life experiences may be used where relevant to mitigate the offender’s degree of responsibility for the offence and/or to assist in the blending of the principles and objectives of sentencing to achieve a sentence which best serves the purposes of sentencing as described in s. 718”. However, “an offender’s experience with anti-Black racism does not impact on the seriousness or gravity of the offence”: Morris, at para. 13.

[21] In this case, there is no evidence to suggest that Mr. Hibab’s degree of personal responsibility was impacted by his race or systemic discrimination. Mr. Hibab arrived in Canada four years prior to the offence. The pre-sentence report described Mr. Hibab’s childhood as a “good upbringing”, one free of any trauma or abuse. In circumstances like this case, where an offender’s moral culpability is not mitigated by race and systemic discrimination, social context evidence related to these factors remains relevant in assessing how the “sometimes competing objectives of sentencing, such as rehabilitation and denunciation, can best be blended to produce a sentence that accords with the proportionality principle and serves the fundamental purpose of sentencing articulated in s. 718”: Morris, at para. 102. In this regard, I am mindful that a jail sentence can have a disproportionate impact on Mr. Hibab: R. v. Hills, 2023 SCC 2, 85 C.R. (7th) 221, at para. 135.

[22] The principle of proportionality also requires that I consider the impact of incarceration arising from any collateral consequences that may impact Mr. Hibab, including the risk of deportation. While the risk of deportation may be relevant in tailoring the sentence, it “cannot justify a sentence which is inconsistent with the fundamental purpose and principles of sentencing” nor can “[t]he sentencing process … be used to circumvent the provisions and policies of the Immigration and Refugee Act”: R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 19, citing R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1 (C.A.), at paras. 156 and 158. Consequently, the collateral consequence of deportation is just one relevant factor I must consider when determining an appropriate sentence. The general rule, however, is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Pham, at paras. 14, 20, and 22.

Analysis

[23] I have considered all of the cases cited by counsel. Of the cases cited, I found the following cases of particular relevance in this case:

• Oshodin: The 40-year-old offender was sentenced to 38 months’ jail, less credit for 32 months of presentence custody, in addition to 2½ years of probation. He was convicted of sexual assault and forcible confinement for having forcibly removed the victim’s clothing, licking her breast and digitally penetrating her after a failed attempt at vaginal penetration. He had a dated prior record for one minor offence. The accused was employed and volunteered in the community.

• J.D.: The 42-year-old first offender was sentenced to three years’ imprisonment after being convicted of sexually assaulting his 18-year-old niece by digitally penetrating her vagina while she slept. He also fondled her breast for several minutes. The accused was employed, and had the support of his family.

• Thakoordeen: The 28-year-old offender was sentenced to two years’ imprisonment after being convicted of sexual assault. In that case, the accused and another male dragged the victim to the dark end of a parking lot at night. There, the accused digitally penetrated the victim after a failed attempt at vaginal penetration. The accused had a minor criminal record for offences that post-dated the sexual assault. He was employed and had the support of his family. The co-accused pleaded guilty and was sentenced to 12 months of jail, followed by 12 months’ probation which was said to be “at the extreme low end of the sentencing range”: at para. 5.

• Vaughan: The 42-year-old first offender was sentenced to 15 months’ imprisonment and 18 months’ probation after being convicted of sexual assault for an attack during which the accused digitally penetrated the victim, aggressively fondled her breasts, and put his penis in her mouth. At the time of the attack, the victim had been sleeping on his couch following a house party. The accused had previously been in the military but left due to mental health issues. He had “reasonable” rehabilitative potential. He had attempted suicide while awaiting trial.

[24] Although I have highlighted the above cases, I have carefully considered all of the cases filed. They demonstrate that the applicable range for this offence varies from a low of 15 months’ incarceration to a high of four years’ incarceration. This range reflects the fact that determining an appropriate sentence is case specific as the purposes and principles of sentencing must be considered along with the mitigating and aggravating factors in each case.

[25] There are some mitigating factors in this case. Mr. Hibab is a first offender. At 30 years of age, he is also youthful. Until recently, he has been gainfully employed. He appears to have a supportive family, which suggests that he has potential for rehabilitation.

[26] Given Mr. Hibab’s age, and the fact that he is a first offender, the principles of rehabilitation and restraint are important factors to consider. These factors are particularly pronounced where a first penitentiary sentence for a youthful offender is contemplated: R. v. Borde (2003), 2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417, at para. 36; R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643, at paras. 32-34.

[27] There are a number of aggravating factors in this case: the victim impact; the gravity of the offence; the circumstances of the offence, including the use of force to overcome the complainant’s resistance; and the vulnerability of the victim.

[28] The impact on the complainant was significant. Thankfully, there are no lasting physical injuries. However, the psychological scars are deep and continue to have a lasting impact on her daily life. This is a statutory aggravating factor: Criminal Code, s. 718.2(a)(iii.1).

[29] The gravity of the offence and its circumstances are concerning. Mr. Hibab exploited the complainant’s vulnerable position. The complainant only accepted a ride home from Mr. Hibab because he was a trusted acquaintance. This is evidenced in part by the fact that she sought his help when assaulted by one of the other males in the car. However, Mr. Hibab did not assist. Instead, he too sexually assaulted her while she was physically restrained by this other male. This occurred in the middle of the night in a parking lot. Her repeated pleas for them to stop were ignored. In fact, Mr. Hibab only stopped at the suggestion of his accomplice.

[30] With regard to the gravity of the offence, the Crown argues that the attack was planned and premeditated. As evidence of this, the Crown relies on Mr. Hibab’s decision to stop in the parking lot of his apartment building rather than driving the complainant directly home.

[31] Evidence of planning and premeditation would be an aggravating factor. Aggravating factors must be proven beyond a reasonable doubt: Criminal Code, s. 724(3)(e). The defence argues that it is “a stretch” to describe the assault as premeditated rather than “an act of taking advantage of an unexpected opportunity” after the complainant chose to accept a ride. Defence counsel described the situation as one where “a man got out of hand in the moment” and lost “self control” but ultimately stopped and then ensured the complainant arrived home safely. This characterization diminishes the complainant’s sexual integrity and dignity. That said, I agree that the evidence fails to establish beyond a reasonable doubt that Mr. Hibab drove to the parking lot with the intent of assaulting the complainant. I find that it was an opportunistic act.

[32] In assessing the gravity of the offence, the parties also dispute the relevance of the form of penetration. Specifically, the Crown argues that digital and penile penetration are equally serious. Both have the same impact on the dignity and sexual integrity of the victim. Following from this, the Crown argues that both forms of penetration attract a sentence in the range of three to five years of imprisonment: A.J.K., at para. 77.

[33] In arguing that digital and penile penetration attract the same range of sentence, the Crown relies on De Jesus-Carrasco, at para. 40, wherein Akhtar J. stated:

Digital penetration results in the same or similar level of degradation, humiliation and defiling of a woman’s sexual integrity as a rape. It is hard to understand why vaginal penetration by one part of the body should be treated more or less seriously than penetration by another part: the effect on the dignity and sexual integrity of the victim is the same.

[34] Defence counsel acknowledges that both forms of penetration are serious. However, he argues that the distinction is relevant because of the added risks with penile penetration, including the risk of pregnancy, sexually transmitted diseases, internal injuries and any cultural stigma that may arise from a loss of virginity. Given these added risks, the defence position is that the range of three to five years, as set out in A.J.K., does not apply in this case.

[35] In A.J.K., at para. 74, Fairburn A.C.J.O. stated that “[a]ll sexual assaults are serious acts of violence. They reflect the wrongful exploitation of the victim whose personal autonomy, sexual integrity, and dignity is harmfully impacted while being treated as nothing more than an object”. Following from this, the court brought to an end the “sentencing artefact” that a sexual act committed against a current or former intimate partner was less serious: A.J.K., at para. 70. As all sexual assaults are serious acts of violence, to rely on the nature of the relationship between the parties “could only rest on unacceptable myths and stereotypes”: A.J.K., at para. 73. Accordingly, the court found that “[a]bsent some highly mitigating factor, the forced penetration of another person will typically attract a sentence of at least three years in the penitentiary”: A.J.K., at para. 77.

[36] In setting a range of three to five years for “forced penetration”, the court in A.J.K. was referring to the circumstances of that case which involved forced vaginal intercourse. However, I agree with the reasoning of Akhtar J. that the seriousness of a sexual assault does not vary depending on whether the penetration was penile or digital. To carve out such a distinction would diminish the impact of serious sexual assaults like the one committed by Mr. Hibab. As observed by Rahman J., in Allen, at para. 35, “Parliament repealed the crime of rape over 30 years ago. It does not seem appropriate to re-create it judicially by putting ‘rapes’ in a different category than other sexual assaults”. Consequently, rather than focusing on the part of the body used to vaginally penetrate the victim, the better approach is to consider the circumstances of the offence in their totality, including whether any violence was used, the duration of the attack, and its invasiveness.

[37] I agree that the principles of restraint and rehabilitation are important. However, the principles of deterrence and denunciation are paramount in this case. As explained by Doherty J.A., in Thurairajah, at paras. 41 – 42:

Generally speaking, sentences imposed on young first offenders will stress individual deterrence, where necessary, and rehabilitation. General deterrence will play little, if any, role in fashioning the appropriate sentence in this category of offender in most cases. Serious crimes of violence, particularly sexual assaults, do provide an exception to the general rule described above. While all of the principles of sentences remain important, including rehabilitation, for serious crimes involving significant personal violence, the objectives of denunciation and general deterrence gain prominence [Citations omitted].

The emphasis to be placed on denunciation and to a lesser extent general deterrence, grows with the seriousness of the particular circumstances surrounding the sexual assault for which an accused, even a young accused, is being sentenced.

[38] This statement is consistent with the direction now found in s. 718.04 of the Criminal Code which requires sentencing courts to give paramount consideration to the objectives of denunciation and deterrence in circumstances such as this where the offence involved the abuse of a person who is vulnerable because of their personal circumstances: R. v. Merasty, 2023 SKCA 33 at paras. 29 – 30.

[39] Ultimately, I am satisfied that the circumstances of this offence and of the offender require a penitentiary sentence. It is proportionate to Mr. Hibab’s degree of responsibility.

Disposition

[40] Mr. Hibab is sentenced to 3 years’ imprisonment, less three days of credit for his pre-sentence custody.

[41] In addition, Mr. Hibab is subject to the following ancillary orders:

(i) An order under s. 487.051(2) of the Criminal Code requiring Mr. Hibab to provide samples of bodily substances as reasonably required for purposes of forensic DNA analysis.

(ii) A mandatory weapons prohibition order pursuant to s. 109(2) of the Criminal Code for 10 years.

(iii) An order under ss. 490.012(3) of the Criminal Code requiring Mr. Hibab to comply with the Sex Offender Information Registration Act, for a period of 20 years.

(iv) An order pursuant to s. 743.21 of the Criminal Code that while in custody, Mr. Hibab is not to communicate, directly or indirectly, with the complainant, Yesakor Kebede and Tinseaw Teckle.

J.M. Barrett J.

Released: June 28, 2024.

COURT FILE NO.: CR-21-50000681-0000

DATE: 20240628

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

- and -

LIBSOM HIBAB

reasons for SENTENCE

J.M. Barrett J.

Released: June 28, 2024

[^1]: Being a party to a sexual assault with another person is a primary designated offence pursuant to s. 487.04 of the Criminal Code.