COURT FILE NO.: CR-22-40000627-0000

DATE: 20240628

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

ABIB TOURAY

COUNSEL: G. Elder, for the Crown No one appearing for Mr. Touray

HEARD: June 27, 2024

REASONS FOR SENTENCE

SCHRECK J.:

[1] Following a judge alone trial, Abib Touray was found guilty of sexually assaulting a woman with whom he had been having a relationship. Mr. Touray absconded prior to his sentencing hearing, which was conducted in his absence. Following are the reasons for the sentence that will be imposed as well as various ancillary orders.

I. FACTS

A. History of the Proceedings

[2] Mr. Touray was charged with one count of sexual assault on November 18, 2021. He elected to be tried in this court without a jury and his trial took place on April 9 and 10, 2024. On April 12, 2024, I provided oral reasons for finding Mr. Touray guilty. A presentence report (“PSR”) was ordered and the matter was adjourned to June 20, 2024 for a sentencing hearing.

[3] Mr. Touray did not attend the appointment with the probation officer assigned to prepare the PSR and did not appear in court on June 20, 2024. After hearing evidence, I made a finding that he had absconded within the meaning of s. 475 of the Criminal Code. However, I granted a one-week adjournment requested by his counsel in order to give her a further opportunity to attempt to make contact with him. She was unable to do so and applied to be removed as counsel of record when the matter returned on June 27, 2024. The sentencing hearing then proceeded in absentia.

B. The Offence

[4] Mr. Touray met the complainant, P.K., in the summer of 2021. They began to spend time together and became involved in a romantic relationship. One evening in August 2021, Mr. Touray asked P.K. if he could come over to visit her. She agreed, but told him that she was very tired, so if he came over she only wanted to cuddle, watch a movie and fall asleep. He indicated that he understood.

[5] Mr. Touray arrived at 10:30 or 11:00 p.m. and he and P.K. went to her bedroom. P.K. was using her computer and Mr. Touray gestured for her to join him on the bed. She initially did so, but then resumed working on her computer. Mr. Touray began to touch her and pull her towards him. She told him to wait as she was occupied. However, he continued his behaviour and she became frustrated and told him that he had to leave. He did not want to, and they had some further discussion which led P.K. to conclude that he would no longer behave the way that he did, so she agreed that he could stay. She told him that she wanted to go to sleep. They returned to P.K.’s bedroom and lay down on the bed.

[6] About 20 or 30 minutes later, P.K. felt Mr. Touray touch her with his erect penis. She became annoyed because she felt that they had just finished arguing about this conduct and it was now being repeated. Shortly after this, Mr. Touray got on top of her, held her wrists down with his arms, and penetrated her vagina with his penis. She asked him what he was doing, and he responded by saying something like, “Come on, just a bit.” She repeatedly told him to stop, but he persisted. At some point, P.K. realized that nothing she could say or do would stop him and she stopped resisting. Mr. Touray continued to have intercourse with her in more than one position until he ejaculated inside her. According to P.K., this encounter lasted for about 30 minutes.

[7] Mr. Touray and P.K. then both went to sleep. About an hour later, P.K. awoke to the feeling of being touched. Mr. Touray grabbed her waist, pulled her towards him and then penetrated her again. She told him to stop and that she did not want to have sex, but he persisted until he ejaculated. This encounter lasted for 15 or 20 minutes. Mr. Touray then went to sleep. The following morning, Mr. Touray acted as if nothing had happened. P.K. told him that she had to attend a meeting for work, so he left.

[8] Mr. Touray tried to call P.K. several times later that day but she did not answer. He then sent her a number of texts. She eventually responded and told him that she did not want to see him anymore. Mr. Touray made further attempts to contact her over the next several weeks, but she did not respond.

[9] In November, P.K. came to realize that what had happened to her was affecting her life. On the advice of her friends, she decided to go to the police and report what had occurred. Mr. Touray was arrested as a result.

C. Victim Impact

[10] P.K. prepared a Victim Impact Statement (“VIS”) which she read during the sentencing hearing. The offence committed by Mr. Touray has affected every part of her life and has shattered her self-confidence. She has missed a significant amount of work, which has impeded the advancement of her career and caused her a loss of income. She had to repeat courses she was taking in school. Her personal relationships have suffered, which has led to a deep sense of isolation. She has been unable to form new intimate relationships. The offence has caused P.K. to develop eating and sleep disorders and to live in fear. She has undergone therapy at her own expense to deal with the fallout of the sexual assault.

[11] Despite all this, P.K. reports that she has made some progress in her journey of healing. Hopefully, she will continue to do so.

D. The Offender

(i) Background and Circumstances

[12] As noted earlier, while a PSR was ordered in this matter, none was prepared. However, a PSR had been prepared in February 2023 in relation to another conviction and it was filed as an exhibit.

[13] Mr. Touray is 34 years old. He was born and grew up in The Gambia. His parents divorced when he was young and he was raised primarily by his mother and uncle. He immigrated to Canada in 2008 and is now a permanent resident.

[14] Mr. Touray was married at one point but is since divorced. At the time of the preparation of the PSR, he was in a long-term relationship. He has no children.

[15] Mr. Touray has a high school education. He appears to have a good work history and has been employed in a variety of positions, including as a forklift operator and as a barber.

(ii) Criminal Record

[16] Mr. Touray was found guilty of mischief under $5000 in June 2021 and granted a conditional discharge. He was convicted of sexual assault in April 2023 and sentenced to imprisonment for five months and placed on probation for 18 months. That conviction post-dates the offence he is being sentenced for.

II. ANALYSIS

A. Relevant Sentencing Principles

(i) The Fundamental Purpose of Sentencing

[17] Section 718 of the Criminal Code provides that 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….” This is to be accomplished through the imposition of just sanctions that have one or more of several objectives enumerated in s. 718(a) to (f), including denunciation, general and specific deterrence and rehabilitation. As the Ontario Court of Appeal observed in R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at para. 58, the various objectives “will not necessarily point toward the same sentencing disposition” and that the court must “prioritize and blend the different objectives of sentencing so as to properly reflect the seriousness of the offence and the responsibility of the offender.”

[18] While there will rarely be only one possible fit sentence, s. 718.1 of the Code provides that any sentence that is ultimately imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 30.

(ii) Sentencing for Sexual Assault

[19] Sexual assault is an all too common crime which causes significant harm to those who are victimized. Recently, the Ontario Court of Appeal, per Fairburn A.C.J.O., had this to say about this offence in R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, at para. 74:

All 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. Whether intimate partners or strangers, victims of sexual violence suffer profound emotional and physical harm and their lives can be forever altered. So too can the lives of their loved ones.

The Court went on to hold, at para. 77, 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.” The Court affirmed that the range of three to five years set out in R. v. Bradley, 2008 ONCA 179, 234 O.A.C. 363 applies in cases involving intimate partners, but noted that there will be cases where a sentence above or below that range will be appropriate.

B. Aggravating and Mitigating Factors

(i) Aggravating Factors

[20] There are a number of aggravating factors in this case:

• Mr. Touray and P.K. were in an intimate relationship at the time of the offence: Criminal Code, s. 718.2(a)(ii); A.J.K., at para. 76;
• the sexual occurred within the sanctity of the victim’s home: R. v. R.S., 2023 ONCA 608, 168 O.R. (3d) 641, at para. 51;
• Mr. Touray continued the assault and then repeated it despite the victim’s unequivocal statements that she did not consent;
• he used force to overcome the victim’s resistance;
• he was on probation at the time of the offence;
• the sexual assaults have had a devastating impact on the victim.

(ii) Neutral Factors

[21] The fact that Mr. Touray has been convicted of another sexual assault is not an aggravating factor as he had not yet been convicted or sentenced at the time he sexually assaulted P.K.: R. v. Wilson, 2020 ONCA 3, 384 C.C.C. (3d) 355, at paras. 60-61; R. v. M.V., 2023 ONCA 724, 169 O.R. (3d) 321, at paras. 64-64. However, the fact of the subsequent conviction is relevant to Mr. Touray’s prospects for rehabilitation: M.V., at para. 65. The finding of guilt for mischief under $5000 can be considered, although I put little weight on it.

[22] The fact that Mr. Touray pleaded not guilty and gave evidence at his trial which I found to be untrue is not an aggravating factor: R. v. Ellacott, 2017 ONCA 681, at para. 22. More generally, Mr. Touray’s lack of remorse is not an aggravating factor, although it is the absence of a mitigating factor: R. v. Shah, 2017 ONCA 872, at para. 8-9; R. v. Valentini (1999), 1999 CanLII 1885 (ON CA), 43 O.R. (3d) 178 (C.A.), at paras. 81-85.

[23] Similarly, while the fact that Mr. Touray absconded prior to sentencing does not bode well for his prospects for rehabilitation, it is not an aggravating factor: R. v. Singh, 2015 ONSC 904, at para. 19; R. v. Tully, 2022 ONSC 3515, at paras. 41-43; R. v. P.M., 2022 ONCA 408, at para. 22.

(iii) Mitigating Factors

(a) General

[24] Given Mr. Touray’s decision not to participate in the sentencing hearing, the evidence with respect to issues that could be considered as mitigating is limited.

[25] Mr. Touray appears to have a good employment history, which demonstrates that he is capable of being a contributing member of society: R. v. T.H., 2024 BCCA 123, at para. 48.

(b) Immigration Consequences

[26] As noted earlier, Mr. Touray is a permanent resident, not a Canadian citizen. Given that the offence of sexual assault is punishable by imprisonment for 10 years and he will receive a sentence of imprisonment for more than six months, he will be inadmissible to Canada on grounds of serious criminality by virtue of s. 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and by virtue of s. 64 will have no right to appeal a finding of inadmissibility to the Immigration Appeal Division. Put simply, he will be a risk of deportation. This is a relevant collateral consequence of the conviction: R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 13.

[27] While I am considering immigration consequences under the heading of mitigating factors, they are not, strictly speaking, properly defined as such as they do not relate to the gravity of the offence or the degree of responsibility of the offender: Pham, at para. 11. Rather, they are collateral consequences. How collateral consequences should factor into the sentencing calculus was explained by Moldaver J. in R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 48:

Though collateral consequences are not necessarily “aggravating” or “mitigating” factors under s. 718.2(a) of the Criminal Code -- as they do not relate to the gravity of the offence or the level of responsibility of the offender -- they nevertheless speak to the “personal circumstances of the offender” (Pham, at para. 11). The relevance of collateral consequences stems, in part, from the application of the sentencing principles of individualization and parity: ibid.; s. 718.2(b) of the Criminal Code. The question is not whether collateral consequences diminish the offender’s moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances. Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer “like” the others, rendering a given sentence unfit.

[28] Crown counsel correctly points out that there is some uncertainty as to what the immigration consequences will be. While true, that will usually be the case at the time of a sentencing hearing as immigration officials will not have had time to initiate any proceedings that could result in the offender’s deportation. Despite this, a sentencing court must “take into account that the sentence could result in the deportation of the offender [emphasis added]”: R. v. Freckleton, 2016 ONCA 130, 39 Imm. L.R. (4th) 158, at para. 2. Sentencing courts routinely do so: R. v. D.G., 2023 ONSC 4516, at paras. 65-75; R. v. Ngo, 2023 ONSC 282, at para. 29; R. v. Mootoo, 2022 ONSC 384, at para. 60; R. v. Ahmed, 2021 ONSC 6968, at paras. 26-28; R. v. Smith, 2020 ONSC 5459, at para. 57; R. v. Dawkins, 2019 ONSC 2070, at para. 59; R. v. Ignacio, 2019 ONSC 2832, at paras. 27-30; R. v. Gonzalez-Valbuena, 2023 ONCJ 537, at para. 53.

C. The Appropriate Sentence in This Case

[29] The Crown seeks a sentence of five years. While Crown counsel has provided me with a number of sentencing cases, he placed particular reliance on R. v. C.L. (unreported, August 30, 2022, Ont. C.J.), aff’d 2022 ONCA 669 because of the similarity between the facts of that case and this one. As in this case, the offender and the victim had recently started an intimate relationship and the offender came to the victim’s home and sexually assaulted her twice in the course of one evening, both times involving vaginal penetration. As in this case, the sexual assault had a devastating impact on the victim. The Court of Appeal affirmed a sentence of four and a half years.

[30] Crown counsel points out that the offender in C.L. had been subject to particularly harsh conditions in presentence custody, a mitigating factor that is absent here, so he submits that the sentence in this case should be somewhat higher. However, C.L. also had aggravating factors that are absent in this case. The offender in C.L. had a “lengthy criminal record that starts in the ‘90s as a youth and that continues with almost no breaks or no significant breaks for the last 29 years”: C.L. (Ont. C.J.), at p. 6. As well, the sentencing judge considered it an aggravating factor that the victim’s son was present in the home at the time of the sexual assaults: C.L. (Ont. C.J.), at p. 6. Unlike in this case, there were no immigration consequences to the conviction.

[31] All of that said, I agree that C.L. serves as a useful comparator, although I view the collateral immigration consequences in this case as more significant than the presentence custody conditions in C.L. I also view the very lengthy record in C.L. as a significantly aggravating factor that is absent in this case. Because of this, the sentence in this case should be slightly less than the sentence imposed in C.L. In my view, the appropriate sentence in this case is imprisonment for four years.

D. Ancillary Orders

(i) Firearms Prohibition

[32] The Crown seeks an order pursuant to s. 109 of the Criminal Code prohibiting Mr. Touray from possessing firearms and other items listed in that section for life. Given that the Crown made no submissions in this regard, I am assuming that the request for an order for life is based on the fact that Mr. Touray has another conviction for sexual assault. Section 109(2) provides that while the prohibition applies to prohibited and restricted weapons, devices and ammunition for life, it applies to other firearms and certain other items listed in s. 109(2)(a) for 10 years “in the case of a first conviction for or discharge from the offence to which the order relates.” Section 109(3) provides that in any other case, the order shall be for life.

[33] While I must and do make a prohibition order pursuant to s. 109, there are two reasons why it will be for 10 years and not life with respect to the items listed in s 109(2)(a). The first is that it would appear that this is the “first conviction for … the offence to which the order relates” because it is not clear that the other sexual assault was prosecuted by indictment as opposed to summarily. Section 109 does not apply to offences that are prosecuted summarily: R. v. S.L., 2013 ONCJ 189, at paras.14-15. In fact, Mr. Touray’s criminal record indicates that when he was convicted of the other sexual assault, a discretionary prohibition order was made pursuant to s. 110 rather than a mandatory order pursuant to s. 109, which suggests that the matter was prosecuted summarily.

[34] The second reason is that it has not been established that Mr. Touray was given notice that the Crown intended to seek a s. 109 order for life because of a previous conviction, as required by s. 727(1) of the Criminal Code: R. v. Ellis (2001), 2001 CanLII 8532 (ON CA), 143 O.A.C. 43, at para. 9; R. v. Roberts, 2019 NLCA 43, at para. 33; R. v. R.J.F., 2004 MBCA 188, 190 Man. R. 247, at para. 13. I recognize that it would be open to me to make a lifetime order even if is not mandatory: Ellis, at para. 17. However, as noted, I heard no submissions on why I should exercise my discretion in this regard and accordingly decline to do so.

[35] Based on the foregoing, there will be an order prohibiting Mr. Touray from possessing the items described in s. 109(2)(a) for a period of 10 years and the items described in s. 109(2)(b) for life.

(ii) Sex Offender Information Registry Act

[36] The Crown seeks an order requiring Mr. Touray to comply with the requirements of the Sex Offender Information Registry Act, S.C. 2004, c. 10 (“SOIRA”) for life. Such orders apply to “designated offences,” which are enumerated in s. 490.011 of the Criminal Code. There are two categories of such offences: “primary offences,” which are listed in s. 490.011(1)(a), and “secondary offences,” which are listed in s. 490.011(b). Sexual assault is a primary offence by virtue of s. 490.011(1)(a)(xvii).

[37] Section 490.012 sets out the circumstances in which a SOIRA order must be made. Section 490.12(2) provides as follows:

490.012 (2) Subject to subsection (5) [which relates only to secondary offences], when a court imposes a sentence on a person for a designated offence, it shall make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act if the prosecutor establishes that, before or after the coming into force of paragraphs (a) and (b), the person

(a) was previously convicted of a primary offence or previously convicted under section 130 of the National Defence Act in respect of a primary offence; or

(b) is or was, as a result of a conviction, subject to an order or obligation under this or another Act of Parliament to comply with the Sex Offender Information Registration Act.

If an order is made pursuant to s. 490.012(2), then s. 490.013(6) provides that the order shall be for life.

[38] Section 490.12(2)(a) raises the issue of whether Mr. Touray was “previously convicted” of a primary offence as he committed this offence prior to being convicted of another sexual assault in 2023. The term “previously convicted” has an established meaning and is generally understood to refer to convictions that occurred prior to the commission of the subsequent offence: R. v. Negridge (1980), 1980 CanLII 2820 (ON CA), 54 C.C.C. (2d) 304 (Ont. C.A.), at p. 311; R. v. Skolnick, 1982 CanLII 54 (SCC), [1982] 2 S.C.R. 47, at pp. 56-58; R. v. Feistl, 2009 ABPC 84, 84 M.V.R. (5th) 305, at paras. 4-10. Of course, the term is usually used in the context of the imposition of a greater punishment for a subsequent conviction, and the question of whether a SOIRA order constitutes a form of punishment was left open by the Supreme Court of Canada in R. v. Ndhlovu, 2022 SCC 38, 474 D.L.R. (4th) 389, at para. 58.

[39] However, I need not come to any conclusions about this issue because I am satisfied that s. 490.012(2)(b) applies in this case. Mr. Touray was found guilty of sexual assault in 2023 and a SOIRA order was mandatory according to the version of s. 490.012(1) that was in force at the time. I infer from this that one was made and Mr. Touray is “subject to an order or obligation” to comply with the SOIRA. As a result, he will be ordered to comply with the SOIRA for life.

(iii) DNA

[40] Sexual assault is a “primary designated offence” enumerated in s. 487.04 of the Criminal Code. There will accordingly be an order pursuant to s. 487.051(2) requiring Mr. Touray to provide a sample of his DNA for inclusion in the national databank.

(iv) Non-Communication

[41] Pursuant to s. 743.21 of the Criminal Code, Mr. Touray is prohibited from communicating directly or indirectly with P.K. during the custodial portion of his sentence.

III. DISPOSITION

[42] For the foregoing reasons, Mr. Touray is sentenced to a term of imprisonment for four years. There will be orders made pursuant to ss. 109, 487.012(2) and 487.051(2) in accordance with these reasons.

Justice P.A. Schreck

Released: June 28, 2024