Court File and Parties

Court File No.: CR 22-40000152-0000 Date: 2025-07-31 Ontario Superior Court of Justice

Between: His Majesty the King – and – Ariff Ali

Counsel: Greg Elder, for the Crown Joanne Griffiths, for the Defence

Heard: June 19, September 13, September 22, 2023, and June 19, 2024

Judge: R.F. Goldstein J.

RESTRICTION ON PUBLICATION

Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada. This ban does not apply to publication of these reasons in law reports nor to a discussion of the underlying legal principles in other publications.

Reasons for Sentence

[1] On June 19, 2023, over two years ago, Mr. Ali pleaded guilty to one count of sexual interference. Although this matter has an extremely long and very tortured history, Mr. Ali now comes before the court for sentencing.

PROCEDURAL HISTORY

[2] Before getting into the facts, it is necessary to set out some of the procedural history of this matter so that the parties, and especially the victim, understand why it has taken over two years to get to sentencing.

[3] Mr. Ali pleaded guilty on June 19, 2023. He was to be sentenced on September 13, 2023, but Mr. Barrison, who was acting for Mr. Ali at the time, brought an adjournment application. He expressed some difficulty communicating with Mr. Ali. On September 22, 2023, Mr. Ali was granted a new bail.

[4] On February 15, 2024, Ms. Griffiths went on the record for Mr. Ali. She indicated that, on Mr. Ali's instructions, she would be bringing an application to strike the guilty plea. She needed time to put together material. I granted a further adjournment. The application to strike was originally set for April 30, 2024, but for various reasons, for which I do not fault Ms. Griffiths, she was unable to file material and a new date of June 19, 2024 was set for the application.

[5] On June 19, 2024, the parties appeared and were ready for the application to strike. Ms. Griffiths indicated that she had been unable to contact Mr. Ali on the day of the hearing. He eventually texted, "I am so sick…" I dismissed the application to strike as abandoned. I also issued a bench warrant for Mr. Ali. I stated at the time:

I am dismissing the application as abandoned. Mr. Ali has had ample opportunity to attend and spoke to his counsel last night. I agree with Mr. Elder that the application has very little merit. Mr. Ali indicated that at the time of the guilty plea he had a "brain fog". I am not sure what that means, but the transcripts reveal a detailed plea inquiry. The materials also reveal a detailed set of instructions with his counsel. Both the plea inquiry and the instructions show that Mr. Ali acknowledged not only that he was giving up his right to a trial, but also that he understood that he was acknowledging the elements of the offence of sexual interference. It appears that as I started writing this endorsement, Mr. Ali texted counsel saying "I'm so sick…" Frankly, that is a day late and a dollar short. Given the relative lack of merit to the application and the overall circumstances I decline to permit any more court time to be wasted. The application to strike the plea is dismissed as abandoned.

[6] The matter returned on July 24, 2024, to determine whether I should proceed to sentence Mr. Ali in absentia. I did not. Mr. Ali eventually surrendered into custody. On July 30, 2024, the matter was up again. Ms. Griffiths expressed some concern about Mr. Ali's fitness. I agreed to make an order for a fitness assessment. Dr. Wang performed the assessment and found Mr. Ali to be fit to stand trial. Mr. Ali understood that he was before the courts because "his stepdaughter accused him of touching her." He was able to identify potential pleas, and understood the roles of the judge, the Crown, and the defence lawyer. Dr. Wang stated:

Mr. Ali was seated in a wheelchair throughout the assessment, but was able to stand at the end. He was dressed in jail attire. He appeared to be slightly dishevelled, with an unkempt beard. His speech was normal. His affect was euthymic and appropriate. His thought process was logical and organized. He asked me several questions about my age and astrological sign in a friendly manner. He did not appear to be responding to internal stimuli. He denied any active suicidal or violent ideation.

[7] Dr. Wang found that Mr. Ali was not certifiable under the Mental Health Act. He found that there was no evidence of any specific mental disorders but had some longstanding memory issues. Dr. Wang stated that Mr. Ali "did not present with any notable cognitive impairment today."

[8] Notwithstanding Dr. Wang's assessment, Ms. Griffiths indicated that she still had some difficulty getting instructions and wanted Mr. Ali assessed for memory issues. A series of appearances then followed where Ms. Griffiths made great efforts to obtain an assessment. She prepared a bail plan to allow Mr. Ali to access an assessment. It took some time for the bail plan to be prepared and presented to the court. On November 20, 2024, a bail hearing was held. Sarah Ali, Mr. Ali's daughter, appeared and testified as his potential surety. After asking Ms. Ali a series of questions, Mr. Elder indicated that he was satisfied she was an appropriate surety and consented to bail. I agreed. Mr. Ali was released on bail. Ms. Griffiths continued to make efforts to have him assessed. Those efforts were sometimes frustrated for reasons beyond her control. Eventually Mr. Ali was assessed, which I will discuss below. That assessment was facilitated by several bail variations to which Mr. Elder consented.

[9] The sentencing hearing took place on June 20, 2025.

FACTS OF THE OFFENCE

[10] In 2014 or 2015 Mr. Ali was living with L.T. in an intimate relationship. L.T. was the mother of J.U. Mr. Ali was never considered J.U.'s father, but he did do things to assist, such as driving her to activities and supervising her in the home. J.U. was 11 or 12 years old in 2014 or 2015. At some point when she was 11 or 12 Mr. Ali had her come sit on his lap. They were both fully clothed. Mr. Ali touched her on her legs and her vagina over her clothing. He also put his hand under her underwear. He directly touched her vagina directly for around five minutes.

[11] In the summer of 2025 J.U. was asleep one day on a mattress. She was wearing a t-shirt and shorts. She was 12 years old at the time. She woke up to find Mr. Ali touching her buttocks with his hand over her clothing, and stubble from his face on the inside of her thighs. His head was near her vagina, although over her clothing. She ran off to take a shower and then called her mother to report the sexual assault. That assault was reported to the police; the first assault was reported later.

IMPACT ON THE VICTIM

[12] J.U. declined to provide a victim impact statement. Nonetheless, I can infer that the sexual assault of an 11-or-12-year-old girl had a significant impact on her. As the Supreme Court recognized in R. v. Friesen, 2020 SCC 9, at paras. 51, 56, 58:

Sexual violence against children is thus wrongful because it invades their personal autonomy, violates their bodily and sexual integrity, and gravely wounds their dignity…

Sexual violence against children can cause serious emotional and psychological harm that, as this Court held in R. v. McCraw, [1991] 3 S.C.R. 72, "may often be more pervasive and permanent in its effect than any physical harm".

Sexual violence can interfere with children's self-fulfillment and healthy and autonomous development to adulthood precisely because children are still developing and learning the skills and qualities to overcome adversity… For this reason, even a single instance of sexual violence can "permanently alter the course of a child's life"…

[13] I find, although J.U. did not participate in the sentencing proceedings, that the sexual assault can be assumed to have had a significant effect on her.

BACKGROUND OF MR. ALI

[14] Mr. Ali is 62 years old. He was born and raised in Guyana. His parents were together. They did not live a rich lifestyle, but they did have ongoing businesses. His father was a butcher and owned a meat stall while his mother ran the home and the farm. Mr. Ali left school at 15 or 16 to go to work. He came to Canada at age 20, as did all but one of his siblings. He has had a variety of jobs. He worked at the airport as a baggage handler from 1986 until his retirement in 2019 due to back issues. He then worked as a transport truck driver until 2022. He currently supports himself with CPP and a disability pension but has applied for other benefits, such as ODSP. He has three daughters – one of whom is his surety – and a son. Apparently, he has a good relationship with all his children except his younger daughter.

[15] I am told that Mr. Ali ended his marriage due to his wife's infidelity. This led to a downward spiral of depression and alcoholism.

[16] According to Dr. Wang's fitness assessment, Mr. Ali suffers from chronic back pain as a result of work-related injuries and is on a disability pension. He was living in Peterborough with others at the time of his arrest. He reported memory issues to Dr. Wang. He said he did not understand why he was in jail. Dr. Wang found that Mr. Ali was not certifiable under the Mental Health Act, and there was no evidence of a specific mental disorder, as I have mentioned. As I also mentioned, he found Mr. Ali fit to stand trial.

[17] Dr. Brisbin of the Kawartha Centre conducted a neurocognitive examination in January 2025. Mr. Ali stated during the assessment that he did not have a good memory and it had declined over the past few years. He stated that he had, to paraphrase, trouble organizing his life. He indicated that he was a heavy drinker for 20 years but was forced to quit when he went into custody. He told Dr. Brisbin that he had not consumed alcohol since being released from custody.

[18] His daughter Sarah, who was his surety, had not had contact with Mr. Ali for several years but in February 2024 he contacted her looking for help. He had been staying with various family members but was often kicked out due to alcohol use. She found him a place to stay, but reported that he was confused, had cognitive difficulties, had poor hygiene, and was forgetful. She noted that he has improved since he stopped drinking alcohol. His daughter manages his finances for him as he seems unable to do so.

[19] Dr. Brisbin noted that Mr. Ali presented for his appointment well-groomed, with no personal hygiene issues, had appropriate eye contact and speech, and suffered no hallucinations, delusions, or paranoia.

[20] After conducting some tests, Dr. Brisbin noted that Mr. Ali had cognitive deficits that were more than anticipated for normal ageing. He had problems with short-term memory, attention, executive function, and visuospatial reasoning. Her working diagnosis was alcohol-related cognitive impairment. He had other ailments that she attributed to smoking. She rated his frailty as 4 or living with very mild frailty.

[21] After the initial appointment with Dr. Brisbin, Mr. Ali underwent a series of tests, including bloodwork and an MRI. His bloodwork was reasonably normal. His MRI showed no evidence of any kind of pathology or other physical deterioration accounting for his cognitive decline other than the usual decline due to aging. Dr. Brisbin confirmed her diagnosis of alcohol-related cognitive impairment. She recommended that he quit smoking and continue to refrain from using alcohol.

POSITIONS OF THE PARTIES

[22] Both parties agree that the Court should impose a sentence of two years less a day, although Ms. Griffiths takes the position that if the court imposes a custodial sentence it should be in the range of 18 months to two years less a day.

[23] Mr. Elder, for the Crown, argues that a conditional sentence is not appropriate. The two years less a day is lenient and takes into account credit for harsh conditions of custody (R. v. Duncan) during the time that Mr. Ali was in custody. The two years less a day sentence also accounts for the mitigating factor of a guilty plea and the fact that the complainant was spared from testifying and cross-examination. Ultimately, given that this is an offence against a child, a conditional sentence would not be in accordance with the purposes and principles of sentencing.

[24] Ms. Griffiths argues that given Mr. Ali's age and mental health issues, he should serve the sentence in the community. He has shown that he can abide by court orders. While acknowledging that anything less than an 18-month sentence would be unfit, she argues that it would not be contrary to the purposes and principles of sentencing were Mr. Ali to serve his sentence in the community. He is not a danger and is unlikely to reoffend.

AGGRAVATING AND MITIGATING FACTORS

[25] The most important aggravating factor in this case is the nature of the offence. It involved the sexual abuse of a very young victim. That is a statutory aggravating factor: Criminal Code, s. 718.2(a)(ii.1).

[26] Although Mr. Ali was not technically a step-parent, there is no doubt that as an adult in the house with some supervisory and other roles he was in a position of trust. Ms. Griffiths did not argue that Mr. Ali was not in a position of trust. As a live-in boyfriend of J.U.'s mother, in the absence of any evidence to the contrary I think a trust relationship is axiomatic under those circumstances. Being in a position of trust is highly aggravating and is also a statutory aggravating factor: Criminal Code, s. 718.2(a)(iii).

[27] Mr. Ali also has an impaired driving conviction from 1999. It is dated and unrelated, and so I do not take it into account as an aggravating factor. It is notable, however, that it is evidence that Mr. Ali has been struggling with alcohol for well over 30 years.

[28] There are also important mitigating factors. The most important mitigating factor is that Mr. Ali pleaded guilty. By pleading guilty he accepted responsibility and spared the victim from having to testify. Sparing the victim from cross-examination cannot be underestimated in importance. Many victims – and especially young victims – find the process of cross-examination highly traumatizing and some even say that it is worse than the offence itself. I therefore give a guilty plea – especially in a credibility case where the only evidence would really be the evidence of the complainant – a great deal of weight.

[29] It is mitigating that Mr. Ali enjoys family support. He is incredibly lucky that his daughter Sarah has taken it upon herself to, in essence, organize his life – no doubt at considerable cost to her own time and to her own family.

[30] Mr. Ali is 62 years old, soon to be 63. In our advanced medical society of 2025, 62 is not particularly elderly for most people. It must be acknowledged that Mr. Ali appears to be older than his years – he is frail, he does have cognitive deficits – which I find to be a mitigating factor –and he requires assistance from his daughter simply to do the ordinary tasks of life. He is elderly beyond his years, which is regrettably a mitigating factor.

PRINCIPLES OF SENTENCING

[31] The primary principles of sentencing in cases involving the sexual abuse of children are denunciation and deterrence: Criminal Code, s. 718.01.

[32] This has been emphasized in several cases, including R. v. Friesen, supra. At para. 75 the Court stated:

In particular, courts need to take into account the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle. Accurately understanding both factors is key to imposing a proportionate sentence (R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at paras. 43-44). The wrongfulness and the harmfulness impact both the gravity of the offence and the degree of responsibility of the offender. Taking the wrongfulness and harmfulness into account will ensure that the proportionality principle serves its function of "ensuring that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused"…

[33] The principle of rehabilitation plays a role in this case. No person is beyond rehabilitation. I also accept that Mr. Ali is unlikely to re-offend. That said, the principle of rehabilitation is secondary to denunciation and deterrence as sentencing principles in a case of this nature.

SHOULD THERE BE A CONDITIONAL SENTENCE?

[34] In order to impose a conditional sentence a court must be satisfied that the sentence would not endanger the safety of the community and would be consistent with the fundamental purposes and principles of sentencing as set out in sections 718 to 718.2 of the Criminal Code.

[35] I am satisfied that a conditional sentence would not endanger the safety of the community. This is Mr. Ali's only offence, aside from an impaired driving conviction more than 25 years ago. The real question is whether a conditional sentence would be consistent with the fundamental purposes and principles of sentencing.

[36] Regrettably, I find that it would not. This was a case of sexual assaults on a girl of 11 or 12 years old. One of the assaults involved direct touching of the victim's vagina, under her clothing. It was predatory behaviour by an adult in a position of trust. This is exactly the type of behaviour that would ordinarily be denounced with a penitentiary sentence. In R. v. Friesen, supra, the court stated that mid-single digit penitentiary sentences are the norm for sexual offences against children. Obviously, a penitentiary-length sentence would preclude a conditional sentence. Given that I am imposing a two year less a day sentence a conditional sentence is not statutorily forbidden, but the tenor of Friesen is that custodial sentences are the norm.

[37] The weight of authority also militates against a conditional sentence. In my view, a conditional sentence would simply be inadequate to denounce conduct of a person in a position of trust who sexually abused a child: R. v. T.J., 2021 ONCA 392. The Court of Appeal, in a pre-Friesen case, emphasized that conditional sentences should rarely be imposed in the cases of sexual offences against children: R. v. R.(D.), [2003] O.J. No. 561.

[38] I am aware that Mr. Ali suffers from cognitive deficits due to alcohol abuse. I did have some concerns about his fitness to stand trial and his mental acuity generally. That said, after reviewing the medical reports of Dr. Brisban and Dr. Wang, I am satisfied that his condition is not so mitigating or debilitating that he would be unable to serve a sentence in custody or that the effects of a jail sentence would be disproportionately harmful to him. Moreover, there is no evidence that the jail authorities would be unable to deal with his mental and physical health issues. That, as many courts have said, is a matter for the jail authorities.

[39] I also accept that it is highly mitigating that Mr. Ali pleaded guilty and spared the victim from testifying. That mitigating factor is important, indeed very important, but it is not important enough to impose a sentence that, in my view, would not be fit.

[40] Crown counsel's position is that a penitentiary sentence would have been appropriate but for the mitigating factors in this case, including the mitigating factor of harsh conditions of custody. I agree with the Crown on that point. Were it not for those mitigating factors I would have imposed a penitentiary sentence. The circumstances of this case may take it below the suggested range in Friesen. If I were to go even further and impose a conditional sentence, it would become an unfit sentence because it would simply be insufficiently denunciatory – and Parliament requires the court to give primary consideration to denunciation and deterrence. For that reason I also find that a sentence of 18 months would be insufficiently denunciatory.

[41] I therefore find that a conditional sentence would not be appropriate.

SHOULD THERE BE A SOIRA ORDER?

[42] Mandatory sex offender registry orders were struck down by the Supreme Court of Canada in R. v. Ndhlovu, 2022 SCC 38. Parliament responded by amending the key sex offender registration provisions, primarily those found in s. 487.012 of the Criminal Code.

[43] SOIRA is the shorthand for these orders, as the governing legislation for the supervision of sexual offenders is the Sex Offender Information Registration Act.

[44] Sexual interference is a primary offence under the definition of primary offence in s. 490.11(1)(a)(ii) of the Criminal Code. That makes it also a designated offence under the definition section.

[45] Under s. 490.012(1) of the Criminal Code, where a court sentences a person for a designated offence a SOIRA order is mandatory where the prosecution establishes that:

• The offence was prosecuted by indictment;
• The sentence is for two years or more; and,
• The victim of the offence is under 18 years of age.

[46] As the sentence in this case will be less than two years, the mandatory provision under subsection (1) does not apply even though J.U. was under 18 at the time of the offence.

[47] A SOIRA order is also mandatory if offender has previously been convicted of a primary offence or was under a previous SOIRA order: Criminal Code, s. 490.012(2). That obviously does not apply to Mr. Ali.

[48] A SOIRA order is not mandatory for other designated offences (either primary or secondary) but the burden is on the offender to show why the order should not be made. Under s. 490.012(3), which applies here, a sentencing court shall make a SOIRA order unless the offender establishes that either:

• There would be no connection with making a SOIRA order and the purpose of helping the police prevent or investigate sex crimes; or,
• The impact on the offender's privacy or liberty would be grossly disproportionate to the public interest in the investigation or prevention of sex crimes.

[49] Subsection 490.12(4) sets out the factors that the court must consider when determining whether to make a SOIRA order:

• (a) the nature and seriousness of the designated offence;
• (b) the victim's age and other personal characteristics;
• (c) the nature and circumstances of the relationship between the person and the victim;
• (d) the personal characteristics and circumstances of the person;
• (e) the person's criminal history, including the age at which they previously committed any offence and the length of time for which they have been at liberty without committing an offence;
• (f) the opinions of experts who have examined the person; and
• (g) any other factors that the court considers relevant.

[50] When I apply the factors, I make the following findings:

• This crime was extremely serious as it involved sexual touching of a young girl;
• The victim was vulnerable, in the sense that she was a young person and, as a young person, it can be presumed that she did not have the tools to know how to resist or deal with or report, or seek counselling as a result of Mr. Ali's sexual assault;
• Mr. Ali was in a position of trust; and,
• Mr. Ali was not a first offender, but his previous conviction was dated, unrelated, and hardly the most serious offence in the Criminal Code.

[51] I cannot say that s. 490.012(3)(a) does not apply here. There is no indication that Mr. Ali has sexually abused anyone other than J.U. There is also a reduced likelihood that Mr. Ali will be able to be in a position to sexually abuse another child. He will be subject to prohibition orders and is very unlikely to ever be in a position of trust with a young person again. That said, it is not impossible that such a thing could take place. I cannot say that there would be no – a very definitive statement – connection between the making of the order and the purpose of helping the police investigate crimes. I also cannot say that s. 490.012(3)(b) does not apply. The impact of the order would not be grossly disproportionate to the public interest in the investigation and prosecution of sex crimes against children. Again, while such a crime is unlikely in the future, it is not impossible. I find that the defence has not met its burden.

[52] The duration of a SOIRA order made under s. 490.012(3) is twenty years where the maximum punishment for the offence is 10 or 14 years: Criminal Code, s. 490.013(2)(b). In this case, given that the order was made pursuant to s. 490.012(3) and sexual interference carries a maximum punishment of 14 years, there will be SOIRA order for 20 years.

SHOULD THERE BE ORDERS UNDER S. 161 OF THE CRIMINAL CODE?

[53] Crown counsel argues that I should make prohibition orders under s. 161(1) of the Criminal Code. There are five orders that the Crown can make under that subsection:

• (a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;
• (a.1) being within two kilometres, or any other distance specified in the order, of any dwelling-house where the victim identified in the order ordinarily resides or of any other place specified in the order;
• (b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, 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 years;
• (c) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate; or
• (d) using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court.

[54] Mr. Elder argues that the orders should all be for ten years, with the s. 161(1)(b) order being for life. Ms. Griffiths does not oppose the orders, including s. 161(1)(b) as Mr. Ali is retired, but is concerned that blanket orders could impair him from seeing or spending time with his grandchildren or simply impair functioning in daily life (see s. 161(1)(d)) given the ubiquity and importance of life online even for basic tasks, such as banking.

[55] I agree with Mr. Elder that prohibition orders should be imposed, but I also agree with Ms. Griffiths that they should be limited in time given Mr. Ali's age and given his circumstances. Accordingly, the orders are as follows:

• S. 161(1)(a): Mr. Ali may not attend a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre for a period of ten years, unless he is with an adult who is aware of his convictions.

• S. 161(1)(a.1): Mr. Ali may not be within one kilometre of any dwelling-house where J.U. is known to Mr. Ali to reside, or where she is known to go to school, or work, for a period of ten years.

• S. 161(1)(b): Mr. Ali is prohibited for life from seeking, obtaining or continuing any employment, whether or not the employment is remunerated, 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 years.

• S. 161(1)(c): Mr. Ali may not have any contact — including communicating by any means — with a person who is under the age of 16 years, for a period of ten years, unless he is with an adult who is aware of his convictions.

[56] Given that there is no indication that Mr. Ali has used or will use the internet for any prohibited or nefarious purpose – and given the fact that accessing or transferring child pornography is already illegal – I see no useful purpose in imposing a condition under s. 161(1)(d). I decline to do so. Mr. Ali may use the internet for all lawful purposes.

DISPOSITION

[57] Mr. Ali spent 120 days in custody in relation to this charge, or 180 days at an enhanced rate, amounting to six months. He will be credited with six months.

[58] Mr. Ali is sentenced to two years less a day, with six months credit and 18 months left to serve.

[59] There will be a DNA order as sexual interference is a primary designated offence: Criminal Code, sections 487.04(a)(i.1) under primary designated offence; s. 487.051(1).

[60] There will be a SOIRA order for 20 years.

[61] There will be the s. 161(1) prohibition orders that I have already set out.

[62] Mr. Ali will be on probation for a period of 12 months. In addition to the statutory terms the terms are as follows:

• He is to report to a probation officer within 2 days of the expiry of his sentence and thereafter as required;
• He is to take counselling as required by his probation officer and is to sign such releases as are required for the probation officer to monitor his progress;
• He is not to be within one kilometer of anywhere he knows J.U. to live, work, or go to school;
• He is to have no contact directly or indirectly with J.U. or L.T.

[63] Before closing I would just like to recognize both counsel for their assistance to the Court in this very challenging matter. Mr. Elder throughout took a firm but very fair position towards Mr. Ali, which included consenting to bail when it was appropriate and trying to assist Ms. Griffiths in her efforts to obtain assessments for her client. Ms. Griffiths made great efforts on behalf of her client, often well beyond what is expected of defence counsel and was often frustrated, to try to ensure that Mr. Ali obtained bail and accessed professional evaluations that the Court could take into account on sentencing. I thank them both.

R.F. Goldstein J.

Released: July 31, 2025