R v Sardar, 2021 ABQB 111

Court of Queen’s Bench of Alberta Citation: R v Sardar, 2021 ABQB 111 Date: 20210211 Docket: 180814220S1 Registry: Edmonton Between: Her Majesty the Queen Crown/Respondent - and - Farhan Sardar Accused/Appellant Corrected judgment: A corrigendum was issued on April 29, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Decision of the Honourable Madam Justice S.E. Richardson _______________________________________________________ Appeal from the Conviction and Sentence by The Honourable Judge M.S.

Hayes-Richards Convicted on the 25 th day of April, 2019: Sentenced on the 1 st day of October, 2019 (Docket 180814220P1)

Introduction [1] On April 25, 2019, the Appellant was convicted of common assault in relation to an incident that occurred on December 23,2017. A pre-sentence report was prepared and he was sentenced on October 1, 2019 to 60 days in jail (to be served intermittently) andone-year probation. He appeals both the conviction and the sentence. Overview Facts [2] The Appellant was working alone as a clerk at a convenience store when, just after 6am, the complainant entered the storealone and placed some items in the front pocket of her hoodie.

The complainant was 13 years old. [3] The Appellant observed this theft via the store surveillance cameras and confronted the complainant, demanding the returnof the items from her pocket. She denied stealing. He placed his hand inside the front pocket of her hoodie and pulled out a box ofearbuds she had taken. He then told her he wanted to search her backpack or he would call the police. She agreed to permit the search ofher backpack. He took her to the back of the store and placed her backpack on the counter. This search was interrupted when anothercustomer entered the store.

The Appellant took the backpack with him to the front counter and briefly served that customer. [4] He returned with the backpack to the complainant, who had remained at the back of the store. He searched her backpack on acounter and found nothing. He then told her that he had to search her or else he would call the police. [5] Thereafter, the Appellant led the complainant into a back hallway of the store, leaving the backpack on the counter. Thisarea of the store was not covered by the store surveillance cameras.

He lifted up her hoodie, pulled open the pyjama pants she waswearing and put his hand down her pants, inside her underwear and touched her vagina. She pushed his hand away, grabbed herbackpack from the counter and left the store. [6] The Appellant was charged with common assault under s 266 of the Criminal Code (CC). [7] At trial, both the complainant and the accused testified. The Crown called two additional witnesses, the complainant’s fostermother and the investigating officer who took a 715.1 statement from the complainant.

The Appellant denied touching the complainant,and denied taking her into the back hallway. Issues [8] The Appellant argues: 1. The trial Judge misapplied the test in R v W(D), (SCC), [1991] 1 SCR 742 and made errors in the W(

D) analysissuch that the verdict was unreasonable, and 2. The sentence imposed was demonstrably unfit Standard of Review [9] The application of a legal test is a question of law and is reviewable on a standard of correctness (R v Poxleitner, 2020ABCA 136 at para 44; R v Cortes Riveria, 2020 ABCA 76 at para 18; R v Clark, 2016 ABCA 72 at para 62; R v RS, 2013 ABCA 437 atpara 13). [10] The second complaint relates to the credibility decisions made by the trial Judge.

Credibility findings are entitled to deferencegiven that the trial Judge is in a unique position as “the trier of fact” (R v Francois (SCC), [1994] 2 SCR 827). Thestandard of review on specific credibility findings is reasonableness (Francois), absent an error of law or principle or a clear andmanifest error in the appreciation of the evidence (R v Napope, 2015 ABCA 27, at para 22).

Trial Judges are also owed deference in thesentence imposed, and an appellate court may only intervene and alter a sentence where it is demonstrably unfit, where there was an errorin principle or where the trial Judge failed to consider a relevant factor or overemphasized the appropriate factors (R v CAM [1996] 1SCR 500, at para 90). Was the verdict unreasonable? [11] This ground of appeal has two distinct arguments. First, that the trial Judge misapplied the W(

D) test and second, that the trialJudge made specific errors in the assessment of credibility. [12] The Appellant argues that the trial Judge misapplied the W(

D) test by creating a credibility contest and weighing thetestimony of the Appellant against the testimony of the complainant. The record displays no such error. [13] The purpose of the W(

D) approach is to ensure that the burden never shifts from the Crown to prove every element of theoffence beyond a reasonable doubt. When faced with competing stories, the Court must not simply prefer one over the other: R v CLY,2008 SCC 2, para 6; R v SMC, 2020 ABCA 19 at para 23[SMC].

[ 14 ] The trial Judge referenced the test from W(

D) as well as the as recent Court of Appeal decision in R v Ryon , 2019 ABCA 36 , respecting the W(

D) framework. She described the intersection of credibility and reasonable doubt saying “It is an error of law in cases of contradictory evidence to simply weigh the evidence of the accused against the evidence of the complainant”. [ 15 ] The trial Judge then examined the form and content of the Appellant’s testimony, noting his internal inconsistencies, his evasiveness and reluctance to answer any question that may implicate him in taking the complainant into the back hallway.

She integrated the Appellant’s testimony with the surveillance camera footage and found his testimony not credible where it conflicted on material points with the surveillance camera evidence. [ 16 ] Concluding that the Appellant was not a credible witness, she then turned to an examination of the complainant’s testimony. She examined the frailties in the complainant’s evidence and took account of the witness’ explanations for those frailties. She examined the complainant’s testimony in light of the surveillance camera evidence and the whole of the evidence before her.

She found the complainant a credible and reliable witness. [ 17 ] The trial Judge did not apply the prohibited credibility contest analysis to the testimony of the Appellant and the complainant. This argument is without merit. [ 18 ] Next the Appellant submits that the trial Judge made errors in her W(

D) analysis. Specifically, he claims that she erred in concluding that the Appellant was not a credible witness. [ 19 ] Credibility findings are entitled to deference. This is anchored in the fact that the trial Judge actually saw and heard the testimony of the witnesses. A trial judge is uniquely positioned to rely not only on all that the trial judge sees and hears relative to a witness, but also on contemporary common sense [while the

summary conviction appeal Court] does not possess the same advantage: SMC para 30 . Findings on credibility should only be interfered with on appeal if they are unreasonable or display palpable overriding error: SMC para 19 . [ 20 ] In this case, the trial Judge set out in detail why she concluded the Appellant was not credible. She found him to be evasive and reluctant when faced with questions about whether he knew the store surveillance cameras did not cover the back hallway.

This was directly relevant to the allegations advanced by the Crown. [ 21 ] As well, the surveillance camera evidence directly contradicted parts of his testimony. The Appellant was unequivocal in testifying that he did not put his hand inside the complainant’s front hoodie pocket to check for stolen items. He maintained this version of events even when the surveillance footage showed clearly that “that accused stuck his right hand inside the pocket of the complainant’s hoodie”.

His testimony was not believed on this point. [ 22 ] Finally, the trial Judge disbelieved the Appellant on the critical issue of whether he took the complainant into the back hallway. The Appellant denied that he was ever in the back hallway with the complainant. He testified that he searched her backpack on the counter and finding nothing, she picked up her backpack and left the store.

The trial Judge concluded “It is clear from the CCTV footage that this is not true” and that “This portion of the video clearly contradicts the accused’s evidence” on this point. [ 23 ] The trial Judge’s conclusion on the credibility of the Appellant was reasonable. [ 24 ] Second the Appellant submits that the trial Judge erred in concluding that the complainant was credible. [ 25 ] He finds two discrete errors in her analysis of the complainant’s testimony. First, he argues it was an error to dismiss the complainant’s testimonial inconsistencies as minor or related only to peripheral issues.

These inconsistencies included whether she showed the Appellant a $20 bill while offering to pay for the items she took and whether she ran out of the store. The complainant described each of these two events. [ 26 ] It is clear that a trial Judge is entitled to decide how much weight to give to factors such as inconsistencies, particularly where a witness provides explanations for such inconsistencies: SMC , para 30 . The complainant was described as intelligent, articulate and an honours student. The trial Judge noted the Supreme Court pronouncements regarding the assessment of the testimony of child witnesses.

She was aware that the complainant was 15 years old at trial, testifying about events that occurred when she was 13 years old. [ 27 ] The trial Judge found the inconsistencies noted by the Appellant were “minor” and on “peripheral issues”.

The witness’s memory of showing the Appellant the $20 bill occurred at the beginning of her interaction with the Appellant (in her memory) and was related to her theft of items and not related to what occurred later in the back hallway. [ 28 ] The complainant’s testimony on how she left the store was determined by the trial Judge to not rise to the level of concern on her overall credibility.

The complainant testified that she “ran” out of the store, while the trial Judge characterized the surveillance video as showing that she was “walking quickly” out of the store. [ 29 ] Second, he argues that the trial Judge erred in not giving sufficient weight to the complainant’s testimony that she lied to the police about the reason why she went into the store and where she was the night before. [ 30 ] The complainant gave a videotaped statement to the police 10 days after the incident. This statement was evidence under s 715.1 CC .

In the statement, the complainant, then 13 years old, told two lies to the officer, lies she acknowledged in her examination in chief. She told him that she did not go into the store with the intention to steal anything and that she had left her home around 6am that morning to go for a walk. In fact, she testified that she had gone into the store with the intention of stealing items, and she had snuck out of her house the night before and spent the night at a friend’s home near the store in question.

She explained that she lied on these two issues because she was scared of the response of her foster parents to the truth, that she was frightened of being arrested for the theft and she thought no one would believe her about being assaulted by the Appellant if they knew she was stealing. The trial Judge noted the fact of these two lies to the police to be a concern but she accepted the explanations about why, as a 13-year-old, the complainant was untruthful on these two points with the police.

[ 31 ] The trial Judge placed more weight on the contradictions in the Appellant’s testimony because these went directly to the substance of the allegation: that is, whether he took the complainant in to the back hallway and whether he knew that this area was not captured by store surveillance cameras. She placed less weight on the contradictions in the complainant’s testimony because they were minor and did not go to the substance of the allegation.

Finally, the trial Judge, gave careful consideration to the two lies told by the complainant in her s 715.1 CC video interview, and accepted explanations she gave for telling those lies to the investigating officer. [ 32 ] The trial Judge correctly applied the W(

D) test and the credibility findings were reasonable on the evidence before her. The conviction appeal is dismissed. Was the sentence imposed demonstrably unfit? [ 33 ] This ground of appeal captures two separate issues. First, was the sentence demonstrably unfit and second, did the trial Judge err in not considering a conditional sentence. [ 34 ] The Appellant had been charged with, and convicted of common assault (s 266 CC ). At the sentencing hearing, the Crown argued that the facts proved beyond a reasonable doubt the Appellant had a sexual purpose to his actions.

The Appellant’s counsel argued against this submission, pointing out the evidence at trial from both the Appellant and the complainant, as well as the circumstances of the assault itself, led to the conclusion that the assault was committed for the purpose of retrieving items that the complainant may have tried to steal from the store. [ 35 ] The trial Judge found that the Crown had not proven the assault was committed for a sexual purpose. [ 36 ] Given the finding on the lack of proof of the aggravating factor (a sexual purpose), the Crown sought four months jail with probation.

The defence sought a discharge or alternatively, a suspended sentence with a period of probation. [ 37 ] The Appellant was sentenced to 60 days jail followed by one year of probation. When the Judge imposed the jail term, defence counsel asked for it to be served intermittently. The trial Judge agreed. [ 38 ] The Court had the benefit of a positive pre-sentence report, and the victim impact statement of the complainant. Each party also filed case authorities in advance. [ 39 ] The standard of review with respect to sentences is deferential.

An appellate court may only interfere with a sentence where it is demonstrably unfit, or where the sentencing judge commits an error in principle, fails to consider a relevant factor, overemphasizes the appropriate factors or erroneously considers an aggravating or mitigating factor and such an error has an impact on the sentence imposed: R v Lacasse , 2015 SCC 64 , para 44 ; R v Suter , 2018 SCC 34 , para 24 ; R v Corbiere , 2017 ABCA 164 , para 9 . [ 40 ] The Appellant argued that the jail sentence was demonstrably unfit because the sentencing Judge overemphasized the location of the assault on the body of the complainant.

In so doing, he argued that the sentencing judge “imputed a sexual purpose in all by name, effectively sentencing the Appellant as though he were convicted of sexual assault (rather than assault simpliciter )”. [ 41 ] It cannot be said on this record that the sentencing Judge imposed a sentence imbued with a finding that assault carried a sexual purpose. She raised the issue of proof of the aggravating factor that was suggested by the Crown. [ 42 ] Most of the cases provided by the Crown dealt with the sexual assault, not common assault.

The Crown’s submissions were anchored in the gravity of the offence given that the complainant was a child, and the location of the common assault was touching of the outside of the victim’s vagina, under her clothing. The cases alerted the Court to the aggravating features of the offence. The fact that the Appellant was being sentenced for a common assault was the subject of repeated comment by the trial Judge.

She was not misled by the Crown’s cases. [ 43 ] The Appellant argues that the trial “judge erred in imputing a sexual purpose…by substituting the aggravating factor of the location of the assault for the aggravating facts of a sexual purpose…(thereby) elevating the sentence for assault simpliciter into a sentence for sexual assault”. I disagree. [ 44 ] During the sentencing hearing, the sentencing Judge and the Crown raised on five separate occasions that despite the unique factual circumstances of this case, the accused was convicted of simple assault and not sexual assault.

Likewise, the trial Judge conducted a thorough assessment of the evidence and concluded that the Crown had not proven the crime was committed for a sexual purpose. [ 45 ] Offences of violence against children are statutorily aggravating (s 718.01 CC ). This statutory provision acknowledges the particular vulnerability of children as well as our societal condemnation of acts that exploit that vulnerability. The trial Judge did not substitute the aggravating factor of the location of the assault on sentence for the mens rea of a “sexual purpose”.

At the sentencing hearing, she expressly found that the Crown had not proven a “sexual purpose” beyond a reasonable doubt. [ 46 ] The Court was required to take account of the nature of the offence that was committed. This requires much more than a clinical assessment of the offence section. Common assault, prosecuted by

summary conviction, attracts a range of sentence from an absolute discharge to 6 months in jail.

Any sentence imposed must be proportional to the gravity of the offence and the degree of moral responsibility of the offender. [ 47 ] In her analysis of the nature of the offence, the way the common assault was committed (by taking the child into a back room away from customers and surveillance camera) as well as the location of the assault on the victim (reaching under her clothing and directly touching her vaginal area with his hand), and the impact of the crime on the victim, lead the sentencing Judge to conclude that the gravity of the offence was high.

She decided that denunciation and deterrence were the primary sentencing principles. In this assessment, she was correct.

[ 48 ] The Supreme Court of Canada in R v Friesen , 2020 SCC 9 explained at para 101 : …in cases that involve the abuse of a person under the age of 18, s 718.01 requires the court to give “primary consideration to the objectives of denunciation and deterrence of such conduct” when imposing sentence. [ 49 ] The Supreme Court went further stating at para 104 that: … Where Parliament has indicated which sentencing objectives are to receive priority in certain cases, the sentencing judge’s discretion is thereby limited, such that it is no longer open to the judge to elevate other sentencing objectives to and equal or higher priority ( Rayo , at paras 103 and 107-8).

However,…the sentencing judge retains discretion to accord significant weight to other factors (including rehabilitation and Gladue factors) …in exercising discretion is arriving at a for sentence, in accordance with the overall principle of proportionality… [ 50 ] The sentencing Judge considered the laudable circumstances of the Appellant, including his employment, his family support, and his lack of a criminal record, and applied the fundamental purposes and principles of sentencing to the circumstances of the offence he had committed.

She fulsomely set out the factors in favour of the Appellant on sentence, as well as the principles of sentencing that applied to her analysis. [ 51 ] In considering the Appellant’s moral blameworthiness the Court referenced R v LaBerge , 1995 ABCA 196 , paras 6-10 , for the principle that the sentence imposed must fit the degree of moral blameworthiness of the offender, determined by consideration of the unlawful act itself, the nature and quality of the act, the method by which it was committed, the degree of planning and deliberation, the degree of risk posed, and the personal characteristics of the offender. [ 52 ] Moreover, since the Appellant urged the sentencing Judge to impose a discharge, the MacFarlane factors were exhaustively discussed and considered by the Court.

Ultimately, the sentencing Judge determined that a discharge was not available. [ 53 ] In sentencing the Appellant to 60 days jails (to be served intermittently) plus one year of probation, the Court took account of the specific circumstances of the offence, the detailed circumstances of the offender, and favoured the statutory sentencing principles of denunciation, general and specific deterrence, while not ignoring rehabilitation and restraint. The sentence imposed was not demonstrably unfit.

Did the sentencing Judge err by not considering a CSO? [ 54 ] In oral argument counsel for the Appellant further submitted that if this Court finds that the sentence imposed was not demonstrably unfit, then the 60-day jail sentence should be converted to a conditional sentence order (CSO). [ 55 ] The contest between counsel after trial was a jail sentence or a discharge. There was no discussion of the 60-day jail sentence being served under a conditional sentence order.

Having heard counsel’s submissions, the sentencing judge did not expressly apply the CSO regime set out in s. 742.1 CC . [ 56 ] While counsel for the Appellant argued that this Court should convert the 60-day jail sentence into a CSO, that option is unavailable in the absence of a finding that the sentencing Judge committed an error in principle by not considering a CSO. [ 57 ]

Section 742.1 (

a) and (

b) of the Criminal Code states: If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two year, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community…if (

a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2. [ 58 ] While the imposition of a CSO is discretionary, appellate Courts have been consistent that consideration of a CSO is mandatory where the prerequisites are met. [ 59 ] The Supreme Court of Canada in R v Proulx , 2000 SCC 5 [ Proulx ], held that while there is no presumption in favour of a conditional sentence if the prerequisites under s 742.1 have been satisfied, it would be an error in principle not to consider the possibility of a conditional sentence seriously when the statutory prerequisites are met (paras 85 and 90). [ 60 ] The Alberta Court of Appeal (ABCA) has also indicated that where a sentencing judge imposes a jail sentence of less than two years, it is an error in principle to fail to properly consider whether the CSO would endanger the safety of the community R v McLean 2004 ABCA 353 .para 19. [ 61 ] Likewise, the ABCA in R v Hindes 2000 ABCA 197 held that once the court determined that a penitentiary sentence was not necessary for the accused, the sentencing judge is still required to perform the analysis under s 742.1 to determine if serving that jail sentence would endanger the community, citing Proulx that “it would be an error in principle to not consider a conditional sentence seriously when statutory prerequisites are met”. (para 34) [ 62 ] The obligation of the Sentencing Court to conduct a CSO analysis for sentences of less than 2 years jail and for offences without a mandatory minimum penalty, exists, irrespective of the absence of a request from counsel. (see R v Lynch , 2015 BCCA 140 , para 127 ) [ 63 ] I have determined that the sentencing judge committed an error in principle by not expressly considering a conditional sentence, and having determined on this appeal that 60 days jail was a fit sentence, I am required to conduct the analysis under s 742.1 CC and determine whether the Appellant can serve his sentence in the community.

[ 64 ] In the present case, the first three statutory prerequisites to imposing a CSO are met; the sentence imposed was under two years, there is no minimum term of imprisonment for common assault, the sentencing Judge found that the safety of the community would not be endangered by this offender serving his sentence in the community.

The issue is whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in s 718 to s 718.2CC. [ 65 ] While sentencing principles of denunciation and deterrence can be achieved by a CSO, in the present case, the aggravating factors as found, specifically the age of the victim as well as the high level of moral blameworthiness, means that a jail sentence is required. While there was no sexual purpose to the assault itself, the Appellant’s actions interfered with the personal autonomy, bodily integrity and dignity of the 13-year-old complainant.

His actions were further aggravated by his threatening to call the police on the complainant if she did not permit the search of her body, by taking her into a back area of the store away from customer and surveillance camera view, and by conducting this invasive assault on a child who was vulnerable and whom he knew to be frightened.

As well, it is completely unnecessary for him to touch her vagina as there was no evidence that he saw her secrete any items in her pants. [ 66 ] The gravity of the offence committed, the effect of the offence on the bodily autonomy of the victim, combined with the statutory requirement that denunciation and deterrence are the primary sentencing objectives, lead to the conclusion that a CSO would offend the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 CC .

Conclusion [ 67 ] The appeal is dismissed. [ 68 ] The Appellant will report to probation by telephone within 1 week to continue to be bound by the existing probation order. He will also surrender himself to the Fort Saskatchewan Correctional Centre by 6pm on Friday February 19th 2021 to continue to serve what remains of his 60-day intermittent sentence. Heard on the 15 th day of September, 2020. Dated at the City of Edmonton, Alberta this 11th day of February, 2021. S.E. Richardson J.C.Q.B.A.

Appearances: Victoria Young for the Crown/Respondent Michael Marchen for the Accused/Appellant _______________________________________________________ Corrigendum of the Decision of The Honourable Madam Justice S.E. Richardson

_______________________________________________________ The year on the citation was changed from 2020 to 2021.