R. v. Jahfari, 2024 ONCJ 29

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (

b) on application made by the victim, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. Jahfari , 2024 ONCJ 29 DATE: 2024 01 15 COURT FILE No.: 18-450003327 Toronto Region BETWEEN: HIS MAJESTY THE KING — AND — Mohammad Isaq JAHFARI Before Justice Cidalia C.G. Faria Sentencing Hearing on November 20, 2023, January 8, 2024 Oral Reasons for Sentence January 12, 2024

Written Reasons for Sentence released on January 15, 2024 Mohsin Yousuf.................................................................................... counsel for the Crown Stefan Rinas........................................... counsel for the accused Mohammad JAHFARI Faria J.: I. Overview [ 1 ] On August 16, 2023, I found Mohammad Isaq Jahfari guilty of Sexual Interference and Sexual Assault contrary to ss. 151 and 271 of the Criminal Code after a trial [1] . The matter was adjourned for a Pre-Sentence Report (PSR), submissions and sentencing.

The sexual assault charge was stayed as requested by the Crown pursuant to R. v. Kienapple [2] on January 8, 2024. [ 2 ] These are my sentencing reasons. II. Circumstances of the Offence [ 3 ] On July 11, 2018, 15-year-old A.N. was walking home from summer school in the early afternoon because he had forgotten his bus fare. Though the general area was familiar, his route home was not. While walking on Toryork Drive in Toronto, Mr. Jahfari pulled up to A.N. in his vehicle. He asked A.N. for directions. When A.N. told him he was unfamiliar with the area and trying to get home, Mr. Jahfari offered the boy a ride.

A.N. got in the car. [ 4 ] Mr. Jahfari then proceeded to drive in the opposite direction and told A.N. he had something else to do first. Mr. Jahfari told A.N. he was looking to rent a mechanic shop, and asked him to speak to someone about renting or leasing a unit. Mr. Jahfari called a number and A.N. tried to communicate to the call taker what Mr. Jahfari wanted communicated. [ 5 ] Mr. Jahfari then proceeded to drive around the area of Toryork Drive, Ormont, and Fenmar Drive with A.N. in the passenger seat for about 30 minutes. [ 6 ] While he did so, Mr. Jahfari touched A.N.’s cheek and tapped the boy’s thigh.

He cupped A.N.’s chin, pulled his head over and kissed the top of his head. [ 7 ] At 175 Fenmar Drive, Mr. Jahfari drove into a backlot, circled out, and parked his vehicle in a visitor spot. Mr. Jahfari then cupped A.N.’s chin, brought his head closer, told A.N. to lift his head and kissed A.N. on the right side of his forehead, his right cheek, and then his lips twice. The first time Mr. Jahfari kissed A.N. he did so with closed lips and the second with his lips slightly parted. A.N. lied and said someone was close by. Mr.

Jahfari drove out of the parking spot, onto the street and eventually to Islington and Steeles where he dropped A.N. off at a plaza. [ 8 ] During the 30-minute drive, Mr. Jahfari asked A.N. his age, his name and where he lived. A.N. lied about all three. Mr. Jahfari offered to buy A.N. lunch, offered him a job, and showed him $50 bills in the center console of the vehicle. Though it was only 1 p.m., Mr. Jahfari asked if A.N. could stay with him till 9 p.m. and if he could meet him the next day at the same time.

When he dropped A.N. off, he gave him $20. [ 9 ] A.N. went home, called the Kids Help Line, was transferred to the police, and told them what happened to him. III. Victim Impact [ 10 ] Although A.N. did not provide a victim impact statement, in his evidence, which I accepted, he testified he felt scared, disgusted, embarrassed, and dirty. A.N. regretted having voluntarily entered Mr. Jahfari’s vehicle, illustrating self-blame, though what was done to him was in no way his fault. [ 11 ] Violating the sexual integrity of a child causes lasting psychological consequences.

A.N. poignantly articulated his fear of being judged, having the violation minimized, and being stigmatized. He also insightfully explained his previous belief in the misconception that boys and men cannot be sexually violated, and a cultural expectation, that if they are, they are devalued [3] . This violation impacted his experience of gender vulnerability, the development of his sexuality as a young man and his familial relationships. The depth and complexity of the trauma he sustained is significant. IV. Mr. Jahfari’s Circumstances [ 12 ] Mr.

Jahfari was 60 years old at the time he committed the offence and is now 66. According to his PSR, he immigrated from Afghanistan, first to Pakistan then to Canada in 1999 with his six children. He was raised by a close-knit family, in a war-torn country in

circumstances that required him to leave school prematurely to assist financially. He learned mechanics, and in Canada worked in the automotive industry, becoming a self-employed mechanic for many years. He has no substance use issues, and no relevant or significant medical conditions. [ 13 ] Mr. Jahfari has two convictions from 2003 for Failing to Comply with a Recognizance for which he was sentenced to time served, which was 14 days on the first offence, and time served on the second offence, which was 2 days. [ 14 ] He advised he is currently separated from his wife.

He has a good relationship with all his adult children and grandchildren. He is presently on the Ontario Disability Support Program (ODSP). He has landed immigrant status in Canada. [ 15 ] His children advised the PSR author that Mr. Jahfari has a learning disability, and experienced mental health difficulties, though Mr. Jahfari would “never admit there was anything troubling him and will never acknowledge having any issues.” [4] [ 16 ] He was described by his children as a hard-working, entrepreneurial man whose generosity has been taken advantage of at times.

He is a good father and has demonstrated resilience as an immigrant with a traumatized childhood. One of his sons explained his father to have suffered mental health deterioration since a fire burned down his business in 2007. [ 17 ] It was noted in the PSR that Mr. Jahfari was “unsure of the circumstances and cannot recall anything of what happened” when asked about the offence.

Though quiet and easy-going, he was found to have “poor coping skills and poor decision-making abilities, including problem solving deficits” which was confirmed by collateral information collected. [ 18 ] All six of his children wrote a supportive letter to the court. [5] They explained their father has endured hardships both in Afghanistan through family loss and in Canada with linguistic and cultural challenges, all the while demonstrating a strong commitment to his family’s wellbeing. V. Positions [ 19 ] Both the Crown and the Defence recommend a sentence they consider to be a joint one.

They propose a 6 month minus 1 day jail term, a 2-year Probation Order, a DNA Order, a Weapons Prohibition for 10 years, a SOIRA Order for 10 years, and a s. 161 Order for 10 years. They are ad idem but for a term attaching to the 161 Order. [ 20 ] The Crown submits that the s. 161 Order should contain a condition prohibiting Mr.

Jahfari’s attendance in public areas where children under the age of 16 are expected to be, and he not communicate with anyone under the age of 16 including family members unless he is in the direct supervision of an adult third party. [ 21 ] The Defence submits the court has jurisdiction to make an exception to the s.161 Order to permit Mr. Jahfari attend such public places if he is with family members under 16, and to be able to have contact with persons under 16, without supervision, if they are his family members, so that the Order not affect his relationship with his grandchildren. VI.

Legal Principles & Analysis Purpose & Objectives [ 22 ] The criminal law is a system of values, and sentencing is meant to reflect and reinforce the basic values of our society.

Accordingly, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions. [ 23 ] A sentence should have one or more of the following objectives as stated in s. 718 of the Criminal Code : denounce unlawful conduct; deter the offender and other persons from committing offences; separate offenders from society, where necessary; assist in rehabilitating offenders; provide reparations for harm done to victims or to the community; promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community. [ 24 ] I must consider aggravating and mitigating factors that relate to the gravity of the offence and the degree of Mr.

Jahfari’s responsibility. Aggravating & Mitigating Factors [ 25 ] Mr. Jahfari kept A.N. in his moving vehicle for about 30 minutes, but for the few minutes when he parked in an isolated spot. He was in total control of A.N. who he knew to be in any unfamiliar area, needing a ride home. He exacerbated A.N.’s vulnerability. [ 26 ] Mr. Jahfari was also insistent.

He escalated the intimacy of this touching from A.N.’s thigh, to his head, to stopping the car and physically manipulating his face to kiss him on the forehead, cheek, and lips. [ 27 ] The numerous acts of grooming, such as offering to buy A.N. lunch, showing him a large quantity of cash, offering him a job, asking to spend the day with him, suggesting they meet the next day, telling him he was happy and finally giving him $20, are

aggravating features of the offence. They demonstrate efforts to establish trust and good will, and an intention to develop a relationship over time. [ 28 ] At trial, Mr. Jahfari testified about kissing “the boy” in his car as

an act of “compassion”. He did not recall the offence when discussing it with the PSR author. There is no evidence of any understanding or appreciation of his conduct or the traumatic impact it had. Though there is no weight to attach to his claim of innocence, as he is entitled to make it, his lack of insight into the impact of the conduct he did admit to, is concerning. This coupled with poor coping skills, poor decision-making, and problem-solving deficits does not bode well for his rehabilitation prospects. However, attenuating that concern is the fact the PSR states Mr.

Jahfari is amenable to counselling. [ 29 ] Mr. Jahfari also has a criminal record. Though dated, the breach of court orders is somewhat concerning. [ 30 ] In mitigation, Mr. Jahfari has strong family support. Though all his adult children stand by him, they are also honest about his shortfalls. Their candor about his difficulty admitting challenges, and accepting help, is reassuring that they will assist him with programming. [ 31 ] Mr. Jahfari has also been a productive, skilled, hardworking, generous, and pro-social member of society who successfully raised a large family.

Applying Principles [ 32 ] Sentencing is a complex balancing of many factors that must be considered to create a fit sentence appropriate to the specific offender and the offence he/she/they committed. Individualization is key. [6] The principles of proportionality, denunciation, deterrence, parity, and the presence of collateral consequences must all be considered in this case as they pertain to Mr. Jahfari. [ 33 ] It must be noted as well that both parties agree that R. v. Drumonde [7] , a

summary conviction appeal in which the mandatory minimum sentence for sexual interference in

summary conviction proceedings was struck down is binding on this court, and I agree. [ 34 ] The "fundamental principle" of sentencing is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender” (s.718.1). [ 35 ] The Supreme Court of Canada has stated that sexual offences against children are very serious and attract severe sanctions which prioritize denunciation and deterrence via s. 718.01 of the Criminal Code .

This is a “reasoned response to the wrongfulness of these offences and the serious harm they cause”. [8] [ 36 ] The Ontario Court of Appeal has stated: [T]he protection for children is not simply from sexual exploitation but from any sexual contact or the invitation to sexual contact with adults.

Parliament viewed the protection to be necessary because of the inherent power imbalance that undermines consent, and because of the physical and psychological consequences of a sexual encounter between a child and an adult stemming from that imbalance. [9] [ 37 ] A sentence is to be similar to other sentences imposed on similar offenders in similar circumstances (s.718.2(b)). [ 38 ] Restraint must also be considered where an offender such as Mr.

Jahfari, has never served a period of incarceration and so the shortest sentence possible ought to be imposed that is proportional and fit. [10] [ 39 ] The collateral consequences of a custodial sentence could also be significant for Mr. Jahfari. Pursuant to the Immigration and Refugee Protection Act [11] ( IRPA ), Mr. Jahfari may lose his right of appeal a removal order “with respect to a crime that was punished in Canada by a term of imprisonment of at least six months or that is described in paragraph 36(1)(

b) or (c).” [12] [ 40 ] The Supreme Court of Canada stated this immigration consequence is worthy of consideration but must not distort the determination of a fit sentence. [13] The Ontario Court of Appeal considered whether a sentencing judge is to determine a fit sentence and then adjust it, if appropriate, because of immigration consequences, or to first determine whether a sentence that avoids the collateral consequences is even a possibility.

The Court found merit in both approaches but stated that the first approach avoids the need to deal with immigration consequences in circumstances that are unnecessary. [14] [ 41 ] Having lived, worked, and raised a family in Canada for over 23 years, as a person with landed immigrant status, Mr. Jahfari’s presence in Canada is now in jeopardy. Both counsel submit that a 6 month minus one day jail term is a fit sentence that is both within the range for Mr.

Jahfari’s offence and takes into account the collateral consequences he will face as a result of this conviction. [ 42 ] Supporting their position, both parties referred me to several cases. I have considered them all but need not summarize them all. [15] [ 43 ] No case was on all fours with the one at bar, as rarely one ever is given the individuality of every offender, and the context of their offence; however, Johnson [16] and Soliman [17] were of some assistance in this matter. [ 44 ] Mr. Johnson was a 20-year-old who sexually touched a 14-year-old girl walking her dog.

He kissed her and put his hand under her shirt. He had a difficult life, strong family support, accepted no responsibility, had no criminal record and his offence had a significant impact on the victim who was vulnerable. He was sentenced to 6 months in jail. Mr. Jahfari is much older than Mr. Johnson, and has a criminal record, but the offense circumstances are somewhat similar. [ 45 ] Mr. Soliman was an Uber driver who touched the victim’s leg several times, put his hand on her waistband, reached into her shirt, and put his hand under her bra strap.

He also forcibly confined her as he would not let her out of his vehicle when she repeatedly

asked him to. He was 41 with a family, had no criminal record, no substance or alcohol issues, was a hard worker, and his offence had a significant impact on the victim. Though the victim was older than in this case, and Mr. Jahfari does have a criminal record, Mr. Soliman was a convention refugee, and like Mr. Jahfari, a sentence of 6 months in jail or more could lead to his removal from Canada without a right of appeal.

He was sentenced to a 4-month custodial term. [ 46 ] It must be stated that though both the Crown and the Defence presented their recommendation of a 6 month minus 1-day custodial term as the appropriate sentence in this case as if it is a joint position, it is not. [ 47 ] The Supreme Court of Canada described what constitutes a joint position: To be clear, a joint submission covers off every aspect of the sentence proposed.

To the extent that the parties may agree to most, but not all , aspects of the sentence — be it the length or type of the sentence, or conditions , terms, or ancillary orders attached to it — the submission will not constitute a joint submission. The public interest test does not apply to bits and pieces of a sentence upon which the parties are in agreement; it applies across the board, or not at all. [18] (Emphasis added) [ 48 ] At issue is whether the s.161 Order the parties recommend should have an exception to the limitations of Mr.

Jahfari’s interactions with persons under 16 to exclude his family members under that age. [ 49 ] As a result, this is not a joint submission. [ 50 ] However, the parties are persuasive that a 6 month minus 1-day custodial term, and all the ancillary orders they recommend, is a proportionate and fit sentence for Mr. Jahfari in the circumstances and I will accept the recommendation. [ 51 ] On the issue of the exception the Defence seeks, I decline to make it. [ 52 ] I agree that pursuant to K.R.J . [19] which states that s.161 Orders can: “be carefully tailored to the circumstances of a particular offender.

The discretionary and flexible nature of s.161 demonstrates that it was designed to empower courts to craft tailored orders to address the nature and degree of risk that a sexual offender poses to children once released into the community.” I can use my discretion to impose an exception to the limitations. [ 53 ] However, there is sufficient evidence that persuades me not to. [ 54 ] Mr. Jahfari was driving on a public street when he selected and proceeded to sexually violate a vulnerable young person.

His perception that his behaviour, that to which he did admit, is appropriate without consent, together with his lack of insight, gives rise to a concern that persons under 16, including his family members, are at risk in his presence without supervision. VII. Sentence [ 55 ] Mr.

Jahfari, on the count of sexual interference, I sentence you to 178 [20] days in jail, minus 2 days pre-sentence custody enhanced to 3 days. [ 56 ] You will be on probation for 2 years with the following terms: • Keep the Peace and Be of Good Behaviour. • Report within to a probation officer within 24 hours of your release and thereafter as directed by your probation officer. • Reside at an address approved of by your Probation Officer. • Possess no weapons as defined by the Criminal Code • Have no contact directly or indirectly with A.N., his mother, or any member of his family. • Not be within 100 metres of where A.N. lives, works, goes to school, worships or you know him to be. • Attend counselling and/or treatment as directed by your Probation Officer, including for: o Sexual boundaries and behaviours o Psychological or psychiatric issues • Sign releases permitting your Probation Officer to monitor your attendance, participation, and completion of all programs your Probation Officer directs you to attend. [ 57 ] The Ancillary Orders will be as follows: • Pursuant to s. 110, you will be prohibited from the acquisition and possession of firearms for 10 years. • Pursuant to s.487.04, you will provide a sample of your DNA as sexual interference is a primary designated offence. • Pursuant to s. 490.012, you will comply with the requirements of the Sex Offender Information Registry Act (SOIRA) for a period

of 10 years. • Pursuant to s.734.21, you will have no contact with A.N. while you are incarcerated. • Pursuant to s.161, for a period of 10 years you will: o Not attend a public park, or public swimming area where persons under the age of 16 are present or can reasonably be expected to bepresent, or a daycare centre, school, playground, or community center (s.161(1)(a). o Not be within 100 m where A.N. ordinarily resides, works, goes to school, volunteers, worships or is known by you to be (s.161(1)(a.1). o Not seek, obtain or continue any employment, whether or not the employment is remunerated, or become or be a volunteer in acapacity that involves being in a position of trust or authority towards persons under the age of 16. (s. 161(1)(b). o Not have any contact, including communication by any means, with a person under the age of 16, unless you are under the directsupervision of an adult third person (s.161(1)(d). [58] Given your current financial circumstances, a victim fine surcharge would cause you undue hardship, and so I waive the charge. [59] I thank both counsel for your comprehensive and thorough submissions.

Released: January 15, 2024 Signed: Justice Cidalia C.G. Faria [6] R. v. Lacasse, 2015 SCC 64 , [2015] 3 SCR 1089 at paras. 54, 58, 59, 128, 140, and 143. [7] R. v. Drumonde, 2019 ONSC 1005 [18] R. v. Nahanee, 2022 SCC 37 at para. 27.