R. v. Jajja

2022 BCSC 467 R. v. Jajja IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Jajja, 2022 BCSC 467 Date: 20220225 Docket: 30146-2 Registry: Vancouver Regina v. Imran Zafar Jajja Restriction on Publication: A publication ban has been mandatorily imposed under s. 486.4 of the Criminal Code restricting the publication, broadcasting, or transmission in any way of evidence that could identify the complainant, referred to in this judgment by the initials C.L. This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Madam Justice Warren Oral Reasons for Sentence Counsel for Crown appearing by videoconference: J.P. Hermanson Counsel for Defence: M.R. Shapray M. Beckett Place and Date of Hearing: Vancouver, B.C. November 12, 2021 Place and Date of Judgment: Vancouver, B.C. February 25, 2022 Table of Contents Introduction. 3 Circumstances of the Offence. 4 Circumstances of the Offender. 7 Victim Impact Statement. 10 Principles of Sentencing.. 11 Positions of the Parties. 15 Analysis. 18 Conclusion. 26 [1] THE COURT: I do not intend to read out case citations. If a transcript is ordered, I will add citations and may edit my reasons for grammar and clarity. Introduction [2] On July 30, 2021, I convicted Imran Zafar Jajja of the sexual assault of C.L. on October 1, 2016, contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46 [Code]. These are my reasons for sentence. [3] The Crown tendered a victim impact statement written by C.L. The other evidence at the sentencing hearing consisted of letters of support from Mr. Jajja's family members and friends, and a letter from Sonia Akilov Matkowsky, an immigration lawyer, concerning the immigration consequences of the conviction for Mr. Jajja who is a citizen of Pakistan and a permanent resident of Canada. [4] The Crown seeks a sentence of between 30 and 36 months imprisonment, plus mandatory ancillary orders. Mr. Jajja seeks a conditional sentence of two years less a day followed by a probationary term of between 24 and 36 months or, in the alternative, a sentence of between 18 months and two years less a day imprisonment followed by 18 months probation. [5] Pursuant to s. 742.1(f)(iii) of the Criminal Code, a conditional sentence order ("CSO") is not available as a sentencing option following a conviction for sexual assault. Mr. Jajja filed a Notice of Constitutional Question seeking a declaration that s. 742.1(f)(iii) is invalid as it violates his Charter rights. The parties agreed that notwithstanding the constitutional issue, the sentencing submissions would proceed and I would first determine whether a CSO would be appropriate but for the statutory prohibition. If I determined that a CSO was appropriate, then the constitutionality of s. 742.1(f)(iii) would have to be addressed and a hearing would be scheduled for that purpose. If I determined that a CSO was inappropriate, then it would be unnecessary to address the constitutionality of the provision. By memorandum dated December 30, 2021, I advised the parties that a CSO would not be appropriate in this case even if s. 742.1(f)(iii) is unconstitutional. Accordingly, it is not necessary to address the constitutionality of the provision. Circumstances of the Offence [6] The circumstances are fully canvassed in my reasons for conviction. The following is a summary. [7] On the evening of September 30, 2016, C.L., who was then about 21 years old, attended a birthday celebration for a co-worker at a nightclub in downtown Vancouver. She arrived at the nightclub in the hour or so before midnight with a group of friends and co-workers. She had been drinking alcohol prior to arriving at the nightclub, and she continued to drink alcohol at the nightclub. Mr. Jajja, who was then 39 years old, was at the nightclub with friends. He and C.L. did not know each other. They met at the nightclub. Surveillance video from outside the nightclub shows them leaving together at 12:02 a.m. [8] After arriving at the nightclub C.L. blacked out. She has no memory of a period of about five-and-a-half hours. Her last memory before the blackout is of being in the nightclub with her friends. She remembers nothing from then until she woke up, alone, in a room at the City Centre Motor Hotel on Main Street in Vancouver at about 5:30 the next morning, with no recollection of how she got there. She has no memory of meeting Mr. Jajja and spending time with him on the evening in question. [9] When C.L. woke up, her dress was pulled up over her hips. Her underwear and shoes were off. She felt discomfort mainly in her anus but also around her vagina. She did not have this discomfort prior to the blackout. She went to the bathroom and when she wiped there was "quite a lot of blood" on the toilet paper, that came from her anus. She testified that it "seemed like [she] had had sex", although she had no recollection of having done so. C.L. became scared. She started crying and, in her words, became "pretty hysterical". [10] C.L. left the hotel and took a taxi to a friend's home. A few hours later, she went to her own home. Later the same day she went to the drugstore to obtain "Plan B", an emergency contraceptive pill. The next day, C.L. attended at Vancouver General Hospital where she was treated by Dr. Sarah Olson. Dr. Olson performed an anogenital exam. She noted a small superficial abrasion on the vagina which could be consistent with recent penetrative force, but was insufficient for her to provide any opinion regarding whether there was consent or lack of consent. It was agreed that the phrase "penetrative force" does not describe the degree of pressure applied or whether the pressure was applied with or without consent, that a complaint of tenderness to the vagina and anus could be consistent with penetrative force, and an observation of blood from the anus could be consistent with penetrative force applied to the anus although blood is an infrequent result of anal sex. [11] Mr. Jajja testified that he and C.L. met at the nightclub, had a couple of drinks together, and, shortly thereafter, left together to get some food. He said C.L. had been holding his hand and hugging him, and after they left the nightclub they discussed going to a hotel to have sex. He said that after eating some pizza, they tried checking into one hotel but there was no vacancy. He said that after walking around downtown, they took a taxi to the City Centre Motor Hotel, where he booked a room. [12] There is no dispute that Mr. Jajja had vaginal intercourse with C.L. in that room. He said the sexual contact occurred about 45 minutes after they arrived. He did not wear a condom. He denied penetrating C.L.'s anus or attempting to do so. Mr. Jajja testified that C.L. initiated the sexual conduct and, indeed, was the aggressor. He testified that after the sex, C.L. demanded that he pay her $1,000. He said there had been no prior discussion of him paying her. He said he told her he could not pay her $1,000 but, after she got aggressive, he agreed to pay her $500. He said he had planned to stay at the hotel for the night but C.L.'s demand for money made him nervous, so he decided to leave. He said he suggested that C.L. accompany him in a taxi to an ATM where he could get her the money, but she refused to leave the room until he paid her. He said he then told her he would go get the money and come back. He left and did not return. [13] Given C.L.'s lack of memory, there was no direct evidence that she did not consent. The issue was whether the Crown had established beyond a reasonable doubt that C.L. was incapable of consenting. I found C.L. to be a credible and careful witness, and I accepted her evidence. In contrast, I had serious concerns about many aspects of Mr. Jajja's testimony which undermined his credibility. I rejected his evidence. [14] I found that C.L. drank at least the equivalent of eight alcoholic drinks in the 90 minutes between 10:30 p.m. and midnight, that she suffered a blackout and had no recollection of the period from when she was in the nightclub with friends to when she woke up about five-and-a-half hours later in the hotel room. [15] There was a lot of objective evidence concerning C.L.'s condition at the time she entered the hotel room about an hour and a half after leaving the nightclub. Photographs taken by a security camera inside the taxi that took Mr. Jajja and C.L. to the hotel show them entering the taxi and during the ride to the hotel. They also show C.L. in the taxi while Mr. Jajja is outside booking the room and C.L. then exiting the taxi with help from Mr. Jajja. Video surveillance footage taken outside the hotel shows C.L. and Mr. Jajja walking from the taxi, across the parking lot, and entering the hotel room. The taxi driver, Ravinder Minhas, testified about his observations of both Mr. Jajja and C.L. Taken together, this was clear and strong evidence that satisfied me that C.L. was obviously severely intoxicated when she entered the hotel room. I found that, as a result of her intoxication, her gross motor control was severely deteriorated and her core functions were compromised. [16] I also found that C.L. was incapable of subjectively consenting to sexual contact, as discussed by the Supreme Court of Canada in R. v. G.F., 2021 SCC 20, when she entered the hotel room. She was severely intoxicated. She was unaware of her surroundings from the time she got into the taxi. She was unmindful of her personal belongings. She did not assert any control over the course of events and instead was directed and physically guided or led by Mr. Jajja. She was unresponsive to stimuli. Her conduct was irrational in that she responded "no, no, no," when Mr. Jajja told her to get out of the taxi at the hotel, but then she allowed herself to be guided out by him anyway. She had to be physically supported and propelled or guided across the parking lot and into the hotel room by Mr. Jajja. Finally, I found that the latest the sexual contact commenced was about 45 minutes after C.L. entered the room, and that she remained incapable of subjectively consenting to sexual contact at that time. Circumstances of the Offender [17] Mr. Jajja is 44 years old. He was 39 years old at the time of the offence. He was born in Pakistan, where he spent his childhood and adolescence. He graduated from high school there, and then worked for a mobile phone company. Mr. Jajja left Pakistan at the age of 21 and immigrated to Switzerland, where one of his brothers was living. He worked in the restaurant and hospitality industry there. When Mr. Jajja was 33 years old, he left Switzerland and immigrated to Canada. His immigration application was sponsored by his wife, Gita Amiri. He became a permanent resident of Canada in April 2013. Mr. Jajja and Ms. Amiri reside in Surrey, with their three children who range in age between one and nine. Almost all of Mr. Jajja's family now resides in Canada. One of his sisters remains in Pakistan. After landing in Canada, Mr. Jajja found work as a delivery driver. He has since established his own delivery business. He owns and operates four trucks, and employs drivers. He supports his immediate and extended family with the income he earns from this business. Mr. Jajja does not report having any mental or physical health conditions or disability. He does not report having any substance abuse issues. Mr. Jajja has no criminal record. He has been on bail for three years and has complied with all conditions. [18] Mr. Jajja provided letters of support from his father, his wife, his brother, his sister, three sisters-in-law, a brother-in-law, and a friend. Each writer says they are aware that he has been convicted of sexual assault. The letters speak positively about Mr. Jajja stating, among other things, that he is a hard worker, has achieved success in business, is self-made, has been supportive of his parents, and has financially supported his family. They also speak of the financial and emotional consequences to his family, should he be incarcerated. [19] As mentioned, Mr. Jajja is a permanent resident and not a Canadian citizen. His conviction will have immigration consequences for him. From Ms. Matkowsky's letter, my own review of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), and the case law provided by counsel, those consequences are outlined below. [20] Under the IRPA, permanent residents may be ordered deported for "inadmissibility". One form of inadmissibility is "serious criminality", which is defined in the IRPA to include any conviction in Canada of an offence punishable by a maximum term of imprisonment of at least 10 years, or an offence for which a term of imprisonment of more than six months has been imposed. Pursuant to s. 271(a) of the Criminal Code, Mr. Jajja's conviction is an offence punishable by a maximum term of imprisonment of 10 years. Accordingly, irrespective of the sentence I impose, his conviction meets the definition of "serious criminality" and renders him potentially subject to deportation for inadmissibility. In these circumstances, pursuant to s. 44 of the IRPA, the Canada Border Services Agency ("CBSA") "may" prepare a report alleging that Mr. Jajja is inadmissible for serious criminality. Before doing so, the CBSA will provide him with the opportunity to make submissions with respect to the allegation of inadmissibility and to request, on humanitarian grounds, that he be issued a warning only and not referred to an inadmissibility hearing. According to Ms. Matkowsky, the jurisdiction to do that is limited and highly discretionary and, in her experience, the discretion to issue a warning letter is rarely exercised. [21] If the CBSA issues a report alleging inadmissibility for serious criminality, the report must be provided to the Minister: IRPA, s. 44(1). If the Minister is of the opinion that the report is well-founded, the Minister "may" refer the report to the Immigration Division of the Immigration and Refugee Board. A member of the Immigration Division will then conduct an admissibility hearing. If Mr. Jajja is found to meet the definition of serious criminality, the member must issue a deportation order. [22] Pursuant to s. 63 of the IRPA, some permanent residents may appeal a deportation order to the Immigration Appeal Division of the Immigration Review Board. However, pursuant to s.64 of the IRPA, that right of appeal is lost if the sentence imposed for the conviction in question is a term of imprisonment of six months or more. A conditional sentence does not count as a "term of imprisonment" for this purpose: Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50. In other words, if Mr. Jajja is sentenced to a conditional sentence order or a term of imprisonment of less than six months, he will retain the right to appeal a deportation order, if one is issued, to the Immigration Appeal Division. On such an appeal, the Immigration Appeal Division will assess humanitarian and compassionate considerations, including the interests of a child directly affected by the decision: IRPA, ss. 67 and 68. If a permanent resident has sufficient humanitarian and compassionate grounds, the Immigration Appeal Division may allow the appeal or grant a stay of the deportation order, with conditions. In Ms. Matkowsky's opinion, if Mr. Jajja's right to appeal was maintained, it is unlikely that the Immigration Appeal Division would outright allow his appeal but may grant a stay and impose stringent conditions. [23] If a permanent resident is sentenced to a term of imprisonment of more than six months, thereby losing the right to appeal to the Immigration Appeal Division, the Minister retains the discretion under s. 25(1) of the IRPA to grant an exemption on humanitarian and compassionate grounds, taking into account the best interests of a child directly affected: Gill v. Canada (Minister of Citizenship and Immigration), 2019 FC 772 at para. 10. [24] In short, the conviction has already rendered Mr. Jajja subject to deportation for serious criminality. Irrespective of the sentence I impose, before issuing any report alleging inadmissibility, the CBSA will provide him with the opportunity to request, on humanitarian grounds, that he be issued a warning only. If the CBSA nevertheless issues a report, the Minister may refer the report to the Immigration Division, in which case a member of that Division is likely to issue a deportation order. At that stage, if Mr. Jajja has been sentenced to a CSO or a term of imprisonment of less than six months, he will have the right to appeal to the Immigration Appeal Division where humanitarian and compassionate considerations, including the interests of his children, will be assessed. It is unlikely that the Immigration Appeal Division would outright allow the appeal but it may grant a stay. If he has been sentenced to a term of imprisonment of more than six months, he will lose the right to appeal but he will have the opportunity to request an exemption from the Minister on humanitarian and compassionate grounds, again taking into account the interests of his children. Victim Impact Statement [25] C.L. provided a victim impact statement describing the suffering she has endured as a result of the sexual assault and participating in the criminal justice process. She described the evening in question as the worst night of her life. [26] C.L. has had to process several different negative emotions since the assault including guilt, fear, shame, and disgust. The feelings of guilt and shame are misplaced but nevertheless real and distressing. In her words, she has experienced "utter heartbreak". These impacts continue five years later. [27] C.L. described how the sexual assault has isolated her and affected her relationships. She has found it difficult to trust herself as a result of being taken advantage of; she avoids going to places that trigger memories of the event; she finds it hard to open up to people, especially about the assault. She had to disclose the details of the experience to her work friends because they were at the nightclub on the evening in question, and this was difficult. [28] C.L. explained that the criminal justice process was so emotionally draining that there were many times she wanted to give up. The stigma associated with reporting the sexual assault left her feeling hopeless. For the last couple of years, the looming trial has left her feeling, in her words, "handcuffed to the past". She found it difficult to relive the experience in court. It was frustrating and very uncomfortable for her to see Mr. Jajja walking around freely and to have him physically close to her. She worries about her security. Mr. Jajja's wife contacted her and she fears something similar could happen again. That contact is not a reflection on Mr. Jajja at all. There was no suggestion that he knew about it, but it was a consequence of the offence and caused C.L. additional distress. She resents what she perceived to be an attempt to make her feel guilty about the consequences of the criminal justice process on Mr. Jajja's family. [29] Finally, C.L. was offended by the version of events that Mr. Jajja relayed in his testimony. Hearing it made her feel that her character was being questioned. Principles of Sentencing [30] As noted, the offence of sexual assault carries with it a maximum sentence of 10 years' imprisonment. There is no minimum. Subject to Mr. Jajja's constitutional challenge, s. 742.1(f)(iii) of the Code provides that a conditional sentence is not available as a sentencing option following a conviction for sexual assault. [31] Determining a fit sentence is a highly individualized process that requires a careful balancing of factors, objectives, and principles within the framework set out in ss. 718 to 718.2 of the Criminal Code and the common law. [32] Section 718 of the Code identifies the fundamental purpose of sentencing as protecting society and contributing to respect for the law and the maintenance of a just, peaceful, and safe society by imposing a just sanction that has one or more of these objectives: the denunciation of unlawful conduct and the harm done to victims, the deterrence of the offender and others, the separation of offenders from society where necessary, the rehabilitation of offenders, reparations for harm done to victims, and promoting a sense of responsibility in offenders. [33] Of those objectives, denunciation and deterrence are paramount when sentencing for sexual assault. Absent exceptional circumstances, the sentencing judge must give them primacy: R. v. G.M., 2015 BCCA 165, at paras. 17 and 18. [34] Section 718.1 mandates proportionality in sentencing as a fundamental principle. Sentences must be "proportionate to the gravity of the offence and the degree of responsibility of the offender". The requirement to ensure that a sentence reflects the gravity of the offence is closely tied to the objective of denunciation and the promotion of justice for victims, while the requirement to reflect the degree of responsibility or moral blameworthiness of the offender serves the restraining function that ensures justice for offenders: R. v. Ipeelee, 2012 SCC 13, at para. 37. [35] Section 718.2 codifies additional sentencing principles. One of these is the parity principle, which requires that similar offenders who commit similar offences in similar circumstances receive similar sentences. This principle reflects the individualized nature of sentencing; if the personal circumstances of two offenders convicted of the same offence are different, then different sentences may be justified. [36] Another sentencing principle set out in s. 718.2 is the requirement to increase or reduce a sentence to account for relevant aggravating and mitigating circumstances relating to the offence or the offender. [37] Other principles expressed in s. 718.2 emphasize the need for restraint in the use of imprisonment. They require that an offender not be deprived of liberty if less restrictive sanctions are appropriate in the circumstances, and that all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal or First Nations' offenders. [38] When determining what an appropriate sentence is, a court may consider the collateral consequences of the sentence or underlying conviction. These are consequences for the particular offender which may be taken into account as personal circumstances. They are not, strictly speaking, mitigating factors because they do not relate to the gravity of the offence or the degree of responsibility of the offender: R. v. Pham, 2013 SCC 15 at para. 11. Rather, their potential relevance flows from the principles of individualization and parity, and potentially from the objective of rehabilitation. [39] The prospect of deportation is an example of a collateral consequence that has often been considered. This was the situation in R. v. Pham, 2013 SCC 15. At the time Mr. Pham was sentenced, the IRPA provided that a non-citizen sentenced to a term of imprisonment of two years loses the right to appeal a deportation order. A judge of the Provincial Court of Alberta imposed a sentence of two years on Mr. Pham, who had been convicted of drug offences. Mr. Pham appealed the sentence. Despite the Crown's concession that the sentence should be reduced by one day to preserve Mr. Pham's right to appeal a deportation order, the Alberta Court of Appeal dismissed the appeal. In allowing Mr. Pham's appeal, the Supreme Court of Canada established several principles regarding the effect of collateral consequences on sentencing. Those principles were summarized by Justice Gropper in R. v. Smith, 2018 BCSC 1972 as follows: [32] Pham establishes the following principles regarding collateral consequences and their effect on sentencing: 1) the weight to be given to collateral consequences should be determined having regard to the type and seriousness of the offence. The court must still impose a sentence that is proportionate to the gravity of the offence and the degree of responsibility of the offender; 2) the court must not impose inappropriate or artificial sentences in order to avoid collateral consequences; 3) the collateral consequences must not dominate the exercise or skew the process in favour or against deportation; 4) the further the sentence is varied from the range of otherwise appropriate sentences to avoid collateral consequences, the less likely it is to remain proportionate to the gravity of the offence and the degree of responsibility of the offender; and 5) a trial judge is not compelled to adjust the sentence to avoid the impact of collateral consequences. It is at the trial judge's discretion to conclude that even a minimal reduction is inappropriate for the particular offence and the particular offender. Collateral consequences are but one relevant factor among many others. [40] In determining a fit sentence, that is, a sentence that appropriately balances all the factors, objectives and principles, a court is guided by the sentences imposed in other cases from which a range of appropriate sentences emerges. In R. v. Friesen, 2020 SCC 9, the Supreme Court of Canada recently explained that the use of sentencing ranges advances the consistent application of the principle of proportionality which leads to parity: [32] Parity and proportionality do not exist in tension; rather, parity is an expression of proportionality. A consistent application of proportionality will lead to parity. Conversely, an approach that assigns the same sentence to unlike cases can achieve neither parity nor proportionality [Citations omitted.] [33] In practice, parity gives meaning to proportionality. A proportionate sentence for a given offender and offence cannot be deduced from first principles; instead, judges calibrate the demands of proportionality by reference to the sentences imposed in other cases. Sentencing precedents reflect the range of factual situations in the world and the plurality of judicial perspectives. Precedents embody the collective experience and wisdom of the judiciary. They are the practical expression of both parity and proportionality. [41] In G.M., in 2015, our Court of Appeal identified the range of sentence for sexual assault involving intercourse as two to six years' imprisonment. It is well established that sentencing ranges are guidelines and not hard and fast rules; however, in G.M at para. 23 the Court emphasized the importance of sentencing ranges in promoting consistency in accordance with the parity principle: [23] The importance of sentencing ranges was explained in R. v. Nasogaluak, 2010 SCC 6 at para. 44. In Nasogaluak the Court emphasized that the discretion on sentencing is not unlimited, with the overarching requirement being that the sentence imposed is consistent with the principles and objectives of sentencing: [44] The wide discretion granted to sentencing judges has limits. It is fettered in part by the case law that has set down, in some circumstances, general ranges of sentences for particular offenses, to encourage greater consistency between sentencing decisions in accordance with the principle of parity enshrined in the Code. But it must be remembered that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordance with the principles of and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred. [42] The importance of sentencing ranges to the principles of proportionality and parity is also reflected in the accepted notion that exceptional or special circumstances are typically required to justify a sentence above or below the range. Positions of the Parties [43] As I have said, the Crown seeks a sentence of between 30 and 36 months imprisonment. Crown counsel advised that this position reflects the potential immigration consequences, as well as all Mr. Jajja's personal circumstances. The Crown emphasized that the potential immigration consequences do not amount to exceptional circumstances that would justify departing from the applicable sentencing range of two to six years incarceration. [44] The Crown submits that there are several aggravating circumstances, including the following: · C.L. was extremely incapacitated and therefore exceedingly vulnerable; · Mr. Jajja was sober or near sober and he had the opportunity for reflection at least from the time he and C.L. got into Mr. Minhas' taxi. His behavior was predatory in that he took deliberate steps, over a prolonged period during which it must have been obvious to him that C.L. was incapacitated, towards the goal of sexually assaulting her; · The assault included unprotected vaginal intercourse; · At minimum there was attempted anal penetration; · Mr. Jajja's conduct and his testimony at trial demonstrate that he has an extremely negative attitude regarding the personal physical integrity of women; and · The impact on C.L. has been significant, as reflected in her victim impact statement. [45] While acknowledging that Mr. Jajja's continued denial and his apparent lack of remorse and insight are not aggravating factors, the Crown submits that these factors make it impossible for me to conclude that he is unlikely to reoffend or that he has good rehabilitation prospects. The Crown says that in these circumstances there is a need to consider specific deterrence as it is one of the only remaining tools for correcting his conduct, and emphasizes that the absence of any basis upon which to conclude that he is a good candidate for rehabilitation weighs against a CSO if a CSO was an option. [46] The Crown takes the position that a custodial sentence is required to address the paramount objectives of denunciation and deterrence, and that any sentence that does not include incarceration would be inconsistent with the fundamental purpose and principles of sentencing. [47] As I said, Mr. Jajja seeks a conditional sentence of two years less a day followed by a probationary term of between 24 and 36 months or, in the alternative, a sentence of between 18 months and two years less a day imprisonment, followed by 18 months probation. [48] I have already explained that s. 742.1(f)(iii) of the Criminal Code provides that a CSO is not available in this case, but Mr. Jajja sought a declaration that the provision violates his Charter rights. For reasons I will express in a moment, I have determined that a CSO would not be appropriate and accordingly it is not necessary to address the constitutionality of s. 742.1(f)(iii). [49] Mr. Jajja says the Crown has not established some of the aggravating factors it relies upon. In particular, his counsel submits there was no clear finding in my reasons for conviction concerning Mr. Jajja's level of sobriety, and that findings of planning or deliberation, actual or attempted anal penetration, and any negative attitude towards women are not available on the evidentiary record. [50] Mr. Jajja identifies the following as mitigating circumstances: · He has no criminal record. His counsel emphasizes that this generates favourable inferences including good rehabilitation prospects and justifies giving less weight to the principle of specific deterrence and significant weight to the principles of rehabilitation and restraint; · The stigma associated with being convicted of sexual assault is, in and of itself, a serious consequence that has a mitigating effect. Mr. Jajja's counsel submits that this justifies giving weight to the restraint principle and allows the Court to give some reduced emphasis to denunciation and deterrence; and · Mr. Jajja's history of employment, stability, and community support, which his counsel says demonstrates responsibility and conformity to community norms and justifies giving greater weight to the principles of rehabilitation and restraint. [51] Mr. Jajja's position is that a CSO followed by a lengthy period of probation, or alternatively a term of imprisonment of less than two years followed by probation, is appropriate in this case arguing as follows: 1. Although the sentencing objectives of deterrence and denunciation are paramount, a CSO can fulfill those objectives where the conditions are severe and significantly restrict liberty. The defence proposes the strictest terms for a CSO - effectively house arrest - and says a CSO on these terms, followed by a lengthy period of probation, would adequately serve the primary objectives of denunciation and deterrence. 2. Defence counsel submits that the defence proposal is only slightly below the applicable range, particularly given the availability of parole with a federal sentence which would result in Mr. Jajja serving only about a third, in contrast to a CSO and a lengthy term of probation which would place him under court control and supervision for as much as five years. 3. The defence submits that the collateral immigration consequences, and the impact of those consequences and incarceration on Mr. Jajja's family members who are financially dependent on him, are important personal circumstances that weigh heavily in favour of exercising restraint in determining a just, fit, and proportionate sentence for him. Analysis [52] I will start my analysis by identifying the aggravating and mitigating circumstances. [53] The Crown bears the burden of proving disputed aggravating factors or circumstances beyond a reasonable doubt: s. 724(3)(e) of the Criminal Code; R. v. Gardiner, [1982] 2 S.C.R. 368. As noted, the defence says some of the aggravating circumstances relied on by the Crown were not established at the trial. [54] I agree with the defence that the evidence at trial was insufficient to establish actual or attempted anal penetration, or that Mr. Jajja has a generally negative attitude toward women. Nevertheless, there are very aggravating circumstances present in this case. [55] The offence has had a profound impact on C.L. Her mental health continues to suffer; she has been left feeling isolated and fearful. Mr. Jajja's testimony about her demanding money for sex was a disgraceful attempt to cast her in a bad light and paint himself as the victim, and it added to the trauma she has suffered. [56] Mr. Jajja did not wear a condom, which exposed C.L. to the risk of sexually transmitted disease. Even if he "pulled out" before ejaculating, as he claimed he did, C.L. was at some risk of pregnancy. [57] The combination of C.L.'s extreme intoxication, which left her exceedingly vulnerable, and Mr. Jajja's near sobriety, is also aggravating and heightens his moral blameworthiness. [58] Mr. Jajja acknowledges that he was not as intoxicated as C.L., but points out that I made no specific finding in my reasons for conviction about the extent of his intoxication. That is true, but I have no difficulty finding, on the record at trial, that he was near sober when he and C.L. entered the hotel room. This is based on the photographs taken inside the taxi, the surveillance video taken outside the hotel, and Mr. Minhas' testimony about his observations of Mr. Jajja. As I noted at para. 100 of my reasons for conviction, while Mr. Jajja claimed that he was drunk when he got to the hotel, he also said he was only buzzed when he left the nightclub; he appeared sober to Mr. Minhas; and he did not display any physical signs of intoxication in the photographs or the video surveillance. On his own evidence, he did not consume any intoxicating substance after leaving the nightclub. He controlled the course of events from the time he and C.L. entered the taxi, directing her throughout. He got out of the taxi at the hotel, booked the room, paid Mr. Minhas, prompted C.L. to get out of the taxi, and helped her do so. He supported and propelled C.L., who was stumbling and staggering, across the hotel parking lot. [59] Mr. Jajja and C.L. were in the taxi for just over 11 minutes. Every photo of C.L. taken after she got into the taxi and positioned behind Mr. Minhas shows her bent over at the waist with her head hanging down. Over the course of the drive to the hotel she appears to become more folded over with her head hanging lower. Mr. Jajja had at least those 11 minutes for near sober reflection about the course of action he was embarking upon. When Mr. Jajja directed C.L. to get out of the taxi at the hotel, she said "no, no, no". No rational, innocuous explanation for ignoring her verbal resistance emerged from the evidence. There is no reasonable answer to the question of why he did not at least attempt to return her to her friends at the nightclub. It must have been obvious to Mr. Jajja that C.L.'s incapacitated condition placed her at his mercy and enhanced his prospects of evading detection. In the circumstances, I agree with the Crown that Mr. Jajja's conduct, at least in the period after getting into the taxi, is appropriately characterized as predatory. This was not a case of a sudden or alcohol-fueled lapse of judgment. Mr. Jajja created the opportunity to sexually assault C.L. His conduct was nothing short of disgraceful, and deserving of severe condemnation. [60] There are no mitigating circumstances that serve to lower Mr. Jajja's moral blameworthiness. Again, defence counsel identified the absence of a criminal record, the stigma associated with being convicted of sexual assault, and Mr. Jajja's history of employment, stability, and family support as mitigating. These are circumstances that are relevant when applying the restraint principle and assessing the weight to be given to certain of the objectives of sentencing, which is a point to which I will return, but they do not reduce Mr. Jajja's moral culpability for this offence. [61] Mr. Jajja has been convicted of a very serious sexual assault involving unprotected intercourse. Although there is no finding that physical force in addition to the sexual assault itself was applied, a sexual assault is inherently violent. Mr. Jajja exploited C.L. He treated her as an object and disregarded her dignity and autonomy. The offence had a significant impact on her. The gravity of the offence is very high. The combination of C.L.'s extreme intoxication and Mr. Jajja's near sobriety, heightens his moral blameworthiness. He had the opportunity for reflection. Her incapacitated state enhanced his prospects of evading detection. His behaviour was predatory. His degree of responsibility is very high. In the circumstances, the application of the proportionality principle weighs in favour of a severe sentence. [62] I return to the mitigating factors identified by defence counsel. The absence of a criminal record, the stigma associated with being convicted of a sexual offence, and a prosocial history and family support, are factors that can suggest good rehabilitation prospects and justify some reduced emphasis on the objective of deterrence and some enhanced emphasis on the objective of rehabilitation and the principle of restraint. However, there are other factors present in this case that serve as counter weights. [63] While I accept that Mr. Jajja found it difficult to tell his wife and family members about his offence, there is nothing to suggest that the stigma of being convicted of this offence has any broader or exceptional consequence for him, as it might for a public figure. While an offender is under no obligation to admit an offence and a lack of remorse is not an aggravating circumstance, a continued denial and a lack of insight are factors to be considered in determining whether an offender is likely to reoffend. There is nothing that suggests Mr. Jajja has remorse for the impact that his conduct had on C.L. The letters from his friends and family suggest that his regret stems from the consequences of his conduct on his family. He has not shown insight into why he committed the offence and he has not shown empathy for C.L. The unbelievable story he told about C.L. demanding money demonstrated a concerning callousness towards her. In the circumstances, I am not able to accept that Mr. Jajja presents no or even a low risk of reoffending, or that specific deterrence is not engaged in this case. Very clearly, in this case, the objectives of denunciation and deterrence must be given primacy. [64] Each party relied on several authorities as precedents that they say support their position on sentence and assist the Court in giving proper effect to the parity principle. I have considered all of them, but I consider the recent authorities to be far more useful than the older cases. This is because, as I have mentioned, our Court of Appeal, in 2015 in G.M., reiterated that the range of sentence for sexual assault involving intercourse in this province starts at two years' imprisonment and, since then, the Supreme Court of Canada has signalled that the deepening of society's understanding of the harm caused by sexual assault may require an increase in sentences for sexual offences, even those committed against adults: Friesen at para. 118 and R. v. Goldfinch, 2019 SCC 38 at para. 37. [65] The recent cases relied on by Mr. Jajja were R. v. R.S., 2021 ONSC 2263, and R. v. Browne, 2021 ONSC 6097, two Ontario cases decided in 2021, where conditional sentence orders of two years less a day followed by probation were imposed for sexual assault. As these were Ontario cases, there was no discussion in either of them about the British Columbia range which I have said starts at two years' incarceration, but more importantly, there are significant differences between those cases and this case that suggest a more severe sentence is required in this case to properly calibrate the demands of proportionality and parity. [66] In R.S., the Aboriginal offender had been convicted of two offences: sexual assault and choking with intent to overcome resistance to facilitate the sexual assault. For the sexual assault, the sentencing judge imposed a conditional sentence order of two years less a day followed by probation, after finding s. 742.1(f)(iii) of the Criminal Code unconstitutional. A 90 day intermittent jail sentence to be served concurrently to the CSO was imposed for the choking offence. The sexual assault committed by the offender, digital penetration, was less serious than that committed by Mr. Jajja. Although the sexual assault committed by the offender in R.S. was accompanied by physical violence in addition to the violence inherent in the sexual assault, the choking was subject to the separate 90-day intermittent sentence. More significantly, R.S.'s personal circumstances included a horrific family background and reflected the devastating systemic factors that the Supreme Court of Canada, in R. v. Gladue, [1999] 1 S.C.R. 688, instructed must be considered when assessing proportionality for Indigenous offenders. The sentencing judge found that these factors significantly reduced R.S.'s moral blameworthiness (para. 183). [67] In Browne, the trial judge found that the offender briefly inserted a vibrator in the victim's vagina or anus while she was either unconscious or asleep and incapable of consenting. The sentencing judge agreed with and adopted the reasoning of the prior decision in R.S. concerning the constitutionality of s. 742.1(f)(iii) and sentenced the offender to a CSO of two years less a day, followed by one year of probation. The sexual assault committed by that offender was less serious than that committed by Mr. Jajja. In addition, in Browne there was a basis for giving more weight to the objective of rehabilitation and little if any weight to specific deterrence because the offender had shown considerable insight into his offence, apologized to the victim, expressed remorse, and acknowledged his wrongdoing and the harm he caused. [68] In my view the Crown's cases bear far more similarity to the circumstances of this case. I will comment specifically on the two recent British Columbia cases relied on by the Crown. These are R. v. Smith, 2018 BCSC 1972, and R. v. Sandhu, 2020 BCSC 1190. [69] In Smith, the offender had been convicted of sexual assault after the trial judge found that he had unprotected vaginal intercourse with an acquaintance, who had been asleep and woke up to the offender pulling off her clothes. She physically resisted and said "no" several times, but the offender held her down and raped her. The offender was not a Canadian citizen and he faced the same immigration consequences that Mr. Jajja faces. Justice Gropper found that the physical force used by the offender, in holding the victim down and ignoring her pleas, was an aggravating factor. That factor is absent here, but the fact that C.L. was incapacitated and therefore unable to physically resist is similarly aggravating. Justice Gropper determined that an appropriate sentence was two years and eight months in custody, which she reduced by one month to account for the collateral immigration consequences. [70] In Sandhu, the offender had been convicted of one count of sexual assault which stemmed from several sexual assaults of the victim, who was 18 years old when the assaults began and had been employed by the offender and his wife. The multiple sexual assaults included one incident of unprotected vaginal intercourse and several incidents of forced "hand jobs" and sexual touching. Justice Fleming found that the victim's vulnerability, which stemmed from the stark power imbalance between her and the offender, was an aggravating circumstance. Similarly, C.L.'s incapacity, which rendered her exceedingly vulnerable, is an aggravating feature in this case. A sentence of three years' imprisonment was imposed in Sandhu. [71] Another case that I found helpful when considering the parity principle is R. v. Gill, 2015 BCSC 1907, aff'd 2018 BCCA 60. Mr. Gill appealed a three-year custodial sentence that was imposed by Justice Abrioux, then of this Court, following Mr. Gill's conviction by a jury of sexually assaulting the complainant. Mr. Gill had been a cab driver. He had picked up the complainant following a bachelorette party. The complainant was tipsy and fell asleep in the cab on the way to her boyfriend's home. Mr. Gill lowered the passenger side visor to block the security camera, reached over, and touched the complainant on her leg. The complainant reacted by telling Mr. Gill to stop. Instead, he digitally penetrated the complainant's vagina causing a vaginal injury in the form of an abrasion, cut, or tear. The complainant also had a bruise on her left arm from where Mr. Gill had grabbed her to pull her towards him to try to kiss her. Mr. Gill was a permanent resident and, like Mr. Jajja, he risked deportation as a result of the offence. Like Mr. Jajja, he did not have a criminal record and he had the support of his wife and members of the community. The Court of Appeal dismissed Mr. Gill's sentence appeal, with Justice Stromberg-Stein, for the Court, stating, at para. 24, that the three-year sentence was "entirely fit in the circumstances, if not at the low end of the acceptable range". [72] I appreciate that Mr. Gill's offence represented a significant breach of trust because the victim had the right to assume she would be safe in a taxi. However, C.L.'s extreme vulnerability and the more serious nature of the sexual assault committed by Mr. Jajja caused me to conclude that Mr. Jajja's offence is not materially less grave than Mr. Gill's offence, and his moral blameworthiness is not materially lower than was Mr. Gill's. [73] Remembering that sentencing is an individualized process, the central question that arises from the defence position is whether there are exceptional circumstances that would justify a sentence below the applicable range which, I have explained, starts at two years incarceration. [74] Before addressing that question directly, I reject the submission that the defence proposal for a CSO of two years less a day followed by a lengthy term of probation is only slightly below the bottom of the two to six year range. In R. v. Proulx, 2000 SCC 5 at para. 44, then Chief Justice Lamer explained that "a conditional sentence, even with stringent conditions, will usually be a more lenient sentence than a jail term of equivalent duration". In Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, Justice Côté illustrated the "dissymmetry between the length of jail terms and the length of conditional sentences" with a review of cases in which mitigating factors prompted courts to replace jail terms of less than six months with conditional sentences longer than six months. A review of those cases demonstrates that the venue makes a significant difference in the severity of the sentence. For example, in R. v. Shah, 2003 BCCA 294, our Court of Appeal substituted a conditional sentence of 12 months for a custodial sentence of three months. Even with the strictest conditions amounting to virtual house arrest, a CSO would allow Mr. Jajja to continue to live with his wife and children, to socialize at home, to operate his business and generate income, all of which would weaken the deterrent effect of the sentence. Even with a lengthy period of probation, a CSO of two years less a day would be substantially more lenient than a custodial sentence of two years and, in my view, would fall well below the applicable range. [75] As I have said, Mr. Jajja's conviction will have immigration consequences for him. The sentence I impose could heighten his risk of deportation. In addition, his incarceration or deportation will result in consequences for his wife, children, and other family members who have been financially dependant on him. These are personal circumstances that weigh in favour of restraint, but stacked up against the gravity of the offence, and Mr. Jajja's high moral blameworthiness, they cannot be given much weight. They certainly do not amount to exceptional circumstances that would justify a sentence below the applicable range. [76] As explained in the Pham case, the risk of deportation cannot justify a sentence that is inconsistent with the objectives and principles of sentencing. The immigration consequences must not dominate the analysis and the court must not impose an inappropriate sentence in order to avoid those consequences. Rather, the risk of deportation can be taken into consideration in choosing among the appropriate sentencing options. [77] Although a CSO can, in some cases, adequately serve the objectives of deterrence and denunciation, it would not do so in this case, and in this case it would not be consistent with the fundamental purpose and principles of sentencing. As discussed, deterrence and denunciation must be given primacy. There remains a need for specific deterrence. I cannot find Mr. Jajja is a low risk to reoffend or that there is a basis for giving any enhanced emphasis to the objective of rehabilitation. The gravity of the offence is very high, as is Mr. Jajja's moral blameworthiness, such that application of the proportionality principle weighs in favor of a severe sentence. In these circumstances, a CSO, even with the strictest conditions available, would not properly reflect society's condemnation. Given the comments of the Court of Appeal in the Gill case, the application of the parity principle suggests that a sentence of at least three years' incarceration is called for. [78] Bearing in mind the purpose and objectives of sentencing, the primacy of deterrence and denunciation, the fundamental principle of proportionality and the parity principle, as well as the need for restraint in the use of custodial sentences, and taking into account the gravity of the offence, Mr. Jajja's high degree of responsibility, the aggravating circumstances, and Mr. Jajja's personal circumstances, including the heightened prospect of deportation, I find that a term of imprisonment of three years' incarceration is a just and appropriate sentence. Conclusion [79] Mr. Jajja please stand. [80] For the reasons I have expressed, I sentence you to three years' incarceration. [81] I also grant the ancillary orders sought by the Crown: 1. First, pursuant to s. 487.051 of the Criminal Code, I authorize the taking from Mr. Jajja the number of samples of bodily substances reasonably required for the purpose of forensic DNA analysis. 2. Pursuant to s. 490.012(1) of the Criminal Code, I order Mr. Jajja to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10, for 20 years. 3. Pursuant to s. 109 of the Criminal Code, I prohibit Mr. Jajja from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, and explosive substances. As this is Mr. Jajja's first offence, the prohibition as it applies to firearms, other than prohibited firearms or restricted firearms, and crossbows, restricted weapons, ammunition, and explosive substances, extends for ten years, and as it pertains to prohibited firearms, restricted firearms, prohibited weapons, prohibited devices, and prohibited ammunition, it extends for life. 4. Pursuant to s. 743.21(1) Mr. Jajja is prohibited from communicating, directly or indirectly, with C.L. while he is in custody. 5. Pursuant to s. 737 of the Criminal Code, a victim surcharge of $200 is payable forthwith. [82] That completes my reasons. Are there any questions? [83] CNSL M. SHAPRAY: I am just concerned about the victim fine surcharge -- [84] THE COURT: Oh. [85] CNSL M. SHAPRAY: -- in light of the three-year incarceration period. I am going to ask that it be waived because it is going to be -- not because it is not right in principle, but because he is going to be incarcerated for three years and he cannot make a payment within the two month period. [86] THE COURT: Mr. Hermanson? [87] CNSL J. HERMANSON: The Crown has no submissions with regard to the victim fine surcharge. [88] THE COURT: Well, I waive it reluctantly given what I have heard about Mr. Jajja's business and income earning capacity, but I do not have particulars about that, and so I will waive it. [89] CNSL M. SHAPRAY: Thank you. "Warren J."