R. v. Aghasardar

2025 BCSC 883 R. v. Aghasardar

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Aghasardar, 2025 BCSC 883 Date: 20250512 Docket: 36986 Registry: Vancouver Rex v. Ali Aghasardar Restriction on Publication: Pursuant to s. 486.4(2) C.C.C. Before: The Honourable Justice Tammen Reasons for Judgment Counsel for the Crown: D. Meagher Counsel for the Appellant: L.D. Myers, K.C. T. Sullivan, Articled Student Place and Date of Hearing: Vancouver, B.C. January 24, 2025 Place and Date of Judgment: Vancouver, B.C. May 12, 2025 Table of Contents Introduction and Overview.. 3 Factual Background.. 3 Statutory Framework.. 4 Issues and Analysis. 6 The Sentencing Reasons. 7 S. 490.012(3)(a) - "no connection" 8 S. 490.012(3)(b) - "gross disproportionality" 9 Conclusion.. 11 Introduction and Overview [1] On March 18, 2024, the appellant, Ali Aghasardar, pleaded guilty to one count of sexual assault and one count of voyeurism in the Provincial Court in Vancouver, B.C. Both offences occurred in the context of laser hair removal treatments being performed by the appellant. The sexual assault was committed against a single female patient, Y.H.H. The voyeurism count involved three different female patients. [2] Sentences were imposed for both offences on September 11, 2024 by Judge Doherty. Counsel made a joint submission concerning appropriate sentence, namely a sentence of one year imprisonment to be served in the community

pursuant to a conditional sentence order, to be followed by one year of probation. Judge Doherty acceded to the joint submission and sentenced the appellant accordingly. Thereafter, Judge Doherty made a SOIRA order pursuant to s. 490.012 of the Criminal Code, R.S.C. 1985, c. C-46. The duration of that order was 10 years. Counsel for the appellant opposed the imposition of a SOIRA order and made submissions in that regard, pursuant to s. 490.012(3)(a) and (b). [3] The appellant now appeals the imposition of the SOIRA order. Factual Background [4] The sexual assault count related to two incidents, one in August 2019 and one in October 2019. The victim, Y.H.H., was a woman in her twenties who attended for multiple laser hair removal treatments with the appellant. During the treatment in August 2019, the appellant squeezed Y.H.H.'s breast and touched her vagina and buttock area for approximately 5 minutes, while Y.H.H. was lying on the treatment table naked. [5] During the treatment in October 2019, Y.H.H. was once again lying on the table naked. The appellant touched her breast, then stroked her vagina and clitoral area. The appellant then inserted his finger in Y.H.H.'s vagina multiple times during the laser treatment of her back. Y.H.H. reported the assault to police the following day. [6] The voyeurism count related to three incidents in October and November 2019, involving

three different patients, M.B., A.G., and T.P. During the course of performing laser hair removal treatment on each of those individuals, the appellant took photographs of their naked genital areas without their knowledge or consent, using his personal cellular telephone. Statutory Framework [7] In 2019, when these offences occurred, the operative section of the Criminal Code, s. 490.012(1), mandated that a judge who sentenced an individual for a designated offence make an order requiring the person to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10, for a specified period. There was no discretion to decline to make such an order. [8] In R. v. Ndhlovu, 2022 SCC 38, the Supreme Court of Canada found that s. 490.012(1) violated s. 7 of the Charter, based on overbreadth, primarily because of its mandatory nature. The Court suspended the declaration of invalidity for one year. In response to Ndhlovu, Parliament enacted the current s. 490.012, which was in force at the time of the appellant's sentencing proceedings. [9] In the present case, because the Crown elected to proceed summarily, s. 490.012(3) applied to the appellant. [10] The current s. 490.012(3) requires the sentencing judge to make a SOIRA order unless the offender satisfies the judge that an order should not be made, based on either of two listed exceptions. Section 490.012(4) lists various

factors which a judge must consider in considering if one of the exceptions applies. [11] I here reproduce all of ss. 490.012(3) and (4): Order -- other circumstances (3) Subject to subsection (5), when a court imposes a sentence on a person for a designated offence in circumstances in which neither subsection (1) nor (2) applies, or when the court renders a verdict of not criminally responsible on account of mental disorder for a designated offence, it shall make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act unless the court is satisfied the person has established that (a) there would be no connection between making the order and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring the registration of information relating to sex offenders under that Act; or (b) the impact of the order on the person, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under that Act. Factors (4) In determining whether to make an order under subsection (3) in respect of a person, the court shall consider (a) the nature and seriousness of the designated offence; (b) the

victim's age and other personal characteristics; (c) the nature and circumstances of the relationship between the person and the victim; (d) the personal characteristics and circumstances of the person; (e) the person's criminal history, including the age at which they previously committed any offence and the length of time for which they have been at liberty without committing an offence; (f) the opinions of experts who have examined the person; and (g) any other factors that the court considers relevant. [12] Section 490.014 provides a right of appeal. It reads: 490.014 The prosecutor, or a person who is subject to an order made under section 490.012, may appeal from a decision of the court under section 490.012 or 490.013 on any ground of appeal that raises a question of law or of mixed law and fact. The appeal court may (a) dismiss the appeal; or (b) allow the appeal and order a new hearing, quash or amend the order or make an order that may be made under section 490.012. [13] Section 490.013(2) sets the duration of the order for summary conviction proceedings at 10 years. [14] Section 490.015(1)(a) permits a person subject to such an order to apply for its termination after five years. Issues and Analysis [15] The sole issue for determination is whether the sentencing judge erred by imposing a SOIRA order. [16] As noted, s. 490.014 creates a right of appeal from the

imposition of such an order, but is silent on the issue of standard of review. [17] Both parties submit, and I agree, that the case of R. v. Redhead, 2006 ABCA 84, is instructive in that regard. There, at paras. 12 and 13, a division of the Alberta Court of Appeal likened an appeal of a SOIRA order to a review of a DNA order and held that the same standard of review applies. Thus, on appeal, the decision may be set aside only where there was an error of principle, failure to consider a relevant factor, an overemphasis of appropriate factors, or a clearly unreasonable decision. [18] I adopt the foregoing as the appropriate test to be applied on this appeal. I note that the formulation in Redhead is consistent with appellate authority in relation to appeals from discretionary decisions of trial judges: see e.g. R. v. M. (C.A.), [1996] 1 S.C.R. 500 at para. 90, 1996 CanLII 230 (S.C.C.); R. v. Nikolaou, 2012 BCCA 169 at para. 9; R. v. Dawydiuk, 2010 BCCA 411 at para. 15. [19] I am also of the view that the decision of the sentencing judge is entitled to considerable deference in light of the legislative framework. The SOIRA order is presumptive. The sentencing judge must make the order unless the court is satisfied that one of the two exceptions applies. The offender bears the onus of establishing that they are entitled to exemption from the imposition of a SOIRA order. [20] With

that standard of appellate review in mind, I turn to the specific errors alleged by the appellant. [21] In essence, the appellant submits that the sentencing judge committed two errors, one in relation to each of the potential bases for exemption. [22] With respect to "no connection", the appellant submits that the sentencing judge engaged in impermissible speculation, rather than permissible risk assessment, in examining the question. That, says the appellant, was an error in law. [23] With respect to "gross disproportionality", the appellant submits that the sentencing judge failed to consider the impact of the SOIRA order on him, in particular that the end result of the SOIRA order would mean that the appellant will be subject to 16 years of heightened state supervision. The Sentencing Reasons [24] The entire sentencing proceedings took place the morning of September 11, 2024. Both counsel made submissions prior to the morning break. During that break, Crown counsel provided both the appellant and the sentencing judge with one additional piece of information related to the duration of bail restrictions between 2019 and 2024. Immediately after the break, Judge Doherty gave reasons. The first part of the sentencing reasons addresses the substantive sentence which, as noted, was imposed pursuant to a joint submission. At para. 17, Judge Doherty turned to what he aptly described

as "the contentious aspect of this matter", namely whether or not to impose a SOIRA order. [25] Judge Doherty then briefly discussed Ndhlovu, and then set out the two subsections which could cause him to exercise his discretion against making the order. Thereafter, Judge Doherty considered each of the factors listed in s. 490.012(4)(a)-(f). Of central importance was (f), the expert opinion of a psychologist, Dr. Sheppard, who had conducted a risk assessment of the appellant. [26] At para. 25 of his reasons, Judge Doherty set out some of the issues and concerns raised by Dr. Sheppard's report. With respect to the sexual assault, the appellant apparently believed that the victim was sexually interested in him, and that in part motivated his behaviour toward her. With respect to the voyeurism offences, the appellant rationalized that somehow the inappropriate photographs were part of his work, despite the fact that he clearly broke work protocols in taking them. Dr. Sheppard noted some risk associated with the appellant's behaviour toward women in vulnerable positions, and recommended limiting the appellant's access to same, or supervising him in those situations. [27] The crux of Judge Doherty's decision to impose a SOIRA order is at para. 26, which reads: [26] When considering the expert report, it certainly is agreed that he is a below average risk when compared to other sex

offenders. However, as I have stated, there are concerns with respect to women who he may come across in vulnerable positions. I do hear the submission of defence that he is not involved in these occupations anymore, but he has training in laser treatment and he has training in Chinese medicine. It is certainly open to him after his probation to return to similar occupations and he could come across vulnerable women. In my view, he has not established that there is no connection with police prevention or investigation of sexual offences. With respect to (b), I do not find that he has established that the impact would be grossly disproportionate, given the number of victims in this case, his unusual view of his relationship with Y.H.H. and his lack of insight into the taking of the pictures of the naked women. [28] With respect to the risk of recidivism, Dr. Sheppard's report noted that the appellant's risk level was Level II, which is the second lowest of five ascending risk categories. S. 490.012(3)(a) - "no connection" [29] It seems plain that Parliament enacted this subsection in direct response to the concern noted at para. 85 of Ndhlovu, that "[i]n certain cases, an offender's personal circumstances mean they are not at an increased risk of reoffending, undermining any real possibility that their information on the registry will ever prove useful to police." [30] It is

equally clear from what follows in Ndhlovu that the Court was concerned with the lowest-risk sexual offenders, referred to as "the bottom 10 percent", whose risk of reoffending is no greater than that associated with those convicted of non-sexual criminal offences: paras. 91-98. [31] In the present case, the appellant was not, according to Dr. Sheppard, in the lowest risk category, but rather in the second lowest. Dr. Sheppard noted certain specific risk factors for the appellant. The sentencing judge inferred from Dr. Sheppard's report that the appellant seemed to rationalize and minimize his offending behaviour. All of the foregoing clearly informed the conclusion that the appellant had not established there was "no connection" between making the order and assisting police with preventing or investigating sex crimes. [32] I disagree with the appellant that the sentencing judge engaged in impermissible speculation when he stated that it was "certainly open" to the appellant to return to similar work after the expiry of his probationary term, and that he could thus "come across vulnerable women." [33] There, the sentencing judge was merely noting the obvious, namely that there was nothing preventing the appellant from returning to work as a laser hair removal technician. If he did so, he would almost certainly have access to women in a vulnerable position, as he did when his

offences occurred. The appellant's counsel noted at the sentencing hearing that he had voluntarily withdrawn from his work as a laser hair removal technician, and was working as an importer/exporter of medical equipment. However, there was nothing preventing the appellant from returning to his previous work. This was not, for example, a case where a professional regulator had terminated privileges. [34] The only guardrails in place at the time of sentencing were the terms of the conditional sentence and probation orders, which required the presence of another adult for any treatment administered by the appellant. [35] I see no error in the sentencing judge's observation that there was nothing to prevent the appellant from returning to work as a laser hair removal technician, and that once the probation order expired, nothing to prevent him from administering such treatments to vulnerable women without another adult present. S. 490.012(3)(b) - "gross disproportionality" [36] The appellant submits that the sentencing judge failed to consider the unique personal circumstances of the appellant in addressing the question of gross disproportionality. On appeal, the appellant emphasized two matters: one, that the appellant is from Iran, and the SOIRA order may make it more difficult for him to travel to Iran; and, two, that the appellant had been on strict bail conditions for

approximately five years prior to sentencing, so further monitoring and supervision was not necessary. [37] At the original sentencing proceedings, counsel also emphasized the relative lack of seriousness of the offences, specifically that the victims were not children, and the sexual assault did not involve intercourse. In that regard, I agree with the sentencing judge that those were not factors which weighed against the imposition of the SOIRA order. There was a significant age disparity between the appellant, a man in his fifties, and the victims, all women in their twenties. The appellant abused a position of trust with each of the victims. The sexual assault was extremely serious, involving unwanted digital penetration of the victim's vagina. [38] As for the personal circumstances of the appellant, the sentencing judge considered them at para. 24, and noted that they weighed against making the order. Clearly, at para. 26, the sentencing judge did not accept that those personal circumstances, weighed against the other factors, led to a conclusion that the SOIRA order was grossly disproportionate to the public interest in protecting society. I see no error in the approach of the sentencing judge, nor in his ultimate conclusion. [39] The appellant bore a heavy burden on the issue of "gross disproportionality." As noted by the Court of Appeal in R. v. D.D., 2020 BCCA 169, at

para. 27: The standard of gross disproportionality is a high one and requires a marked and serious imbalance between the objective of the legislation and the impact of the registration on the registrant. In the context of s. 7 of the Canadian Charter of Rights and Freedoms, gross disproportionality has been described as "totally out of sync with the objective of the measure": Canada (Attorney General) v. Bedford, 2013 SCC 72. In Debidin, Justice Watt observed at para. 63 that "grossly disproportionate" is a very stringent and demanding standard, one not easily satisfied, something rare and unique. [40] There was no evidence about the actual impact of the order on the ability of the appellant to travel to and from Iran. [41] As for the issue concerning earlier bail orders, I disagree with the appellant that the net effect of the various orders is that the appellant will be subjected to 16 years of state supervision. [42] In October, 2019, after the complaint made by Y.H.H., the appellant was placed on an undertaking with only two conditions, related to non-communication with Y.H.H., and non-attendance at her places of work and residence. That undertaking lapsed on January 14, 2020 and the appellant was not bound by any terms of bail until October 20, 2021. From October 20, 2021 to the date of sentencing, September 11, 2024, the appellant was bound by bail conditions that

precluded any contact with the complainants and required the presence of another adult during any laser hair removal treatments he performed. There were no other conditions. In particular, the appellant was not required to report to a bail supervisor. [43] I do not consider those terms of bail particularly onerous. Nor do they amount to intrusive state supervision of the appellant. There was certainly a significant restriction on his vocational pursuits, but not much in the way of state intrusion on his liberty interests. [44] In all the circumstances, and reading the sentencing reasons as a whole, I see no error in the reasons of the sentencing judge in his consideration of "gross disproportionality." Conclusion [45] For the foregoing reasons, the appeal is dismissed. "Tammen J."