R. v. Abdelhamid (W.A.), (2013) 296 Man.R.(2d) 24 (QB)

• Judge: McKelvey, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: August 15, 2013
• Jurisdiction: Manitoba
• Citations: (2013), 296 Man.R.(2d) 24 (QB);2013 MBQB 201

R. v. Abdelhamid (W.A.) (2013), 296 Man.R.(2d) 24 (QB)

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. SE.013

Her Majesty The Queen v. Walid Abdelhamid (accused)

(CR 09-01-29554; 2013 MBQB 201)

Indexed As: R. v. Abdelhamid (W.A.)

Manitoba Court of Queen's Bench

Winnipeg Centre

McKelvey, J.

August 15, 2013.

Summary:

The accused, a medical student from Libya, was engaged in a pediatric residency program at a Manitoba children's hospital. In June 2009, he was charged with sexual assault on a 15 year old male patient. The accused was granted judicial interim release under conditions which included the surrender of his passport. In July 2009, he fled to Austria. He was apprehended in August 2010 in Greece and extradited to Canada in May 2011. He was convicted of sexual assault in May 2013 (see [2013] Man.R.(2d) Uned. 27).

The Manitoba Court of Queen's Bench sentenced the accused to five years' imprisonment. The court denied the accused any credit for the nine months he spent in Greek detention awaiting and fighting extradition to Canada. For time spent in custody subsequent to his May 2011 return to Canada, the court granted credit at a rate of 1.5:1.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 5831.1

Sentencing - Considerations on imposing sentence - Offences involving breach of trust - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5834.4

Sentencing - Considerations on imposing sentence - Fleeing jurisdiction before trial or sentencing - [See both Criminal Law - Topic 5848.2 ].

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents (incl. starting point principle and sentencing ranges) - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - The accused, a citizen of Libya, was charged with sexual assault in June 2009 - He was granted judicial interim release under conditions which included the surrender of his passport - In July 2009, the accused fled to Austria - He was apprehended in August 2010 in Greece - He remained in Greek custody until May 2011, when he was extradited to Canada - He had vigorously contested the extradition proceedings - He was convicted of sexual assault in May 2013 - The Manitoba Court of Queen's Bench sentenced the accused to five years' imprisonment - The court denied the accused any credit for the nine months he had spent in Greek detention - He left Canada of his own volition even though he had been granted reasonable judicial interim release conditions - His period of incarceration pending the contested extradition proceedings was solely attributable to his decision to leave Canada - The fact that the accused had no means of support, could not seek employment, and was without social and family supports following his arrest did not provide a viable justification for his actions - See paragraphs 53 and 54.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - The accused, a citizen of Libya, was charged with sexual assault in June 2009 - He was granted judicial interim release under conditions which included the surrender of his passport - In July 2009, the accused fled to Austria - He was apprehended in August 2010 in Greece - He remained in Greek custody until May 2011, when he was extradited to Canada - He had vigorously contested the extradition proceedings - He was convicted of sexual assault in May 2013 - He had been in custody for 27 months since his return to Canada - The Manitoba Court of Queen's Bench sentenced the accused to five years' imprisonment - The court departed from the rule of thumb that 2:1 credit was to be given for pre-sentence custody for pre-February 22, 2010 offences - The accused had effectively created the situation that resulted in his incarceration on a pre-sentence basis - By fleeing the jurisdiction, he had flagrantly violated his release conditions and delayed the trial process - For time spent in custody subsequent to his May 2011 return to Canada, the court gave the accused credit at a rate of 1.5:1 - See paragraphs 55 to 57.

Criminal Law - Topic 5932

Sentencing - Sentence - Particular offences - Sexual assault - The accused, a medical student from Libya, was engaged in a pediatric residency program at a Manitoba children's hospital - A 15 year old male (BG) was admitted to the hospital after sustaining serious injuries in a motocross racing accident - BG was confined to his bed and awaiting surgical intervention - The accused had no duties respecting BG's care and was not assigned duties on the ward where BG was staying - He attempted to enter BG's room at night but was rebuffed by nurses - He returned a short time later, entered the room, and was able to touch BG's penis and push his finger against BG's anus before being interrupted by a nurse within 30 to 60 seconds - The accused returned to BG's room three hours later, where he engaged in fondling and fellatio for a 10 to 15 minute period - The accused was convicted of sexual assault - The Manitoba Court of Queen's Bench found that the accused's acts constituted a major sexual assault and a flagrant breach of trust - The starting point for sentencing in these circumstances was four to five years' imprisonment - Given the aggravating factors (BG's vulnerability, the insidious breach of trust, the accused's persistence and attempts at deception, and the serious infringement of BG's physical and psychological integrity), an appropriate sentence was five years' imprisonment - See paragraphs 45 to 52.

Cases Noticed:

R. v. James (G.M.) (2013), 288 Man.R.(2d) 269; 564 W.A.C. 269; 2013 MBCA 14, refd to. [para. 12].

R. v. R.W.T. (2006), 208 Man.R.(2d) 60; 383 W.A.C. 60; 2006 MBCA 91, refd to. [para. 12].

R. v. J.R.A. (2012), 280 Man.R.(2d) 123; 548 W.A.C. 123; 2012 MBCA 48, refd to. [para. 12].

R. v. Rohani (F.), [2010] B.C.T.C. Uned. 1032; 2010 BCSC 1032, affd. [2012] B.C.A.C. Uned. 44; 2012 BCCA 198, leave to appeal dismissed (2012), 443 N.R. 399; 2012 CanLII 70219 (S.C.C.), refd to. [para. 18].

R. v. Lussier, [2005] Q.J. No. 6409, refd to. [para. 19].

R. v. Cameron (D.I.) (1995), 136 Nfld. & P.E.I.R. 105; 423 A.P.R. 105 (P.E.I.C.A.), refd to. [para. 20].

R. v. Stewart (M.W.) (2004), 193 B.C.A.C. 186; 316 W.A.C. 186; 183 C.C.C.(3d) 421; 2004 BCCA 56, refd to. [para. 21].

R. v. Pannell (R.W.) (2000), 188 Sask.R. 254 (Prov. Ct.), refd to. [para. 21].

R. v. Matheson (G.C.) (1999), 119 O.A.C. 1; 44 O.R.(3d) 557 (C.A.), refd to. [para. 21].

R. v. Alfred (A.) (1998), 105 O.A.C. 373; 122 C.C.C.(3d) 213 (C.A.), refd to. [para. 21].

R. v. Starzecki (B.) (1993), 88 Man.R.(2d) 234; 51 W.A.C. 234 (C.A.), refd to. [para. 21].

R. v. Millward (R.C.) (2000), 271 A.R. 372; 234 W.A.C. 372; 89 Alta. L.R.(3d) 20; 2000 ABCA 308, refd to. [para. 23].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 32].

R. v. Sandercock (1985), 62 A.R. 382; 22 C.C.C.(3d) 79 (C.A.), refd to. [para. 33].

R. v. C.D. (1991), 75 Man.R.(2d) 14; 6 W.A.C. 14; 14 W.C.B.(2d) 245, refd to. [para. 34].

R. v. Dykstra, [1991] B.C.J. No. 163 (C.A.), refd to. [para. 37].

R. v. Valois (E.) (2000), 135 B.C.A.C. 45; 221 W.A.C. 45; 2000 BCCA 18, refd to. [para. 37].

R. v. Warren (G.) (1999), 127 O.A.C. 193 (C.A.), refd to. [para. 37].

R. v. Austin (D.) (1996), 78 B.C.A.C. 249; 128 W.A.C. 249 (C.A.), refd to. [para. 41].

R. v. Hawkins (D.W.) (2007), 247 B.C.A.C. 148; 409 W.A.C. 148; 228 C.C.C.(3d) 426; 2007 BCCA 487, refd to. [para. 41].

R. v. Wust (L.W.), [2000] 1 S.C.R. 455; 252 N.R. 332; 134 B.C.A.C. 236; 219 W.A.C. 236; 2000 SCC 18, refd to. [para. 41].

R. v. Wishlow (A.C.) (2013), 291 Man.R.(2d) 149; 570 W.A.C. 149; 2013 MBCA 34, refd to. [para. 42].

R. v. Roulette (P.) (2005), 201 Man.R.(2d) 148; 366 W.A.C. 148; 2005 MBCA 149, refd to. [para. 42].

R. v. Sparham (J.A.) (2007), 220 Man.R.(2d) 3; 407 W.A.C. 3; 2007 MBCA 84, refd to. [para. 42].

R. v. Vermette (I.M.) (2001), 156 Man.R.(2d) 120; 246 W.A.C. 120; 2001 MBCA 64, refd to. [para. 42].

R. v. Audet (Y.), [1996] 2 S.C.R. 171; 197 N.R. 172; 175 N.B.R.(2d) 81; 446 A.P.R. 81, refd to. [para. 47].

Authors and Works Noticed:

Ruby, Clayton C., Chan, Gerald J., and Hasan, Nader R., Sentencing (8th Ed. 2012), §13.74 [para. 55].

Counsel:

Adam C. Bergen, for the Crown;

Martin S. Minuk and Douglas A. Ripley, for the accused.

This matter was heard before McKelvey, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on August 15, 2013.