R. v. Hajar (O.A.), 2016 ABCA 222

• Judge: Fraser, C.J.A., Paperny, Watson, Slatter and Bielby, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: July 25, 2016
• Citations: 2016 ABCA 222;[2016] A.R. TBEd. JL.078

R. v. Hajar (O.A.), [2016] A.R. TBEd. JL.078

MLB being edited

Currently being edited for A.R. - judgment temporarily in rough form.

Temp. Cite: [2016] A.R. TBEd. JL.078

Her Majesty the Queen (respondent) v. Omar Abdallah Hajar (appellant)

(1403-0237-A)

Her Majesty the Queen (appellant) v. Omar Abdallah Hajar (respondent)

(1403-0239-A; 2016 ABCA 222)

Indexed As: R. v. Hajar (O.A.)

Alberta Court of Appeal

Fraser, C.J.A., Paperny, Watson, Slatter and Bielby, JJ.A.

July 25, 2016.

Summary:

The 20 year old accused met a 14 year old girl online and began communicating with her. He convinced the girl to send him a topless picture of herself, and also discussed the sex acts that he wanted to engage in with her. The accused and the girl arranged four meetings which involved kissing and culminated in the girl performing oral sex on him in the back seat of a car. The accused pleaded guilty to sexual interference (Criminal Code, s. 151) and online sexual luring (s. 172.1(1)(b)).

The Alberta Court of Queen's Bench, in a judgment reported at (2014), 597 A.R. 18, sentenced the accused to 15 months' imprisonment for sexual interference and three months consecutive for internet luring, followed by three years' probation. The accused appealed against sentence, arguing that the sentence was excessive given the mitigating factors, including the girl's de facto consent to sexual contact. The Crown sought leave to appeal the sentence, submitting that the three year starting point sentence for major sexual assaults on adults should apply to major sexual assaults on children under the age of 16.

The Alberta Court of Appeal dismissed the accused's sentence appeal. De facto consent was not a mitigating factor. The Crown was granted leave to appeal, but the appeal was dismissed. The court imposed a starting point sentence of three years' imprisonment for major sexual interference involving a child under age 16. Fit sentences would have been 2.5 years' imprisonment for sexual interference and one year (consecutive) for internet luring. However, given the 1.5 year process delay in hearing the appeal due to significant legal and policy issues, the court opted to leave the original sentences and probation order in effect rather than imposing the higher fit sentences.

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 5804

Sentencing - Consecutive sentences - Reduced total term (totality principle) - [See first Criminal Law - Topic 5950 ].

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents (incl. starting point principle and sentencing range) - The 20 year old accused met a 14 year old girl online and began communicating with her - He convinced the girl to send him a topless picture of herself, and also discussed the sex acts that he wanted to engage in with her - The accused and the girl arranged four meetings which involved kissing and culminated in the girl performing oral sex on him in the back seat of a car - The accused pleaded guilty to sexual interference with a person under age 16 and internet luring - The Alberta Court of Appeal stated that "this Court should now confirm a starting point for serious sexual interference, what we would term 'major sexual interference'. Sexual interference constitutes a major sexual interference where the sexual conduct is a serious violation of the physical and sexual integrity of the child and is of a nature or character such that a reasonable person could foresee that it is likely to cause serious psychological or emotional harm, whether or not physical injury occurs. Conduct in this category includes, but is not limited to, vaginal intercourse, anal intercourse, fellatio and cunnilingus. ... We confirm a starting point of three years imprisonment for major sexual interference where the offender is an adult, that is, at least 18 years of age. This starting point applies to all cases of major sexual interference including those involving the child's de facto consent. ... this starting point is premised on there being no gratuitous violence. If the sexual acts involve overcoming resistance, threats, intimidation or other similar acts of gratuitous violence, these will be aggravating factors. The starting point also assumes no prior record. Finally, the three-year starting point is not based on a guilty plea. That would be a mitigating factor reducing sentence." - See paragraphs 10 to 11, 81.

Criminal Law - Topic 5848.9

Sentencing - Considerations on imposing sentence - Sexual offences against children - [See Criminal Law - Topic 5846.5 ].

Criminal Law - Topic 5848.9

Sentencing - Considerations on imposing sentence - Sexual offences against children - The Alberta Court of Appeal held that in sentencing an accused for sexual interference with a person under the age of 16, where the child was by law incapable of consenting to the sexual activity, the child's de facto consent was not a mitigating factor on sentencing - An "absence of exploitation", which was a proxy for de facto consent, was also not a mitigating factor - Further, "a relationship of genuine affection, even if found to exist, may - but not must - be a mitigating factor in sentencing." - See paragraphs 1, 107, 130.

Criminal Law - Topic 5950

Sentence - Sexual interference with young person - The 20 year old accused met a 14 year old girl online and began communicating with her - He convinced the girl to send him a topless picture of herself, and also discussed the sex acts that he wanted to engage in with her - The accused and the girl arranged four meetings which involved kissing and culminated in the girl performing oral sex on him in the back seat of a car - The accused pleaded guilty to sexual interference and internet luring - The trial judge sentenced the accused to 15 months' imprisonment for sexual interference and three months consecutive for internet luring, followed by three years' probation - The Alberta Court of Appeal held that the trial judge committed critical errors resulting in unfit sentences - The starting point sentence for a "major sexual interference", which included fellatio, was three years' imprisonment - The girl's de facto or ostensible consent was not a mitigating factor - The trial judge gave insufficient weight to the actual harm and the likelihood of continuing harm, leading to inadequate weight to the seriousness of the offence - The trial judge also erred in not treating this like a major sexual assault because of the lack of "gratuitous violence" - He under-emphasized the gravity of the offence - There was also error in applying the totality principle to limit the sentence for the distinct and serious offence of internet luring to a three month consecutive sentence - The totality principle did not apply - Fit sentences would have been 2.5 years' imprisonment for sexual interference and one year (consecutive) for internet luring - However, given the 1.5 year process delay in hearing the appeal due to significant legal and policy issues, the court opted to leave the original sentences and probation order in effect rather than imposing the higher fit sentences - See paragraphs 132 to 171.

Criminal Law - Topic 5950

Sentence - Sexual interference with young person - [See Criminal Law - Topic 5846.5 ].

Criminal Law - Topic 5950.1

Sentence - Internet luring - [See first Criminal Law - Topic 5950 ].

Criminal Law - Topic 6214

Sentencing - Appeals - Variation of sentence - Considerations - Where sentence of trial court has been fully or partially served (incl. appeal delay) - [See first Criminal Law - Topic 5950 ].

Evidence - Topic 7000.4

Opinion evidence - Expert evidence - General - Admissibility - General - The Alberta Court of Appeal held that "While the admissibility of expert evidence is a question of law reviewable on the correctness standard, absent an error in principle, appellate court generally owe deference to decisions of trial judges to admit or reject expert evidence" - See paragraph 57.

Evidence - Topic 7012

Opinion evidence - Expert evidence - Basis for opinion - An accused challenged the trial judge's admission of expert evidence on the ground that the studies cited by the expert were not properly before the judge since they were not attached to his report - The Alberta Court of Appeal rejected the challenge, stating that "an expert witness's general body of knowledge and understanding can be based on the work and literature of others where adopted or authenticated by the witness " - The court noted that the accused had a full opportunity to cross-examine the expert on these materials - See paragraph 58.

Counsel:

J.B. Dartana, for the respondent/appellant;

J. Sawani and A. Juneja, for the appellant/respondent.

This appeal and cross-appeal were heard on October 1, 2015, before Fraser, C.J.A., Paperny, Watson, Slatter and Bielby, JJ.A., of the Alberta Court of Appeal.

On July 25, 2016, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Fraser, C.J.A. (Paperny and Watson, JJ.A., concurring) - see paragraphs 1 to 172;

Bielby, J.A., concurring in the result - see paragraphs 173 to 204;

Slatter, J.A., dissenting - see paragraphs 205 to 292.