Lenient': No jail for Tunisian national for 'cruel' violent domestic assault

A Tunisian national living in Quebec has received a conditional discharge and three years’ probation for a violent domestic assault and subsequent harassment, in a sentence the judge admitted was “lenient” and unlikely to satisfy the victim.

Mohamed Aziz Ben Ishak, who had arrived in Canada a year earlier as a temporary resident, attacked Fatma Abada because she had lit a cigarette before nightfall during Ramadan on April 30, 2021.

He then dragged her by the hair into the apartment’s entryway. She broke free but he attacked her again, striking her in the head. When police arrived, she refused to give a statement and said she did not wish to press charges. The police left but came back after subsequent calls from Abada and her friend, and arrested Ishak.

He was released the following day, under orders not to communicate with Abada and her friend, be in their presence or go to their places of work or study. But Ishak breached those conditions, eventually meeting Abada in a park and going to her workplace, contacting her by phone, and sending her text messages. He was arrested again.

Court of Quebec Justice David Simon said the “assaults committed by the offender are neither trivial nor minimal, far from it. They demonstrate a high degree of violence, manifesting itself repeatedly in various forms: multiple kicks to the body, including to the ribs; snatching the telephone from the victim’s hands; punches to the head; and hair-pulling to drag the victim.”

Further, he wrote: “Several blows were inflicted to the head, a particularly vulnerable part of the body. The use of a cigarette to burn the victim’s forearm constitutes a cruel act: more deliberate than the blows, and insidious, it aims to inflict acute pain and leave a lasting mark on the victim.”

He dismissed Ishak’s attributing some of the responsibility for his actions to irritability linked to Ramadan fasting.

Simon reviewed a range of what he described as mitigating circumstances: Ishak, 28, pleaded guilty to all charges and had no prior criminal record. He expressed “sincere and profound” remorse and he was only 23 years old at the time of the offences. Simon also cited a spotless academic record, stable employment, strong career ambitions, an absence of substance abuse and connections to criminal elements, and the constant support of his mother.

Given Ishak’s status as a temporary resident, Simon reviewed the impact of a criminal sentence on his immigration process, including a plan to apply for permanent residency. Simon said that Ishak had made significant efforts at integrating in Canada and had not breached his work permit conditions.

“Granting a conditional discharge to a young first-time offender who certainly committed serious offences with significant consequences for the victim, but has since proven himself, rehabilitated himself, and has become an asset to society, reflecting with remorse on his past behaviour, and whose offences are isolated (by COVID-19) throughout their history, would not be contrary to the public interest.”

A conviction, wrote Simon, would risk uprooting Ishak from Canada, his family and emotional support network, sending him back to Tunisia where he no longer has real ties.

Simon, instead, shifted his focus to domestic abuse case law in Quebec, in particular, cases where a conditional discharge was a possibility.

“The province’s highest court recently granted or confirmed conditional discharges in cases of significant physical violence against an intimate partner … not limited to a single incident and offenders facing indirect immigration consequences.”

The judge noted that the Crown argued incarceration was not appropriate given the minimal risk of reoffending and the parole service concluding that the offender is a suitable candidate for community supervision.

Instead, he decided that “a conditional discharge is the most appropriate measure in the particular circumstances of this case. Although this measure is lenient and, admittedly, in the margins of applicable sentences, it remains justified in light of the principles of individualization, moderation, and harmonization of sentences, as well as the balancing of all relevant sentencing objectives.”

A conditional discharge leaves no criminal record, but the offender must follow specific conditions set out by the judge.

Among Ishak’s conditions were not to communicate with the victim, not be in her presence or refer to her on social media, and not to be within 500 metres of her home. He also has to report to a probation officer and notify the officer of any changes to his address, name and employment. Finally, Ishak was ordered to complete 240 hours of community service within 18 months.

He acknowledged that the sentence was unlikely to “satisfy the victim, who likely continues to suffer some consequences of the crime. I am aware of this and can only sympathize, even in my leniency. I dare to hope that the conclusion of this legal process, at least at the first instance, will allow the victim to turn the page, although it is probably impossible to completely erase the scars of this experience. I wish to commend her courage and determination.”

He said that when assessing the public interest, sensitivity to a reasonable person’s reaction “cannot lead a judge to refuse a sentence if it is adequate.”

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