Calgary judge sets aside discharge in sexual assault case involving permanent resident

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The court heard that Sagli and the victim met at a bar as part of a larger group.

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“After spending several hours together, Mr. Sagli accompanied the victim to her home. She allowed Mr. Sagli to sleep with her in bed. There was no discussion or agreement to have sexual relations,” said the Sept. 2 decision.

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“The victim awoke with her pants around her ankles and Mr. Sagli touching her bare buttocks. When the victim asked Mr. Sagli what he was doing, he immediately stopped, explaining he ‘thought she was into it.’ The victim responded that she was asleep, she did not want him to touch her and told him to leave. Mr. Sagli did so.”

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Before his guilty plea, Sagli “attended counselling for substance abuse and cognitive behaviour therapy with an emphasis on his sexual conduct,” said the decision.

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“Mr. Sagli admitted that at the time of the offence, he was in an unhealthy cycle of drinking to excess. Significantly, since committing the offence he maintained sobriety.”

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Sagli “showed insight into his actions and an understanding of the wrongfulness of his conduct,” according to his pre-sentence report written by a forensic psychiatrist.

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“Moreover, his risk of recidivism was labelled as very low.”

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The woman he sexually assaulted “described the profound and lasting psychological and emotional harm experienced by the incident,” said the decision.

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Silver found that the sentencing judge “minimized the seriousness of the offence when he failed to understand the significance of a sexual assault committed against a sleeping victim.”

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The woman “had no ability to respond to Mr. Sagli’s actions when he initiated sexual contact, which consisted of pulling down her pants and fondling her buttocks,” said the judge.

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“Rather, the sexual assault ended only after the victim awoke and confronted Mr. Sagli’s conduct. In this way, the victim was ‘extremely vulnerable’ and ‘deprived’ of any ability to express her lack of consent or resist when Mr. Sagli started to interfere with her sexual integrity.”

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According to Silver, the sentencing judge “minimized the gravity of the offence …. Sexual offences violate a person’s sexual and bodily integrity. It is a crime of violence that causes harm no matter what the force used in committing it.”

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The sentencing judge “erred when he considered irrelevant factors,” Silver said.

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“For example, the sentencing judge improperly relied on the victim’s conduct when he referred to her having ‘invited’ Mr. Sagli into ‘her own bed,’ when he was ‘stark naked.’ In this case, the victim did not consent to sexual activity and an ‘invitation’ to share her bed did not change the non-consensual nature of the incident.”

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The sentencing judge “failed to outline the basis for imposing an absolute discharge,” Silver said.

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“The reasons do not meaningfully engage with the governing sentencing principles, including denunciation and deterrence in the context of sexual offences nor do they address … whether a discharge would be contrary to the public interest.”

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Silver concluded that “a short conditional sentence order was the fit and appropriate sentence.”

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Sagli’s “actions caused long-lasting harm to the victim and to societal values,” she said.

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“The conduct violated the victim’s sexual integrity, dignity, and her right to control her own sexual autonomy. The offence caused meaningful psychological harm to the victim.”

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