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

A Calgary judge has set aside an absolute discharge in a sexual assault case where a permanent Canadian resident argued he could face immigration consequences for a conviction.

Haagen Sagli pleaded guilty to the May 12, 2024, sexual assault of a woman he met at a bar. The Norwegian citizen has been living here since he was 16, and his lawyer argued a conviction could lead to his deportation.

The Crown successfully appealed Sagli’s discharge, which meant he would not have a criminal record. Instead, Justice Lisa Silver of Alberta’s Court of King’s Bench gave him a 30-day conditional sentence.

“I find that Mr. Sagli’s circumstances present several mitigating features, including his previously unblemished record, positive personal background, guilty plea, substantial rehabilitative efforts, and the serious immigration consequences that could flow from a conviction,” Silver wrote in a recent decision.

“Considered cumulatively, those factors significantly reduce the need for specific deterrence and (support) a rehabilitative sentencing response. However, they do not alter the gravity of the offence or Mr. Sagli’s degree of responsibility for it. Nor do these circumstances change the governing principles for sexual assault that include denunciation, deterrence, and proportionality.”

Sagli, who was 32 at the time of the sexual assault, holds a master’s degree in finance from McGill University and has worked in the oil business.

“Because Mr. Sagli was a permanent resident only, a criminal conviction would likely result in immigration proceedings that could lead to his removal from Canada,” Silver said.

“Any removal decision, however, would be subject to further review processes in which his personal circumstances would be considered.”

The Crown refused to answer questions about whether Sagli could face deportation due to his new sentence. Sagli’s lawyer did not respond by press time.

In the appeal, the Crown recommended Sagli get a conditional sentence of six months less a day, considering “the severe effect a six-month conditional sentence would have on Mr. Sagli’s immigration status.”

A permanent resident “is inadmissible on grounds of serious criminality” if they get sentenced to more than six months, according to Canada’s Immigration and Refugee Protection Act.

They can also be deemed inadmissible if convicted of an offence “punishable by a maximum term of imprisonment of at least 10 years,” according to the Act.

In Canada, the maximum sentence for sexual assault is a decade when it’s an indictable offence. But when it’s a summary conviction such as Sagli’s, the maximum sentence drops to 18 months.

Sagli’s lawyer argued unsuccessfully that “a discharge is in the public interest to keep Mr. Sagli, a productive member of the community, from expulsion from Canada and it enhances the public interest by recognizing Mr. Sagli’s voluntary rehabilitative efforts and guilty plea.”

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

“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.

“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.”

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

“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.”

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.

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

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

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.”

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.

“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.”

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.”

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

“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.”

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

“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.”

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

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

“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.”