A Powell River man who violated his round-the-clock house arrest after almost a week will face no further punishment.
But, near the end of a Thursday, August 22, hearing, a BC Supreme Court judge agreed to reduce Kasimir Tyabji-Sandana’s conditions so he could leave his Vancouver residence for an hour every morning except for three hours every Saturday afternoon.
BC Supreme Court justice Peter Edelmann sentenced Tyabji-Sandana, 36, on June 4 in Powell River to two years, less a day, of 24-hour house arrest. Last fall, a jury found Tyabji-Sandana guilty of sexual interference of a person under 16. He had a sexual relationship in 2016 with a girl after she volunteered to work on a farm owned by his mother Judi Tyabji and stepfather Gordon Wilson.
On June 11, Tyabji-Sandana called his conditional sentence supervisor to say he had left his Vancouver apartment and checked-in to an addiction treatment facility in Surrey on June 10. He planned to stay for 60 days, but left the facility on June 24 and informed the supervisor two days later. Tyabji-Sandana’s lawyer, David Tarnow, said he left the facility because he could not afford to stay longer.
Tarnow and Crown lawyer Conor Doyle told justice Douglas Thompson in Courtenay on Thursday that they agreed the one day in jail already served after his July 18 arrest and the loss of credit toward the two-year sentence was enough. Provincial court judge Christine Lowe released Tyabji-Sandana on July 19 after adding a requirement that he pay a $1,500 fine should he breach the sentencing conditions again.
Doyle told Thompson that “any breach” is serious and the Supreme Court of Canada presumed that an individual who breaches a sentencing order can “expect a full collapse and that individual will remain in custody for the remainder of that sentence.”
But, Doyle said, Tyabji-Sandana’s breach happened at an early stage and it was within the context of seeking substance abuse treatment. The court had previously heard of Tyabji-Sandana’s struggles with alcohol since his teenage years.
Nonetheless, he said Tyabji-Sandana should be “aware that the compliance with the strict wording of his [conditional sentence order] is paramount, and that any further breaches would certainly be expected to result in a collapse of that CSO.”
Thompson asked Tyabji-Sandana, who attended by phone, if he admitted to the breach.
“I do, and I intend to take that order very seriously moving forward; I've learned a lot from this experience,” said Tyabji-Sandana.
Tarnow then successfully applied for a variance in his client’s house arrest, which will come into effect when Tyabji-Sandana’s sentence supervisor signs paperwork. Specifically, Tyabji-Sandana will be allowed to leave his residence between 11 am and noon daily, except on Saturdays, when he can be away from 1 to 4 pm.
That may be moot if the Crown has its way.
The BC Prosecution Service filed notice in late June that it wants to appeal Edelmann’s house arrest sentence. A BC Court of Appeal hearing date has not been scheduled.
The Crown appeal application alleges Edelmann erred in four ways: by opting for house arrest instead of jail, imposing a sentence that is demonstrably unfit, failing to prioritize the sentencing objectives of denunciation and deterrence, and failing to impose a sentence proportionate to the gravity of the offence.
Crown prosecutor Jeffrey Young had asked Edelmann to send Tyabji-Sandana to jail for four to five years, noting that he committed the sexual interference crime while on bail after a 2015 drug bust in Calgary. Tyabji-Sandana pleaded guilty in 2018 in Alberta to attempting to possess acetyl fentanyl and was sentenced to eight months of house arrest and eight months under curfew.
But Edelmann chose the house arrest sentence proposed by Tarnow, based on Tyabji-Sandana’s Indigenous heritage on his birth father’s side.
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