R. v. Tork, 2024 ONCJ 99

ONTARIO COURT OF JUSTICE

DATE: 2024 02 20

Newmarket, Ontario

BETWEEN:

HIS MAJESTY THE KING

— AND —

NIMA TORK

Before: Justice R.M. Robinson

Heard on: 27 September 2023 and 15 December 2023

Reasons for Judgment released on: 20 February 2024

Counsel: Thompson Hamilton, counsel for the Crown Bruce Daley, counsel for Nima Tork

ROBINSON J.:

A/ INTRODUCTION

1On 27 September 2023, Nima Tork pleaded guilty to one count of the straight indictable offence of aggravated assault, pursuant to s. 268(1) C.C., and one count of failing to stop after an accident that resulted in bodily harm, under s. 320.16(2) C.C. . The Crown elected to proceed by indictment on the latter count.

2I must now determine the appropriate sentence. The Crown submits that a custodial sentence is required. The defence does not disagree but submits that a conditional sentence allowing Mr. Tork to serve the sentence in the community is appropriate.

B/ THE OFFENCE

3On 23 April 2021, Daniel Korobok was riding his bicycle in Richmond Hill when he observed Nima Tork driving an SUV at a high rate of speed. As they were stopped at a red light, Mr. Korobok made a comment to Mr. Tork about his speeding. Profanities were exchanged. As Mr. Korobok was crossing the street, Mr. Tork intentionally ran the red light, accelerated into him, hitting his bicycle and dragging him for some distance.

4Mr. Tork then fled the area of the collision, leaving Mr. Korobok lying in the intersection. Mr. Tork stopped a short distance away and waited for the arrival of the police.

5Mr. Korobok was transported to the hospital where he received treatment for a broken elbow, bruising and lacerations to his legs and feet. This included surgery to repair his broken elbow.

6In his Victim Impact Statement, filed as Exhibit 3 on sentence, Mr. Korobok described experiencing the most pain he has ever felt in his life before and after the surgery; intermittent searing pain caused by the metal pins that were drilled into his bone; his inability to pronate his forearm; and the ongoing psychological effects.

C/ THE OFFENDER

7Mr. Tork is 22 years old now and was 19 at the time of the offence. He has no prior criminal record.

8On 27 September 2023, I ordered the preparation of a Pre-Sentence Report (“PSR”). Accordingly, a PSR dated 12 December 2023 was prepared by Probation and Parole Officer Jennifer Clayson and filed as Exhibit 2 on sentence. The defence did not dispute any of the contents of said report.

9Although I have carefully reviewed the entirety of the PSR, the following findings by Ms. Clayson are particularly noteworthy:

• Mr. Tork was born and raised in Laval, Quebec. He and his family moved to Richmond Hill when he was 14 years old.
• Mr. Tork, his parents and his older sister presently reside together in Aurora.
• Mr. Tork’s family environment was positive and supportive, without any trauma, abuse or behavioural concerns.
• Mr. Tork was born with a kidney condition for which he presently requires daily medication.
• Mr. Tork completed high school and intends on completing a college business program.
• Mr. Tork has been employed as a Delivery Manager for Yorkdale Fine Cars for over two years. His employer, Emad Hassan, describes him as professional, punctual and reliable. Since these charges, Mr. Tork’s parents have been driving him to and from work daily. Mr. Hassan indicates that, if Mr. Tork were allowed to drive, it would greatly benefit the company.
• Although Mr. Tork reported having attended anger management and having seen a therapist after these charges, no verification thereof was provided to Ms. Clayson.
• Mr. Tork’s mother, Azamal Sajadi, advised that, at the time of the offence, Mr. Tork was having a difficult time coping with her cancer diagnosis and with a relationship breakup.

10An undated character letter from Ali Parsa was filed as Exhibit 5-1 on sentence. Mr. Parsa described Mr. Tork as his business partner in Parsa Unlimited Enterprise Inc, a vehicle wholesale company. I note, however, that in the PSR, Mr. Parsa described himself to Ms. Clayson as a long-term close friend, with no mention whatsoever about a business partnership.

11A letter from (non-medical) psychotherapist Bruce Kelly, dated 26 July 2021, was filed as Exhibit 6 on sentence. It indicated that Mr. Tork attended three phone psychotherapy sessions between 3 June 2021 and 26 July 2021. The letter is brief (six sentences) with very little detail about the content of the sessions.

12Mr. Kelly indicated that “further phone sessions are available as needed.” During submissions, I was advised that Mr. Tork did not attend for any further sessions after 26 July 2021.

13Mr. Tork prepared a letter (Exhibit 7) which he read out in court. Mr. Tork apologized for his actions and indicated he was prepared to accept the consequences. While I consider the letter to be sincere, there were two areas that caused me some concern.

14First, Mr. Tork indicated, “I want to make it unequivocally clear that my intentions were never to harm or cause distress to anyone.” When questioned about how Mr. Tork could have any other intention when he purposely drove his two-ton vehicle into a vulnerable bicyclist, the defence advised that Mr. Tork meant that he did not leave his house that day with that intention. This causes me some concern into Mr. Tork’s level of insight into his conduct.

15Second, Mr. Tork indicated, “I want to assure the court that I am actively taking steps to address underlying issues that led to this unfortunate incident.” Other than the three telephone psychotherapy sessions in June and July 2021, I was provided with no information about ongoing steps to address underlying issues. Mr. Kelly’s brief letter provides no insight into what the underlying issues may be, nor how they have been addressed, if at all.

16The defence advised that Mr. Tork is willing to take whatever steps I think are appropriate (e.g. counselling, community service hours, restitution, house arrest, curfew) as terms of a conditional sentence.

D/ THE POSITION OF THE PARTIES

17The Crown submits that the appropriate sentence is a 15-month jail sentence on each count, to be served concurrently, followed by two years probation. He also seeks a DNA order, a s.109 order for 10 years and a three-year driving prohibition.

18The Crown submits that a conditional sentence would be inappropriate in these circumstances, as it would not “be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2”, a pre-requisite under s.742.1(a) C.C ..

19To be clear, the Crown takes the position that granting Mr. Tork a conditional sentence would “not endanger the safety of the community”, another pre-requisite under s.742.1(a) C.C. .

20The defence argues that a properly constructed, restrictive conditional sentence order would be consistent with the fundamental purpose and principles of sentencing. Although he does not suggest a duration, he submits that terms such as community service and house arrest could adequately address the principles of sentencing.

21The defence points to the significant strides made by Mr. Tork since the offence and submits that his prospects for rehabilitation would be irreparably set back should he be ordered to serve his custodial sentence in jail.

E/ THE CASE LAW

22I have reviewed a number of cases on sentencing for aggravated assault, including many provided by the Crown and the defence.

23With respect, I find that the following cases provided by the defence are of limited assistance: Justice Faria’s decision in R. v. Stevens , [2022] O.J. No. 4627 (O.C.J.) , Justice O’Donnell’s decision in R. v. Armitage , 2023 ONCJ 182 and Justice Prutschi’s decision in R. v. Forrestall , 2021 ONCJ 121 . Those cases dealt with the offence of failing to stop after an accident that resulted in death and not with offences involving the intentional infliction of bodily harm.

24It is fair to say that there is a wide range of sentences for cases of aggravated assault, dangerous driving causing bodily harm and other “road rage” types of offences. However, several identifiable principles can be distilled from the case law.

25In R. v. Tourville [1] , the accused was convicted by a jury after trial of aggravated assault and assault with a weapon. The accused was 26 years old at the time of the offence. He was an Indigenous first offender and presented a positive Gladue report at his sentencing. Although the victim was the aggressor in a fist fight, at some point, the accused got the upper hand, pulled out a knife and started slashing at him, resulting in nine stab wounds. The accused was properly acting in self-defence until he gained the upper hand. His actions thereafter were excessive. Although the accused offended while on bail, committing a drinking and driving offence, he subsequently enrolled in and successfully completed an alcohol treatment program at Humber River Hospital.

26Justice Code sentenced the accused to 21 months imprisonment followed by two years probation, after having summarized the range of sentences borne out of the case law as follows [2] :

• At the bottom end of the range of sentences is a suspended sentence and probation in exceptional circumstances: R. v. Peters (2010), 2010 ONCA 30 , 250 C.C.C. (3d) 277 (Ont.C.A.), involving a 26 year old female indigenous first offender who struck the victim with a beer bottle during a barroom dispute; she entered a guilty plea and provided a positive Gladue report outlining an abusive upbringing leading to drug and alcohol addiction and significant strides through counselling and employment.
• In the mid-range are high reformatory sentences between 18 months and two years less a day. These cases generally involve first offenders and generally contain some elements suggestive of consent fights where the accused resorted to excessive force: R. v. Chickekoo (2008), 79 W.C.B. (2d) 66 (Ont.C.A.) ; R. v. Moreira , [2006] O.J. No. 1248 (Ont.S.C.J.); R. v. Basilio (2003) , 175 C.C.C. (3d) 440 (Ont.C.A.).
• At the high end of the range are penitentiary sentence between four and six years. These cases generally involve recidivists with serious criminal records, or involve attacks that were neither provoked nor premeditated with no elements of self-defence: R. v. Scott , [2002] O.J. No. 1210 (Ont.C.A.) ; R. v. Thompson, [2005] O.J. No. 1033 (Ont.C.A.) ; R. v. Vickerson (2005) , 199 C.C.C. (3d) 165 (Ont.C.A.); R. v. Pakul , [2008] O.J. No. 1198 (Ont.C.A.) .

27In R. v. Chisholm [3] , the accused pursued the victim and tried to run him over, unsuccessfully, and then exited his car and tried to strike him with a ski pole, again unsuccessfully. The victim walked away from the altercation but was pursued by the accused who successfully struck the victim with his car, throwing the victim into the air. The accused then sped off. The accused pleaded guilty to aggravated assault, failing to stop at the scene of an accident and impaired operation. He was 24 years old, with one prior unrelated minor conviction.

28In upholding the sentencing judge’s sentence of 18 months imprisonment followed by two years probation, the Nova Scotia Court of Appeal noted:

• Crimes of violence require an emphasis on general and specific deterrence most commonly reflected by a significant period of incarceration: R. v. Coleman (1992) , 110 N.S.R. (2d) 65 (N.S.C.A.). [4]
• “Aware that he had struck [the victim], in driving off he exhibited appalling indifference to the injuries that he might have caused… the fact that he did so sheds light upon his character.” [5]
• “This was not a case where the violence was an unfortunate but unintended result of a driving offence. The motor vehicle was used purposely by [the accused] to cause harm to [the victim].” [6]

29In R. v. Coelho [7] , the accused was sentenced for assault with a weapon, for having purposely run over the victim with his car. The victim suffered life-altering injuries.

30In sentencing the accused to three years, Justice Hamilton stated that “[t]here has to be a message sent out on general deterrence.” [8] He further noted that “people have to learn that if you are going to take a car and use it as a gun you have to pay the penalty and you ruined a young man’s life.” [9]

31In R. v. Stone [10] , the accused pleaded guilty to dangerous driving causing bodily harm. The sentencing judge found that both the accused and the victim were engaged in road rage, driving recklessly and childishly taunting each other. At one point when the vehicles were stopped, the victim exited his car and began to walk toward the accused’s vehicle. No doubt observing how big and strong the victim appeared to be, the accused accelerated toward him, striking him and flinging his body into the air. The accused sped off without checking on the victim’s well-being.

32The accused was 44 years old with no criminal record. He was gainfully employed and had a wife and two child dependents. The sentencing judge sentenced him to two years imprisonment.

33In substituting the sentence with a 22-month conditional sentence, the British Columbia Court of Appeal observed that:

• Impetuously knocking someone to the ground is less aggravating than running someone over, dragging him for several metres and running over his legs. [11]
• It was mitigating that the victim was taunting the accused, conduct “which might reasonably have been expected to anger anyone other than a paragon of virtue.” [12]
• It was the much larger victim who got out of his car and began walking toward the accused’s car. [13]
• “The assault appears to have been a sudden and aberrant reaction to an immediate and unanticipated threat or at least confrontation. In my respectful opinion, a reaction of this kind is less likely to be affected by the principles of general deterrence and denunciation than the trial judge predicted.” [14]
• The sentencing judge did not adequately consider the sentencing objective of restitution in light of the civil judgment that the victim had obtained against the accused. In other words, if the accused went to jail, he would be unable to work and would, therefore, be unable to pay the civil judgment owing the victim. [15]

34In R. v. Wright [16] , the accused pleaded guilty to dangerous driving causing bodily harm, fail to stop at the scene of an accident and assault. During a verbal altercation outside of a restaurant, the accused sucker-punched the victim in the face. When the victim tried to enter his car, the accused drove at him, sandwiching him between the two vehicles and flinging the victim into the air. The accused then fled the area. The victim suffered life-altering physical and psychological injuries.

35The accused was 23 years old with numerous prior convictions for various offences, including assault causing bodily harm, fail to comply and dangerous driving. He was employed and was the sole provider for his family. The PSR noted that the accused struggled with an alcohol problem and anger management problem.

36In sentencing the accused to two years incarceration, Justice Sullivan made the following findings:

• The paramount sentencing objectives in the circumstances of this case were denunciation and deterrence. [17]
• Intentionally driving a vehicle at a pedestrian must always be viewed as a very grave offence. Pursuing a retreating victim is aggravating, as is engaging in the activity when there was an opportunity to reflect and desist. [18]

37In R. v. Anderson [19] , although characterized as “road rage”, the accused did not use her vehicle as a weapon. Rather, she exited her vehicle and walked toward the victim. At the same time, the 66-year-old female victim exited her car and walked towards the accused with the support of a cane. The accused shoved the victim, causing her to fall. This resulted in serious injuries that required hospitalization. The accused then fled the scene. The sentencing judge imposed a six month sentence of incarceration.

38In substituting a sentence of time served (38 days), the Ontario Court of Appeal noted the following:

• Acts of road rage must be denounced in clear and unmistakable terms [20] .
• The trial judge had concluded that two of the three factors in support of self-defence were made out. [21]
• The accused had experienced a very troubled upbringing but had made significant strides with counselling and employment.

39In R. v. Murphy [22] , the accused pleaded guilty to aggravated assault. The facts of the case were unusual and unique. While driving his vehicle, the accused was rear-ended twice by a vehicle in which the victim was a passenger. The accused followed the other vehicle while it continued driving. At a second location, the other vehicle lost control and struck a fire hydrant. The accused got out to take pictures of the other vehicle when it struck his body. The accused stabbed at the tires in an attempt to prevent the other vehicle from driving away. The accused got in his vehicle and followed the other vehicle to the driver’s residence. He approached the driver and began to assault him. The victim exited the other vehicle and attempted to intervene. The accused and the victim began to fight. The accused pulled out a knife. He then left. Feeling discomfort in his abdomen, the victim looked down and saw that he had been stabbed. A portion of his intestines were protruding. He also had a deep cut above his left eye. He underwent surgery and a portion of his colon was removed.

40The accused had been the victim of a hit and run earlier that year resulting in physical and psychological injuries. He was a first offender with solid support and steady employment.

41In imposing an 18-month conditional sentence, Justice Pollock noted that:

• In offences involving serious personal violence, denunciation and deterrence are the primary objectives. [23]
• However, it is an error to focus almost exclusively on general deterrence and to fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender: R. v. Batisse , 2009 ONCA 114 , at para 34 . [24]

42In R. v. Ali [25] , the two accused brothers were convicted after trial of aggravated assault. They both attacked a single complainant, punching him, knocking him to the ground, and kicking him in the head and lower back. He received moderate injuries, including to his eye, lips and cheek, and a cut on his face. The sentencing judge sentenced each of the accused to 15 months incarceration followed by two years probation.

43The Ontario Court of Appeal overturned the sentence, substituting it with a 15-month conditional sentence. In doing so, the Court of Appeal relied on the following:

• The trial judge found the injuries to be moderate, accepted that it was an unplanned attack, and found that the attack was fuelled by the accused’s rage toward the victim who had injured their younger brother. [26]
• The first accused was 28 years old with no criminal record. He was gainfully employed and financially supported a spouse and two young children. [27]
• The second accused was 35 years old with a dated, unrelated criminal record. He was gainfully employed and supported his wife and two young children. He was a permanent resident who could face deportation back to Afghanistan with a sentence of imprisonment over six months. [28]
• The trial judge erred in concluding that the level of violence automatically excluded a conditional sentence. “Case law establishes that a conditional sentence can provide deterrence and denunciation, and thus may be appropriate for a crime involving violence, such as aggravated assault, even when deterrence and denunciation are paramount considerations.” [29]
• Given that a conditional sentence is not automatically precluded, the trial judge erred in not considering if one was appropriate “by considering, and weighing, the ability of a conditional sentence to meet the deterrence and denunciation objectives and other relevant sentencing objectives, including restraint and rehabilitation.” [30]
• “The trial judge should have considered whether a custodial sentence or one served in the community would better address all of the relevant sentencing objectives – denunciation and deterrence and restraint and rehabilitation.” [31]
• “…a conditional sentence can provide “a significant amount of denunciation” and “significant deterrence”: R. v. Proulx , 2000 SCC 5 , at paras 102 , 105, 107. [32]
• A conditional sentence may not provide the appropriate amount of denunciation and deterrence. In those cases, incarceration will be the only suitable means to express society’s condemnation of the conduct. [33]
• “It was an error in principle for the trial judge to rule out a conditional sentence based on the level of violence in this case without considering the extent to which a conditional sentence could provide deterrence and denunciation, especially if punitive conditions were imposed, and without weighing all of the relevant sentencing objectives that were applicable in the factual circumstances.” [34]
• “…the restraint principle requires a sentencing judge to consider all sanctions apart from incarceration, especially for first offenders. It is an error, especially when sentencing a first offender, to focus exclusively on general deterrence and to fail to consider individual deterrence and rehabilitation: R. v. Batisse , 2009 ONCA 114 , at paras 32 , 34. [35]

F/ PURPOSE & PRINCIPLES OF SENTENCING

44The fundamental principle of sentencing is proportionality. “The sentence must be severe enough to denounce the offence but must not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence.” [36]

45Indeed, Parliament has codified this fundamental principle in s.718.1 of the Criminal Code , which holds that, “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

46In arriving at a just sentence for Mr. Tork, the principle of proportionality requires that I give full consideration to both factors, without elevating one at the expense of the other. [37]

47S.718 C.C. sets out the various sentencing objectives as follows:

Purpose

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

48Other sentencing principles that are codified are parity and restraint.

49The principle of parity (s.718.2(b) C.C. ) directs that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This is a notoriously difficult exercise, as no two cases are exactly the same. As succinctly stated by Chief Justice Lamer, “…the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic frustration.” [38]

50The principle of restraint (s.718.2(d) and (e) C.C.) recognizes that prison should be the sentence of last resort and that the court should consider the least intrusive alternatives, provided the other sentencing principles are appropriately addressed.

51Finally, in determining a just sentence, I must take into account all relevant aggravating factors (including the statutory aggravating factors in s.718.2(a) C.C .) and mitigating factors relating to the offence and the offender.

G/ AGGRAVATING & MITIGATING FACTORS

52While there are no aggravating factors relating to the offender, there are many relating to the offence, namely:

• The incident began entirely because of Mr. Tork, who several witnesses observed driving at a high rate of speed during rush hour.
• When called on his careless manner of driving by Mr. Korobok, Mr. Tork took offence.
• Regardless of who said what, it was readily apparent that Mr. Tork was Goliath, behind the wheel of a two-ton SUV, and Mr. Korobok was David, a bicyclist with no protection. Simply put, it was never a fair fight.
• Mr. Korobok attempted to extricate himself from the altercation by riding away on his bicycle. Mr. Tork made the conscious decision to escalate the situation by running a red light and pursuing him.
• Mr. Tork made the conscious decision to strike the defenseless Mr. Korobok with his SUV. Rather than striking him and stopping, which would have been egregious enough, Mr. Tork made the conscious decision to drag Mr. Korobok a distance.
• The risk of harm was catastrophic. Once the SUV struck and began to drag Mr. Korobok, it was impossible for Mr. Tork to control or restrict the amount of damage inflicted. It was entirely foreseeable that Mr. Korobok’s head or spine could have fallen under Mr. Tork’s wheel. As observed by Justice O’Donnell, “even a difference of an inch or two on a face or neck injury can make an enormous difference to the outcome. The gap between an aggravated assault and a homicide is often very narrow.” [39]
• Mr. Tork fled the area, leaving Mr. Korobok lying injured in the intersection. The indifference and cowardice on Mr. Tork’s part was alarming.
• When confronted by bystanders and eventually the police, Mr. Tork attempted to justify his actions by claiming that Mr. Korobok disrespected his family and spat at his car.
• The injuries suffered by Mr. Korobok were significant. They included his elbow bone broken in half with tendons and bone displaced. Mr. Korobok required surgery in which metal pins were drilled into his bone. Mr. Korobok continues to suffer flashbacks and periods of significant pain, particularly when trying to exercise.

53I find no mitigating factors pertaining to the offence. There are, however, several mitigating factors pertaining to the offender, namely:

• At the time of the offence, Mr. Tork was 19 years old.
• Mr. Tork has no prior criminal record.
• Mr. Tork’s mother reported to Ms. Clayson that Mr. Tork was having a hard time coping with her cancer diagnosis and with the dissolution of a relationship at the time of the offence. Although I note that more fulsome details were not provided, nor did Mr. Tork make any mention of either to Ms. Clayson, I am satisfied on a balance of probabilities that both stressors were present and contributed in some way to Mr. Tork’s out-of-character behaviour.
• Mr. Tork has the support of his family and friends.
• Mr. Tork has been gainfully employed for over two years with Yorkdale Fine Cars, where he is considered a valued and respected employee. I am not satisfied on a balance of probabilities that he was concurrently working with Parsa Unlimited Enterprise Inc. as neither he nor Ali Parsa made any mention of this business partnership to Ms. Clayson.
• Mr. Tork made some effort at counselling with a non-medical psychotherapist. In my view, the mitigating value is limited, as the counselling consisted of three telephone sessions ending in July 2021, it is entirely unclear what areas of concern were identified, discussed and addressed, and Mr. Tork did not accept Mr. Kelly’s offer for follow-up sessions. Further, I am not satisfied on a balance of probabilities that Mr. Tork completed anger management counselling, as no verification was provided to Ms. Clayson, nor was any proof thereof included in the defence sentencing materials.
• Notwithstanding the areas of concern identified above, I am satisfied that Mr. Tork’s oral and written apology was a genuine expression of his remorse for his actions.

H/ INCARCERATION VS. CONDITIONAL SENTENCE

CUSTODY

54Both the Crown and defence submit that custody is warranted [40] . I agree.

55In R. v. Huh [41] , the Ontario Court of Appeal endorsed a six-to-eight-month term of incarceration as the low end of the range of sentence for an assault bodily harm with serious injuries for an offender with no criminal record.

56In R. v. Tourville [42] , Justice Code reviewed the case law and concluded that the mid-range of sentences for aggravated assault was 18 months to two years less a day.

57In cases of aggravated assault which involve serious personal violence, the primary sentencing objectives are denunciation and general deterrence.

58Chief Justice Lamer explained the principle of denunciation in the following terms:

The objective of denunciation mandates that a sentence should also communicate society’s condemnation of that particular offender’s conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law… Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code . [43]

59In R. v. Norman [44] , a case of criminal negligence in the operation of a motor vehicle causing bodily harm, Justice Minden concluded that general deterrence of a custodial sentence is more effective for driving offences. In coming to that conclusion, Justice Minden relied on the following comments of Justice Rosenberg in R. v. Biancofiore , a case involving drinking and driving:

The generally deterrent effect of incarceration is somewhat speculative and I adhere to the view I expressed in R. v. Wismayer, supra, at p.36 that incarceration should be used with great restraint where the justification is general deterrence. There are, however, offences that are more likely to be influenced by a general deterrent effect. For the reasons expressed by this court in McVeigh [ [1985] O.J. No. 2017 (Ont.C.A.) ], as reinforced by the 1985 statutory initiatives, it is my view that incarceration for crimes like those committed by this respondent can be justified on the basis of general deterrence . [45]

60In drawing parallels between Justice Rosenberg’s comments in the drinking and driving context and other driving offences, Justice Minden stated:

In my opinion these comments apply with similar force to this offence, albeit that it is not an alcohol related driving offence. This is a type of offence, like alcohol related driving offences, which in my view is more likely to be influenced by a general deterrent effect. Motorists encompassing a wide range of age, experience and prior antecedents can readily identify with the kind of anger and aggression capable of leading to roadway violence. This increases the likelihood that deterrent sentences will have the desired effect . [46]

IS A CONDITIONAL SENTENCE AVAILABLE?

61The pre-requisites for a conditional sentence set out in the Criminal Code are as follows:

• The sentence imposed is less than two years (s.742.1 C.C .);
• The offence is not punishable by a mandatory minimum term of imprisonment (s.742.1(b) C.C. );
• The offence is not attempt murder, torture or advocating genocide (s.742.1(c) C.C .); and
• The offence is not a terrorism offence, or a criminal organization offence, prosecuted by indictment, for which the maximum term of imprisonment is ten years or more (s.742.1(d) C.C. ).

62In the present case, the offences are aggravated assault and failing to stop after an accident that caused bodily harm, offences that are not punishable by a minimum term of imprisonment. The Crown is seeking a sentence well under two years. Accordingly, a conditional sentence is available .

IS A CONDITIONAL SENTENCE APPROPRIATE?

63For a conditional sentence to be appropriate, pursuant to s.742.1(a) C.C. I must be satisfied that:

(a) Mr. Tork serving the sentence in the community would not endanger the safety of the community; and

(b) A conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 C.C. .

Risk to the Community

64In R. v. Proulx , supra , at para 68 , the Supreme Court of Canada interpreted “safety of the community” to refer to the threat posed by the specific offender were he to serve his sentence in the community.

65The proper approach in assessing risk to the community involves a consideration of (1) the risk of the offender re-offending; and (2) the gravity of the damage that could ensue in the event of re-offence. [47]

66I have some concerns about the risk posed by Mr. Tork. The type of conduct involved in deliberately running a bicyclist over with a motor vehicle would suggest some underlying issues. Given the scant information before me regarding Mr. Tork’s counselling in June 2021, I cannot conclude that his underlying issues have been meaningfully addressed.

67These concerns exist notwithstanding the fact that Mr. Tork comes before me with no prior criminal record.

68However, the Crown has specifically disavowed reliance on the public safety pre-requisite for a conditional sentence in this case. Further, I am of the view that appropriate restrictive and rehabilitative conditions could be included in a conditional sentence order to minimize whatever risk Mr. Tork may pose to public safety.

69Accordingly, I conclude that public safety is not a basis on which a conditional sentence should be rejected.

Purpose and Principles of Sentencing

70An appropriately crafted conditional sentence is not automatically precluded for the offence of aggravated assault. A conditional sentence can, in some cases, provide deterrence and denunciation for a crime involving violence where deterrence and denunciation are paramount considerations. [48]

71I must consider whether a term of incarceration or a custodial sentence served in the community would better address all of the relevant sentencing objectives – denunciation and deterrence and restraint and rehabilitation. [49]

72Particularly when sentencing a first offender, the principle of restraint requires me to consider specific deterrence and rehabilitation and not focus exclusively on general deterrence and denunciation. [50]

73In the present case, an appropriately crafted conditional sentence would better achieve the goals of specific deterrence and rehabilitation. These objectives could be addressed with house arrest and counselling conditions, along with a driving prohibition.

74However, in my view a conditional sentence would not adequately address the paramount sentencing objectives of general deterrence and denunciation that arise on the facts of this case.

75The level of violence employed by Mr. Tork was fundamentally different than what was present in R. v. Ali , supra . In Ali , there was significant provocation, as the victim had previously seriously injured the two accused’s younger brother. In Ali , both brothers used their hands and feet to attack the victim. No weapons were used. No bones were broken.

76Mr. Tork purposely rammed his SUV into a defenceless bicyclist who was attempting to extricate himself from the confrontation. Mr. Tork did not stop there. He dragged the Mr. Korobok for some distance before fleeing the area. He left the victim lying in the middle of the road. For all Mr. Tork knew, Mr. Korobok was dead or dying.

77Mr. Tork used his SUV as a weapon. Unlike cases such as Ali , where hands and feet were used, or even other cases in which a handheld weapon was used [51] , there was no ability for Mr. Tork to measure his blows. There was no ability for Mr. Tork to measure the damage inflicted.

78In my view, the aggravating factors greatly outweigh the mitigating factors. The latter include Mr. Tork’s youthful age, his lack of criminal record, his steady employment, some counselling and his guilty plea.

79Unlike many of the cases to which I have been referred the following mitigating factors are not present:

• Provocation ( R. v. Ali ; R. v. Stone );
• Incident began as a consent fight ( R. v. Tourville ; R. v. Anderson );
• Experienced difficult upbringing ( R. v. Tourville ; R. v. Davis-Ball ; R. v. Anderson );
• Positive Gladue report ( R. v. Ali );
• Completed significant counselling / treatment ( R. v. Tourville ; R. v. Murphy ; R. v. Anderson );
• Sole provider for young children ( R. v. Ali ; R. v. Wright; R. v. Stone );
• Collateral immigration / deportation consequences ( R. v. Ali ); and
• Accused was ordered to pay significant civil damages ( R. v. Stone ).

80Having thoroughly considered the circumstances of the offence, the circumstances of the offender, the aggravating and mitigating factors, the paramount sentencing principles of denunciation and general deterrence, other sentencing principles of specific deterrence, rehabilitation and restraint, I have come to the conclusion that a period of incarceration is necessary.

I/ DISPOSITION

81I do consider the Crown’s request for 15 months jail to be reasonable. However, applying the principle of restraint, I conclude that a nine-month period of incarceration is the lowest possible sentence that would be consistent with the principles of denunciation, general deterrence, specific deterrence and rehabilitation.

82A period of nine months incarceration for this 22-year-old first offender is sufficient to denounce the serious violent offence committed by Mr. Tork and to deter others from similar conduct. Factoring in statutory remission, Mr. Tork will be out of jail by his 23 rd birthday. A period of probation following the custodial sentence will promote Mr. Tork’s rehabilitation.

83On the count of aggravated assault, Mr. Tork is sentenced to nine months incarceration.

84This will be followed by two years probation with the following conditions:

• Report within 24 hours of release from custody and thereafter as directed;
• Reside at an address approved of by the probation officer;
• Counselling as directed by the probation officer;
• Sign all releases necessary to permit the probation officer to monitor Mr. Tork’s progress;
• Not to possess weapons as defined by the Criminal Code ;
• Not to operate any motor vehicle;
• Not to have contact, directly or indirectly, with Daniel Korobok.

85There will be an Order for Mr. Tork to provide a sample of his DNA, as aggravated assault is a primary designated offence.

86There will be an order prohibiting Mr. Tork from possessing weapons for 10 years under s.109 C.C ..

87On the count of failing to stop after an accident that resulted in bodily harm, Mr. Tork is sentenced to six months incarceration, to be served concurrently.

88In addition, Mr. Tork is prohibited from driving for a period of three years.

89On both counts, the victim fine surcharge is waived.

90Finally, I wish to thank both counsel for their helpful materials and submissions. They were of great assistance to me on this difficult case.