Ontario Court of Justice
Date: 2021 03 11 Court File No.: York Region - Newmarket 10-00005
Between:
HER MAJESTY THE QUEEN
— AND —
Barjot Minhas
Before: Justice Marcella Henschel
Heard: February 3, 4, and 5, 2020, March 12, 2020, February 25, 2021, and March 11, 2021
Counsel: Gemma Sang....................................................................................... counsel for the Crown Norm Panzica.................................................... counsel for the defendant Barjot Minhas
A. Introduction
1On March 12, 2020, following a preliminary hearing, Barjot Minhas re-elected to be tried in the Ontario Court of Justice and plead guilty to one count of assault causing bodily harm contrary to s. 267 of the Criminal Code and one of aggravated assault contrary to s. 268 of the Criminal Code. Mr. Minhas stabbed Rron Sadiku and Jason Li during a fight at a house party on December 30, 2018.
2A pre-sentence report was ordered on March 12, 2020 and the matter was adjourned for sentencing to May 11, 2020. Due to the pandemic the sentencing was adjourned several times. Submissions on sentence were made on February 25, 2021.
B. Summary of the Facts
3The facts are set out in an Agreed Statement of Facts, Exhibit 1. The events were captured by surveillance cameras and cellular phone videos which were marked exhibits during the preliminary hearing.
4On December 30, 2018 Neel Uphadyay and his friends rented a large home in Vaughan, Ontario to host a “New Years Eve” party. Mr. Uphadhay and his friends invited approximately 60 to 70 persons to the party, most of them high school students. Mr. Uphadhay and his friends created an invitation list and hired security to regulate admission to the party. Barjot Minhas was invited to attend the party.
5Shortly before 1 a.m. after a group of uninvited males arrived at the party, a fight broke out in the front foyer of the home. Rron Sadiku, Elijah McKenzie Walcott, and others began punching several males including the host of the party, Neel Upadhyay. Barjot Minhas was standing on the stairs in the foyer inside the home when the fight broke out. He descended the stairs and became involved in the altercation in the front foyer of the home with Elijah McKenzie-Walcott. The altercation spilled outside of the home onto the front porch and driveway area of the home.
6Barjot Minhas went outside and was standing near the front door of the home while other individuals were yelling at one another. He repeatedly checked and touched his waistband where he had concealed a knife. He moved from the front door towards a crowd of people in front of him and made stabbing motions randomly into the crowd.
7Elijah McKenzie Walcott and William Li also began fighting each other outside. Jason Li ran to his brother’s aid. Jason Li swung a beer keg at Elijah McKenzie-Walcott’s head but missed. Numerous other males then began to attack William Li. Jason Li tried to escape by running back to the house to reach safety. As he was running up the stairs towards the house, Barjot Minhas lunged at him and stabbed him once in the right leg with the knife. Jason Li immediately collapsed on the front porch and had to be assisted into the house by partygoers.
8Groups of people continued fighting outside the home. Rron Sadiku was in one of those groups. Barjot Minhas approached Rron Sadiku and began to fight with him. Mr. Sadiku punched Barjot Minhas at least once. Barjot Minhas began thrusting his knife at Rron Sadiku and stabbed him in the left shoulder. Mr. Minhas was still holding the knife and swinging it after Rron Sadiku fell to the ground and looked up at him.
9Rron Sadiku suffered a laceration to his left deltoid. It was a deep wound approximately three inches in length and half an inch wide. He also suffered numerous wounds on the back of his left hand including two wounds which required stitches.
10Jason Li sustained one stab wound with two lacerations (an entry and an exit wound). The laceration to his right posterior distal thigh was about four inches deep. The knife transected his sciatic nerve (tibial and fibular nerves in his right thigh.) As a result of the injury, he lost sensation in his foot and ankle. He underwent surgery for the injury to his hamstring and quadriceps, right common fibular nerve, and right tibial nerve. A 4cm gap was observed in the sciatic nerve, near the area of the two lacerations in his leg. He is continuing to undergo physiotherapy for his injuries.
11The knife used by Mr. Minhas in the stabbing was recovered on the ground approximately 200 meters from the scene. A photo of the knife was marked as an exhibit at the preliminary hearing.
C. Personal Circumstances of Mr. Minhas
12A pre-sentence report was ordered on May 12, 2020 and completed by Rron Sandberg, probation officer, on April 9, 2020. The pre-sentence report was positive. Mr. Minhas was forthcoming and cooperative with Mr. Sandberg.
13Mr. Minhas was only eighteen years-old at the time of the offence. He is now twenty and will soon be twenty-one.
14Mr. Minhas grew up in Toronto. He was raised by his mother. He has one sibling, an older brother. As a child his father was present in his life intermittently. Mr. Minhas and his mother advised Mr. Sandberg that his father suffered from alcoholism and was abusive towards his mother. The family struggled financially. Between the ages of five to twelve Mr. Minhas and his mother and brother lived with their extended family.
15Mr. Minhas has the ongoing support of his mother. She believes that Mr. Minhas may benefit from counselling to address some of the difficult circumstances he faced as a child.
16Mr. Minhas has recently moved with his family to Markham, Ontario. He sees his father periodically and describes the relationship as “ok”.
17Mr. Minhas advised Mr. Sandberg that he suffers from Attention Deficit Hyperactivity Disorder and Social Anxiety Disorder.
18Mr. Minhas smoked marijuana daily between the ages of 16 to 18 years old. In April 2020 he advised Mr. Sandberg that he had reduced his use of marijuana to once a month. He acknowledged that between the ages of sixteen to eighteen he drank excessively about twice a month but advised Mr. Sandberg that he no longer drinks alcohol regularly and that when he does his consumption is moderate.
19Mr. Minhas has no adult or youth court record. Mr. Minhas advised Mr. Sandberg that he was “walking soulless for a while” and that this contributed to his habit of smoking marijuana and drinking alcohol during his high school years. He advised that this led to a few negative interactions with the police.
20Mr. Minhas completed high school in June 2018. In the pre-sentence report he advised Mr. Sandberg that he hopes to attend College in the future in the skilled trades field. During submissions, Mr. Panzica advised that since the completion of the pre-sentence report Mr. Minhas has not been working or attending school. Mr. Panzica advised that the pandemic and the uncertainty of his future due to the outstanding charges have contributed to his not pursuing education or employment over the past year. He hopes to become an HVAC technician.
21Mr. Minhas expressed remorse for his actions both in court and in the pre-sentence report. He advised Mr. Sandberg that he feels terrible about the offences. He stated, “Every day I regret that I harmed two people and I have taken a more active role working on self-development and becoming a better person”. He expressed the desire to apologize to the victims. He advised Mr. Sandberg that he has learned from his mistakes and bad choices and looks at his present circumstances as an opportunity for personal growth.
22Mr. Minas has no criminal record. At the time of the offence he was subject to a peace bond that prohibited him from possessing weapons.
23Mr. Minhas was released on a recognizance in the amount of $5000 with a surety on January 1, 2019. The conditions of his recognizance included a curfew between 8 p.m. and 7 a.m. He is entitled to credit for the two days he spent in custody prior to his release on 1.5 to 1 basis for a total credit of 3 days.
D. Position of the Parties
24Ms. Sang for the Crown submits that a sentence of 2 years less a day followed by 3 years probation is required having regard to the serious nature of the offences including that Mr. Minhas stabbed two persons, and the serious injuries that resulted from his actions. The Crown submits that this sentence is the minimum sentence that can adequately address denunciation and deterrence, while also taking into account that Mr. Minhas is a youthful first offender and that rehabilitative factors must be considered. The Crown also seeks a DNA databank order, a s. 109 firearms prohibition for life, and an order forfeiting the knife used in the attacks.
25Mr. Panzica submits that having regard to the fact that Mr. Minhas is a youthful first offender the principle of restraint suggests that I should consider a conditional sentence. Mr. Panzica submitted that if I decline to impose a conditional sentence that a custodial sentence of 12 months jail followed by probation should be imposed. Mr. Panzica does not challenge the appropriateness of the ancillary orders requested by the Crown but requests that I impose a ten-year s. 109 prohibition order, instead of an order prohibiting weapons for life.
E. Governing Sentencing Principles
26According to s. 718 of the Criminal Code, the "fundamental purpose" of sentencing is to contribute 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, namely:
(a) to denounce unlawful conduct; (b) to deter the offender and others 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 the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community.
27Further, according to s. 718.1 of the Code, the "fundamental principle" of sentencing is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender”.
28Section 718.2 of the Code dictates that, in imposing sentence, the court must also take into account a number of principles including the following:
(a) A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; (b) A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (d) An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and, (e) All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
I have considered these principles in determining a fit and proportionate sentence for Mr. Minhas.
F. Range of Sentence
29The maximum sentence for assault bodily harm where the Crown has proceeded by indictment is a period of imprisonment for ten years. The maximum sentence for aggravated assault is a period of imprisonment for fourteen years.
30The Crown and defence provided a number of relevant authorities that identify the governing sentencing principles and the general range of sentence for youthful first offenders who have committed similar offences. While consideration of the historical range of sentence for an offence provides guidance to courts in determining a fit and proportionate sentence, sentencing remains a highly individualized process, not a mathematical calculation. Every offence is unique and is committed by a unique offender with unique characteristics. The determination of a fit sentence must reflect the gravity of the offence, the offenders’ degree of responsibility, and the specific circumstances of the case. (R. v. Lacasse, 2015 SCC 63, at paras. 57-61).
31Denunciation and deterrence are two of the most significant sentencing considerations in cases where an individual chooses to arm themselves with a knife and cause serious harm. (R. v. Geraj, 2013 ONSC 1401, at para. 35; R. v. Kaminsky, 2017 ONSC 3792, at para. 27). However, in the case of a youthful first offender, rehabilitation remains an important factor. In a case of a youthful first offender, especially where, as here, the rehabilitative prospects are good, the court must exercise judicial restraint and should impose the shortest possible sentence that will achieve the relevant sentencing objectives. (R. v. Borde, 63 O.R. (3d) 417, at para. 36)
32I agree with the Crown that the authorities establish a general range of sentence for offences of this nature for a youthful first offender of eighteen months to two years less one day. (R. v. Kavinsky, 2017 ONSC 532, at para. 41; R. v. Tourville, 2011 ONSC 1677, at paras. 27-30). In fact, some authorities suggest a slightly higher range, of between eighteen months and three years. (R. v. Garaj, 2013 ONSC 1401, at para. 37).
33In R. v. Tourville, 2011 ONSC 1677, at paras. 27-30, Justice Code found that there are three categories of cases. There are exceptional cases where sentences of less than 18 months have been imposed. In R. v. Peters (2010), 2010 ONCA 30, 250 C.C.C. (3d) 277, a 26-year-old Aboriginal first offender received a suspended sentence and three years probation on a guilty plea to aggravated assault. [1]
34Justice Code went on to find that: “In the mid-range are cases where high reformatory sentences have been imposed of between eighteen months and two years less a day. These cases generally involve first offenders and generally contain some elements suggestive of consent fights but where the accused resorted to excessive force (citations omitted)”.
35Finally, “at the high end of the range are cases where four to six years imprisonment have been imposed. These cases generally involve recidivists, with serious prior criminal records, or they involve “unprovoked” or “premeditated” assaults with no suggestion of any elements of consent or self-defence. (citations omitted)”.
36In R. v. Kavinsky, 2017 ONSC 532, the 21-year-old first offender, received a 21 months sentence. The offender was found guilty after trial of stabbing the victim repeatedly in the chest. The accused stabbed the victim when the victim tried to stop him from driving drunk following a party. The court found that the stabbing was impulsive and spontaneous, having occurred within one to two minutes, and was an out of character excessive and unreasonable reaction to the threat of force. The accused had a positive presentence report. The injuries had a long term and ongoing impact on the victim. The victim required surgery to repair the injury to his liver and suffered a complete laceration to the left wrist ECU tendon.
37In Tourville, the offender was a 29-year-old first offender of Aboriginal heritage. He was sentenced to 21 months custody and 2 years probation, following his conviction for aggravated assault and assault with a weapon following a jury trial. The offender stabbed the victim during a consensual fight at a bar between the victim and the accused. The Court found that the fight was not unlawful until the offender pulled out a knife and caused multiple wounds to the victim. The Gladue report revealed that the accused had a difficult childhood including abandonment, physical and psychological abuse, and exposure to drugs and alcohol at an early age.
38In Garaj, the 20-year-old accused was convicted of aggravated assault after a trial and was sentenced to 2 years less one day in custody. The accused and victim agreed to meet at a school for a consensual fist fight. During the fight the accused produced a knife and cut the victim in the hand and stabbed him in the abdomen causing a deep wound in the hand that required stitches and a serious injury to the victim’s abdomen. After the offence, the accused was involved in another incident while on bail and was convicted of being an accessory after the fact to manslaughter.
39Mr. Panzica relied upon a R. v. Foster, 2019 ONCA 282, in which the Ontario Court of Appeal reduced a 2 year less a day sentence for aggravated assault to 12 months, characterizing the sentence imposed on Mr. Foster as “grossly excessive”. In my view the Foster decision is an exceptional case and falls outside of the general range of sentence imposed for aggravated assaults. It is distinguishable from the circumstances of the present case. The altercation in Foster began as a consensual fight. Mr. Foster pulled out a knife and aggressively slashed the victim with an X-Acto blade causing serious injury to the victim. Mr. Foster had a unique and compellingly sympathetic background, having witnessed the murder of his mother. By the time he was sentenced he had taken significant steps to address the life challenges that he had faced including substance abuse and relatedly the ongoing psychological impact of his mother’s death which occurred when he was four years old. Moreover, in Foster the offence was not protracted in nature. The slashing occurred when a heated verbal confrontation escalated within seconds leading to a sudden momentary aggressive act, and loss of control involving a single victim. The conduct in this case was significantly more grave, took place over a period of time, and involved serious injury to more than one victim.
G. Victim Impact
40Parliament has deemed certain conduct to be a statutorily aggravating circumstance. Of significance is s. 718.2(a)(iii.1) which provides that “evidence that the offence had a significant impact on the victim…” is a statutorily aggravating circumstance.
41The attack on Jason Li had a profound impact upon Mr. Li. Jason Li provided a brief but compelling victim impact statement. He continues to have nightmares about the attack and wakes up fearful. His quality of life has been forever altered. He has lost the full function of his right leg. He expressed that he continues to see the doctor for physical therapy, and they fear he will never fully recover. He used to love to run and can no longer do so. The nerves in his right leg were cut apart and he is no longer able to send signals to his toes.
42I did not have the benefit of a victim impact statement from Rron Sadiku. However, he also suffered a serious injury to his left arm. On the night of the incident he was taken by paramedics to the hospital and the wound to his arm required stitches and staples to close. He also received stitches on two of the cuts to his hand. He testified that he could not swing his arm for a month, but after a year he was “mostly recovered”.
H. Mitigating and Aggravating Factors
43As noted, in determining a fit sentence I must consider both the mitigating and aggravating circumstances. The mitigating factors include the following:
- Mr. Minhas is a youthful first offender.
- While his plea of guilty was not an early guilty plea and occurred after Mr. Sadiku and Mr. Li testified at the preliminary hearing, Mr. Minhas is entitled to the mitigating effect of the plea which represents his acceptance of responsibility and is indicative of remorse. His plea has spared both victims from testifying a second time at trial and has spared court resources.
- The pre-sentence report was positive. Mr. Minhas has personally expressed remorse for his actions in the report and in court.
- Mr. Minhas has the ongoing support of his mother, a factor that is important to his rehabilitative prospects.
- He has been offence free since the offences occurred and has complied with the terms of his bail which included a curfew between 8 p.m. and 7:00 a.m. which has been in place for a period of more than two years.
44In my view Mr. Minhas has significant rehabilitative potential. Instead of blaming others for his circumstances, he has accepted responsibility for his actions and indicates that he hopes to use the circumstances as an opportunity for personal growth.
45However, there are also a number of aggravating factors including:
- There were two victims.
- The injuries to both victims were serious, and the injuries to Mr. Li are life altering and potentially permanent.
- Mr. Minhas brought a knife to a New Year’s eve party that was concealed in his clothing. His choice to bring a weapon to a social event made possible the serious injuries he caused to the victims that night. At the time, he was subject to a peace bond that prohibited him from possessing weapons.
- Mr. Minhas was in no real danger when he chose to produce and use the knife. There was no real threat to him, nor immediate need for him to become involved in the fight. When Mr. Minhas chose to leave the steps of the home where he was observing the fight, and become involved in the fight, no one was confronting him or seeking to engage him in the fight. There was no immediate threat of violence to him. Despite this he engaged in “gratuitous” and “potentially lethal” acts of violence.
- Mr. Minhas’s conduct did not involve a momentary lack of control, but rather three discreet periods when Mr. Minhas used the knife. When he first left the steps, he approached the crowd swinging his knife indiscriminately at numerous individuals. Whether by luck or good fortune, he missed. Several minutes later he chose to re-enter the fight a second time after Jason Li swung a beer keg at Elijah McKenzie-Walcott. Mr. Minhas stabbed Jason Li as Mr. Li, who was unarmed, attempted to run away from the fight. Even if Mr. Minhas believed that Mr. Li posed some danger to him because Mr. Li was running in his general direction, Mr. Minhas conduct in stabbing Mr. Li was grossly excessive. After stabbing Mr. Li, Mr. Minhas did not stop. He chose to become involved in the fight a third time. He approached a group of individuals who were fighting. After Mr. Minhas approached the group, Mr. Sadiku tried to punch him, and he stabbed him with a knife. Mr. Sadiku was unarmed. After he initially stabbed Mr. Sadiku, Mr. Minhas continued to swing the knife at Mr. Sadiku, who suffered defensive wounds to his hands.
46Mr. Minhas chose to repeatedly use a knife endangering the lives of those around him. His use of a knife was a significant escalation of a consensual fist fight that he was not involved in and it was fortunate that he did not seriously injure other persons in addition to Mr. Sadiku and Mr. Li.
I. Consideration of Pre-Sentence Custody and Bail Conditions
47Mr. Minhas is entitled to 3 days credit for the time spent in custody prior to his release on bail. In addition, he is entitled to some credit for the restrictive bail conditions which included a curfew in accordance with the principles expressed in R. v. Downes, [2006] O.J. No. 555 (Ont. C.A.). Given this was not a house arrest situation, and there is no direct evidence before me about the impact of the bail conditions on Mr. Minhas, in my view the credit that should be afforded to Mr. Minhas for the restrictive bail conditions is more limited than the credit that might be granted in a house arrest situation or in circumstances where there is evidence of a significant impact of the conditions upon the accused. Nonetheless, some impact can be inferred from the fact he has been subject to a curfew for two years, and I will give Mr. Minhas 30 days credit for the time spent in custody and the restrictive bail conditions.
48Mr. Minhas will be serving at least part of his sentence during an ongoing global pandemic. I am satisfied that I can take judicial notice of the fact that controlling the pandemic requires persons to socially distance and that Mr. Minhas’s ability to socially distance in custody will be difficult and that despite the best efforts of corrections officials, he may be exposed to increased risk of contracting the virus due to living in a congregate setting. In accordance with Justice Pomerance’s conclusions in R. v. Hearns, 2020 ONSC 2365, at paras. 15 to 24, in crafting a fit sentence, part of the circumstances of the case that I must take into account are that the conditions of custody will be harsher than they would otherwise be due to the pandemic. This may justify a downward departure from the usual range of sentence.
J. Conditional Sentence
49Assuming a conditional sentence is an available sentence post R. v. Sharma, 2020 ONCA 478, although Mr. Panzica suggested I consider a conditional sentence, he did not press this submission or provide any specific authority that would support the imposition of a conditional sentence for offences of this nature. Given the gravity of the offences, in my view a conditional sentence cannot adequately address denunciation and deterrence and is not appropriate in the circumstances of this case. A conditional sentence would not be consistent with the fundamental purpose and principles of sentencing set out in s. 718 to 718.2.
K. Conclusion:
50In my view, considering all of the facts, the relevant legal principles, the personal circumstances of Mr. Minhas, and the aggravating and mitigating factors, the fact that Mr. Minhas will be serving the sentence during a pandemic, and taking into account the principle of totality, a global sentence of 19 months is appropriate. In my view this sentence is at the lower end of the range for a youthful first offender. It reflects Mr. Minhas strong rehabilitative prospects and the restraint necessary for a first offender, but also reflects the very serious nature of Mr. Minhas conduct that caused serious injury to two victims, his high degree of moral culpability, and the need to denounce his conduct. I will deduct one month from the 19-month sentence for a total sentence of 18 months.
51In all of the circumstances, I am satisfied that a period of 18 months custody (in addition to the 30 days credit for pre-trial custody and the bail conditions) followed by 2 years’ probation is appropriate. For the offence of assault causing bodily harm against Rron Sadiku I will impose a 6 months sentence. For the offence of aggravated assault against Jason Li I will impose a consecutive 12 months sentence. Both sentences are to be followed by 3 years probation. The period of 30 days pre-trial credit will be noted on the aggravated assault count against Mr. Li.
Probation Order
52Upon his release, Mr. Minhas will serve a three-year term of probation. This will include the statutory terms outlined in s. 732.1(2) of the Criminal Code. Mr. Minhas shall be subject to the following additional terms:
- Report to a probation officer by telephone within two working days of his release from custody, and thereafter as directed by the probation officer.
- Reside at a place approved of by a probation officer and not change that address without obtaining the consent of the probation officer in advance.
- He shall not contact or communicate in any way directly or indirectly, by any physical, electronic or other means with Jason Li, William Li, or Rron Sadiku or any member of their immediate families.
- Except on one occasion for a letter of apology delivered through your probation officer.
- He shall not attend within 200 meters of any place where he knows Jason Li, William Li, or Rron Sadiku to live, work, go to school, or frequent or any place he knows them to be.
- Mr. Minhas shall attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by the probation officer for anger management and interpersonal issues. He shall complete such assessment, counselling, or rehabilitative programs to the satisfaction of the probation officer.
- He shall sign any release of information forms as will enable his probation officer to monitor his attendance and completion of any assessments, counselling, or rehabilitative programs as directed; and shall provide proof of attendance and completion of any assessments, counselling or rehabilitative programs as directed.
- He shall make reasonable efforts to seek and maintain gainful employment when not enrolled in school full time or attend school on a full-time basis.
- He shall not possess any weapon as defined by the Criminal Code.
Ancillary Orders
s. 743.21
53Pursuant to s. 743.21, Mr. Minhas is prohibited from communicating, directly or indirectly with William Li, Jason Li, and Rron Sadiku during the custodial period of the sentence.
s. 109 order for life
54Pursuant to ss. 109(1)(a.i), Mr. Minhas, having been convicted of an indictable offence in the commission of which violence against a person was used, threatened or attempted and for which he may be sentenced to imprisonment for ten years or more, is prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for life.
DNA databank order
55Pursuant to s. 487.05(1) of the Criminal Code, I am making an order requiring that samples of bodily substances be taken from Mr. Minhas for purposes of forensic DNA analysis. The offences of assault causing bodily harm and aggravated assault are primary compulsory designated offences.
Forfeiture Order
56Pursuant to s. 491(1)(a) the knife used in the attack that was seized by the police is forfeited and is to be destroyed.
Victim fine Surcharge
57Pursuant to s. 737 of the Criminal Code, I am satisfied that to impose the victim fine surcharge would cause undue hardship given that Mr. Minhas has not been working and is being sentenced to a period of custody. As a result, I am waiving the victim fine surcharge of $200 on each count.
Released: March 11, 2021. Signed: Justice Marcella Henschel
Footnotes
1The accused used a beer bottle during a bar room brawl to cause serious facial lacerations to the victim. The Gladue report disclosed that the accused had a difficult upbringing in a violent abusive home, leading to alcoholism and drug abuse. The offender had gained employment and made real progress in addressing substance abuse issues.