COURT FILE NO.: 113/15 DATE: 2017/06/19

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN George Christakos, for the Crown

- and -

JOHN KAVINSKY Ron Ellis, for the offender

HEARD: April 24, 2017

LEACH J. (ORALLY)

REASONS FOR SENTENCE

Introduction

[1] On January 20, 2017, following a six day trial by judge alone that took place before me in June of 2016, I found the defendant John Kavinsky guilty of the single count on the indictment herein, namely: one count of aggravated assault, contrary to s.268 of the Criminal Code, (“the Code”).

[2] Circumstances underlying that conviction were set out fully in my previously delivered reasons. I will return expressly to some of those specifics in the course of these sentencing reasons, but emphasize that I have regard to all of them in reaching my decision in relation to sentence.

Procedural History and Provision of Further Information

[3] Following the conviction on January 20, 2017, this matter initially was adjourned to allow for preparation of a pre-sentence report directed pursuant to s.721 of the Code, prior to my receiving sentencing submissions. In particular, the matter initially was adjourned to an assignment court on February 14, 2017, at which time the matter was adjourned to April 24, 2017.

[4] I received the parties’ respective sentencing submissions on April 24, 2017, by which time the PSR also had been delivered and considered. Before and during those sentencing submissions, I also was presented with:

• a confirmation from Crown counsel that Mr Shannon Hilton and his family, (present in court during sentencing submissions), had been advised of their right to tender and orally present victim impact statements, but had declined to do so;
• an oral summary and update of Mr Hilton’s current medical condition, (provided by Crown counsel on consent, with the accuracy of the indications being confirmed by Mr Hilton from the body of the courtroom); and
• written testimonials provided by Mr Kavinsky’s mother, father, grandparents, current partner, and the mother of his current partner.

[5] Such evidence and information supplemented information about Mr Kavinsky and his circumstances, as well as evidence and medical documentation concerning Mr Hilton’s injuries and treatment, presented to me during the course of the trial.

[6] I also received comments from Mr Kavinsky directly, pursuant to section 726 of the Code.

[7] At the time of the sentencing submissions on April 24, 2017, I indicated to the parties that I would be prepared to impose sentence later that day. However, at the request of the defence, and with the consent of the Crown, imposition of sentence was to be postponed for at least 60 days to allow for Mr Kavinsky’s contemplated completion of ongoing treatment and therapy in the community, in order to address significant injuries he had received during a workplace accident.

[8] The matter accordingly was adjourned on consent to the next assignment court, on May 9, 2017, for the scheduling of a further sentencing hearing. At that time, the matter was made returnable before me today.

Circumstances of the offence

[9] I begin with consideration of the circumstances of the offence in respect of which Mr Kavinsky has been convicted.

[10] As I said, those circumstances were outlined by me in considerable detail in my earlier reasons for conviction, and my earlier comments in that regard notionally should be incorporated herein in their entirety. By way of summary and overview, however, I found:

• that, on the evening of December 14, 2014, Mr Kavinsky attended a party celebrating the 15th birthday of Hailee Hilton; a party held at the semi-rural home of Hailee and her parents, Shannon and Melissa Hilton, on the outskirts of the Town of Strathroy;
• that, as alcohol consumption at the party was contemplated, the Hiltons had implemented and were taking measures to enforce a “no drinking and driving rule”;
• that Mr Kavinsky drove his vehicle to the party and initially complied with the Hiltons’ rule, by surrendering his car keys to a friend;
• that Mr Kavinsky consumed alcohol over the course of the evening, and temporarily left the Hilton property without his vehicle;
• that Mr Kavinsky nevertheless returned to the Hilton property later, during the early morning hours of the following morning, towards the end of the party, with the intention of retrieving his vehicle and driving away in it, using a spare set of keys;
• that Mrs Hilton and then Mr Hilton intervened, through words and actions, in attempts to prevent Mr Kavinsky from drinking and driving;
• that argument about Mr Kavinsky’s proposed drinking and driving resulted in a progressively physical altercation between Mr Shannon Hilton and Mr Kavinsky, during which Mr Kavinsky used a knife, (which he had brought with him to the Hilton property), to stab Mr Hilton repeatedly;
• that Mr Kavinsky then left the Hilton property in his vehicle, (with his then girlfriend Monique Leget), and returned to the rural home he shared with his parents, in or near the Town of Thamesville, where steps were taken to conceal and/or destroy the relevant knife and Mr Kavinsky’s bloody clothes prior to arrival of the police; and
• that Mr Kavinsky initially lied to and misled police about the knife and bloody clothing during post-arrest statements to the police, before acknowledging what he knew in that regard.

[11] At trial, Mr Kavinsky entered a plea of “not guilty”, conceding that the circumstances demonstrated presence of all essential elements normally necessary and sufficient to make out the offence of aggravated assault. However, he asserted that he had acted in self-defence, in accordance with section 34 of the Code.

[12] For reasons outlined at length in my substantive decision, I found that the section 34 defence was not available to Mr Kavinsky. I will not repeat those reasons in detail here. In summary, however:

• I found that there was an air of reality to the claimed section 34 defence, given Mr Kavinsky’s testimony.
• I found that the Crown had not disproven, beyond a reasonable doubt, that Mr Kavinsky reasonably believed that force was being used or threatened against him. To the contrary, I found that Mrs and Mr Hilton clearly both threatened and used force against Mr Kavinsky before and during the stabbing.
• I found that the Crown similarly had not disproven, beyond a reasonable doubt, that Mr Kavinsky’s repeated stabbing of Mr Hilton was committed for the purpose of defending or protecting Mr Kavinsky from the use or threat of force Mr Kavinsky reasonably believed he was facing at the time. To the contrary, I found that Mr Kavinsky clearly used his knife and inflicted wounds on Mr Hilton in order to terminate the force Mr Hilton was in the process of actually applying against Mr Kavinsky.
• Having regard to the relevant circumstances, including a consideration of the non-exhaustive list of factors enumerated in s.34(2) of the Code, I nevertheless found that the Crown had disproven, beyond a reasonable doubt, that the repeated stabbing of Mr Hilton was reasonable in the circumstances. To the contrary, in my view, even on a tolerant approach to the objective measure of proportionate force, the repeated serious stabbing of Mr Hliton by Mr Kavinsky clearly was an unreasonable and excessive response in the circumstances.
• As the Crown had disproved an essential element of the contemplated section 34 defence beyond a reasonable doubt, the defence accordingly did not apply to negate Mr Kavinsky’s guilt in relation to the charged offence of aggravated assault, in respect of which the essential elements otherwise had been established.

[13] My current task is to determine the appropriate sentence Mr Kavinsky now should receive in relation to his convictions, in respect of which he so far has spent two days in actual custody; i.e., from the time of his initial arrest until his interim release.

Circumstances of the offender

[14] The personal circumstances of John Kavinsky were outlined, as I say, in certain testimony received at trial. However, that evidence about his age, residential arrangements, employment and relationship at the time of the underlying incident helpfully has been supplemented in considerable detail by a s.721 pre-sentence report, (noted above), all of which includes the following information:

• He was born in May of 1993, and was 21 years old at the time of the relevant offence in December of 2014. He turned 24 last month.
• He seems to have grown up in a relatively stable, supportive and nurturing family environment, which generally resulted in a relatively trouble-free childhood and adolescence. His parents have remained married and together apart from a relatively brief 9 month period of separation, when Mr Kavinsky was 13, owing to paternal struggles with alcohol and related marital issues which then resolved and have not been problematic since. Both parents have a positive employment history, with Mr Kavinsky’s father, in particular, having retained the same job as a heavy machine operator for more than 30 years. Mr Kavinsky also has a younger brother, (currently 19 and still living at home with his parents), with whom Mr Kavinsky has a good relationship. Apart from the brief separation noted above, the family spent the first 19 years of Mr Kavinsky’s life in the Town of Mount Brydges, before moving to West Lorne and then Thamesville.
• Despite a diagnosed learning disability, involving attention deficits and focusing issues, Mr Kavinsky was able to complete a high school education at the age of 19, focusing primarily on applied level courses, in which he generally achieved grades in the 50s apart from physical education. He has not pursued post-secondary education, and has no future educational goals.
• Following two years of unemployment following high school, (during which his parents remained supportive), Mr Kavinsky embarked on a relatively positive employment history suited to his abilities; e.g., performing seasonal farm labour work, before working on a quail farm for a year. In June of 2016, he then secured a job as a labourer with a London roofing company, with whom he productively was working 40 hours a week before suffering a debilitating workplace accident, (a fall from a collapsing roof that broke both his heels), in November of last year. During his treatment and recovery, (involving progressive use of a wheelchair, crutches and cane), he has been receiving workers’ compensation and continued support from his parents, with whom he continues to reside. He plans on returning to roofing when he can, with long term goals of becoming a heavy machine operator, (like his father), or the owner of a construction business; goals which the author of the presentence report describes as “positive and realistic”.
• Apart from recreational use of marihuana which began in high school and ended with the onset of this criminal proceeding, Mr Kavinsky has no history of involvement with illicit drugs. Indeed, it seems Mr Kavinsky generally does “not like pills” and their side effects; something reflected in his decision to forego medication for his learning disability, and his voluntary cessation of strong pain medication to address his current injuries. Although Mr Kavinsky also began recreational use of alcohol in high school, and acknowledges that alcohol played a role in the events that bring him before the court, he does not perceive his consumption of alcohol to be problematic. Such assertions are supported by his mother, who says she has never seen her son intoxicated, (despite his longstanding and continued residence in the parents’ home), and she similarly is unaware of any drug use.
• Apart from some passing mental health issues experienced after high school, (apparently linked to boredom and feelings of isolation which progressively went away when Mr Kavinsky gained his driver’s licence, employment and increased activity), it seems that Mr Kavinsky’s behavior previously has never been a matter of concern. Neither he nor his family members have any prior history of involvement with the criminal justice system. The violent nature of the offence which brings Mr Kavinsky before the court appears to be out of character, and shocked his parents. They, and the others close to Mr Kavinsky, emphasize that he generally is a good person. They describe Mr Kavinsky as being very “honest”, “loyal, “loving”, “caring”, “kind”, “polite”, “giving”, “responsible”, “conscientious”, “hard-working” and trustworthy. They emphasize that the episode that brings Mr Kavinsky before the court occurred towards the end of a generally challenging time in his life, when he was struggling with the depression and mental health issues he was experiencing after high school, (in respect of which he proactively sought treatment prior to the incident that brings him before the court), as well as influences from a negative peer group with whom he no longer associates. They emphasize that he is not a bad person, despite his having made an admittedly very wrong decision. All of his close family, his partner, and his partner’s family continue to be very supportive.
• Although Mr Kavinsky has never married or produced offspring of his own, and his four year relationship with Ms Leget ended in the wake of the stabbing incident, for the past year Mr Kavinsky has had a new supportive partner whom he met through work, and who now resides with him at the home of his parents. It seems to be a very positive and supportive relationship.
• By all accounts, (including those set forth in the clearly heartfelt testimonials provided by those closest to him), and consistent with the indications given on the night of his arrest and in his contemporaneous note to Mr Hilton, as well as in his direct comments to me, Mr Kavinsky accepts responsibility for his offence and wishes the incident had never happened. In particular, he now accepts that he “took things too far” in his response to events of the evening. This entire experience seems to have had a profound, lasting and life-changing impact on Mr Kavinsky. He feels sincere regret, remorse, guilt, upset and shame. He is keenly aware of the mistake he has made, and the impact which his conduct has had and will have on his life, his reputation, and how others may perceive him for the rest of his life. He has worked hard to comply with every aspect of his interim release conditions, including a strict curfew. Again, he no longer associates with his former peer group, many of whom were not seen to have his best interests at heart. His parents emphasize that this experience generally has changed his life, in that he now is working hard to improve his life on various fronts, including more mature decisions, more focused efforts on employment, and remarkable and impressive care and consideration for his new partner. He is prepared to accept the sentence and conditions imposed by the court. In the wake of this regrettable and stressful experience, he seems very determined to avoid further illegal behavior.

Position of the Crown

[15] The Crown submits that, in relation to Mr Kavinsky’s s.268 offence, and having regard to all the circumstances, an appropriate sentence would be “18 to 24 months” of actual custody.

[16] In addition to that period of incarceration, the Crown seeks further orders that include the following:

• pursuant to s.109 of the Code, a mandatory weapons prohibition order, with a suggested duration of 10 years;
• pursuant to ss.487.04 and 487.051 of the Code, a mandatory order compelling Mr Kavinsky to provide a DNA sample for forensic analysis, (given that the section 268 offence of aggravated assault is a “primary designated offence”);
• pursuant to s.491(1)(a) of the Code, a mandatory order directing forfeiture of the knife used in the commission of the offence which was seized by the police; and
• pursuant to s.737 of the Code, imposition of the mandatory victim surcharge of $200 in relation to the single offence punishable by indictment.

[17] The Crown also asked that the period of Mr Kavinsky’s incarceration be followed by a two year period of probation, subject to “reasonable terms and conditions”, such as those recommended in the pre-sentence report.

Position of the defence

[18] Defence counsel’s primary submission was that, having regard to all the circumstances, with particular emphasis on Mr Kavinksy being a youthful offender with no prior criminal record, an appropriate sentence for Mr Kavinsky’s offence would be suspension of the passing of sentence, and imposition of a three year period of probation. In that regard, it was suggested that the period of probation be subject to the terms and conditions recommended by the pre-sentence report, possibly enhanced by an additional term setting a strict curfew comparable to that imposed on Mr Kavinsky during his interim release prior to trial and sentencing.

[19] In the alternative, defence counsel asked that I impose a “short and sharp” period of incarceration for 90 days, together with an order pursuant to s.732 of the Code directing that the sentence be served intermittently on week-ends, followed by a similar period of probation. It was suggested that such a sentence would provide a “weekly reminder” to Mr Kavinsky of his offence, which he no doubt would dwell on during the week as well, and also satisfy the public that Mr Kavinsky was being required to atone for his offence over an extended period of time.

[20] In the further alternative, defence counsel asked that any custodial sentence imposed be within what he considered to be the “normal” range of “15 months to 2 years less a day” for such an aggravated assault.

[21] Defence counsel confirmed that there was no opposition to the various further orders sought by the Crown; i.e., the required weapons prohibition, provision of a DNA sample, and forfeiture of the relevant knife, along with imposition of the mandated victim surcharge.

Sentencing objectives

[22] As emphasized by 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:

a. denunciation of unlawful conduct; b. deterring the offender and others from committing offences, (i.e., what generally is referred to, respectively, as “specific” and “general” deterrence); c. separation of offenders from society, where necessary; d. assisting in the rehabilitation of offenders; e. providing reparations for any harm done to victims or the community; and f. promotion of a sense of responsibility in offenders, and their acknowledgment of the harm done to victims and the community by their conduct.

[23] Pursuant to s.718.1 of the Criminal Code, a sentence should be proportionate to the gravity of the offence, and the degree of responsibility of the offender.

[24] Pursuant s.718.2 of the Criminal Code, I note that, amongst other considerations, the court is obliged to take into account that:

a. sentence should be reduced or increased to account for any mitigating or aggravating circumstances, respectively, 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. an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and d. all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.

[25] The sentencing objectives outlined above are applicable in relation to all convictions, and I accordingly have them in mind throughout the process of arriving at a just sentence for Mr Kavinsky, in relation to the conviction now before me.

[26] However, the authorities provide further guidance as to how these general sentencing objectives should be applied in dealing with an aggravated assault offence.

[27] In particular, while reported decisions emphasize that the above sentencing objectives frequently pull in different directions in cases of aggravated assault, and that the objectives of rehabilitation and restraint certainly should never be forgotten or ignored, (especially where their consideration should temper otherwise appropriate sentences in suitable circumstances), denunciation and deterrence usually are the primary sentencing objectives in such situations. See, for example: R. v. Moreira, 2006 ONSC 9709, [2006] O.J. No. 1248 (S.C.J.), at paragraphs 17 and 19; R. v. MacDonald, 2010 ONCA 178, [2010] O.J. No. 912 (C.A.), at paragraph 29; R. v. Tourville, 2011 ONSC 1677, [2011] O.J. No. 1245 (S.C.J.), at paragraph 25; R. v. Haly, 2012 ONSC 2302, [2012] O.J. No. 1847 (S.C.J.), at paragraph 25; R. v. Gajraj, [2013] O.J. No. 1026 (S.C.J.), at paragraphs 35 and 38; R. v. White, 2014 ONSC 2878, [2014] O.J. No. 2344 (S.C.J.), at paragraphs 80 and 81; R. v. Lewis, [2016] O.J. No. 2547 (S.C.J.), at paragraph 87; and R. v. Ball, [2016] O.J. No. 5438 (S.C.J.), at paragraph 62.

[28] Numerous cases have emphasized, in particular, the need for heightened denunciation and deterrence to address the growing problem of people carrying and resorting to weapons, and knives in particular, with predictable violent and life threatening consequences. See, for example: R. v. Moreira, supra; R. v. Gajraj, supra; and R. v. White, supra.

[29] Bearing in mind the general sentencing objectives outlined above, and the more specific guidance of such authorities in relation to offences of this nature, I turn next to a consideration of possible aggravating and mitigating factors.

Aggravating factors

[30] In my view, this case presents a number of aggravating circumstances, which include the following:

• Mr Kavinsky’s conviction is for an inherently serious and violent offence; something reflected not only by Parliament’s specification in s.268(2) that aggravated assault may warrant imprisonment for up to 14 years, but also in the very significant impact Mr Kavinsky’s crime had on his victim Shannon Hilton and Mr Hilton’s family; something which is deemed to be an aggravating factor pursuant to s.718.2(1)(iii.1) of the Code. As noted in my original reasons, Mr Hilton’s serious injuries, (which involved potentially life-threatening wounds, requiring extended follow up treatment and recovery), included the following:
  • a metacarpal fracture to the right ring finger;
  • a complete laceration to the left wrist ECU tendon;
  • two stab wounds to the left tricep;
  • one stab wound to the left forearm;
  • a stab wound to the anterior chest wall; and
  • a stab wound to the liver that caused a liver laceration, requiring an exploratory laparotomy; i.e., a surgical operation where the abdomen is opened and the abdominal organs are examined for injury or disease.
• While Mr Hilton thankfully survived the incident, and seems to have made substantial recovery, he undoubtedly endured significant pain, trauma, inconvenience and disruption to his family, work and social life. At the time of sentencing submissions, Mr Hilton was still suffering from a double hernia, and the original surgical incision necessitated by exploratory surgery to ascertain the extent of his wounds and properly treat them keeps bursting. In the result, Mr Hilton has required and will require further surgeries. Even if his wounds eventually heal on a permanent basis, (which seems uncertain at the moment), Mr Hilton nevertheless literally will bear the scars of Mr Kavinsky’s crime for the rest of his life. Moreover, the entire incident undoubtedly was traumatic and frightening not only for Mr Hilton, but also for his wife, his two children, and all others still present, during and after the stabbing, at what was to have been a celebration; an intended happy occasion which no doubt now will be quite unforgettable for entirely wrong reasons.
• By way of further aggravating considerations, it obviously is important not to lose sight of the reality that the relevant injuries were inflicted with a weapon, (the relevant knife), and that access to that weapon was not something that happened by chance. Mr Kavinsky deliberately brought and carried that knife with him to a birthday party for a young teenage girl and her friends. As noted in my earlier reasons, while at the party, Mr Kavinsky also was demonstrating a cavalier attitude towards display and use of that knife earlier in the evening.
• Similarly, the underlying reality is that this entire incident was brought about, in very large measure, by Mr Kavinsky’s determination to engage in improper, irresponsible and dangerous behavior associated with drinking and driving, and his corresponding determination to resist all well-intentioned efforts to stop that from happening. This case essentially involves the deliberate and repeated stabbing of a proactive “good Samaritan”, who was trying to prevent Mr Kavinsky from engaging in extremely dangerous conduct threatening grievous harm not only to others but also to Mr Kavinsky himself. In my view, the evidence at trial confirmed that Mr Kavinsky stabbed Mr Hilton primarily because Mr Kavinsky was frustrated and angered by others not letting him do what he wanted and was determined to do, despite the obvious dangers.
• In terms of aggravating considerations, there is, as well, the very troubling consideration of Mr Kavinsky’s participating in behavior to hide or destroy evidence, and mislead the police, in the wake of his crime. None of that can be condoned or ignored. To the contrary, it needs to be condemned.

Mitigating factors

[31] In this case, there was no guilty plea, so I am unable to give Mr Kavinsky any credit in that regard, in terms of a corresponding reduction in sentence.

[32] Having said that, I do take into account Mr Kavinsky’s apparently genuine sense of contrition, remorse and acceptance of responsibility for his conduct, as evidenced in the pre-sentence report, and the numerous supportive testimonials I have received and considered. Acceptance of responsibility and personal regret for Mr Kavinsky’s misconduct also were reflected in his direct although somewhat perfunctory comments to me.

[33] Moreover, I think there is merit to defence counsel’s suggestion that the absence of a guilty plea should not be taken as any indication of an absence of remorse, in that the underlying circumstances at least raised triable issues in relation to Mr Kavinsky’s claim of self-defence.

[34] Having regard to all the circumstances of the case, in my view, and as emphasized to some extent by Mr Kavinsky’s counsel and the generally positive pre-sentence report, there also are a number of further potentially mitigating considerations here, including the following:

• Mr Kavinsky is a relatively youthful offender, who was 21 at the time of the underlying incident.
• Mr Kavinsky is also a first time offender, without any prior criminal record, and our courts repeatedly have emphasized the importance of corresponding restraint in sentencing such offenders. That acknowledges and reflects the reality that imposition of a custodial sentence on a first time offender, particularly for a lengthy period, inherently has a much greater impact on such a person, particularly in the case of a youthful offender.
• Other potentially mitigating concerns include the reality that the precise conduct giving rise to the conviction now before me took place somewhat impulsively and spontaneously in less than a minute or two, (which distinguishes it from other situations involving premeditated attacks). Having said that, as noted earlier, the fast moving situation and its dramatic consequences nevertheless were made possible by Mr Kavinsky’s earlier decisions to bring, carry and display a knife at a benign social event, and by his determined insistence on drinking and driving. As also noted above, the situation also was made worse by Mr Kavinsky’s later decisions, not made “in the heat of the moment”, to participate in efforts to conceal or destroy evidence, and mislead the police. In short, in terms of demonstrating concerning misconduct, Mr Kavinsky acted badly not only for a few minutes but over the course of many hours.
• Even so, as a more general mitigating consideration, Mr Kavinsky’s conduct also seems to be something of an aberration for a relatively young person generally regarded by his family as a good person, who was not previously viewed as a trouble-maker, but someone who was going through a period of mental illness and depression he already was taking steps to address through treatment. That sense of the night in question being somewhat of an aberration is reinforced by Mr Kavinsky apparently having been fully compliant and productive during his period of interim judicial release; e.g., residing with his parents, abiding by a curfew, pursuing gainful employment until he was prevented from doing that by a work-related accident, and refraining from intoxicating substances and contact with the Hiltons. (The terms of judicial interim release apparently fell well short of more onerous restrictions, such as house arrest or other terms significantly limiting Mr Kavinsky’s ability to generally live his life freely during the day, without being accompanied by a surety and without restrictions amounting to more than inconvenience. However, it seems that Mr Kavinsky clearly complied with all that was demanded of him by the court.) There is also the important fact, for consideration, that Mr Kavinsky’s presentence report generally is quite positive. All of this suggests, to me, a person of fundamentally good character who, despite a horrible and somewhat prolonged lapse of judgment, is capable of rehabilitation and putting mistakes and difficulties behind him, if given encouragement and the chance to move forward in a productive way.
• That mitigating consideration is buttressed by the fact that Mr Kavinsky does have the continued love and support of family members and a partner who are keenly aware of what Mr Kavinsky has done, but continue to support and stand by him, despite his setbacks. In particular, as the employment Mr Kavinsky had prior to his work-related injuries apparently is provided by a business operated by the family of Mr Kavinsky’s partner, it seems that particular employment is likely to be waiting for Mr Kavinsky, (provided the relationship with his partner endures), as soon as Mr Kavinsky recovers from his injuries and serves any sentence the court may impose.
• By way of further potentially mitigating considerations, while the circumstances did not warrant a valid claim of self-defence within the requirements of section 34, I share the view of Crown counsel that it nevertheless also would not be right to ignore the reality that, immediately before and during the time of his offence, Mr Kavinsky was confronted with threats of force and the application of force, and his actions were a response - - albeit an entirely inappropriate and disproportionate response - - to the application of force by Mr Hilton. For example, in my view, such considerations distinguish this case from other reported decisions involving unprovoked and/or random attacks on completely unsuspecting victims.
• Similarly, while alcohol is not an excuse for such actions, I think it clearly played a role in the events of the evening in question, and in that sense can provide an explanation to be considered particularly when it comes to questions of rehabilitation. For example, if a particular aggravated assault and overreaction were fueled by alcohol, prospects for rehabilitation self-evidently may be greater where the accused does not generally have problems with alcohol consumption, and future avoidance of alcohol is likely to reduce the likelihood of any further misbehavior.

Further analysis

[35] With the above in mind, I now turn to determination and imposition of an appropriate sentence for the offence now before the court.

[36] In that regard, in addition to the matters outlined above, I also have considered the authorities referred to by counsel, and other sentencing precedents to which they refer, bearing in mind the sentencing objective, noted above, that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[37] However, the reality, of course, is that no two cases are exactly alike, and as emphasized by Chief Justice Lamer in R. v. M. (C.A.), 1996 SCC 230, [1996] 1 S.C.R. 500, at paragraph 92:

Sentencing is an individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise or academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.

[38] Such realities seem very much on display in reported cases dealing with imposition of sentence in cases of aggravated assault, given the seemingly infinite variety of circumstances in which such offences occur, and the correspondingly complicated interaction of conflicting aggravating and mitigating circumstances. For example, cases can be distinguished on the basis of obvious and potentially wide-ranging variation in factors relating to such matters as:

• the life challenges faced by the particular offender, including abuse and victimization, limitations in education and employment, physical and mental disabilities, and difficulties with substance abuse;
• the extent, if any, to which the offender may have been subjected to abuse, violence or provocation at the hands of his or her victim;
• the extent to which the aggravated assault was premeditated or spontaneous;
• whether a weapon was employed in the aggravated assault, and if so, the nature of the weapon, and whether it was accessed by chance or design;
• whether the particular offender was under the influence of alcohol, narcotics or other intoxicating substances;
• the number of wounds inflicted, and the duration and extent of the resulting impact on the victim;
• the presence of family, friends and bystanders affected by what they have witnessed; and
• the particular offender’s criminal antecedents, sense of remorse, acceptance of responsibility, and realistic prospects for rehabilitation.

[39] Even a cursory listing of such factors and considerations makes it obvious that no two aggravated assaults are likely to “be on all fours” with each other, and that wide variation in sentencing therefore may be likely.

[40] For example, in this case, defence counsel presented me with a number of authorities, including R. v. Foreman, 2015 BCPC 104, [2015] B.C.J. No. 866 (Prov.Ct.), R. v. White, 2014 ONSC 2878, [2014] O.J. No. 2344 (S.C.J.), R. v. Hunter, [2015] O.J. No. 253 (S.C.J.), and R. v. Peters, 2010 ONCA 30, [2010] O.J. No. 128 (C.A.), where the court decided to suspend the passing of sentence and impose a period of probation. However, in my view, each of those cases has obvious points of distinction. For example:

• In the Foreman case, the offender came from a difficult background, having been raised in an atmosphere of prolonged emotional and physical abuse associated with alcoholism, and she herself struggled with severe depression and alcoholism which in turn had resulted in loss of employment, relationships, custody of her children and self-respect. She also was the victim of prolonged abuse and domestic violence at the hands of her large and powerful male partner. In the course of a further domestic dispute with that partner, she spontaneously used a nearby kitchen knife to slash his arm once; an injury which apparently was not serious and did not require medical attention, which the court described as “superficial”, and which the partner victim himself reported only belatedly and reluctantly. Indeed, it was acknowledged that both the offender and victim, who were still together, would “joke and laugh” about the offence. At the time of sentencing, following a guilty plea, the offender also already had engaged in various formal rehabilitation programs where she had “made considerable strides”. Having regard to all the circumstances, the court indicated it was inclined to treat the offence more in the nature of an assault causing bodily harm, rather than aggravated assault, suspended the passing of sentence, and imposed a two year period of probation. In my view, the case is clearly distinguishable from the one before me for many reasons. For example, Mr Kavinsky does not have the benefit of a guilty plea, and has no comparable extenuating circumstances or explanations for his behavior. The incident that brings him before the court stemmed from his decision to carry a weapon to a benign social event, the incident was prompted largely by his own improper behavior, (involving insistence on drinking and driving), and the consequences of his conduct obviously were far more serious. Moreover, while the rehabilitation steps taken to date by Mr Kavinsky have been admirable, they also are not of the structured or objectively documented sort in which Ms Foreman had engaged.
• There are similar distinctions between this case and the White case, which also involved circumstances in which the female offender committed her aggravated assault in response to extremely serious domestic abuse and violence. In particular, the offender in that case had been in a one year relationship with her dangerously volatile male partner, a member of the Canadian Armed Forces, who had returned from service in Afghanistan suffering from post-traumatic stress disorder. In the course of one particular brutal domestic assault, prompted by the offender’s indication that she intended to terminate the relationship, and her asking the male partner to leave her apartment, he repeatedly punched the offender in the head, knocking her to the floor, after which he continued to beat her severely in the head and face, while threatening to kill her, and inflicting injuries that included a concussion, broken nose, and the need for plastic surgery. In response, and genuinely thinking she was going to die if she took no action, the offender impulsively stabbed the male partner in the chest with a steak knife. After trial, the offender was found not guilty of attempted murder, but guilty of aggravated assault. The offender was 22, had no prior criminal record, had demonstrated what was clearly an “exemplary” life history, an excellent employment record, supportive family, friends and employers, and genuine remorse for what she herself viewed as a serious mistake, despite the mitigating circumstances. Now that the highly abusive relationship had ended, there was no suggestion or evidence of risk of re-offending. The court emphasized its view that the situation involved one of those “very rare set of circumstances” where a stabbing, which occurred without legal justification, should be punished by a suspended sentence, probation and no incarceration. In that regard, the court expressed a view that it was “driven down” to such a result, as an alternative to incarceration, by the lack of a conditional sentence option, which in its opinion would have better reflected the strong need for denunciation and deterrence, given the gravity of the offence. In my view, Mr Kavinsky’s circumstances are simply not comparable to those of Ms White, bringing him within that “very rare” category of cases. He was not the victim of such prolonged abuse and threats. He was not facing an attacker determined to inflict harm, (as opposed to one motivated by the benign goal of preventing Mr Kavinsky from drinking and driving). Mr Kavinsky was not subjected to or responding to such serious injuries. Mr Kavinsky did not use a weapon of chance or opportunity, but one he had decided to bring with him to a birthday event designed primarily for teenagers. In contrast to Ms White, I also think Mr Kavinsky’s response was extraordinarily disproportionate and inappropriate given the other options clearly available to him to end the confrontation - - including simply turning over his car keys and agreeing not to drink and drive.
• As for the Hunter case, it too involved a situation of an alcohol-related altercation at a social gathering. In particular, the offender attended a home party of 7-9 people, became intoxicated to the point of falling and throwing a portrait of the host’s family across the room, and was asked to leave. After exiting the house, he nevertheless stood at the nearby roadside yelling. After 5-10 minutes of such conduct, another guest went out to ask the offender to leave, as there was a concern the police would attend and put an end to the party if the disturbance continued. In response, the offender pulled a beer bottle from his pocket and smashed it into the guest’s face, where it exploded, leaving the guest with permanent, significant and noticeable facial scars. In convicting the accused of aggravated assault, after trial, the jury implicitly rejected the offender’s claims that he had been attacked and was acting in self-defence. The offender suffered from a difficult upbringing, the death of both parents, anxiety disorders, low self-esteem and learning disabilities, (which caused him to drop out of school), as well as addiction to alcohol and drugs. He had a criminal record, involving incidents where behavior influenced by the offender’s alcoholism was the predominant or common denominator. Despite his lack of education and substance abuse issues, he generally had remained gainfully employed, and was the main provider for his partner, and two adopted step-children. By the time of sentencing, more than three years after the offence, the offender clearly had turned a corner. He had acknowledged and largely addressed his alcoholism, generally complying with strict bail conditions, (apart from a minor reported lapse), and had developed an admirable record of employment, stability, and support for his partner and two adopted step-children, for whom he remained the main provider. In the court’s words, Mr Hunter had “purged his addictions, jettisoned his antisocial lifestyle, abandoned his confederates and taken on spousal and parenting responsibilities.” He clearly was “not the same man he was three years earlier”, at the time of the aggravated assault. It also was clear that a period of incarceration would result in loss of his job, cutting off support for his new family, (which might not survive such developments), and likely negate and counteract the obvious progress the offender had been making. In the result, while recognizing that the case involved a “various serious offence that would ordinarily call for an upper reformatory sentence”, the sentencing judge felt the circumstances presented an “exceptional case”, in which the imposition of a custodial sentence would eliminate and frustrate the substantial progress the offender obviously had made. In contrast to Mr Hunter, Mr Kavinsky has no similar life challenges to explain his misbehavior. The injuries he inflicted on Mr Hilton clearly were far more serious and potentially lethal. They were inflicted using an obvious weapon, which Mr Kavinsky chose to bring with him to the occasion, as opposed to improvised and spontaneous use of an otherwise benign object as a weapon. In terms of progress towards rehabilitation, Mr Kavinsky cannot point to as much dramatic and sustained progress. Nor would Mr Kavinsky’s incarceration inflict obvious and immediate hardship on other innocent persons. In short, there are numerous reasons why Mr Kavinsky may not be deserving of the same “exceptional” treatment as Mr Hunter.
• In my view, the same may be said when comparing Mr Kavinsky’s situation to that of Ms Peters, in which our Court of Appeal upheld the imposition of a suspended sentence and three years of probation, following a guilty plea, in a case where the offender similarly had struck her victim in the head with a beer bottle, causing two lacerations resulting in 21 stitches, facial scarring and continued pain, headaches and facial asymmetry. The offender was aboriginal, and suffered from an upbringing marred by violence and alcohol abuse, emphasized in a sympathetic Gladue report. In the years prior to sentencing, she had made substantial progress in addressing her challenges and gained steady employment. That employment would be lost through incarceration, and it seemed clear that incarceration also probably would significantly setback or destroy the rehabilitative progress the offender had made. Clearly, Mr Kavinsky is not entitled to the benefit of any guilty plea, nor to the benefit of any Gladue considerations. Nor has he experienced any remotely similar life challenges, or demonstrated any similarly substantial rehabilitative progress, overcoming such long term deficits, that would be frustrated and negated by incarceration. Nor is there any evidence to suggest that his progress is linked to continued employment that would be lost through incarceration. In contrast to Ms Peters, Mr Kavinsky also inflicted his victim’s injuries with a knife he had brought with him to a social event, as opposed to an improvised weapon of opportunity.

[41] In contrast to such authorities, which have focused on the exceptional possibility of addressing aggravated assault by way of suspended sentence and probation, other authorities make clear the more serious sentencing possibilities usually used to address such an offence. For example:

• In R. v. O’Quinn, 2002 ONCA 44942, [2002] O.J. No. 2016 (C.A.), two youthful offenders had each been sentenced, after pleading guilty to aggravated assault, to a term of imprisonment for two years less a day, to be followed by three years of probation. Both had participated in a vicious four-member group assault on a victim who, while in a pool hall, was punched, kicked and struck repeatedly over the head with a beer bottle, rendering him unconscious, putting him into a coma, and leaving him with neurological damage requiring physical and speech therapy. One offender was 18 at the time, while the other was 19. Both had youth records. At first instance, the sentencing judge, (who had participated in plea negotiations), imposed a sentence of two years less a day, to be followed by three years of probation. On appeal, a majority of our Court of Appeal reduced and varied the sentence of each to one of 15 months, followed by a three year period of probation. However, the majority decision makes it clear that the primary reason for doing so was an indication by the sentencing judge, during plea negotiations, that he would impose a custodial sentence of 12-15 months, if there was a guilty plea. In her dissenting minority opinion, Justice Gillese emphasized that there had been no suggestion by the appellants that a custodial sentence of two years less a day was otherwise unfit in the circumstances.
• In R. v. Moreira, supra, a youthful offender was found guilty, after trial, of aggravated assault, carrying a concealed weapon and possession of a weapon for the purpose of committing an assault. The convictions stemmed from a street fight, following a verbal confrontation, during which the offender, (19 at the time, and with no prior criminal record at the time of the offence although he had acquired one by the time of sentencing), displayed and then used a previously concealed knife, (taken with him to the CNE fairgrounds), to cut his victim’s right hand and the underside of his left arm, resulting in permanent nerve damage. The offender had a grade 11 education, had been employed and self-supporting since the age of 17, and had the benefit of a supportive family. By the time of sentencing, he also had completed a 26 week course focused on violence prevention. In the result, the court imposed a global custodial sentence of 21 months in relation to the convictions, to be followed by three years of probation. Comparing that stabbing case to the one before me, the offender was facing more convictions than Mr Kavinsky, and seems to have been more aggressive and determined in seeking a confrontation. On the other hand, the offender was younger than Mr Kavinsky, and the injuries he inflicted were fewer in number, less serious, and more transitory in nature.
• In R. v. MacDonald, supra, our Court of Appeal upheld a sentence of 12 months’ imprisonment, followed by a year of probation, in the case of a youthful offender who threw a beer bottle into the face of his victim, knocking him unconscious. In doing so, the court emphasized that the degree of violence exhibited therein should be regarded as “serious”, and that denunciation and deterrence were the paramount sentencing considerations.
• In R. v. Stalker, 2011 BCSC 1401, [2010] B.C.J. No. 1950 (S.C.), the offender struck her victim in the head with a beer bottle, severely cutting his face and leaving a large scar on his cheek, in an unprovoked attack prompted solely by the victim asking the offender to dance with his group, and her stated disinclination to “dance with brown guys”. Emphasizing the violence and consequences of the attack, the court sentenced the offender, (only 22 at the time of sentencing), to incarceration for two years less a day, followed by three years of probation.
• In R. v. Tourville, supra, the offender, of aboriginal heritage, had been found guilty of aggravated assault, following a trial by judge and jury. He had stabbed his victim multiple times, in the final stages of a renewed altercation that began as a consensual bar patio fight, after the victim initially intervened in an effort to calm another dispute. The court expressly found that the relevant fight was not unprovoked, and that the victim was not merely a “good Samaritan”. The offender inflicted stab wounds to the victim’s face, head and arm. While the injuries were described as “serious”, (with two of the cuts to the arm penetrating to the bone), none of them apparently was life-threatening, and the victim was able to recover significantly, with some residual nerve and psychological damage but without noticeable scarring, after medical treatment and therapy. The offender was youthful, and a first time offender, who showed strong remorse and demonstrated positive signs of rehabilitation. He also was someone who had experienced significant challenges during his upbringing, and there were pronounced Gladue concerns. Moreover, the offender also had been subjected to strict “house arrest” before trial, with only one isolated breach in his terms of release. Justice Code reviewed the case law relating to sentences imposed for aggravated assault, and summarized his conclusions by finding that:
  • at what was described as the “bottom end” of sentences for such offences were “exceptional” cases, such as R. v. Peters, supra, which can result in a suspended sentence and probation;
  • in what was described as “the mid-range” of cases, (i.e., those generally involving first offenders, and generally containing “some elements suggestive of consent fights but where the accused has resorted to excessive force”), courts usually have imposed “high reformatory sentences” between 18 months and two years less a day; and
  • at what was described as the “high end” of cases, (i.e., those generally involving recidivists with serious prior criminal records, or “unprovoked” or “premeditated” assaults with no suggestion of any elements of consent or self-defence), courts have imposed terms of imprisonment from four to six years. In the Tourville case itself, Justice Code imposed a sentence of 21 months imprisonment, followed by two years of probation. In some respects, there are similarities between that case and the situation before me, particularly insofar as both involve multiple stab wounds inflicted by a first time youthful offender. By way of contrast, however, Mr Kavinsky has no similar troubled background to explain his conduct. Nor does he have the benefit of any Gladue considerations, or a prolonged period of strict pretrial house arrest to be factored into sentencing. Moreover, the wounds Mr Kavinsky inflicted were more serious and life threatening, and his victim was a good Samaritan, albeit one who was resorting to a degree of force in an effort to prevent Mr Kavinsky from harming himself and others.
• In R. v. Haley, supra, the 28-year-old-offender, who had no criminal record but a history of substance abuse and a formally diagnosed major depressive disorder, brought a hunting knife to a fitness club, where he deliberately and repeatedly, without provocation, stabbed a victim who had been working out on a machine. The offender thought his victim had taunted him in the past but was mistaken, as the two men had no prior dealings with each other. The victim sustained minor stab wounds to his head and biceps, but far more significant and lasting injuries to his legs and back, as well as permanent scarring and lasting psychological harm. Only the intervention of third parties had prevented the horrible case of mistaken identity from being lethal. The offender pled guilty to a charge of aggravated assault. The sentencing judge expressly found that the offender’s mental illness was not a mitigating factor, as its link to the offender’s conduct was tenuous. For what was described as a “vicious unprovoked knife attack on an unsuspecting member of the public”, and notwithstanding the absence of a criminal record and the entering of a guilty plea, (which the court regarded as having less weight and significance than usual insofar as the offender was “caught red-handed and had no realistic defence”), the court imposed a prison sentence of 4½ years, which was reduced to 3 years after credit for presentence custody. While not involving a guilty plea, the stabbing case before me clearly involves a much younger offender, apparently showing more remorse and greater prospects for rehabilitation, who inflicted far fewer and less serious injuries, in circumstances where there was at least a prior relationship and some degree of physical engagement between the parties before the relevant stabbing occurred. In my view, Mr Kavinsky’s situation obviously merits a sentence significantly less onerous than the one imposed on Mr Haley.
• In R. v. Gajraj, supra, the 20-year-old offender and his victim began a confrontation over the telephone, and agreed to meet for a fight on the grounds of a local high school. Both had been drinking. What began as a fist fight ended with the offender pulling a knife from his pocket, before cutting the victim on his hand and stabbing him in the abdomen, with a wound that cut the diaphragm and penetrated to the ribs. The wound required insertion of a drain tube and stitches. Following a trial by judge and jury, the offender was found guilty of aggravated assault. The youthful offender had no prior criminal record, was remorseful, employed, and had the benefit of supportive family and friends, as well as a positive pre-sentence report. It was also emphasized that the incident had started as a consensual fight that went “horribly wrong” when the offender pulled out his knife. Justice Richetti opined that, based on his review of the authorities, including comments by our Court of Appeal in R. v. Basilios, 2003 ONCA 15531, 175 C.C.C. (3d) 440 (Ont.C.A.), and R. v. Chickekoo, 2008 ONCA 66, 79 W.C.B. (2d) 66 (Ont.C.A.), the range of sentences for aggravated assault, in circumstances involving a stabbing that occurs during a consensual fist fight, was higher than that suggested by the Tourville case, actually in the range of 18-30 months, and perhaps as high as 3 years. In the result, he imposed a custodial sentence of 2 years less a day, (which was reduced to 21 months after credit for pre-sentence custody, followed by two years of probation. That stabbing case involved a youthful offender of similar age to Mr Kavinsky, who similarly had no criminal record at the time of his offence, and the most serious injury he inflicted was similar to that inflicted by Mr Kavinsky on Mr Hilton. Like Mr Kavinsky, the offender had the benefit of a supportive family and a positive pre-sentence report. However, Mr Kavinsky inflicted more extensive injuries, and in my view the circumstances before me involve nothing akin to the planned and mutually agreed fight that led to the stabbing in the Gajraj case. As Mr Kavinsky knew or ought to have known, Mr Hilton was not trying to fight or harm Mr Kavinsky, but intervening at the last moment in a well-intentioned effort to prevent Mr Kavinsky from drinking and driving.
• In R. v. Rai, 2013 BCSC 1826, [2013] B.C.J. No. 2192 (S.C.), the 24-year-old offender “sucker punched” his victim, who was trying to act as a Good Samaritan by efforts to calm down a situation in which two groups were about to confront each other. The blow resulted in permanent blindness to the victim’s left eye, as well as symptoms of post-traumatic stress disorder. The court sentenced the offender to incarceration for two years less a day, followed by three years of probation.
• In R. v. Lewis, supra, two cousins were found guilty of aggravated assault following trial by judge and jury. After an organized bus trip to and from a distant nightclub, (during which they engaged in increasing verbal confrontation with their victim), they and others surrounded the victim, punching him to the point where he fell to the ground, striking his head on the pavement, resulting in a brain injury that required immediate neurosurgery and left him with a high level of cognitive impairment. At the time of the offence, one offender was 24 and the other was 21. The first had high school and post-secondary education, was gainfully employed with a six-year-old daughter and further career aspirations. The other had high school and college education, was professionally employed. Neither had a prior criminal record, and both were youthful first time offenders at the time of the incident. The court still thought it appropriate to impose, in relation to each offender, a custodial sentence of two years less a day, followed by three years of probation.
• In R. v. Ball, supra, the most recent stabbing case to which I was referred, the offender, the offender’s friend and the victim all were clients of a homeless shelter. Mere seconds into a planned and mutually agreed fight between the three men, (after two opening punches from the outnumbered victim), the offender stabbed the victim in the chest with a steak knife. The injury was serious, but the victim apparently recovered. The offender’s claim of self-defence was rejected at trial, and he was found guilty of aggravated assault. At the time of sentencing, the offender was 31. While he had no criminal record at the time of the relevant aggravated assault, he had since been convicted of other violent offences. However, there was a great deal of professional medical opinion indicating that, in addition to a troubled past that included sexual abuse, very limited education and living on the streets, the offender suffered from a history of childhood disorders, underlying brain damage, low intelligence and various significant mental health issues, including impulse control and anger management problems, all of which had been and were being treated by the time of sentencing. The accused already had been engaged successfully in ongoing counselling and treatment sessions for an extended period of time, had agreed to take medication for his condition, showed significant remorse and insight, had obtained and maintained employment, and was focused, with the support of family, on continuing his efforts at rehabilitation in order to be a good father to his young son. The sentencing judge found that the offender’s “unique individual circumstances” justified sentencing him “to a period of jail that is below the range that is normally applicable to cases of this nature”. In the result, the court imposed a sentence of 12 months in jail, to be followed by a three year period of probation. By way of comparison with the situation before me, the injuries inflicted by Mr Kavinsky may have been less serious, but they also were more extensive. As noted above, Mr Kavinsky’s situation did not involve anything akin to a planned and consensual fight to explain or mitigate his actions. In my view, his personal situation also cannot be described as “unique”. In particular, while there were some indications of Mr Kavinsky struggling with the latter stages of depression at the time of his offence, there seems little in the situation before me that one could regard as comparable to the situation of Mr Ball. Nor is there comparable evidence of substantial and prolonged efforts at structured rehabilitative treatment and counselling.

[42] With the above principles, considerations and authorities in mind, I turn now to determination and imposition of an appropriate sentence in this particular case, for this particular offender.

[43] In my view, the sentencing goals of particular importance in this case are denunciation and deterrence, offset by rehabilitation.

[44] In terms of denunciation, no one should be left under any illusion that Mr Kavinsky’s resort to his knife, and his repeated stabbing of Mr Hilton, was anything but entirely inappropriate in the circumstances and deserving of strong condemnation. Ordinary and law abiding people should know that resort to this kind of gratuitous and potentially lethal violence is completely unacceptable, and something that will not be tolerated by our courts. The fact that such injuries were inflicted on a father, hosting a birthday party for his teenage daughter at the family home, while trying to prevent drunk driving, makes the incident even more outrageous.

[45] I think the need for strong denunciation in this case is significant and compelling.

[46] Deterrence is a closely related concern.

[47] In that regard, all indications are that specific deterrence, in the sense of making Mr Kavinsky know that he should not engage in such behavior again, is not something that needs much reinforcement in this case. Mr Kavinsky, who apparently has never been in trouble with the law before, seems keenly aware of the reality that what he did was terribly wrong, and something that has changed lives, including his own, forever. He has been taking, and seems intent on pursuing, positive steps to avoid any such further wrongdoing and consequences in the future. All of that is entirely commendable, and needs to be recognized. For all such reasons, I think it unlikely that he will be engaging in violence, or carrying or wielding a weapon again, at any point in the foreseeable future. Without limiting the generality of the foregoing, I think the sentencing goals of Mr Kavinsky having a sense of responsibility for his actions, and acknowledging the harm done to Mr Hilton and his family, have largely been achieved at the time of this sentencing.

[48] However, I think general deterrence remains a very significant concern.

[49] In particular, for the reasons outlined above, I do not think this is an “exceptional” case warranting a suspended sentence and probation, as suggested by defence counsel. In my view, approaching this case in that manner effectively would turn the “exception” into the norm, and send a very inappropriate message, harmful to society’s broader long term interests.

[50] I have similar strong concerns about the alternative defence suggestion that I impose a relatively short 90 day custodial sentence, to be served intermittently on week-ends.

[51] The community must not think that carrying knives to social functions, and using them to resolve differences when conflict occurs, is generally something that will be taken lightly, regardless of the potentially lethal consequences, provided the offender is young, has no prior criminal record, regrets his or her conduct after the fact, and seems unlikely to reoffend once confronted with the tragic consequences of such stupidity.

[52] To the contrary, the community, and young people in particular, should know that carrying readily accessible knives to social functions creates extraordinary risks, with potentially very serious consequences, and that such conduct will be dealt with sternly when such knives are used, with predictably tragic results. All concerned need to factor that into their decision making, and hopefully take the smart and sensible course of leaving knives alone or at home.

[53] For the reasons I have outlined, I accordingly think, with respect, that defence counsel’s suggestions that I suspend the passing of sentence, or impose a short 90 day sentence to be served intermittently on week-ends, would be wholly inadequate to satisfy the need for appropriate denunciation and general deterrence in this case.

[54] As I said earlier, concern for appropriate denunciation and deterrence nevertheless does not mean ignoring prospects for rehabilitation.

[55] In particular, while Mr Kavinsky’s conduct merits serious treatment, for the reasons outlined above, I do not lose sight of the reality that he is a relatively youthful offender, who has never before been in trouble with the law. He comes before the court as the result of a rapidly unfolding incident, atypical for him, which took place towards the end of a troubled time in his life, and which spiraled out of control in a matter of minutes.

[56] Clearly, while society has an interest in appropriate denunciation and deterrence, it also has a long term interest in not crushing, through an overly harsh sentence, (with corresponding prolonged exposure to negative influences in a penal institution), the prospects of rehabilitation for a young person who admittedly has a made a serious mistake, but who also seems intent on putting such negative conduct behind him and avoiding any further criminal conduct - - especially when all indications suggest there is an excellent chance of his doing just that.

[57] Such considerations persuade me that Mr Kavinsky’s punishment should not be at the highest end of the upper reformatory sentences normally imposed for comparable aggravated assaults.

[58] On balance, and having regard to all the circumstances, including the authorities noted above, I think that justice will be served, in this particular case, by imposition of a custodial sentence of 21 months, to be followed by a period of two years of probation, on terms and conditions I will outline during the formal imposition of sentence.

[59] There was no dispute that Mr Kavinsky should receive, in relation to any custodial sentence, credit for the two days he spent in actual presentence custody for his offence, credited at the rate of 1.5 days for each actual day, pursuant to s.719(3.1) of the Code.

Further orders

[60] As for the further orders requested by the Crown, and not disputed by the defence:

i. a mandatory weapons prohibition order must follow, pursuant to s.109 of the Criminal Code. Although the Crown sought a prohibition of ten years duration, I think it should be for life. Mr Kavinsky should be given every possible incentive to avoid further problems in the future. ii. as the matter involves an offence designated as primary, pursuant to s.487.04 of the Code, compulsion of a DNA sample is mandatory. iii. there is no question that a similar mandatory order must be made, forfeiting the knife used by Mr Kavinsky to the Crown, pursuant to s.491 of the Code. iv. the victim impact surcharge of $200 for this single offence, punishable by indictment, is also mandatory pursuant to s.737(2)(b)(ii) of the Code.

[61] As I indicated during the course of submissions, I also think it appropriate in the circumstances to impose a non-communication order pursuant to s.743.21(1) of the Code, prohibiting Mr Kavinsky from having any direct or indirect communication with specified persons during the custodial period of sentence.

[62] In particular, I think that non-communication order should extend to all members of the Hilton family, (i.e., Shannon, Melissa, Hailee and Hunter Hilton), as well as the non-police witnesses at trial, (namely Isaiah Falkins and Monique Leget).

[63] In my view, that restriction also should be extended by a similar term imposed in relation to Mr Kavinsky’s probation.

Formal imposition of sentence

[64] Stand up please Mr Kavinsky.

[65] For the reasons I have outlined, in relation to your aggravated assault offence, corresponding to count one of the indictment, I am sentencing you to a period of incarceration of 21 months.

[66] While not binding on Corrections Canada, I recommend that consideration be given to your being permitted to serve that custodial sentence in a facility, such as the Ontario Correctional Institute in Brampton, where there may be greater availability of psychological counseling programs to address some of the depression and anger management concerns that led to commission of your offence.

[67] In relation to your custodial sentence, you shall receive credit for the two days you spent in presentence custody, credited at the rate of 1.5 days for each actual day of presentence custody, for a total credit of three days.

[68] During that period of custody, you shall not have any direct or indirect communication with Shannon Hilton, Melissa Hilton, Hailee Hilton, Hunter Hilton, Isaiah Falkins or Monique Leget.

[69] Your custodial sentence shall be followed by a two-year period of probation. Terms and conditions of that probation shall include the compulsory conditions prescribed by s.732.1(2) of the Criminal Code, namely:

• To keep the peace and be of good behavior;
• To abstain from communicating directly or indirectly with any member of the Hilton family, namely Shannon, Melissa, Hailee and Hunter Hilton, as well as Isaiah Falkins and Monique Leget, and to not knowingly attend within 25 meters of any known place of residence, work or education of those individuals;
• To appear before the court when required to do so by the court;
• To notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or probation officer of any change of employment or occupation.

[70] Further terms and conditions of that period of probation shall nevertheless also include, pursuant to s.732.1(3) of the Code, the following:

• To report to a probation officer within two working days of your release from custody, and thereafter as directed by the probation officer;
• To remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the probation officer;
• To abstain from the purchase or consumption of drugs, (except in accordance with a medical prescription), alcohol, or any other intoxicating substance;
• To abstain from owning, possessing or carrying a weapon;
• To live at an address approved by your probation officer, and not change that address without obtaining the consent of the probation officer in advance;
• To attend and actively participate in any and all programs of assessment, counselling or rehabilitation, as directed by your probation officer, (including but not limited to programs addressing anger management, psychiatric and psychological issues), and complete any and all releases and authorizations that may be required by your probation officer to monitor your participation and progress in such programs; and
• To refrain from any direct or indirect contact, communication or association with Shannon Hilton, Melissa Hilton, Hailee Hilton, Hunter Hilton, Isaiah Falkins, Monique Leget, and any other person identified in writing by your probation officer.

[71] There will, as well, be further ancillary sentencing orders whereby:

• you shall be subject to a section 109 weapons prohibition for life;
• you shall, pursuant to an order in Form 5.04, provide a DNA sample suitable for forensic analysis;
• the knife seized by the police shall be forfeited to the Crown; and
• you shall, within 60 days, pay the mandated victim surcharge of $200.00.

[72] Mr Kavinsky, I frankly don’t think I need to tell you again this was an extremely foolish and life-changing mistake. You know that. Your family and friends know that. It will be something that remains with you for the rest of your life.

[73] I also expect the sentence I have imposed will be challenging for someone like you, given your age and background - - and that reality is something I have taken into account, along with the other mitigating considerations I have mentioned, in fashioning your particular sentence, which otherwise might have been more serious.

[74] However, how you react to this experience, and what you make of it, will also be something that remains with you for the rest of your life. If it serves as a reminder of the strong supports and potential you clearly have, and makes you more determined to use those in a positive way, making more mature, reflective and productive decisions, that ultimately may be something you can look back as laying a very positive foundation for what’s to come as you move forward.

[75] I for one hope you succeed with that.

[76] For now, I will endorse the indictment and the warrant of committal accordingly.

“Justice I. F. Leach”

Justice I. F. Leach

Released: (Orally) June 19, 2017