COURT FILE NO.: CR-19-50000267-0000 DATE: 20200121

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – TAHA SHAIKH

Counsel: Brady Donohue, for the Crown Laura Remigio, for Mr. Shaikh

HEARD: December 16, 2019

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT on sentencing

1. Overview

1Taha Shaikh pleaded guilty to one count of assault causing bodily harm; one count of uttering a threat to cause bodily harm; two counts of assault; and one count of failure to comply with a recognizance. He now comes before this court for sentencing.

2. The Facts

(a) Circumstances of the offence

2Mr. Shaikh and the victim, A.P., are both young. They were in an on-and-off relationship. They met when A.P. was 14 or 15 years old.

3In July 2017, Mr. Shaikh entered into a peace bond. The peace bond required that he not communicate with A.P. He was also required to keep the peace and be of good behaviour. Nonetheless, in January 2018 he and A.P. resumed their relationship. At that time Mr. Shaikh was 19 years old. A.P. was 16 years old.

4In April or May of 2018, Mr. Shaikh and A.P. met to hang out. A.P. lived with her family in Newmarket. They drove to Toronto. They had an argument while Mr. Shaikh was driving. A.P. tried to get out of the car. He threatened to punch her in the face if she did. Eventually they pulled into a parking lot. Mr. Shaikh punched A.P.’s leg and smashed her head into the passenger window twice. He drove her to the hospital the next day. She was diagnosed with a concussion.

5On July 1, 2018 A.P. reported to the police that Mr. Shaikh had threatened her family. On July 4, 2018 Mr. Shaikh again picked up A.P. They drove to the same parking lot. They argued about the fact that A.P. had reported Mr. Shaikh to the police. He punched her in the stomach, the thigh, and in her face. He then drove her home.

6On July 6, 2018 Mr. Shaikh again picked up A.P. in Newmarket. They drove to the same parking lot in Toronto. They had some drinks. Mr. Shaikh wanted to have sex. A.P. did not agree at first, but then did agree. When they were having sex A.P. told him that she “did not want to do this.” Mr. Shaikh says that A.P. told him to slow down but he did not hear her tell him to stop. He believes that the sexual intercourse was consensual but he also agrees that he did not take reasonable steps to determine whether A.P. was still consenting.

7Mr. Shaikh was bound by a house arrest recognizance when he was with A.P. He breached that condition. He was also bound by a condition of a peace bond not to communicate with A.P. He obviously breached that condition as well.

8On July 13, 2018 A.P. went back to the police to report the assaults. Her stomach was still sore from the punch on July 4, 2018. Mr. Shaikh was arrested on July 16, 2018. He has been in custody ever since.

(b) Circumstances of the offender

9Mr. Shaikh is a young man, just twenty years old. He was born and raised in Toronto. He had no criminal record when he committed these offences. He has not completed high school. He says that he would like to finish high school, and attend college or university part-time while he works. He states that jail has taken an emotional toll on him, and I accept that. He has mentioned in his material the hardships that he has endured while in custody, particularly while at the Toronto South Detention Centre.

10Mr. Shaikh’s parents divorced when he was in Grade 9. According to the pre-sentence report, and to his mother, this caused difficulties for him. His mother re-married. He did not get along with his new step-father. Eventually this affected his schooling. He also developed a painful skin condition. He apparently still has remnants of that condition. He began to skip school, smoked marijuana, began drinking, and eventually dropped out. Substance abuse played a role in these offences. He becomes more reckless when he is drinking. He admits to being short-tempered, and his temper becomes even shorter when he is intoxicated.

11Mr. Shaikh does have important support from members of his family. Each member of his family filed a letter. I accept that these are genuine and well-meant but I note that they emphasize the difficulties faced by individual family members without Mr. Shaikh around. While I have some sympathy for that, I also note that none happened to mention the impact of Mr. Shaikh’s crimes against A.P. Obviously, I do not find it to be an aggravating factor. That said, it is troubling his family seems to have no insight into the harm that Mr. Shaikh has caused to the victim. Fortunately, Mr. Shaikh himself does appear to have some insight.

12Mr. Shaikh does have a good employment record. He has worked at a bakery, worked for a temp agency, and worked as a tow-truck driver and dispatcher. His former employer, Mohammed Nariwal, of Push Auto Repair, wrote a letter indicating that he is aware that Mr. Shaikh pleaded guilty. He is willing to hire Mr. Shaikh again when he is released from jail. He described Mr. Shaikh as one of his best employees.

(c) Impact on the victim and the community

13Any crime of violence affects the community. Parliament has recently recognized in particular the pernicious effects of domestic violence in Bill-75. Parliament defined concept of “intimate partner violence” in the Criminal Code. Several provisions have been changed to deal with intimate partner violence. It is now a specific aggravating factor on sentence: Criminal Code, s. 718.2 (a)(ii).

14A.P. filed a victim-impact statement. It is clear that the violence has had a significant impact on her. She had a severe concussion that stayed with her. She has suffered memory loss. She will be attending a head injury specialist to determine whether she has suffered a permanent head injury. She is anxious and reluctant to go anywhere alone. It has affected her ability to attend school. She believes that she has failed classes as a result. She has had trouble sleeping. She now has trouble trusting males in her life. She fears that they will turn abusive, as Mr. Shaikh did. She is concerned that when Mr. Shaikh is released from custody he will find her and hurt her or a member of her family.

3. Positions of the Crown and Defense

15Crown counsel’s position in this case is that Mr. Shaikh should serve a global sentence of 2 ½ to 3 years incarceration. She agrees with Ms. Remigio that Mr. Shaikh should receive Summers credit at a rate of 1.5:1. She disagrees that Mr. Shaikh should receive Duncan credit at 3:1. She suggests a more moderate ratio is more appropriate, and that Mr. Shaikh’s own calculations should receive no deference as they are unreliable.

16Ms. Remigio’s position is that Mr. Shaikh should receive a sentence of time served, with 12-18 months reflected on the warrant of committal. She argues that he should receive Duncan credit at 3:1. On that basis, Mr. Shaikh has more than done his time.

4. Case Law

17I need not review all the cases submitted by counsel. As Ms. Donohue correctly noted, the sentencing ranges for assault causing bodily harm are vast.

18Ms. Donahue points to two recent Ontario Court of Appeal decisions that, she argues, informs the range for sentencing in sexual assault cases where a youthful first offender is involved. In R. v. Hughes, 2017 ONCA 548, the Court of Appeal upheld an 18-month sentence. Ms. Donahue also points to R. v. Orwin, 2017 ONCA 5663 where the Court of Appeal upheld a sentence of two years less a day.

19Ms. Remigio relies on R. v. Carty, 2010 ONCA 237. In that case, a bouncer found himself in a series of scuffles. One of them resulted in some fairly serious injuries to a victim. Mr. Carty had been on bail, and eventually was detained due to the frequent breaches. He pleaded guilty to assault, assault causing bodily harm, and three breaches of release orders. He had assaulted one person with a baseball bat. He was sentenced to twelve months. The Court of Appeal found the sentencing judge erred and reduced the sentence to 9 months. Ms. Remigio also relies on R. v. Abada, 2008 ONCJ 648. The accused pleaded guilty in the Ontario Court of Justice to weapons dangerous; forcible confinement; and assault. The victim was his wife. The sentencing judge found the circumstances to be extremely serious. The circumstances, he said, reflected a pattern of dominance and control by the accused over his domestic partner. The sentencing judge imposed a global sentence of six months.

20I make the following observations about the cases provided to me: those from the Crown are exclusively about sexual assault. Of course, Mr. Shaikh has not pleaded guilty to a sexual assault, but I find that there is a sexual element to the crime (as I will mention below) thus making it an aggravating factor. None of the cases provided by the defence involve a sexual element. The most serious, arguably, was Carty. That case did not involve either a sexual element or an intimate partner.

5. Mitigating and Aggravating Factors

21The nature of these offences is aggravating in and of itself. The fact that Mr. Shaikh assaulted A.P. while in a confined space and did not let her go is very aggravating. The fact that he assaulted her because she went to the police is also a very aggravating circumstance.

22I also find it highly aggravating that Mr. Shaikh committed these offences while on a peace bond. A term of that peace bond was that he was not to have contact with A.P. I will sentence Mr. Shaikh separately for his fail to comply with recognizance offence so I cannot take it into account as an aggravating factor. It is part of the global sentence when I take all factors into account.

23It is also aggravating that Mr. Shaikh committed these offences against a vulnerable young person. Although he was not in a position of trust, she was only 16 at the time of these offences. Moreover, Mr. Shaikh did not take reasonable steps to ensure that A.P. was continuing to consent to sex. That is very aggravating as well.

24As mentioned, the fact that Mr. Shaikh committed a violent offence against an intimate partner is aggravating. I will have more to say about that later in these reasons.

25On September 7, 2018 Mr. Shaikh pleaded guilty to one count of assault with a weapon and one count of mischief under $5000. He was given a suspended sentence and probation for 18 months in light of 75 days of pre-sentence custody.

26When Mr. Shaikh committed the offences here, he did not have a criminal record. Crown counsel argues that I can take into account the subsequent conviction. Ms. Remigio, Mr. Shaikh’s counsel, however, argues that because the 2018 conviction came after the offences here, it should play no role. She relies on the “Coke Rule”. The rule is set out in R. v. Andrade, 2010 NBCA 62, 260 C.C.C. (3d) 353. Robertson J.A. for the Court succinctly described rule (set out by Sir Edward Coke in the Institutes of the Law of England, 1628) this way: “The essence of the Coke principle is that a harsher sentence with respect to a second offence cannot be imposed unless the offender was convicted for the first offence prior to the commission of the second.” Robertson J.A. then noted that the purpose and policy rationale was set out by Blair J.A. in R. v. Cheetham (1980), 53 C.C.C. (2d) 109 (Ont.C.A.). Traditionally, the rule was one of statutory construction. It applied where criminal legislation mandated higher penalties for subsequent offences. Blair J.A. stated at para. 21 that “it is expected that the conviction and penalty for the initial offence and the peril of a more severe penalty for a subsequent offence will be present in the mind of the offender and guide his future conduct.”

27In Andrade, Robertson J.A. noted that the rule was not absolute. After a detailed analysis of the cases, including the Supreme Court’s decision in R. v. Skolnick, [1982] 2 S.C.R. 47, he concluded that the Coke rule was formulated as a rule of statutory construction. He found no need to extend the Coke rule to make it a general rule of sentencing. At para. 20 he stated:

In my view, the notion that the prior conviction should not be treated as part of the offender's criminal record for sentencing purposes, because he or she was not properly forewarned before committing the second or subsequence offence, is a theoretical construct too far removed from the realities of what is in the minds of repeat offenders and the purpose underlying the Coke rule. What is or is not an aggravating factor and how one should deal with the offender's prior criminal record is a matter better left to the sentencing judge having regard to the factual matrix under consideration.

28The issue has been taken up by three other courts of appeal, although not the Ontario Court of Appeal. The Quebec Court of Appeal agreed with Andrade in R. v. D.(G.), 2013 QCCA 726 at para. 20, although arguably in an obiter comment. In R. v. Bernard, 2011 NSCA 53 the Nova Scotia Court of Appeal considered Andrade. The Court did not definitively rule on its applicability.

29The British Columbia Court of Appeal, on the other hand, recently took a different view in R. v. Pete, 2019 BCCA 244 at para. 33:

I am of the view that while the Coke rule originated as a principle of statutory interpretation, it is now understood as a term used to describe the proper approach to treatment of first offenders in circumstances where they have been subsequently convicted of other offences by the time they are sentenced. As such, I will refer to it as the Coke principle and I would not limit it as suggested in Andrade.

30Some trial level courts have approved the Coke principle as modified by Andrade: R. v. Vader, 2017 ABQB 48 at para. 145; R. v. C.(R.J.), 2013 SKQB 249 at para. 15; R. v. Anderson, 2011 YKSC 6 at para. 44.

31In this province, Gray J. considered the Coke principle as modified by Andrade in R. v. Gibb, 2015 ONSC 8113. He agreed with Robertson J.A. and applied the approach set out in that case: para. 23.

32I agree with my colleague Gray J. that the approach in Andrade is preferrable. The approach complies with the modern approach to sentencing. Sentencing is an individual process. A sentencing judge has a great deal of discretion in crafting an appropriate sentence. Unless there is a rule set out by Parliament – as there is with impaired driving cases, as analyzed in Skolnick – it strikes me that a flexible approach is the right one. The flexible approach in Andrade preserves the sentencing judge’s discretion to properly balance mitigating and aggravating factors in order to apply the purposes and principles of sentencing set out in the Criminal Code.

33In this case, I am inclined to treat the subsequent conviction as an aggravating factor. Regrettably, it seems to suggest a pattern of violent behaviour and a pattern of disrespect for the law. That said, it is only a minor aggravating factor in light of Mr. Shaikh’s youth and his acceptance of responsibility for the offences with which he has been charged.

34I turn to the mitigating factors.

35I find that there are strong mitigating factors in this case. The most important mitigating factor is the guilty plea. Mr. Shaikh took responsibility for his actions and he deserves credit for that. He wrote a letter to the court, his family, and to A.P. He expressed sorrow and remorse for his actions. I read the letter carefully. I also listened carefully to his apology to the court. I accept that Mr. Shaikh is genuinely remorseful. I also accept that he has insight into the offences. He says that he understands that he must deal with his anger management issues. I agree. He must deal with those issues It is good that he understands that.

36I find that the strong support of Mr. Shaikh’s family is mitigating. I find it mitigating that Mr. Shaikh impressed his former employer enough that there is a job waiting for him again when he is released from jail.

37I also find it mitigating that, A.P. was spared from testifying at trial. Crown counsel, Ms. Donahue, informs me that A.P. was highly daunted by the prospect. I am quite sure that is true. She did, however, testify at the preliminary inquiry so she was not completely spared from the court process. I have no difficulty with counsel exploring the viability of the Crown’s case at a preliminary inquiry and then making an informed decision to advise a client to plead guilty. No accused person should be penalized for exercising his or her rights. Sparing A.P. from testimony is, therefore, mitigating. It is not, however, as mitigating as if Mr. Shaikh had pleaded guilty before the preliminary inquiry.

6. Principles of Sentencing

38The purposes of sentencing are set out in s. 718 of the Criminal Code. I need not repeat them here. The fundamental principle of sentencing is set out in s. 718.1 of the Criminal Code. That section states that:

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

39Section 718.2 sets out other sentencing principles. A court is required to take into account the impact on the victim: s. 718(a)(iii.1). A court must also increase or reduce a sentence based on relevant mitigating or aggravating circumstances: s. 718.2(a).

40Bill C-75, which came into force in September 2019, creates a new definition of “intimate partner.” An intimate partner includes a dating partner, which appears to describe A.P. There is no crime of “intimate partner violence” but the concept of intimate partner violence animates some of the Bill C-75 amendments. Of importance to this case is that Bill C-75 also amended s. 718.2(a)(ii). It is now an aggravating factor on sentence that an offender “abused the offender’s intimate partner or a member of the victim or the offender’s family.”

41Bill C-75 contains no transitional provisions. The legislation came into force after the offences but prior to the guilty pleas. The question of the retrospectivity of the preliminary inquiry provisions in Bill C-75 was considered by the Ontario Court of Appeal in R. v. R.S., 2019 ONCA 906. The case did not deal with whether the sentencing provisions are substantive or procedural.

42Ordinarily, where Parliament increases a punishment it ought not to apply retrospectively: R. v. Dinely, [2012] 3 S.C.R. 2727; R. v. J.(K.R.), [2016] 1 S.C.R. 906 I suspect that the aggravating factor is likely “punishment” since it has the potential to increase a sentence. Without the benefit of full argument from counsel I hesitate to make a ruling. Although Crown counsel mentioned the new provisions, she did not argue that they applied – rather I believe that she meant that they simply expressed Parliament’s view of intimate partner violence. I agree.

43In any event, I do not think that whether s. 718.2 (a)(ii) (as amended) applies makes any practical difference in this case. I agree with Crown counsel’s point, that it is aggravating that Mr. Shaikh abused an intimate partner. I think it would have been an aggravating factor that a sentencing judge could take into account prior to the enactment of Bill C-75: see Robertson J.A.’s point in Andrade at para. 11. With or without Bill C-75, abuse of an intimate partner – one who is also young, vulnerable, and under the sway of the offender – is an aggravating factor in this case.

7. Ancillary Orders

44Assault causing bodily harm is a primary designated offence. There will be an order that Mr. Shaikh provide a sample of his DNA. There will be a s. 109 order for ten years. Mr. Shaikh will pay a victim fine surcharge of $300. He will have two years to pay.

8. Decision

45In my respectful view, nothing less than a penitentiary sentence is warranted here. I say that after weighing the aggravating and mitigating factors, and the principles of sentencing. Multiple assaults of an intimate partner, including one where she suffers a concussion, combined with a sexual component to another assault – and all while committed while on a house arrest bail and in defiance of a peace bond – must be strongly denounced.

46I find that a penitentiary sentence is appropriate even given the mitigating factors. It is true that Mr. Shaikh is young. He has prospects. He enjoys the support of his family, who clearly care for him and wish for his rehabilitation. He pleaded guilty. I accept that he is genuinely remorseful. Rehabilitation must of course play a role. I find that Mr. Shaikh can be a productive member of society. I also believe that he wants to live an honourable life from this point forward. He is capable of doing so, but he must get his anger management issues under control or he will find himself back here again.

47On the other hand, I must also take into account that he was supposed to stay away from A.P. I agree with Crown counsel that she was young and vulnerable and Mr. Shaikh was controlling and violent. He was at least reckless about taking steps to make sure that she was consenting to sex. A.P. was seriously injured with a concussion. She remains traumatized. She will undoubtedly bear the emotional scars for many years, if not for the rest of her life. That harm cannot be undone.

48When I balance the aggravating and mitigating factors, as well as the purposes and principles of sentencing, I find that a global sentence of two years is appropriate. But for the mitigating factors – most especially Mr. Shaikh’s remorse, youth, and prospects and guilty plea – I would have imposed a significantly higher sentence. At this point, given Mr. Shaikh’s pre-sentence custody, youth and evident remorse, I see no sentencing principle that requires further jail time.

49As of January 21, 2019 Mr. Shaikh has spent 502 real days in custody attributable to these charges. At enhanced Summers credit of 1.5:1, that translates into 25.1 months in custody. That is more than two years when credit for time served is taken into account. I will therefore sentence Mr. Shaikh to one day in custody in light of pre-sentence custody on all counts.

50There is no need, therefore, for me to engage in a lengthy analysis of the Duncan credit. I will, however, make some findings.

51Mr. Shaikh kept notes of the full and partial lockdowns. He kept records of full or partial lockdowns totalling 159 days. The institutional records from Toronto South and Central North indicate a total of 128 full or partial lockdown days. In cross-examination he was candid that some of the partial lockdowns he noted commenced at 6:00 or 6:00 pm. The inmates are ordinarily locked in their cells at 9:30 or 9:45 pm. Mr. Shaikh also admitted to some mistakes in his notes. I agree with Ms. Donahue that his notes are just not reliable. She did not suggest, and I agree, that he deliberately misrepresented the lockdowns in his notes. I find that his notes are simply not as accurate as the institutional records. Accordingly, I prefer the institutional records.

52Harsh presentence incarceration can merit mitigation beyond the 1.5:1 permitted by the Criminal Code: R. v. Duncan, 2016 ONCA 754 at para. 6.

53Several judges in this Court and the Ontario Court of Justice have addressed the lockdown conditions in the jails in this province, particularly the Toronto South Detention Centre, including me. Justice Shreck’s recent decision in R. v. Persad, 2020 ONSC 188, summarized the authorities. After a detailed analysis, he found that enhanced credit for lockdowns at the Toronto South Detention centre have usually been between a half-day and a full day for each day spent in lockdown. I agree with that analysis. He ultimately gave Mr. Persad credit of 1.5 for every 1 day spent in lockdown.

54As most of the cases have observed, there is no mathematical formula for determining the appropriate credit for pre-sentence custody. In this case, I would have credited Mr. Shaikh with credit for one day for every day spent in full or partial lockdown. That reflects the fact that not every partial lockdown is lengthy. It also sends the message that lockdowns due to continuing staff shortages are a problem that must be addressed. It further reflects the impact on Mr. Shaikh. I prefer not to cast blame or make a determination of whether anyone has deliberately chosen to make prison conditions harsher. As with most things, there are probably mundane bureaucratic reasons for these conditions. At the end of the day, however, it doesn’t matter whether there has been deliberate misconduct or an unwieldy system that cannot cope. What matters is that the problem be alleviated.

55I also accept that Mr. Shaikh’s un-contradicted evidence shows that he has had to endure triple bunking. He has also spent time in the special handling unit – not because he poses a threat to institutional security, but because of space shortages. I would have found further mitigation for that if necessary.

56In other words, Mr. Shaikh has done his time at this point. He will serve one day in custody, followed by a period of probation for three years. He will keep the peace and be of good behaviour. He will follow the statutory terms. He will also take counselling as his probation officer directs and will, upon demand by the probation officer, provide proof that he has attended counselling. He will sign all necessary waivers. Mr. Shaikh will seek and maintain employment or attend school. He will provide proof of both upon demand by his probation officer. Mr. Shaikh will have no contact, directly or indirectly, with A.P. or any member of her family. He will not be within 100 meters of any place he knows her to live or regularly attend. He will live at an address approved by his probation officer and will notify his probation officer of any move within 24 hours.

57I am also going to direct that Mr. Shaikh have an assessment, as directed by his probation officer, to determine whether he has anger or other issues with women. Although this issue was not raised by either counsel, my own observation is that Mr. Shaikh may well have an issue that he must deal with. I don’t know if he does. Obviously, the victim in this case was a young woman. But I also observe that when Mr. Shaikh was on house arrest he was required to live with his mother. He violated that house arrest bail. I suspect that his mother was unable to properly control him. I do not say that as a criticism of her, but rather to draw attention to something that may be an issue. I also will direct that Mr. Shaikh take counselling for substance abuse.

9. Disposition

58Mr. Shaikh therefore will receive a global sentence of two years, less pre-sentence custody, resulting in a final sentence of one day in custody on all counts. The terms that would have been imposed are as follows:

• Count 1 – Assault causing bodily harm: Two years with credit for time served resulting in one day;
• Count 4 – Utter a threat to cause bodily harm: Six months concurrent to Count 1 with credit for time served resulting in one day;
• Count 7 – Assault: six months concurrent to Count 1 with credit for time served resulting in one day;
• Count 8 – Assault: one year concurrent to Count 1 with credit for time served resulting in one day; and,
• Count 10 – Fail to comply with recognizance: three months concurrent to Count 1 with credit for time served resulting in one day.

59Mr. Shaikh will be placed on probation with the terms I have already mentioned. He will comply with the ancillary orders as I have already mentioned.

R.F. Goldstein J.