Court File and Parties

Court File No.: CR-21-70000436 Date: 2023-03-15 Ontario Superior Court of Justice

Between: His Majesty The King And: John William Fisher

Counsel: Andrew Cox, for the Crown Elham Ellen Jamshidi, for John Fisher

Heard: January 27, 2023

Reasons for Sentence

P.J. Monahan J.

[1] On November 11, 2022, I found John Fisher guilty of the following offences: (i) aggravated assault, contrary to s. 268(2) of the Criminal Code; (ii) assault with a weapon, contrary to s. 267 (a) of the Criminal Code; (iii) carrying a concealed weapon without authorization, contrary to s. 90(1) of the Criminal Code; and (iv) possession of a weapon for a dangerous purpose, contrary to s. 88.1(1) of the Criminal Code. He is before the court today for sentencing. [^1]

Circumstances of the Offences

[2] These offences arose out of a stabbing that occurred in the basement of a sports bar in Toronto on February 17, 2019. The stabbing was captured on the sports bar’s surveillance video which shows that, shortly before 2 a.m., Mr. Fisher was standing in the basement of the sports bar, talking with a number of unidentified males and females. The subject matter of the conversation is unknown since there was no sound on the video. After a few minutes, the group in the basement was joined by Joshua Maier-McKenzie (“Maier-McKenzie”), another patron of the sports bar who had come downstairs looking for his girlfriend.

[3] Maier-McKenzie stood talking with Mr. Fisher and the others for about 20 seconds. Suddenly, Mr. Fisher pushed Maier-McKenzie back and slashed him on the right side of his face with a bladed knife-like object. Maier-McKenzie immediately turned on his heel and ran upstairs, holding his hand to the right side of his face in an effort to stop the bleeding. Maier-McKenzie ran through the main floor of the sports bar and out through the front door. A few minutes later he was followed outside by Mr. Fisher. A number of gunshots were then fired from outside the sports bar, shattering the front windows of the bar. It is unknown who fired the shots which, fortunately, did not injure anyone.

[4] Later that morning, Maier-McKenzie was treated at a hospital in Scarborough for a large wound he suffered as a result of being slashed by Mr. Fisher in the basement of the sports bar.

[5] The issue at trial was identity, namely, whether the Crown had proven beyond a reasonable doubt that Mr. Fisher was the person who slashed Maier-McKenzie. Mr. Fisher argued, first, that he was not the person depicted on the surveillance video who appears to strike Maier-McKenzie in the face with the knife-like object while they were standing in the basement of the sports bar. Second, even if he were the person shown on the surveillance video, Mr. Fisher claimed that Maier-McKenzie was not actually injured in the basement of the sports bar. Instead, he argued that Maier-McKenzie was attacked by an unknown assailant while running up the stairs towards the main floor of the restaurant. In making this argument, Mr. Fisher relied on the preliminary inquiry evidence of Maier-McKenzie, who claimed he was stabbed by an unknown assailant as he was walking up the stairs, and not by the white male in the basement. [^2]

[6] I rejected both arguments. I found, first, that Mr. Fisher was in fact the person captured on the sports bar’s surveillance video who appears to slash Maier-McKenzie on the face with a knife-like object. Second, I rejected Maier-McKenzie’s evidence that he was stabbed on the stairs rather than in the basement since that claim is contradicted by the surveillance video and is, in any event, entirely implausible given the surrounding circumstances. I therefore found that Maier-McKenzie had in fact been slashed on the face by Mr. Fisher in the basement of the sports bar as shown on the surveillance video.

[7] These factual findings, considered in the context of various other agreed facts and the Crown evidence as a whole, led me to conclude that Mr. Fisher was guilty of aggravated assault and assault with a weapon, since he wounded Maier-McKenzie with a knife while committing an assault. Moreover, since the knife was clearly a weapon that had been concealed in Mr. Fisher’s pocket before the attack, I also found him guilty of the other charges set out in the indictment, namely, carrying a concealed weapon without authorization and possession of a weapon for a dangerous purpose.

Circumstances of Mr. Fisher

[8] Mr. Fisher was born in June 1987. He was 31 years old at the time of the offences and is now 35.

[9] Mr. Fisher has an extensive criminal record, including convictions for the following offences: possession of a Schedule I substance for the purpose of trafficking in 2008; possession of a prohibited or restricted firearm with ammunition in 2010; assault causing bodily harm in 2012; uttering threats and assault in 2015; and criminal harassment in 2017.

[10] The court did not have the benefit of a Presentence Report for Mr. Fisher. However, in her submissions on sentence, Mr. Fisher’s counsel provided the court with some information regarding Mr. Fisher’s background and circumstances.

[11] Mr. Fisher’s counsel advised the court that, at about age five, Mr. Fisher was placed in foster care through the Children’s Aid Society. His father has had no involvement in his life and his mother, who passed away in 2013, had extensive drug issues, to which Mr. Fisher was exposed. Mr. Fisher himself has experienced problems with alcohol from the time he was 12 years old.

[12] Mr. Fisher’s counsel argued that he has managed to turn his life around. He completed high school and, prior to his arrest, was employed as a general labourer in construction. He is currently in a committed relationship and has a three-year-old son and a one-year-old daughter. He is an active father in his children’s lives and supports them financially. Any period of incarceration would have negative collateral impacts on his children.

[13] Mr. Fisher’s counsel further advised the court that he is currently on medication for depression and borderline personality disorder. He is attempting to deal with his issues around alcohol and drug abuse and has taken anger management classes.

[14] Mr. Fisher was arrested in connection with this matter on February 19, 2019 and was released on April 1, 2019. He was arrested a second time on December 12, 2019 and released on March 9, 2020. Accordingly, he has spent a total of 139 days in presentence custody. In addition, while on bail he was subject to a curfew.

Victim Impact

[15] As noted above, although subpoenaed by the police, Maier-McKenzie could not be located. Accordingly, the court has no information regarding the impact of the injuries he suffered in the attack on February 17, 2019.

Relevant Sentencing Principles

[16] All sentencing starts with the principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [^3] A proportionate or just sentence must have one or more of the following objectives: [^4]

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

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

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

(d) to assist in rehabilitating offenders;

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

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

[17] As Code J. pointed out in R. v. Tourville, 2011 ONSC 1677 [^5], courts have imposed a wide range of sentences for the offence of aggravated assault. At the bottom end are exceptional cases such as R. v. Peters, 2010 ONCA 30 [^6], where an Indigenous offender received a suspended sentence and three years’ probation after pleading guilty to aggravated assault. She was 26 years old with no prior adult record and had used a broken beer bottle in the assault during a dispute in a bar, causing serious facial lacerations to the victim. A Gladue report disclosed a very difficult upbringing in a violent and abusive home leading to alcoholism and drug abuse. [^7]

[18] Code J. further identifies cases falling in the middle range, where high reformatory sentences between 18 months and 2 years less a day have been imposed. These cases generally involve first offenders and typically contain some element suggestive of consent fights but where the accused resorted to excessive force. [^8]

[19] At the high end of the range are cases involving offenders with serious prior criminal records who have committed unprovoked or premeditated assaults with no suggestion of any element of consent or self-defence. In such cases, depending on the circumstances, sentences of four years’ imprisonment and above have been imposed. [^9]

Positions of the Parties

[20] The Crown seeks a global sentence of four and a half years’ imprisonment, not including credit for presentence custody. Crown counsel identifies a number of aggravating circumstances which, he submits, justifies the sentence sought.

[21] The Crown argues that the attack on Maier-McKenzie was unprovoked and vicious. It also came without warning, using a knife that Mr. Fisher had concealed in his pants’ pocket, which deprived Maier-McKenzie of any opportunity to try to defend himself.

[22] Mr. Fisher slashed Maier McKenzie’s cheek close to his eyes, causing a large laceration. Although the wound was significant, Mr. Fisher could easily have struck Maier-McKenzie’s eye or his neck, resulting in even more severe injuries. Further, because Mr. Fisher and Maier-McKenzie were in a small tightly enclosed space surrounded by others, Mr. Fisher could easily have injured one or more of the bystanders.

[23] The Crown also argues that Mr. Fisher’s criminal record, which is extensive and serious, is a further aggravating circumstance.

[24] In the Crown’s submission, this case falls within the upper end of the range identified by Code J. in Tourville. As such, a sentence of four and a half years’ imprisonment is appropriate. The Crown agrees that Mr. Fisher should receive R. v. Summers, [2014] 1 S.C.R. 575 [^10] credit on a 1.5 to 1 basis for 139 days of presentence custody, resulting in a credit of 209 days against the sentence to be imposed.

[25] Counsel for Mr. Fisher submits that a sentence of 12 months’ imprisonment would be appropriate in the circumstances, not including credit for presentence custody and time spent on bail while being subject to a curfew.

[26] Defence counsel does not take issue with Code J.’s analysis of the relevant jurisprudence regarding the range of sentences for aggravated assault as set out in Tourville and Seerattan, and agrees that the principles of denunciation and deterrence are important considerations that must be taken into account in this case. Defence counsel further agrees that Mr. Fisher’s criminal record is an aggravating circumstance, although in her submission his record is somewhat dated. The serious injury suffered by Maier-McKenzie is also an aggravating circumstance.

[27] Nevertheless, defence counsel argues that there are a number of mitigating circumstances which must also be factored into the determination of a fit sentence. These circumstances include the fact that Mr. Fisher experienced a troubled childhood and has had problems with alcohol and substance abuse from a young age. He also suffers from borderline personality disorder, which he is dealing with through medication. Defence counsel further points out that a significant period of incarceration would have collateral consequences on Mr. Fisher’s children, who would be deprived of his guidance and support during that time.

[28] Defence counsel argues that, in addition to 209 days of Summers credit for presentence custody, Mr. Fisher should receive 262 days of R. v. Downes, 2006 ONCA 3957 [^11] credit for the 1309 days he was on bail and subject to a curfew (i.e., one day of credit for every five days subject to a curfew while on bail). [^12] This results in a total credit of 471 days. After deducting this credit from the 12 months’ imprisonment sentence, Mr. Fisher would be in a time served situation.

Analysis

[29] I accept the Crown’s description of Mr. Fisher’s attack on Maier-McKenzie as being vicious and unprovoked. The surveillance video shows that after a brief conversation, Mr. Fisher suddenly pushed Maier-McKenzie back, thereby giving Mr. Fisher the opportunity to pull a knife out of his pants’ pocket and slash Maier-McKenzie across the face.

[30] Maier-McKenzie sustained a large laceration across his left cheek just below his eyes. I agree with the Crown’s suggestion that, while the injury sustained was itself serious, it could well have been far worse had Mr. Fisher struck Maier-McKenzie’s eye or his neck.

[31] A further aggravating factor is Mr. Fisher’s extensive and serious criminal record. He has a fairly continuous record of offences between 2008 and 2017. I do note, however, that he has not had any further convictions since 2017, which is somewhat mitigating in the circumstances.

[32] I accept that Mr. Fisher’s troubled childhood and the fact that he is experiencing ongoing issues with depression, borderline personality disorder, and alcohol and substance abuse are relevant mitigating considerations. On the other hand, I have no independent or specific evidence in support of defence counsel’s submission that Mr. Fisher has somehow “turned his life around”. Absent such evidence, I am unclear as to the basis for that submission.

[33] I further accept that Mr. Fisher being subject to a curfew while on bail is a relevant mitigating consideration to be considered in determining the appropriate sentence. However, I do not have any specific evidence as to the actual impact that this curfew may have had on Mr. Fisher’s normal daily activities. Moreover, most of the cases which have given significant weight to onerous bail conditions have been ones in which an accused was subject to house arrest or other similar condition. Being subject to a curfew while on bail is obviously much less onerous and punitive than house arrest. Nevertheless, I agree that in determining an appropriate sentence, courts have been prepared to consider the fact that an accused person was subject to a curfew, provided that this does not render the ultimate sentence unfit. [^13] I am therefore prepared to consider Mr. Fisher being subject to a curfew while on bail as a mitigating consideration in the determination of an appropriate sentence.

[34] The cases provided by the Crown support the conclusion that, prior to considering the various mitigating circumstances identified above, a sentence in the range of four and a half years would be appropriate in this case.

[35] For example, in R. v. Haly, 2012 ONSC 2302 [^14], the complainant was the manager at a gym and did not know the accused, who was working out at the same gym. While the complainant was engaged on a weight machine, the accused proceeded to stab him in the back with a hunting knife. Fortunately, all the complainant’s many stab wounds were to soft tissue. The accused was 28 years old with no criminal record and he suffered from a depressive disorder. He also pleaded guilty to aggravated assault, which was a mitigating consideration. MacDonnell J. imposed a sentence of four and a half years’ incarceration, before credit for pretrial custody.

[36] In R. v. Khan (1991), 49 O.A.C. 42 (C.A.) [^15], the victim was walking down subway stairs when the accused stabbed her in the face with a knife. The victim required plastic surgery and the scar was still evident at trial. The Court of Appeal imposed a sentence of eight years for what was described as a horrific, random, and motiveless attack on a victim engaged in her ordinary daily pursuits.

[37] In Navarathinam, the accused chased the victim out of an apartment carrying a meat cleaver. After punching the victim to the ground, the accused slashed him twice with the meat cleaver, once on his head and once on the left side of his face. Roberts J. found that this case fell at the high end of the ranges identified by Code J. However, in light of a number of mitigating circumstances, Roberts J. ultimately concluded that a sentence at the low-end of the upper range, namely four years, was appropriate.

[38] In this case, considering the various mitigating circumstances identified above, including Mr. Fisher’s difficult background and upbringing; the fact that he has not been convicted of any further offences since 2017; and the 1309 days that he was subject to a curfew while on bail, I find an appropriate global sentence for the offences committed in this case to be three years and six months’ incarceration, before subtracting credit for presentence custody.

[39] As noted above, it is agreed that Mr. Fisher spent a total of 139 days in presentence custody and that this should result in a credit against his sentence of 209 days. Deducting that credit against his global sentence of 3 years and 6 months, results in a period of 2 years and 339 days remaining to be serve.

Disposition

[40] The sentence shall be entered as follows:

a. Count One, aggravated assault: after subtracting credit for presentence custody of 209 days from an initial global sentence of 3 years and six months, a period of incarceration of 2 years and 339 days remaining to be served;

b. Count Two, assault with a weapon: stayed on the basis of the Kienapple principle;

c. Count Three, carrying a concealed weapon without authorization: one year of incarceration, to be served concurrently with the sentence for Count One; and

d. Count Four, possession of a weapon for a dangerous purpose: six months of incarceration, to be served concurrently with the sentence for Count One.

[41] I also impose the following ancillary orders:

a. that Mr. Fisher have a sample of his blood taken for inclusion of his DNA profile in the national DNA data bank, pursuant to s. 487.051(1) of the Criminal Code; and

b. that he be subject to a weapons prohibition for life, in accordance with s. 109 of the Criminal Code.

[42] Given that Mr. Fisher is already in custody, the victim fine surcharge is waived in this case.

P. J. Monahan J. Released: March 15, 2023

Footnotes

[^1]: The Crown agrees that the conviction for assault with a weapon contrary to s. 267 (a) should be stayed based on the principle in R. v. Kienapple, [1975] 1 S.C.R. 729. Accordingly, I am sentencing Mr. Fisher only for the other three convictions entered. [^2]: Maier-McKenzie could not be located and thus was unavailable to testify; his preliminary inquiry evidence was admitted pursuant to s. 715(2) of the Criminal Code. [^3]: See Criminal Code, s. 718.1. [^4]: Criminal Code, s. 718. [^5]: R. v. Tourville, 2011 ONSC 1677, at para. 27. [^6]: R. v. Peters, 2010 ONCA 30, 250 C.C.C. (3d) 277. [^7]: See Tourville, at para. 27; Peters, at para. 7. [^8]: See Tourville, at para. 28, citing R. v. Chickekoo, 2008 ONCA 488; R. v. Moreira, 2006 ONSC 9709, [2006] O.T.C. 279 (S.C.); R. v. Basilio (2003), 2003 ONCA 15531, 175 C.C.C. (3d) 440 (Ont. C.A.). [^9]: In Tourville, Code J. identified the high end of the range as being sentences of 4-6 years. More recently, in R. v. Seerattan, 2019 ONSC 4340, at para. 36, Code J. clarified that the range of appropriate sentences for aggravated assault is even wider than he had previously described in Tourville, with the bottom end of the range including noncustodial sentences, and the top of the range including sentences of 8 years. Code J.’s analysis had been referred to favourably by the Court of Appeal: see R. v. Randhawa, 2020 ONCA 668, at paras. 22, 38. [^10]: R. v. Summers, [2014] 1 S.C.R. 575. [^11]: (2006), R. v. Downes, 2006 ONCA 3957, 79 O.R. (3d) 321 (C.A.). [^12]: As discussed in my analysis below, time spent under onerous conditions of presentence release is a relevant mitigating circumstance to be considered in determining the appropriate sentence, as opposed to a “deduction” or “credit” to be deducted from such sentence: see R. v. Marshall, 2021 ONCA 344, at paras. 52-53. [^13]: See R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145, at paras. 107-14; R. v. Navarathinam, 2021 ONSC 4241, at paras. 48-52. But see Marshall, at para. 52 (since time spent on bail is a mitigating consideration in determining an appropriate global sentence, rather than a “credit” to be deducted from the appropriate sentence, any reduction in sentence attributable to onerous conditions of presentence release must not give undue weight to this factor). [^14]: R. v. Haly, 2012 ONSC 2302. [^15]: R. v. Khan (1991), 49 O.A.C. 42 (C.A.).