Court of Appeal for Ontario
CITATION: R. v. Ashkani, 2013 ONCA 351
DATE: 20130529
DOCKET: C56567
Watt, Tulloch and Lauwers JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Shiva Ashkani
Appellant
Shiva Ashkani, appearing in person
Susan Chapman, acting as duty counsel
Deborah Krick, for the respondent
Heard: May 13, 2013
On appeal from the convictions entered on September 4, 2012 and the sentence imposed on January 15, 2013 by Justice Kelly Wright of the Ontario Court of Justice.
ENDORSEMENT
[1] The appellant was convicted of assault with a weapon and aggravated assault. She was sentenced to a custodial sentence of 11 months, in addition to 396 days of pre-trial custody, which reflected actual pre-trial detention of 264 days, calculated on a 1.5 to 1 basis. This sentence represented a global sentence of two years less one day, plus three years probation.
[2] The appellant’s spouse is the complainant. The appeal focused on the conviction for aggravated assault.
[3] The complainant’s evidence was that the appellant attacked him:
And suddenly, she came over and with all force on her body, she gave me two smash here. Here, between two bones. There, start here, on the top of the stomach here.
THE COURT: I want to say the diaphragm area.
MR. NEZIOL: I think that’s fair.
THE COURT: Yes, sternum, diaphragm.
ANSWER: And that was very, very painful. Then she continued…
ANSWER: Exactly what else, she continued – she tried to continue. In order to avoid, I got her neck and head with my arm like this. Like her head here in order to stop her.
QUESTION: Okay?
ANSWER: And here, she bite me.
[4] The complainant testified that the pain in his torso got worse over the next few days. His abdomen started to swell and he could not eat or go to the bathroom. He saw Dr. Justin Lee at the York Central Hospital. Dr. Lee testified that a C.T. scan of the complainant’s belly and pelvis showed that it was filled with blood. The complainant was bleeding from his spleen which had to be surgically removed. Dr. Lee testified that the complainant lost 3.5 litres of blood. The complainant originally told the doctor that he had slipped and fallen on a chair causing the injury. It later transpired, however, that the complainant disclosed that his wife had beaten him.
[5] In his expert evidence, Dr. Lee, who was also the treating physician, testified that a rupture of the spleen is usually caused by “one significant blow”. He testified: “I would suspect that a more forceful injury would be required to rupture the spleen than a punch.”
[6] Based on Dr. Lee’s evidence, the defence took the position that the Crown had not proven causation beyond a reasonable doubt.
[7] The trial judge found as a fact that the complainant was assaulted by the appellant:
[64] I find that a reasonable person in the same circumstances punching someone as hard as they could in the upper abdomen would realize and expect that doing so would put that person at risk for suffering some kind of bodily harm and some kind of injury more than just brief and fleeting.
[8] The trial judge then turned to the issue of causation:
[66] I must go on to consider if I am satisfied beyond a reasonable doubt that those punches caused the spleen of Mr. Danesh to rupture. Defence counsel argues that the punches did not and could not have caused Mr. Danesh’s spleen to rupture. Defence counsel said there must have been some other intervening acts that caused the injury.
[67] Defence counsel directs my attention to the explanation that Mr. Danesh first gave to Dr. Lee when he was admitted to hospital. He told Dr. Lee that he was getting out of a chair and slipped and hit his chest. Mr. Danesh told this court that he did not fall getting out of a chair. He said he intentionally lied to the doctor to protect his wife and prevent the police from becoming involved. As set out in my reasons above I accept Mr. Danesh’s evidence and explanation in that regard.
[9] The trial judge then considered the evidence of Dr. Lee at length and concluded:
[80] I have considered Dr. Lee’s opinion that the amount of blood in Mr. Danesh’s belly was more consistent with an immediate bleed than a delayed rupture but I also take into account that the doctor qualified his answer by saying that he had never personally dealt with a delayed rupture of the spleen and could only reiterate what he had read in literature.
[81] In fact, Dr. Lee indicated that his opinion was based solely on his experiences with ruptured spleens, and I remain uncertain about the breadth of that experience.
[82] I am satisfied beyond a reasonable doubt that Mr. Danesh suffered no other blunt force trauma other than punches from Ms. Ashkani between April 14th and April 23rd, 2012. I am satisfied beyond a reasonable doubt that when Shiva Ashkani punched Mr. Danesh on April 19th, 2012 she did so with enough force to rupture his spleen.
[10] Duty counsel argues that in reaching this conclusion, the trial judge made palpable and overriding errors in assessing the evidence. We disagree. Scientific proof of causation is not required and common sense inferences from the facts may suffice, as they do in this case, to establish the causal link between the appellant’s assault and the complainant’s injury.
[11] In terms of the sentence, we observe that even if aggravated assault could not have been proven on the facts, but only assault causing bodily harm, the sentence imposed by the trial judge would still have been fit.
[12] For these reasons, the appeal from conviction is dismissed. Leave to appeal sentence is granted, but the appeal from sentence is also dismissed.
“David Watt J.A.”
“M. Tulloch J.A.”
“P. Lauwers J.A.”