COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Randhawa, 2020 ONCA 668

DATE: 20201023

DOCKET: C67018

Juriansz, Tulloch and Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ashmin Randhawa

Appellant

Ian B. Kasper, for the appellant

Elena Middelkamp, for the respondent

Heard: September 1, 2020 by videoconference

On appeal from the conviction entered by Justice Joseph A. de Filippis of the Ontario Court of Justice on April 29, 2019, with reasons reported at 2019 ONCJ 270, and from the sentence imposed on September 9, 2019, with reasons reported at 2019 ONCJ 633.

Juriansz J.A.:

A. Introduction

[1] The appellant appeals her conviction on one count of aggravated assault and one count of assault with a weapon. She also seeks leave to appeal her sentence of 12 months in custody followed by two years of probation. For the reasons below, I would dismiss the conviction appeal, grant leave to appeal the sentence, and allow the sentence appeal.

B. Facts

[2] On October 23, 2017 there was a physical confrontation between Zachary Heyes and three other men including Clayton Pye, a muscular 200-pound wrestler, Vladimir Kazbekov, a wrestler trained in mixed martial arts, and Mr. Budgey, another wrestler. The appellant, who witnessed the confrontation, stabbed Mr. Pye with a knife and caused a minor cut to Mr. Kazbekov.

[3] At the time of the incident, the appellant was in a troubled romantic relationship with Mr. Heyes. Mr. Pye, who previously had been in a romantic relationship with the appellant, knew of the appellant’s troubled relationship with Mr. Heyes and saw himself as the appellant’s guardian. Mr. Pye lived in a house with other members of the Brock University wrestling team. The appellant, who is not a wrestler, also lived in the house.

[4] On the day of the incident, Mr. Heyes and the appellant were in the appellant’s room. They had consumed cocaine.

[5] Sometime after 6 p.m., soon after Mr. Heyes’ departure, Mr. Pye offered to take the appellant to her disabled vehicle. The appellant suddenly ran down the street. Mr. Pye, Mr. Kazbekov, and Mr. Budgey followed the appellant down the street. As they turned a corner, Mr. Pye saw Mr. Heyes standing in front of the appellant who had her back to a wall. Mr. Pye and Mr. Kazbekov, concerned for the appellant’s well-being, went to confront Mr. Heyes.

[6] Despite minor inconsistencies in the witness’ testimonies about how the fight unfolded, the trial judge accepted it started between Mr. Kazbekov and Mr. Heyes. Mr. Heyes tried to punch Mr. Kazbekov. Mr. Kazbekov ducked, threw Mr. Heyes to the ground, and punched him on the head more than once. Mr. Kazbekov let Mr. Heyes stand and said, “we are done.” As he stood up, Mr. Heyes tried to attack Mr. Kazbekov but was taken down again and punched. Mr. Heyes tried several times to get up and attack Mr. Kazbekov but was taken down each time with greater force. At this point, the appellant tried to intervene but was restrained by Mr. Pye. Mr. Heyes then stood up and tried to punch Mr. Pye who also threw Mr. Heyes to the ground in a wrestling maneuver and punched him in the head three to four times. Mr. Heyes then tried to punch Mr. Budgey, who had also arrived at the scene, and suffered the same consequences. The trial judge accepted Mr. Heyes may have been physically restrained concurrently by more than one of his opponents during the confrontation.

[7] After about five to ten seconds, Mr. Heyes and Mr. Pye stood a few feet apart. Mr. Pye believed the fight had ended. He started to walk away but, after Mr. Heyes said something to him, turned to face Mr. Heyes. They resumed arguing with each other. At this point, the appellant ran to Mr. Kazbekov and pushed him to the ground. As he stood up, the appellant took out a knife from a sheath hanging on her neck and swung at Mr. Kazbekov, causing him a minor cut. She then moved towards Mr. Pye, raised her arm, and stabbed him in the left clavicle area.

[8] After the stabbing, a witness heard the appellant say, “I didn’t mean to do it, I had to do it, they were going to kill him.” The parties agreed that, at the police station, the appellant told an officer she believed Mr. Pye, Mr. Kazbekov, and Mr. Budgey “[did] not like” Mr. Heyes “and were beating him up.”

C. Conviction Appeal

(1) Trial Judge’s Reasons for Conviction

[9] The appellant did not testify at trial. She took the position she acted in defence of Mr. Heyes and her actions were justified under s. 34 of the Criminal Code. The issue before the trial judge was whether the Crown had proved beyond a reasonable doubt that the appellant did not lawfully act in defence of Mr. Heyes under s. 34.

[10] Section 34 of the Criminal Code, which replaced the earlier provisions relating to self-defence in 2013, provides:

Defence – use or threat of force

(1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

Factors

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person's role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person's response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

[11] The trial judge found the requirements of ss. 34(1)(a) and (b) were satisfied. He rejected the Crown’s argument that the appellant knew the fight was over when she attacked Mr. Pye and Mr. Kazbekov and found the appellant acted for the purpose of defending Mr. Heyes from the wrestlers’ attacks.

[12] The sole issue in the case was whether s. 34(1)(c) was satisfied; i.e. whether the appellant had acted reasonably in the circumstances. The trial judge proceeded, correctly, on the basis that while the appellant’s intoxication by cocaine may have affected her subjective perception, the objective reasonableness element of self-defence is based on a sober person facing the relevant threat of force.

[13] The trial judge found the appellant’s apprehension that the wrestlers “were going to kill [Mr. Heyes]” was not grounded in reality. Rather, they had used their arms, legs, and bodies in wrestling maneuvers to repeatedly take Mr. Heyes to the ground and punch him. Their taking Mr. Heyes to the ground and punching him were “not remotely life threatening.” They did not use weapons. They did not want to prolong the confrontation. On the other hand, the appellant’s conduct was wholly disproportionate to the threat Mr. Heyes faced. The appellant could have appealed to Mr. Heyes to back off or shouted for help to stop the fight. The trial judge concluded no reasonable person in the appellant’s circumstances would have “over-reacted” and used the knife as she did.

(2) Issues Raised in the Conviction Appeal

[14] The appellant’s first ground of appeal is that the trial judge erred in his analysis of whether the appellant’s actions were reasonable in the circumstances. The appellant submits the trial judge erred by treating the proportionality of the appellant’s use of force as determinative of its reasonableness. The appellant argues that while proportionality was determinative under the pre-2013 self-defence provisions, s. 34 now requires the consideration of all the factors set out in s. 34(2), one of which is proportionality.

[15] Second, the appellant argues the trial judge did not consider the evidence as a whole and, consequently, drew factual conclusions contrary to or not logically arising from the evidence. The trial judge erred by conducting a frame-by-frame analysis of the fight rather than considering the persuasive effect of the totality of the evidence.

[16] Third, the appellant argues the guilty verdicts on the charges of aggravated assault and assault with a weapon were unreasonable.

(3) Discussion of Conviction Appeal

[17] I am not persuaded that the trial judge used the proportionality of the appellant’s use of force as determinative of its reasonableness.

[18] A trial judge is not required to specifically identify and discuss each of the factors listed in s. 34(2). Here, the trial judge’s reasons, read as a whole, show that he considered all the relevant factors. He found the force Mr. Heyes faced was not life-threatening: s. 34(2)(a). He noted evidence the fight may have ended five to ten seconds before the appellant stabbed Mr. Pye and found the appellant could have shouted for help instead of stabbing Mr. Pye: s. 34(2)(b). He considered the appellant’s actions before, during, and after Mr. Pye was stabbed, including her consumption of cocaine earlier, her erratic behaviour, and her attempts to verbally and physically intervene in the fight: s. 34(2)(c). He pointed out that the wrestlers were unarmed and that only the appellant carried and used a knife: s. 34(2)(d). He referred repeatedly to Mr. Pye’s muscular build and expertise in wrestling and Mr. Kazbekov’s training in mixed martial arts. He noted Mr. Heyes’ lack of training as a fighter. He was well aware that the appellant is a petite female: s. 34(2)(e). He considered the nature and history of the relationships between the appellant, Mr. Pye, and Mr. Heyes, including past confrontations between Mr. Pye and Mr. Heyes, and their impact on the appellant’s subjective perception of the threat faced by Mr. Heyes: s. 34(2)(f) and (f1). Finally, he considered whether, given the fight may have been over or at least paused, the appellant’s use of her knife was proportional to the threat of being taken down that Mr. Heyes faced: s. 34(2)(g).

[19] The trial judge’s findings of fact support his weighing of the various factors and his conclusion the appellant’s acts were not reasonable in the circumstances. I would not give effect to the appellant’s first ground of appeal.

[20] I would also reject the appellant’s second ground of appeal. The trial judge did not consider aspects of the evidence in isolation. The trial judge acknowledged the appellant’s “attacks occurred within the context of several physical confrontations that quickly unfolded.” He considered the evidence of all the witnesses taken as a whole and noted the minor inconsistencies. While he rejected Mr. Pye’s testimony that the appellant swung her knife at him a second time, he was entitled to accept other parts of his testimony.

[21] Finally, I do not agree that the guilty verdicts were unreasonable. The evidence was sufficient for a reasonable trier of fact properly instructed and acting judicially to find the appellant guilty.

D. Sentence Appeal

(1) Trial Judge’s Reasons for Sentence

[22] At the sentencing hearing, the Crown sought a 21-month jail sentence relying on the mid-range sentences for aggravated assault described in R. v. Tourville, 2011 ONSC 1677. The appellant sought a suspended sentence to be followed by a period of probation, relying on R. v. White, 2014 ONSC 2878. The trial judge sentenced the appellant to 12 months in custody followed by two years of probation. He further imposed a ten-year weapons prohibition and a DNA order.

[23] In sentencing the appellant, the trial judge emphasized denunciation and deterrence. He quoted and agreed with the statement in White, at para. 3, that “it is a rare case when a stabbing that has occurred without legal justification would be punished by a suspended sentence and probation and no incarceration.” He added that he agreed with the statement because the principles of denunciation and deterrence demand incarceration in most cases. In his opinion, the circumstances of the appellant and her actions did not justify a departure from these “established sentencing principles.”

(2) Issues Raised in Sentence Appeal

[24] The appellant seeks leave to appeal her sentence. She submits that the trial judge wrongfully concluded rehabilitation was not a factor to be considered in her sentencing and in doing so failed to apply the well-accepted principles unique to sentencing youthful first-time offenders, such as the appellant.

[25] The appellant tendered fresh evidence. The fresh evidence relates primarily to her further rehabilitative progress while on bail pending appeal. The fresh evidence also indicates she suffers from “moderate asthma”. She invites the court to consider the COVID-19 pandemic in Ontario and her susceptibility to a negative outcome should she become infected while incarcerated.

[26] The crown argues, the trial judge did not err in principle, as he considered the rehabilitative prospects of the appellant, and the sentence imposed was fit and within the appropriate range, given the circumstances of this case.

[27] The Crown contends case-specific evidence is required to establish there is an increased risk of transmission of COVID-19 in all custodial settings. The Crown further submits a reduction in the appellant’s sentence based on the potential collateral consequences to her health would be contrary to the principle of proportionality in sentencing.

(3) Discussion of Sentence Appeal

[28] The appellant relies on the trial judge’s statement, at para. 20 of his sentencing reasons, that “specific deterrence and rehabilitation are not factors in my decision.” The Crown relies on the statement, at para. 21 of the reasons, that the appellant’s background and post-offence efforts “are mitigating factors and warrant a disposition below the mid-range sentences identified by Justice Code in Tourville.”

[29] These two seemingly inconsistent statements are reconciled on a reading of the sentencing reasons as a whole. The trial judge concluded that the “established sentencing principles” required he impose a custodial sentence, but that any custodial sentence be mitigated by the appellant’s rehabilitative prospects, which would, then, only determine the appropriate length of the incarceration.

[30] The fundamental sentencing principle that applied in this case is that sentences other than a custodial one must be considered in sentencing a youthful first-time offender. The trial judge noted the Crown’s acknowledgement that the appellant “is a first offender who, with the help of concerned parents, has made efforts to rehabilitate” and that specific deterrence is not an issue. This is the only reference to the appellant as a first-time offender in the trial judge’s reasons. He did not refer to the appellant as a youthful first-time offender and did not state her age in his reasons for either sentence or verdict. The appellant, who was 23 years and eight months old, and a student at the time of the offence, was a youthful first-time offender. In R. v. Beauchamp, 2015 ONCA 260, 326 C.C.C. (3d) 280, at paras. 373 and 379, this court applied the principle to a 24-year-old offender. As in that case, the trial judge erred in principle by failing to advert to the established sentencing principle that applies to youthful first-time offenders and by placing undue weight on deterrence and denunciation and considering rehabilitation only “when addressing the length of the custodial sentence to be imposed”, having already concluded that a custodial sentence was appropriate: Beauchamp, at paras. 377-379; see also R. v. Ijam, 2007 ONCA 597, 87 O.R. (3d) 81, at paras. 53-57, per Sharpe J.A. (concurring). It falls to this court to determine the appropriate sentence applying this established principle.

[31] At the time of the offence, the appellant was suffering from depression and anxiety, and struggling with addictions to cocaine and prescription drugs. She had suffered domestic violence at the hands of Mr. Heyes, and the trial judge seemed satisfied the complainants were trying to protect her from Mr. Heyes. The trial judge found the most likely explanation for the appellant’s “overreaction” on the night of the incident was her cocaine use earlier that evening. However, he also noted evidence she had distanced herself from “bad company and drugs” since the incident.

[32] After her arrest, the appellant completed residential and nonresidential rehabilitation programs. At the time of sentencing she had not used cocaine in almost two years and was working in the family’s business, a gas station.

[33] The fresh evidence, which I would admit, indicates she has continued her efforts to rehabilitate herself. On an individual basis, she continues to see the licenced therapist with whom she worked at the residential rehabilitation centre through videoconferencing. The therapist writes that the appellant “has truly transformed her life”, that she “is addressing her anxiety, depression, addiction and trauma head on” and is “using her relapse prevention skills daily.” The therapist opines that “imprisonment would jeopardize [her] recovery” and her “mental health [and] sobriety would be put in danger.” In December 2019 the appellant obtained employment with Juice Plus and has been promoted three times. She now has four team members working below her. She had been and continues to work at the family’s gas station. The fresh evidence also includes a letter from her parents. It indicates she has been living with them since the sentencing and they have seen the improvement in her emotional and physical health. The sentencing report states that the appellant’s mother thinks she got mixed up with the wrong crowd when she went away to university.

[34] In assessing the appellant’s moral blameworthiness, I note the verdict rested on the third element of s. 34(1) of the Criminal Code: whether the appellant’s conduct was reasonable in the circumstances. The trial judge did not accept the Crown’s submission on the first question: whether the appellant believed on reasonable grounds that force was being used against Mr. Heyes. The trial judge also found that there was “no dispute about the second question”; the appellant had attacked for the purpose of defending Mr. Heyes.

[35] The appellant’s subjective, though mistaken, belief that she was acting in defence of one man who had suffered, as the trial judge described, “bruising, concussion, and fractured bones” at the hands of three others diminishes her moral blameworthiness.

[36] The trial judge described the altercation as a consent fight and used as a guide the range of sentences set out in Tourville for consent fights. The fight started when Mr. Heyes approached Mr. Kazbekov aggressively, and so Mr. Kazbekov “took him down”. There was no evidence that the combatants in this case agreed to fight and, in any event, the person who was being sentenced was not part of a fight to which she consented. A more appropriate guide than sentences imposed for aggravated assaults by combatants in consent fights, is the range of sentences imposed in cases in which the offender acted in defence of another person.

[37] As an example, in R. v. Bainbridge, 2016 ONSC 2119, the offender poured hot oil over the victim who was “pummeling her son hard, with closed fist punches.” A jury convicted the offender of aggravated assault. The sentencing judge found the offender acted in defence of her son, but her act was unreasonable because it was excessive in relation to the harm her son faced. The sentencing judge imposed an intermittent sentence of 90 days followed by two years’ probation. The sentencing judge reasoned the offender’s subjective belief her son’s life was in danger put her case in a range of sentence below the mid-range sentences imposed in the consent fight cases discussed in Tourville.

[38] The appellant’s efforts to intervene in the fight before drawing her knife and her subjective belief in the danger to Mr. Heyes’ life place this case at the “bottom end” of the range of sentences discussed in Tourville, at para. 27. The bottom end of the Tourville range includes a suspended sentence and probation.

[39] The trial judge recognized the sentence of incarceration would interrupt the appellant’s efforts at rehabilitating herself and expressed his hope the sentence would not defeat it. The appropriate sentence is one that will support the remarkable progress the appellant has made and continues to make. Society will not benefit by sending the appellant, a youthful first-time offender, to jail. The need for deterrence and denunciation are achieved by the conviction, a suspended sentence and a lengthy period of probation, the DNA order, and the ten-year weapons prohibition. In light of this conclusion, I need not address the appellant’s arguments regarding the potential impact of incarceration during the COVID-19 pandemic on her health.

E. Conclusion

I would dismiss the appeal from conviction, grant leave to appeal the sentence, allow the appeal on sentence, and vary the sentence to a suspended sentence together with the other terms imposed by the trial judge.

Released: “RGJ” October 23, 2020

“R.G. Juriansz J.A.”

“I agree. M. Tulloch J.A.”

“I agree. M. Jamal J.A.”