Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20221028 DOCKET: C68898 & C68911

Feldman, Zarnett and Copeland JJ.A.

DOCKET: C68898

BETWEEN

His Majesty the King Respondent

and

Shadib Abdul Ali Appellant

DOCKET: C68911

AND BETWEEN

His Majesty the King Respondent

and

Mohammad Tariq Abdul Ali Appellant

Counsel: Bryan Badali, for the appellants Natalya Odorico, for the respondent

Heard: September 8, 2022

On appeal from the convictions entered on January 15, 2020, and the sentences imposed on November 18, 2020, by Justice Katherine B. Corrick of the Superior Court of Justice.

Zarnett J.A.:

Introduction

[1] The appellants (“Shadib” and “Mohammad”) [1] are brothers. After a judge alone trial, each was convicted of aggravated assault arising out of an attack on the complainant, who was punched, knocked to the ground, and kicked in the head and lower back, causing injuries to his eye, lips, and cheek, as well as a cut on his face. The trial judge sentenced each of Shadib and Mohammad to 15 months in custody followed by probation for two years; she also made certain ancillary orders.

[2] The appellants appeal their convictions. Relying on the fact that the complainant had been involved in an altercation with another member of the appellants’ family on the day before the assault by the appellants, they submit that the trial judge did not sufficiently address whether the Crown had proven beyond a reasonable doubt that the complainant’s injuries were inflicted by the appellants, since they could have resulted from the prior altercation.

[3] The appellants also appeal their sentences, primarily arguing that the trial judge erred in failing to impose a conditional, instead of a custodial, sentence for each of them. [2] They argue that the trial judge improperly focused only on the violent nature of the attack to conclude that the principles of deterrence and denunciation made a conditional sentence inappropriate. They submit that a conditional sentence can provide denunciation and deterrence even for an offence that involves violence, that the complainant did not suffer permanent injury, and that other relevant sentencing principles such as restraint and rehabilitation pulled strongly in favour of a conditional sentence. They point to the trial judge’s findings of fact about the out of character nature of the offences, the appellants’ acceptance of responsibility and genuine expressions of remorse, their pro-social lives as the sole providers for their young families, the absence of any meaningful criminal record, their strong family and community supports, and their strong rehabilitation prospects.

[4] For the reasons that follow, I would (i) dismiss the conviction appeals, and (ii) grant leave to appeal the sentences and vary them to replace the custodial portion of the sentences with sentences to be served in the community − that is, conditional sentences − of 15 months, with a majority of that time to be under house arrest. I would leave in place the probation and ancillary orders the trial judge made.

The Conviction Appeals

[5] The trial judge found that the appellants confronted the complainant at his workplace on the day following a fight between their brother and the complainant. In an attack that lasted 20 seconds, Shadib punched the complainant in the face, causing him to fall to the ground and his head to bounce off the concrete floor. Both Shadib and Mohammad then kicked the complainant in the head and back while he was on the floor, and continued to do so even after others attempted to restrain them.

[6] The trial judge found that the complainant suffered facial injuries − significant bruising and swelling around his right eye, swelling of his lips and cheek, and a large cut on the right side of his face that required medical intervention to repair. The vision in his right eye was affected and he had to wear corrective lenses for a year. She found that he had not, however, suffered any permanent injury. She concluded that the injuries were sufficient to meet the legal standard for aggravated assault by wounding (as the assault broke the skin on the complainant’s face) and by maiming (because of the eye damage requiring corrective lenses).

[7] The only ground advanced on the conviction appeals is that the trial judge’s reasons were insufficient to explain why she did not have a reasonable doubt as to whether the complainant’s injuries were caused by the attack by the appellants. The appellants submit the reasons do not grapple with whether the complainant may have suffered these injuries in his altercation with the appellants’ brother the day before.

[8] I do not accept this submission. There was no evidence at trial that the injuries pre-existed the appellants’ attack. The complainant testified that after the prior altercation he had an injured wrist and some scrapes and bumps on the back of his head; he did not require medical attention and went to work at a physically demanding job the next day. After the appellants’ attack, he was taken to the hospital, had a cut on his face, a swollen lip, and could not see out of one eye which was swollen and bloody.

[9] The trial judge clearly accepted the complainant’s evidence that he suffered the injuries as a result of the appellants’ attack on him at his workplace. She found, for example: “The assault on [the complainant] broke the skin on his face as depicted in the photographs. It required medical treatment. He was ‘wounded’ as that term has been defined by Ontario courts”. This finding entailed rejection of the unsupported suggestion that the injuries were already in existence when the appellants attacked the complainant.

[10] No reversible error occurs when the pathway to the trial judge’s decision is apparent from the record, even if the trial judge has not expressly articulated an element of the pathway: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 32. Here, it is clear from the record, and from the trial judge’s reasons, what the pathway to her decision was. She accepted that it had been proven beyond a reasonable doubt that the appellants’ attack caused the injuries; any contention that there remained a reasonable doubt that the injuries were pre-existing was accordingly rejected.

[11] I would dismiss the conviction appeals.

The Sentence Appeals

(1) Overview

[12] The appellants make two arguments about sentence. First, they argue that the trial judge erred in imposing a 15-month prison sentence instead of a conditional sentence of that length. In the alternative, they argue that the sentence of incarceration should be reduced. As I would accept the first ground of appeal, it is unnecessary to address the second.

[13] A conditional sentence is available for the offence of aggravated assault as a result of this court’s decision in R. v. Sharma, 2020 ONCA 478, 152 O.R. (3d) 209, leave to appeal granted and appeal heard and reserved March 23, 2022, [2020] S.C.C.A. No. 311, which struck down s. 742.1(c) of the Criminal Code, R.S.C. 1985, c. C-46 as unconstitutional. The trial judge recognized this availability, but refused to impose a conditional sentence. [3] In my view, she erred in principle in coming to that conclusion, justifying appellate intervention. [4]

(2) The Trial Judge’s Sentencing Reasons

[14] The trial judge carefully reviewed the circumstances of the offence and the aggravating factors. She considered that the appellants had conducted a “brutal, cowardly attack … on a defenceless victim”, and that the “level of violence was extreme.” She did note, however, that “[f]ortunately, [the complainant] did not suffer any permanent injury.” She accepted that there was no evidence that the assault was planned or premeditated. She found it “was fuelled by the [appellants’] rage at [the complainant] for injuring their youngest brother”, and that it occurred when “cooler heads ought to have prevailed.”

[15] The trial judge also described the circumstances of the offenders − both of whom immigrated to Canada from Afghanistan in 2007 with their parents and siblings − and the mitigating factors.

[16] She noted that Shadib, who was 28 years old at the time of sentencing, was a Canadian citizen, married, and the sole provider for his spouse and two young children. He had a history of gainful employment. For six years following high school he had been licensed, and worked, in the security field; he also worked as an an Uber driver. He lost those positions after being charged with this offence, following which he worked for a flooring business partly owned by Mohammad.

[17] The trial judge also noted that Shadib had no criminal record; that he had strong letters of support from his employer, friends, family, and co-workers; that he had accepted responsibility for this offence; and that he had apologized to the complainant. The trial judge accepted that Shadib’s remorse was genuine.

[18] The trial judge described Mohammad, who was then 35 years old, as a permanent resident of Canada, though not a citizen. She found that he was the sole financial provider for his wife and two young daughters, and contributed to the support of his parents, siblings, and extended family in Afghanistan. She noted that he had been steadily employed since arriving in Canada, and was the part owner of a flooring company. She also noted that a sentence of imprisonment exceeding six months could have a collateral immigration consequence for Mohammad − deportation to Afghanistan − and that this would have a devastating effect on his wife and children.

[19] The trial judge observed that Mohammad had a dated and unrelated criminal record − an impaired driving offence ten years earlier. He had strong letters of support from his business partner, employees, family, and friends. He had accepted responsibility for the offence and apologized to the complainant. The trial judge accepted that Mohammad’s remorse was genuine.

[20] The trial judge also noted that in the three years between the charges and sentencing the appellants had encountered no further difficulties with the criminal justice system.

[21] In summary, the trial judge found that:

Both men are employed. They are productive, contributing members of their communities. They are both married and are the sole financial supports of their wives and children. They enjoy the support of their extended families, co-workers and friends, which bodes well for their rehabilitation…. From all accounts, this violent offence is entirely out of character for both men. The letters filed in support of both men demonstrate that they are regarded as peaceful, respectful and kind people. The pre-sentence reports written about both of them are positive.

[22] The trial judge reviewed the principles of sentencing. She noted that sentencing is an individualized process that turns on the unique characteristics of the offence and the offender. She considered a number of cases involving sentences for aggravated assault, and noted that their relevance was in determining the principles to be applied, a range of sentences, and the factors that would situate the appellants within the range. [5] The trial judge stated that the level of violence was one that called out for a sentence that adequately addressed the principles of deterrence and denunciation.

[23] The trial judge noted that although collateral immigration consequences are to be considered in sentencing, they cannot reduce the sentence below what otherwise would be a fit sentence.

[24] The trial judge then turned to the defence submission that a conditional sentence was appropriate. She explained her rejection of that submission as follows:

I cannot accept Ms. Gavran’s submission that a conditional sentence can adequately address the sentencing objectives of denunciation and general deterrence, which are paramount when dealing with violent offences of this magnitude. Although Chief Justice Lamer held in R. v. Proulx that conditional sentences can meet the objectives of denunciation and deterrence in some cases, he also noted that there will be cases, ‘in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct.’ The sheer brutality of this assault requires the imposition of a custodial sentence. A conditional sentence cannot satisfy the sentencing objectives of denunciation and general deterrence.

[25] After rejecting a conditional sentence, the trial judge then specifically adverted to the significant and important objective of rehabilitation given the “excellent rehabilitative prospects of both of the [appellants]”; she also adverted to the appellants’ “mitigating personal circumstances”. She relied on those factors in rejecting the Crown submission that a penitentiary sentence was required. She imposed a custodial sentence of 15 months, followed by 2 years of probation, and also made two ancillary orders.

(3) The Trial Judge Erred in Principle

[26] With respect, the trial judge’s treatment of the suitability of a conditional sentence involved two interrelated errors in principle, justifying appellate intervention.

[27] First, the level of violence involved in this aggravated assault did not automatically exclude an appropriately crafted conditional sentence. Case law establishes that a conditional sentence can provide deterrence and denunciation, and thus may be appropriate for a crime involving violence, such as aggravated assault, even when deterrence and denunciation are paramount considerations. Conditional sentences have been found appropriate in cases when similar, or more extreme, violence has been present compared to what occurred here.

[28] Second, given that a conditional sentence may be appropriate in a case involving violence, and in which it is necessary for the sentence to address denunciation and deterrence, a sentencing judge should determine whether one is appropriate by considering, and weighing, the ability of a conditional sentence to meet the deterrence and denunciation objectives and other relevant sentencing objectives, including restraint and rehabilitation. Here, the trial judge properly identified restraint in her general description of sentencing principles, and identified rehabilitation as an important sentencing goal for these appellants, but failed to consider them in relation to whether a custodial or conditional sentence was appropriate. The trial judge should have considered whether a custodial sentence or one served in the community would better address all of the relevant sentencing objectives − denunciation and deterrence and restraint and rehabilitation.

(4) Conditional Sentences and Crimes of Violence

[29] Where an offence otherwise meets the eligibility criteria for a conditional sentence in s. 742.1 of the Criminal Code, the imposition of such a sentence is not automatically excluded from consideration because the offence involves violence: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 79.

[30] In Proulx, Lamer C.J. stated that conditional sentences can be used in cases that call for denunciation and deterrence because, although a conditional sentence is served in the community and thus is more effective than incarceration at achieving goals such as rehabilitation, it “is also a punitive sanction capable of achieving the objectives of denunciation and deterrence”: at para. 22. Indeed, noting that a conditional sentence can include punitive provisions such as house arrest that carry a stigma that should not be underestimated, Lamer C.J. stated that a conditional sentence can provide “a significant amount of denunciation” and “significant deterrence”: at paras. 102, 105, 107.

[31] Building on Proulx, this approach was recently underscored in Sharma, at para. 171, where Feldman J.A. for the majority observed that:

Even in cases where deterrence and denunciation are the paramount sentencing objectives, a conditional sentence may be appropriate, depending on ‘the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances of the offender and the community in which the conditional sentence is to be served’: Proulx, at para. 114, see, also, R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 35.

[32] The amount of deterrence and denunciation that can be provided by a conditional sentence may not always be enough. The trial judge referred to the statement in Proulx that there will be cases “in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct”: Proulx, at para. 106. In Proulx, the court restored the trial judge’s imposition of a custodial sentence for an accused whose dangerous driving caused serious injury to one person and the death of another.

[33] But Lamer C.J. did not suggest that this conclusion should be reached in every case involving violence without considering all of the circumstances. He noted the need to identify all of the sentencing objectives that applied in the factual circumstances, the need not to rule out a conditional sentence “simply because aggravating factors are present”, and the need for a trial judge, when confronted with a case in which some sentencing objectives militate in favour of a conditional sentence and others favour incarceration, “to weigh the various objectives in fashioning a fit sentence”: at paras. 114-116.

[34] The level of violence in this case was serious − a two-on-one surprise attack involving a punch and repeated kicks to the head and back while the complainant was down. But in contrast to a case like Proulx, the effects of the appellants’ conduct were injuries that, fortunately, were not permanent but resolved within a year. The level of violence properly called for a sentence that addressed deterrence and denunciation. But it did not rule out consideration of a conditional sentence that could provide significant deterrence and denunciation, especially if punitive conditions were included, and could also meet other sentencing objectives that were applicable given all of the circumstances.

[35] There are cases involving a level of violence similar to or more serious than was present in this case where a conditional sentence was imposed. For example, R. v. Johnson, [2005] O.J. No. 1762, is a case that involved one count of aggravated assault and one count of assault causing bodily harm. The accused sought out the victims − two brothers with whom the accused had previously fought, hit one of them in the head with a golf club, fracturing his skull and rendering him unconscious, and used the broken club to stab the other in the back: at paras. 3-10. Although aggravating factors were present − the accused had a criminal record, had made a decision to fight, and had used a weapon − the sentencing judge imposed an 18-month conditional sentence. He noted that the accused had accepted responsibility by pleading guilty and making arrangements to compensate one of the victims, and that he had a positive pre-sentence report, steady employment, and a supportive family, animating other sentencing objectives which would be advanced by a conditional sentence: at paras. 21-26. In order to ensure that the sentence also incorporated the necessary deterrence and denunciation, the sentencing judge ordered that the terms of the conditional sentence include restrictive house arrest: at paras. 30-34.

[36] R. v. Nguyen, 2021 ONCJ 512, is another case in which the level of violence exceeded what occurred in this case. The accused was on a street at night with friends. When the victim approached and tried to shake hands with the accused, one of his companions sucker-punched the victim, and then the accused attacked the victim with repeated punches to the upper body and head area. The victim was then taken to the ground where he was kicked and punched repeatedly. The victim suffered a broken jaw in two places, a concussion, and cuts and bruises to his face and body. His injuries required the insertion of eight screws and two metal plates into his jaw: at para. 2.

[37] In Nguyen, the sentencing judge accepted a plea of guilty to aggravated assault, and imposed a 16-month conditional sentence. [6] He found that there were aggravating circumstances, particularly the victim’s injuries and the fact that the accused continued the assault while the victim was on the ground. He found the plea of guilty to be a sign of remorse although he noted that the accused still blamed the victim: at paras. 17-20. He noted that the offence was out of character for the accused, who had not gotten into any trouble since it occurred. The accused had no prior criminal record, was 27 years old, and was employed at a job he would lose if incarcerated. The sentencing judge considered that the imposition of a conditional sentence, with the first 10 months consisting of house arrest with an exception for employment, was consistent with the principle of restraint and not inconsistent with other fundamental principles of sentencing such as deterrence and denunciation. He stated, at para. 32, that “[e]ven though a conditional sentence does not involve incarceration, it can nonetheless be sufficiently strict that it satisfies all the objectives of sentencing in this case, including denunciation and deterrence, while also satisfying the need to demonstrate restraint.”

[38] These examples [7] do not suggest that a conditional sentence will always be appropriate for a case with this level of violence. But they do suggest, consistently with Proulx and Sharma, that this level of violence does not provide a bright line making conditional sentences per se unavailable. It was an error in principle for the trial judge to rule out a conditional sentence based on the level of violence in this case without considering the extent to which a conditional sentence could provide deterrence and denunciation, especially if punitive conditions were imposed, and without weighing all of the relevant sentencing objectives that were applicable in the factual circumstances.

(5) Failure to Consider the Sentencing Objectives of Restraint and Rehabilitation on the Question of the Appropriateness of a Conditional Sentence

[39] As was stated in Proulx, where a number of sentencing objectives are relevant to a case, and some favour incarceration while others favour a conditional sentence, a court should weigh them: at para. 116. In my view, the trial judge, having concluded that the level of violence required a sentence that stressed general deterrence, erred in principle by failing to weigh other relevant sentencing factors on the question of whether a conditional or custodial sentence should be imposed.

[40] This court has held that the restraint principle requires a sentencing judge to consider all sanctions apart from incarceration, especially for first offenders. It is an error, especially when sentencing a first offender, to focus exclusively on general deterrence and to fail to consider individual deterrence and rehabilitation: R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643, at paras. 32, 34.

[41] Here, on the trial judge’s findings, the assault was out of character for the appellants, who had accepted responsibility for it and had genuinely expressed remorse. Shadib was a first offender, and Mohammad had a dated and unrelated record. Neither had been in trouble with the law since the offences in question. The appellants had lived pro-social lives, were gainfully employed, and were the sole providers for their families. The trial judge did not explain why a period of incarceration, as opposed to a conditional sentence, was necessary for individual deterrence.

[42] As well, the trial judge found that the appellants’ rehabilitation prospects were strong due especially to their employment, community, and familial ties. As Lamer C.J. stated in Proulx, a conditional sentence will “generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender”: at para. 22. The trial judge did not explain why a period of incarceration, that would separate the appellants from those very ties, would promote rather than hinder rehabilitation, or why a conditional sentence would not foster the goal of rehabilitation for these appellants.

(6) Conclusion on Sentence Appeals

[43] In my view, the trial judge erred in principle in rejecting a conditional sentence, in a manner that impacted the sentence. Appellate interference is therefore justified: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44.

[44] On a proper application of the principles, and accepting the trial judge’s findings of the circumstances of the offence and the offenders, and the aggravating and mitigating factors, a conditional sentence that includes a period of house arrest should be imposed. It would more appropriately meet all of the objectives of deterrence, denunciation, restraint, and rehabilitation, than would a custodial sentence. It is therefore the fit sentence in the circumstances. I note that the conditional sentence I would impose is in addition to the time (approximately one month) that the appellants have spent in custody after sentencing and before they were granted bail pending appeal.

[45] I would grant leave to appeal sentence and allow the sentence appeals to the extent of substituting a conditional sentence of 15 months for each appellant for the custodial sentences that were ordered.

[46] The conditional sentences should include house arrest for the first eight months, and a curfew for the balance. They should also include in addition to the mandatory conditions set out in s. 742.3(1) of the Criminal Code, conditions requiring that the appellants abstain from drugs, alcohol, and other intoxicating substances, that they be tested for substances, that they have no contact with the complainant, and that they not own, carry, or possess weapons. As we did not receive submissions on the precise language or details of the proposed terms of the conditional sentences, counsel should confer and provide the court with an agreed form of order. If counsel are unable to agree they should provide written outlines, not exceeding five pages, setting out the areas of, and reasons for, disagreement about the terms, within ten days of the release of these reasons. The court will then specify the precise terms.

[47] The conditional sentences shall be followed by 2 years of probation on the terms ordered by the trial judge. The ancillary orders of the trial judge shall also remain in effect.

Conclusion

[48] I would dismiss the conviction appeals. I would grant leave to appeal the sentences and vary them as outlined above.

Released: October 28, 2022 “K.F.” “B. Zarnett J.A.” “I agree. K. Feldman J.A.” “I agree. Copeland J.A.”

Notes

[1] For clarity, these reasons refer to the appellants by their first names, as did the reasons of the trial judge.

[2] The appellants argue, alternatively, that the trial judge should have imposed a shorter period of incarceration.

[3] Crown counsel took the position during sentencing submissions that a conditional sentence was nonetheless precluded by s. 742.1(e)(i), which was not struck down as unconstitutional in Sharma. The respondent did not make this argument on appeal.

[4] Section 742.1 of the Criminal Code lists four criteria that a court must consider before deciding to impose a conditional sentence: (1) the offender must be convicted of an offence other than one for which a conditional sentence is unavailable under this section; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community must not be endangered by the offender serving the sentence in the community; and (4) a conditional sentence must be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. In this case the only issue is about the fourth requirement.

[5] The cases that the trial judge referred to that imposed custodial sentences for aggravated assault were all decided between 2010 and 2015, that is, during a time period after Criminal Code provisions enacted in 2007 and then in 2012 prohibited conditional sentences for aggravated assault, and before Sharma.

[6] The Crown requested that Mr. Nguyen receive an 18 to 24-month term of imprisonment but neither advocated for nor against a conditional sentence: at para. 11.

[7] Others would be R. v. Carter, [1999] O.J. No. 5419, and R. v. Smart and Camilleri, 2013 ONSC 600. The latter case involved a two-on-one physical attack on a victim who was left with considerable physical injuries and continuing emotional issues including depression and panic attacks. It was decided after the introduction of s. 742.1(c) and before the decision in Sharma, so at a time when conditional sentences were considered unavailable for charges of aggravated assault. Nonetheless, in light of all the circumstances, the sentencing judge considered the accused men to be ideal candidates for a conditional sentence if the option were available: at para. 41. See also R. v. Cameron, 2022 ONCA 710, at paras. 12, 37-41.