Court File and Parties

Court File No.: 4814 09140003408 Toronto Region Date: June 18, 2009 Ontario Court of Justice

Between: Her Majesty the Queen — and — Mohamed Shariff Aidaruse

Before: Justice Charles H. Vaillancourt

Counsel:

• R. Liberman for the Crown
• L. Gafoor for the accused, Mohamed Shariff Aidaruse

VAILLANCOURT J.:

Conviction and Adjournment

[1] I found the accused guilty of one count of assault causing bodily harm contrary to the Criminal Code on November 25th, 2011. Subsequently, the matter was put over for the preparation of a Pre-Sentence Report and sentencing submissions.

[2] The Crown elected to proceed by way of summary conviction.

THE FACTS

[3] The accused and the complainant are brother and sister.

[4] Prior to the date of the offence that is before the court, the complainant demonstrated a history of aggressive behaviour towards others including the accused. This conduct might be related to mental health issues.

[5] The accused did not use any force upon the complainant during these incidents and in fact offered what help he could to assist his sister during her times of difficulty.

[6] On June 15, 2009, the complainant was planning to fly to Africa. The accused was going to drive her to the airport to facilitate her departure.

[7] Before they left the accused's apartment, the complainant received a telephone call from a health professional and the accused was concerned that his sister might have a serious medical condition. This worried the accused because he was aware that his sister did not have any money and wondered how she would cope in Africa should this medical problem come to the fore.

[8] As the complainant and the accused made their way to the airport, the complainant requested the accused to drop her off at a drugstore to allow her to pick up a prescription. The accused pondered how his sister was going to pay for her drugs but she was adamant that she had the situation in hand.

[9] When the complainant re-entered the accused's car, he took it upon himself to seize her purse to see what was in it. This act caused his sister to fly into a rage. The accused exited the motor vehicle with the purse and his sister in hot pursuit. There was a brief struggle over the purse.

[10] In hindsight, the accused conceded that he should not have searched his sister's purse.

[11] The complainant was screaming and yelling at the accused. The accused appeared to be calm during this encounter according to witnesses. The complainant became physically aggressive towards her brother and swung out at him three or four times resulting in at least one slap to the face.

[12] The accused indicated that when his sister struck him in the past during her outbursts, he had ignored them. However, on this occasion he retaliated and punched her in the face.

[13] The accused explained his action in the following terms: "I don't know what happened . . . I hit her . . . in shock." "I reacted without thought." "I was in shock to see her moving back."

[14] Needless to say, the blow was a very significant application of force. Various witnesses described it in the following terms:

"One punch levelled her."

"It was a hard punch."

"She went down like a bag of potatoes."

"I could hear the impact of the punch."

"She fell right down in the parking lot."

"It was a hard hit."

"He put his full body into the punch."

"She fell right down in the parking lot."

"He punched and she flew back."

"He punched her with all his might." "She dropped straight to the ground."

[15] The force of the blow caused the complainant to lose consciousness for a short time.

[16] Medical records from the hospital noted fractures about the right anterior and middle maxillary wall as well as the inferior orbital wall with depression of the inferior orbital wall. There was also swelling about the right orbit.

[17] I rejected defence counsel's submission that the circumstances of this case were tantamount to a reflex action as determined in R. v. Wolfe, [1974] O.J. No. 868, (1974) 20 C.C.C. (2d) 382.

[18] The facts here do not speak to the concept of reflex action but rather responsive action.

[19] I accepted as a fact that the complainant was initially the aggressor on the day in question. However, considering that the accused commandeered her purse, one might very well understand her upset.

[20] It is noted that the accused was well aware of his sister's outbursts and that he had tolerated them in the past and initially tolerated them on the day of the incident.

[21] However, after he was struck in the head, the accused responded with excessive and devastating force with what can only be described as a thundering blow.

[22] It is clear that immediately after his sister hit the ground, the accused was remorseful for what he had done.

[23] I commended the accused for his truthfulness regarding "the razor blade" that a bystander found clenched in the accused's sister's hand after the altercation. This item had not been seen by any of the witnesses during the confrontation including the accused himself. However, many accused persons might have been tempted to mould their testimony to say that the complainant attempted to use the blade during the fray thereby altering the degree of force that might have been appropriate in all the circumstances.

POSITIONS ON SENTENCE

[24] The Crown's original position on sentence was a custodial period of six to nine months followed by probation. However, after being made aware of the particular background of the accused, Ms. Liberman adjusted her position to one of an intermittent sentence of ninety days. In addition, the Crown requested a Section 110 Order for five years and a DNA sample.

[25] Defence counsel has suggested that the appropriate sentence for the accused should be a conditional discharge.

[26] Both counsel have provided the court with authorities to support their respective positions.

BACKGROUND OF ACCUSED

[27] The Pre-Sentence Report that was prepared in this matter can be described as very positive.

[28] The accused is twenty-eight years of age. He is married with two young children and he and his wife are expecting a third child. He has no prior criminal antecedents. He is currently employed and is well-educated.

[29] The accused does not have any issues regarding substance abuse.

[30] The complainant's interaction with her family members caused her to become isolated from them. However, the accused continued to support her both financially and emotionally over the years.

[31] The Pre-Sentence Report notes that the accused's response to the situation on June 15th, 2009 appears to be out of character. I agree with this conclusion.

[32] The following two paragraphs from the Pre-Sentence Report illustrate the accused's remorse, acceptance of his responsibility, and his commitment to addressing any anger issues that precipitated his conduct:

When discussing how the subject incurred the charge before the court, he explained that his judgment at the time was significantly impaired because [the complainant] provoked him through her own aggressive behaviour. He acknowledged that such factors do not vindicate the behaviour for which he incurred the charge before the court. Further, he noted that there were more constructive means of managing his anger at the time such as not interfering with [the complainant] when she wanted to leave or removing himself from the incident. The subject noted that he regrets his behaviour that lead to him incurring the charge before the court and he feels shame for the physical and emotional harm that he caused [the complainant]. The subject also expressed concern as [the complainant] has not connected with their family since the incident. According to the subject, his accumulated stress from taking on too many responsibilities seemed to be associated with his aggressive behaviour.

Following the incident, the accused advised that he researched the topic of anger management and acknowledged that he could benefit from counselling. Between the date of the incident that led to the charge before the court and November 14th, 2010, the subject attended ten, one-hour individual psychological counselling sessions at the Anger Management Centre of Toronto Inc.

[33] The accused also filed a very heartfelt letter of apology to his sister. (Exhibit #1 on Sentencing)

[34] The probation officer indicated that the accused appeared to be able to place himself in the victim's position and see the damage done both physically and emotionally.

THE LAW

[35] The Crown supported her position for a custodial sentence with a number of authorities that involved domestic violence. I shall make specific reference to those cases in these reasons. However, at this juncture, I would emphasize that I do not consider the case at bar to fall under the umbrella of domestic violence.

[36] It is true that the accused and the victim are brother and sister. However, both are adults and live separate and apart from one another. Neither the provisions of Section 718.2(a)(ii) or (iii) of the Criminal Code of Canada apply to our factual situation.

[37] In R. v. Chirimar, [2007] ONCJ 385 (O.C.J.), Justice Trotter imposed a sentence of six months incarceration and three years of probation on the accused for two counts of assault causing bodily harm against his wife.

[38] The accused in Chirimar was a first offender, had entered pleas of guilt, and had undertaken rehabilitative measures. In spite of these mitigating factors, Justice Trotter noted at paragraph 22 that:

"The accused terrorized his wife with his irrational, hair-trigger temper. His control over the situation was so complete that he supervised the masking of the injuries he inflicted on his wife before she was permitted to leave the home."

[39] Justice Trotter also found that the abuse perpetrated by the accused in Chirimar was not only of a continuing nature that resulted in serious injuries but that the assaults were carried out in the presence of their infant son.

[40] Justice Trotter concluded at paragraph 30 of his reasons that:

"The fact that offenders like the accused use the sanctity of the family home as a refuge in which to perpetrate continuing violence on their spouses, in secret, fuels the need to severely denounce this conduct as completely unacceptable to our way of living. Moreover, sentences must be imposed to act as a deterrent to other like-minded individuals."

[41] Ms. Liberman also referred the Court to the decision of R. v. King, [2007] O.J. No. 3805. Justice Reinhardt imposed the equivalent of a nine-month sentence for one count of assault bodily harm by the accused on his common-law partner and a simple assault on his partner's fifty-nine-year-old mother. The complainant spouse had been knocked out and suffered a serious injury to her right eye as a result of a punch delivered by the accused and her mother had been pulled off her bed.

[42] The accused in King had a prior domestic assault and was on a peace bond in relation to a non-domestic matter at the time of the offences. Justice Reinhardt took into account the mitigating factors that included the accused's pleas of guilt, a positive pre-sentence report, a letter filed from a potential employer and efforts that he had been made to obtain counselling.

[43] In R. v. Bois, 2009 MBCA 70, [2009] M.J. No. 197 (Man. C.A.) the Manitoba Court of Appeal varied a twelve month conditional sentence and probation to a six month term of incarceration plus probation. This was another case of domestic abuse wherein the accused punched and kneed his common-law spouse several times in the head and choked her twice causing her to lose consciousness.

[44] The aforementioned cases demonstrate that it is not uncommon that serious domestic cases of assault can lead to sentences of incarceration. The aforementioned cases highlight the seriousness of violent domestic assaults and they demonstrate the efforts of the courts to deter the systemic reign of terror that some spouses perpetrate on their vulnerable partners.

[45] For our purposes, I am not concerned about the domestic component of the cases. However, I find these cases useful for the principle that for serious assaultive conduct, accused persons put themselves in a serious position of jeopardy wherein courts often use incarceration as a necessary component in sentencing.

[46] Defence counsel countered the Crown's incarceration approach to sentencing with cases supporting a conditional discharge.

[47] When one is considering the appropriateness of granting a discharge where the conduct of the accused results in serious bodily harm, one must be mindful of the Ontario Court of Appeal's decision in R. v. Wood, 24 C.C.C. (2d) 79 wherein the Court observed that:

"It is our view that in cases of violence resulting in injury the requirement of general deterrence to the public militates, in almost every case, against the grant[ing] of a conditional discharge, notwithstanding considerations personal to the accused."

[48] Obviously, the Wood decision does not act as a bar to discharges being granted in appropriate situations and in fact courts have exercised that option. In R. v. Jimenez, [1999] O.J. No. 1847 (Ont. Ct. of Justice (General Division)), the accused punched the victim in the mouth resulting in significant dental costs. Justice Kozak granted a conditional discharge. It should be noted though that the Court was aware that there had been provocation on the part of the victim. In R. v. Sweeney, [2001] O.J. No. 1899 (Ont. Ct. of Justice), the accused was found guilty of assault causing bodily harm when he knocked the victim to the ground. While the victim was unconscious on the ground, the accused viciously stomped on him and had to be pulled away. The victim suffered serious injuries. In R. v. McGee, [2011] O.J. No. 863 (OSC), the victim suffered a three-inch cut to his chin. The injuries in McGee are significantly less than in our factual situation.

CONCLUSIONS

[49] In spite of the degree of force used by the accused on the date in question, I am not satisfied that incarceration is necessary.

[50] The fact that the accused comes before the court as a first offender; experienced a brief momentary loss of control when he threw one punch; was immediately remorseful for his outburst; has an obvious overriding love and concern for his sister; has a solid educational and work record; has a young family to support; has no substance abuse issues; and has voluntarily sought out and completed an anger management course prior to sentencing demonstrates that he is unlikely to reoffend in the future and does not require the deterrence of incarceration.

[51] Although, I consider it unnecessary to incarcerate the accused, I am also disinclined to grant him a conditional sentence. I do not see any compelling reason why I should deviate from the principle as set out in R. v. Wood (supra). I conclude that it would be contrary to the public interest to grant a discharge. The accused's sister presented no more than a loud annoyance and could have been dealt with in any number of ways short of the vicious blow that knocked her unconscious.

[52] Accordingly, there will be a monetary disposition in the amount of $500.00 plus the victim fine surcharge. In addition, the accused will be on probation for eighteen months on the following terms:

1. Be of good behaviour and keep the peace.

2. Report to a probation officer today and then as required.

3. Reside at an address approved of by his probation officer.

4. To have no contact directly or indirectly with his sister unless he has the express written/revocable consent of the sister that will be filed with the probation officer.

5. Not to have in his possession any weapons as defined by the Criminal Code of Canada.

6. Attend and participate to the satisfaction of the probation officer in any counselling as directed by your probation officer and sign any necessary releases in connection therewith.

[53] The accused will also be the subject of a Section 110 Order for five years and a DNA Order.

Dated at the City of Toronto this 18th of April 2012

Signed: "Justice Charles H. Vaillancourt"