Court Information

Ontario Court of Justice

Date: November 1, 2016

Court File No.: Halton 15-2391

Parties

Between:

Her Majesty the Queen

— And —

Shenaaz Ali

Before the Court

Justice: D.A. Harris

Heard on: February 2, 2016 & August 16, 2016

Reasons for Judgment released: November 1, 2016

Counsel

For the Crown: Amy Stevenson & Mary Ward

For the Defendant: Robert Brooks

HARRIS J.:

The Offences and Guilty Plea

[1] Shenaaz Ali pled guilty to three offences, all of which occurred in Milton on July 2, 2015. These offences are:

1. Assault Kristopher Vardy with a weapon, to wit a metal pole;
2. Assault causing bodily harm to Kristopher Vardy; and
3. Threaten death to Kristopher Vardy.

[2] Crown counsel elected to proceed summarily.

[3] Ms. Ali is before me today to be sentenced.

Sentencing Submissions

[4] Crown counsel suggested that I should sentence her to imprisonment for six to nine months, followed by probation.

[5] Counsel for Ms. Ali suggested that I impose a suspended sentence or a conditional sentence of imprisonment.

[6] Both agreed that I should make a DNA order and impose a firearms prohibition.

[7] I find that a blended sentence of imprisonment for one day together with a conditional sentence of imprisonment for six months followed by probation for three years is the appropriate sentence here.

[8] My reasons for this are set out as follows. I will first review the law regarding conditional sentences of imprisonment and the fundamental purpose and principles of sentencing. I will then address the facts underlying the offences, the impact on the victim and the background of Ms. Ali. I will conclude with an analysis of all of those factors.

CONDITIONAL SENTENCE OF IMPRISONMENT

[9] The conditional sentence came into being when section 742.1 of the Criminal Code was proclaimed in 1996.

[10] The Supreme Court of Canada subsequently stated in R. v. Proulx that "Parliament clearly mandated that certain offenders who used to go to prison should now serve their sentence in the community."

[11] The Supreme Court of Canada stated further that an offender who meets the criteria of section 742.1 will serve a sentence under strict surveillance in the community instead of going to prison. Her liberty will be constrained by conditions to be attached to the sentence. In case of breach of conditions, the offender will be brought back before a judge who may order her to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence.

[12] Section 742.1 lists five criteria that a court must consider before deciding to impose a conditional sentence. These are:

1. The offender must be convicted of an offence that is not specifically excluded by the legislation;
2. The offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;
3. The court must impose a term of imprisonment of less than two years;
4. The safety of the community would not be endangered by the offender serving the sentence in the community; and
5. A conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[13] The first four criteria are prerequisites to any conditional sentence. These prerequisites answer the question of whether or not a conditional sentence is possible in the circumstances. Once they are met, the next question is whether a conditional sentence is appropriate. That decision turns upon a consideration of the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[14] In Ms. Ali's case, the first four prerequisite criteria have been satisfied.

[15] Her offences are not excluded pursuant to section 742.1 where, as here, Crown counsel proceeded summarily.

[16] They are not punishable by a minimum term of imprisonment.

[17] Crown counsel agreed, as do I, that I should impose a sentence of imprisonment for much less than two years.

[18] Finally, I find that Ms. Ali serving her sentence in the community, subject to appropriate conditions, would not endanger the safety of the community. She had no prior criminal record. She has not been in any further trouble since being charged. I am satisfied that, with the appropriate safeguards in place, there is no danger that she would return to crime following the imposition of a conditional sentence.

[19] That then leaves the question of whether a conditional sentence is appropriate in all of the circumstances of this case. In making this decision, I must consider the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.

FUNDAMENTAL PURPOSE AND PRINCIPLES OF SENTENCING

[20] The fundamental purpose of sentencing as expressed in section 718 is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[21] The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.

[22] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.

[23] Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.

[24] He went on to state that:

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.

[25] He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.

[26] Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.

[27] I must specifically consider section 718.2(d) which provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".

[28] I must also consider the impact of section 718.2(e) which provides that "... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders."

[29] The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen and said that section 718.2(e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.

[30] The Supreme Court also noted that section 718 now requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation. Now a sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. As a general matter restorative justice involves some form of restitution and reintegration into the community. A conditional sentence is much more effective than jail in achieving these restorative justice goals.

[31] I must also note that the Supreme Court of Canada expressly said in R. v. Proulx, supra that a conditional sentence is "a punitive sanction capable of achieving the objectives of denunciation and deterrence" although it is not as effective as a sentence of real imprisonment.

[32] I also note that:

There need not be any equivalence between the duration of the conditional sentence and the jail term that would otherwise have been imposed. The sole requirement is that the duration and conditions of a conditional sentence make for a just and appropriate sentence.

[33] I can therefore impose a conditional sentence that is longer in duration than the jail term that I might otherwise have imposed.

[34] Before applying these principles, I must take into account the facts underlying the offences, the impact on the victim and the background of Ms. Ali.

THE OFFENCES

[35] Kristopher Vardy and Shenaaz Ali were in a common law relationship for about four years. Together they had three children (4, 2, and 1 years old at the time of the incident). The relationship ended in the early part of 2015 but the parties continued to reside together in Milton.

[36] On the 2nd of July 2015 Kristopher Vardy attended at the police station to report that he had been the victim of domestic violence.

[37] At approximately 2 pm on that date, an argument occurred between Mr. Vardy and Ms. Ali over the introduction of Ms. Ali's new boyfriend "Ricky" to the children.

[38] Ms. Ali punched and scratched Mr. Vardy shortly after the argument began. After she stopped hitting him the verbal argument continued, at which time Ms. Ali picked up a metal pole and started swinging at Mr. Vardy but missed him. At this point Mr. Vardy advised Ms. Ali that he was recording everything and she became completely enraged. She picked up a knife from the kitchen and began slashing at him. In an effort to stop the assault Mr. Vardy picked up the baby. Ms. Ali continued to follow Mr. Vardy around the house trying to cut him while he was carrying the baby. While he was seated on a couch in the children's playroom Ms. Ali stabbed him in the wrist with the knife. His wrist started bleeding and Mr. Vardy ran to the kitchen to try and stop it. At this point Ms. Ali got on the phone with her boyfriend and continued to make threats toward Mr. Vardy.

[39] The entire assault was recorded. The following is a summary:

[40] Kris Vardy talks about how the children told him they were introduced to the boyfriend. Ms. Ali tells Mr. Vardy to get out and he says "August 1st, trust me I can't wait." Ms. Ali continues to use profanity toward Mr. Vardy in the presence of the children. Mr. Vardy says "Don't punch me again or you're going to jail. ...you're going to fucking jail." Ms. Ali continues to scream that she doesn't "fucking care". She calls Mr. Vardy a "white trash piece of shit". "Don't sit there and fucking piss me off, you aren't staying here". "Mr. fucking tough guy". Over time she begins to scream louder and louder "I don't fucking care" and "call the fucking cops".

[41] Mr. Vardy then tells her that it is all being recorded on his phone and Ms. Ali becomes totally enraged, screaming. From this point the dogs are barking, the children are crying, and she progresses to hysterically screaming by the end of the audio recording.

[42] Mr. Vardy can be heard trying to calm the children while Ms. Ali continues to scream, "call them motherfucker", "piece of shit", "call the dumb cops" and "you're a fucking stupid coward is what you are".

[43] Once Mr. Vardy has been cut he starts to say "oh my God" repeatedly. He can be heard crying, and the children are screaming and crying hysterically.

[44] Ms. Ali can be heard calling "Ricky" and asking him to call the cops as "I'm gonna fucking kill Kris Vardy". She then says "I'll fucking cut you again, I swear to God" and "I'll murder you". Mr. Vardy says "you are going to jail".

[45] At no time does Ms. Ali make any effort to comfort her children. Instead, she uses profanity toward them.

[46] The four year old was interviewed on video and advised police of the following:

• My daddy got an "owie"
• My daddy gotta cry
• My daddy got a bandage on now
• My daddy went to the doctor
• My mommy cut him with a knife...bleeded so bad...it hurt
• It made him feel sad and his daddy is sad.

VICTIM IMPACT

[47] In the Pre-Sentence Report, Mr. Vardy stated that his relationship with Ms. Ali was always volatile. She was always out working or partying and spent very little time with her children. This was not conducive to family life and their relationship soured and became abusive to which their children were witness. He has had no contact with Ms. Ali since her arrest and all access to their children has been arranged through her mother. This arrangement has worked well and he hopes that the arrangement remains in place.

BACKGROUND OF MS. ALI

[48] I received a Pre-Sentence Report and several reference letters which provided me with the following information.

[49] Ms. Ali is now 27 years old.

[50] She was born in Brampton in 1989. She is the oldest in a sibling of three with two younger brothers who continue to reside in the family home in Milton. She maintains a positive relationship with her mother and brothers and sees them regularly. She stated she has had no relationship with her father since he left the family for another relationship when she was age 18.

[51] Her early childhood was stable. Her parents were caring and supportive, however, strict and restrictive regarding associations outside the family. Her parents provided for all her physical and emotional needs and she completed all developmental milestones age appropriately.

[52] When she was 13, she moved to Milton with her family. She had no difficulty with the transition and settled into her new community quickly but she struggled at home with her parents' strict rules and started to rebel. At age 17, she left the family home and went to live with a boyfriend's sister. One year later, her parents divorced as her father had moved on to another relationship. Ms. Ali has had no contact with her father since. Within 6 months of her father's departure, Ms. Ali returned to the family home as her mother was less strict than her father.

[53] In November 2009, Ms. Ali met Christopher Vardy. Shortly thereafter she became pregnant with their first child and they moved to Hamilton.

[54] She stated their life together was difficult. She stated Mr. Vardy was frequently unemployed and they relied on her income as a restaurant server to cover household bills. They were constantly being evicted for non-payment of rent, consequently between trying to keep up with expenses and constantly moving their lifestyle was chaotic. They argued often and frequently separated although they usually continued to share the same home and parent their children together. Through all of this they had two more children.

[55] They separated after the current offences, with Ms. Ali initially living with her mother. She was initially granted supervised access to her children at her mother's home on average 3 days per week by the Children's Aid Society. This progressed to unsupervised access. Mr. Vardy remains the custodial parent. Access to her children is arranged through her mother and Ms. Ali has had no contact with Mr. Vardy as per her bail conditions.

[56] In 2014, the offender met Richard Manion and in September of 2015 they began co-habiting in Milton. Mr. Manion stated their relationship is positive and both contribute physically and financially to the union. They presently rent their home in Milton and between them they have five children from previous relationships. Additionally Ms. Ali gave birth to their child June 24, 2016. The Children's Aid Society did not apprehend this child who resides with Ms. Ali and Mr. Manion.

[57] At present, Mr. Manion is not permitted to have access to Ms. Ali's children due to previous convictions for assault against a previous domestic partner and alcohol related offences.

[58] Ms. Ali completed her primary and secondary education in Milton in 2008. She did well academically and never presented any major behavioural concerns. She returned to school in 2012, attending a legal administration course at Mohawk College. The following year she transferred into the Paralegal program at Sheridan College. She did well academically, however, between working two restaurant serving jobs as well as trying to parent her children she became sick in January 2015 and consequently had to withdraw from school.

[59] She started working at age 16 in the restaurant service industry. She has had a few jobs in administration over the years; however, her primary source of income has come from her employment as a restaurant server. Prior to her present employment she usually worked at two restaurants on average 80 hours per week.

[60] Ms. Ali reported that she was generally the primary source of income in her relationship with Mr. Vardy as he was frequently unemployed and his earning capacity was generally minimal. Mr. Vardy confirmed that he usually stayed home with the children as her earning capacity was greater than his.

[61] At present, Ms. Ali works for her maternal uncle's company as a machine operator. She works day time hours which facilitates access to her children. Her current income is $440.00 dollars per week plus overtime when available. In conjunction with her partner's income, they are able to meet all household expenses. Ms. Ali acknowledged that she does not provide any income support for her children at present although does pay for their supplies and needs at her mother's home as well as social activities for school.

[62] Ms. Ali says she has never had an issue with alcohol, however, she stopped using any alcohol after this offence due to accusations of alcohol abuse raised by Mr. Vardy.

[63] The Children's Aid Worker assigned to the case stated that Ms. Ali has been cooperative regarding child access and no violations have been reported but Ms. Ali's decision to embark on a relationship with another individual who has a history of domestic violence and a history of alcohol issues is of concern and the Children's Aid Society at this time is not prepared to allow her children to spend time in Ms. Ali's home unsupervised.

[64] Ms. Ali has been involved in counselling with Halton Family Services since January 20, 2016.

ANALYSIS

[65] In cases like this, involving unprovoked violence causing bodily harm, the predominant sentencing objectives are denunciation and deterrence.

[66] It is a further aggravating circumstance that these offences were committed in the presence of their children.

[67] Probation is primarily rehabilitative.

[68] A conditional sentence on the other hand can be punitive and is capable of providing significant denunciation and deterrence.

[69] Actual imprisonment will obviously also satisfy the need for denunciation and deterrence.

[70] So, while I accept that there may be cases involving an assault causing bodily harm where a suspended sentence and probation might be appropriate, I find that this is not one of those cases.

[71] I am satisfied that the issue before me is whether I should send Ms. Ali to jail or sentence her to a conditional sentence of imprisonment.

[72] I note that Ms. Ali is still a young woman.

[73] She pled guilty. I take this to be both an acceptance of responsibility and an expression of remorse. It also made it unnecessary for Mr. Vardy and others to relive the events while testifying in court.

[74] She has no prior criminal record.

[75] She has complied with the terms of her bail since July 2015.

[76] She has begun counselling, albeit this started six months after the offences.

[77] She is working and contributing to the financial support of her current partner and their child.

[78] She appears to be making a genuine effort to turn her life around.

[79] Taking all of this into account, I am satisfied that it would not be inappropriate for me to send Ms. Ali to jail for up to 60 days.

[80] I am mindful however that I must consider "all available sanctions other than imprisonment that are reasonable in the circumstances" and that Ms. Ali "should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".

[81] In that regard I again note that the Supreme Court of Canada has expressly stated that a conditional sentence is a punitive sanction capable of achieving the objectives of denunciation and deterrence although it is not as effective as a sentence of real imprisonment.

[82] I am satisfied that this is the case here.

[83] I propose however to supplement the conditional sentence with a brief exposure to the alternative that might await Ms. Ali at Vanier Correctional Centre if she has not really learned her lesson from all of this. I will provide this by sentencing her to imprisonment for one day with respect to the threatening death offence.

[84] It is settled law that it is improper to blend a custodial sentence with a conditional sentence in the context of a single offence. However, "when an accused is being sentenced for more than one offence, it is legally permissible to blend a custodial sentence with a conditional sentence so long as the sentences, in total, do not exceed two years less one day and the court is also satisfied that the preconditions in s. 742.1(b) have been met in respect of one or more but not all of the offences."

SENTENCE

[85] For all of the above reasons, I sentence Ms. Ali as follows:

[86] With respect to the assault with a weapon and assault cause bodily harm offences, I impose a conditional sentence of imprisonment for six months to be served concurrently in the community. This will be followed by probation for three years.

[87] With respect to the threaten death offence, I sentence her to imprisonment for one day.

[88] The terms of the conditional sentence of imprisonment will require that Ms. Ali:

1. Keep the peace and be of good behaviour;

2. Appear before the court when required to do so by the court;

3. Report in person to a supervisor within two working days and thereafter report when required by the supervisor and in the manner directed by the supervisor;

4. Notify the supervisor in advance of any change of name or address, and promptly notify the supervisor of any change of employment or occupation;

5. Remain within the Province of Ontario unless written permission to go outside the Province is obtained from the court or the supervisor;

6. Cooperate with her supervisor. She must sign any releases necessary to permit the supervisor to monitor her compliance and she must provide proof of compliance with any condition of this order to her supervisor on request;

7. Live at 287 Mortimer Crescent, Milton, Ontario, or a place approved of by the supervisor and not change that address without obtaining the consent of the supervisor in advance;

8. A home confinement condition will be in effect for the first four months of the conditional sentence;

9. During that time she will remain in her residence or on the property of her residence at all times except:

   • a) Between 1 pm and 5 pm on Saturdays in order to acquire the necessities of life,
   • b) For any medical emergency involving her or any member of her immediate family (spouse, child, parent, sibling),
   • c) For going directly to and from or being at school, employment, court attendance, religious services and legal or medical or dental appointments, or assessment, counselling, or rehabilitative programs, or exercising access to her children who are in the custody of Kristopher Vardy or for serving her sentence of imprisonment,
   • d) She will confirm her schedule in advance with her supervisor setting out the times for these activities,
   • e) With the prior written approval of the supervisor. The written permission of the supervisor is to be carried with her during these times.

10. During the period of home confinement, she must present herself at her doorway upon the request of her supervisor or a peace officer for the purpose of verifying her compliance with her home confinement condition.

11. Following her home confinement for the balance of this Order, she will remain in her residence or on the property of her residence daily between the hours of 11 p.m. and 5 a.m. except:

    • a) For any medical emergency involving her or any member of her immediate family (spouse, child, parent, sibling),
    • b) She must present written justification to the supervisor within 72 hours of any such absence during her curfew hours;
    • c) With the prior written approval of the supervisor. The written permission of the supervisor is to be carried with her during these times.

12. Not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with Christopher Vardy except:

    • a) Pursuant to a family court order made after today's date or for the purpose of conducting or defending family court proceedings;
    • b) In the presence of or through legal counsel;
    • c) For the purpose of making arrangements for access to her children through her mother, Shimoon Ali;
    • d) With the prior written consent of the above named person, filed in advance, by that person, with the assigned supervisor. This may be cancelled by the person in any manner at any time.

13. Not be within 20 metres of any place where she knows Christopher Vardy to live, work, go to school, frequent, or any place she knows him to be except:

    • a) Pursuant to a family court order made after today's date or for the purpose of conducting or defending family court proceedings;
    • b) In the presence of or through legal counsel;
    • c) For the purpose of making arrangements for access to her children through her mother, Shimoon Ali;
    • d) With the prior written consent of the above named person, filed in advance, by that person, with the assigned supervisor. This may be cancelled by the person in any manner at any time.

14. Attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by the supervisor, and complete them to the satisfaction of the supervisor, for anger management, and for domestic violence which may include the Partner Assault Response (PAR) program; and any other program directed by the supervisor.

[89] The terms of the probation will require that Ms. Ali:

1. Keep the peace and be of good behaviour;

2. Appear before the court when required to do so by the court;

3. Notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation;

4. Report in person to a probation officer within two working days of completing her conditional sentence of imprisonment and after that, at all times and places as directed by the probation officer or any person authorized by the probation officer to assist in her supervision;

5. Cooperate with her probation officer. She must sign any releases necessary to permit the probation officer to monitor her compliance and she must provide proof of compliance with any condition of this order to her probation officer on request;

6. Not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with Christopher Vardy except:

   • a) Pursuant to a family court order made after today's date or for the purpose of conducting or defending family court proceedings;
   • b) In the presence of or through legal counsel;
   • c) For the purpose of making arrangements for access to her children through her mother, Shimoon Ali;
   • d) With the prior written consent of the above named person, filed in advance, by that person, with the assigned probation officer. This may be cancelled by the person in any manner at any time.

7. Not be within 20 metres of any place where she knows Christopher Vardy to live, work, go to school, frequent, or any place she knows him to be except:

   • a) Pursuant to a family court order made after today's date or for the purpose of conducting or defending family court proceedings;
   • b) In the presence of or through legal counsel;
   • c) For the purpose of making arrangements for access to her children through her mother, Shimoon Ali;
   • d) With the prior written consent of the above named person, filed in advance, by that person, with the assigned probation officer. This may be cancelled by the person in any manner at any time.

8. Attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by the probation officer, and complete them to the satisfaction of the probation officer, for anger management; and for domestic violence which may include the Partner Assault Response (PAR) program; and any other program directed by the probation officer.

Ancillary Orders

[90] I also make the following two ancillary orders.

[91] Assault causing bodily harm and assault with a weapon are primary designated offences and I make an order pursuant to s. 487.051 of the Criminal Code, authorizing the taking from Ms. Ali of any number of samples of one or more bodily substances, including blood, that are reasonably required for the purpose of forensic DNA analysis.

[92] Finally, also with respect to those two charges, pursuant to section 110 of the Criminal Code, for the next five years Ms. Ali is prohibited from owning, possessing, or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance.

[93] Ms. Ali will have six months to pay the victim fine surcharges.

Released: November 1, 2016

Signed: Justice D.A. Harris