Court Information

Ontario Court of Justice

Date: September 9, 2019

Court File No.: Niagara Region 998 17 SD4051

Parties

Between:

Her Majesty the Queen

— And —

Ashmin Randhawa

Judicial Officer and Counsel

Before: Justice J. De Filippis

Heard on: August 7, 2019

Reasons for Sentence released on: September 9, 2019

Counsel:

• Ms. S. Doherty — counsel for the Crown
• Mr. A. Richter — counsel for the Defendant

Reasons for Sentence

De Filippis, J.:

Conviction

[1] The defendant was found guilty, after trial, on charges of aggravated assault (Clayton Pye) and assault with a weapon (Vladimir Kazbekov).

Background Facts

[2] The defendant and Mr. Pye had previously been in a romantic relationship. Mr. Pye lived with other Brock University students at a home on Winterberry Street in the City of Thorold. This was also known as the "wrestler's house" because, except for the defendant, all residents were on the university wrestling team. At the time of the events in question, the defendant was seeing another man, Zachary Heyes. This relationship was a troubled one and known to be such to the students who shared the home. Mr. Kazbekov did not reside at this home. He is also a student. He and Mr. Pye are friends. Both are accomplished wrestlers.

[3] On the day in question, there was a physical confrontation between Mr. Heyes and several others, including the two victims. This occurred on a residential street at dinner time and arose because the two victims, and others, witnessed Mr. Heyes acting aggressively toward the accused. Minutes before these events, the defendant and Mr. Heyes had been at the "wrestlers' house" and had been seen consuming what is conceded to be cocaine. The defendant spoke to several people in the home about going to retrieve her disabled car. Mr. Pye and a friend offered to assist but not to allow her to drive. Suddenly, the defendant bolted and ran down the street.

[4] The victims and others followed the defendant and eventually saw her up against the wall of a house with Mr. Heyes in front of her. He had an aggressive posture. The wrestlers intervened. In the altercation that followed, Mr. Heyes fought separately with the two victims and a third man. At one point he was restrained by more than one of them. They used their skills to repeatedly knock him to the ground with the intent that it would end the matter. Each time, Mr. Heyes stood up to continue the fight.

[5] The defendant was present for these events. Around her neck was a knife with a six-inch curved blade. She removed it from the sheath and swung it horizontally at Mr. Kazbekov, causing a minor cut to stomach area. She then swung her knife overhand from her shoulder in a 90 degree angle and stabbed Mr. Pye in the left clavicle [i.e. the collarbone area]. When she pulled it out of his body, he fell to the ground. Other people moved the defendant away and Mr. Pye was cradled on the ground by a friend. A nurse, who lived in a nearby house, came outside and assisted Mr. Pye by pressing on wound with a cloth. She said he was "bleeding a lot, but his wound was not life threatening". Within minutes, the defendant said she was sorry for what she had done.

Trial Decision

[6] The foregoing facts are not controversial at trial. The defendant claimed she acted lawfully to protect Mr. Heyes. The issue at trial was whether the Crown had proven that the she did not lawfully act in defence of him. I concluded that the Crown had met its burden of proof and found the defendant guilty: See R. v. Randhawa, 2019 ONCJ 270.

[7] It will be helpful to reproduce certain passages from my earlier decision in this matter to frame the sentencing submissions of counsel and to explain the disposition I have arrived at. I have noted the relevant paragraph numbers:

[38] The issue in the present case is whether the defendant in using a knife to cut Mr. Kazbekov and stab Mr. Pye, was acting in lawful defence of Mr. Heyes. This is governed by section 34 of the Criminal Code. It provides a defence based upon reasonable belief, defensive purpose, and reasonable response. Thus, three questions arise:

1. Did the defendant believe, on reasonable grounds, that force was being used against Mr. Heyes?
2. Did the defendant use her knife to cut and stab the complainants for the purpose of defending Mr. Heyes?
3. Was the defendant's conduct reasonable in the circumstances?

[54] I agree with Defence that the verdict in this case depends on the answer to the third question raised by section 34. There is no dispute about the second question; namely, that the defendant attacked for the purpose of defendant (sic) Mr. Heyes. Moreover, I do not accept the Crown submission about the first question: The stabbing of Mr. Pye followed immediately after the slashing of Mr. Kazbekov. Both attacks occurred within the context of several physical confrontations that quickly unfolded. Was the fight over or did it end because the defendant intervened? It may have been the former but I could not conclude beyond a reasonable doubt that the defendant appreciated this.

[61] At no time did any of the combatants produce or use a weapon. Only the defendant did so.

[62] After the stabbing, the defendant told a witness, "I had to do it, they were going to kill him". I find that her apprehension is not grounded in reality. Nobody was trying to kill Mr. Heyes. He was the subject of violence by others that continued because he would not back away. This caused him to suffer bruising, concussion, and fractured bones. Although he was punched several times, what his opponents primarily did was to use their training to repeatedly take him to the ground. They did so with their arms, legs and bodies. These actions were not remotely life threatening. I am satisfied the wrestlers did not want to prolong the confrontation. I am also satisfied that the reasonable person in the defendant's circumstances would have come to the same conclusions.

[63] I do not suggest that only the threat of death could justify the defendant's actions; my comments respond to evidence relied upon by the Defence. Moreover, I find that the defendant's conduct is wholly disproportionate to the threat that Mr. Heyes did face. He risked being repeatedly taken to the ground until such time as he retreated. The defendant could have appealed to Mr. Heyes to back off. She could have shouted generally for help. In this regard, I note that this incident occurred in a residential area at dinner time; indeed, her previous scream," leave me alone" had already been heard by neighbours who came to the scene just after Mr. Pye fell to the ground, bleeding. In making these observations, I should not be taken as holding that the defendant's response must have been the best or only option. The law does not require such precision. But the other options highlight the senselessness of resorting to slashing and stabbing with a knife in the circumstances of this case.

[65] I have no doubt the defendant's apology was sincere. It probably reflects the startling realization that she had over-reacted. In any event, whatever the motive for her regret, I am driven to the conclusion that she did greatly over-react and no reasonable person in her circumstances would have responded as she did. I also am confident that the most likely explanation for her conduct is cocaine.

[66] Mr. Pye testified that the defendant had been using cocaine for several months. She told him that and he had seen the signs of it. On the day in question, Mr. Budgey saw the defendant and Mr. Heyes in her room and noticed white powder on a table. There is no doubt they consumed cocaine on this day. This much is fairly conceded by the Defence. With respect to the impact on them, Mr. Kazbekov is probably correct in opining that the reason Mr. Heyes repeatedly refused to back away from the confrontations is that he was "high on something". This might also explain his bizarre gesture, soon after, in extending his hand toward Ms. Crote, in greetings, at the same time that the defendant told her she had just stabbed Mr. Pye.

[67] The defendant exhibited obvious signs of intoxication. Mr. Budgey described her as "incoherent and confused". Ms. Crote refused to allow the defendant to drive her car because she "was not in the right frame of mind". Mr. Pye was also concerned about her ability to drive because she was "acting weird" and "her eyes were darting around". The effects of cocaine on her mind would account for her strange conduct in suddenly bolting from a motor vehicle right after having asked for a ride in it. In any event, she ran to the scene of the events in question and, within minutes, attacked the complainants with her knife.

Victim Impact Statements

[8] Mr. Pye provided a victim impact statement. It includes the following comments:

As much as I try to move on from that night, I just haven't been able to…. I have permanent nerve damage in my chest that affects me every day….the only time I can live or wrestle 'normally' is when I take a cortisone shot or never (sic) blocker….The scaring will never leave my body and is a constant reminder….I don't want to talk about that night and what happened. I don't want to be identified as a stabbing victim….Right after that night I fell into an extreme depression….I had to take a semester off school….I had unsettling nightmares that wouldn't let me sleep….Ash [the defendant] and I were close prior to that night and since then I have found it very hard to trust anyone; women in particular. I prefer to be alone most of the time….

[9] Mr. Budgey also completed a victim impact statement. He is the friend who cradled Mr. Pye after the latter was stabbed and fell to the ground. He notes that, "….I was not physically injured that night, but that night has affected me emotionally to this day….I have struggled with depression and increased anxiety…to this date, I have a hard time going to sleep. The time as I fall asleep is filled with painful thoughts and I would relive that night…"

Presentence Information

[10] The defendant does not have a criminal record. Defence counsel provided me with a sentence report that includes the following information: She was born in Canada to parents who had immigrated from India. Her childhood was difficult because her family often moved and her father was an alcoholic. The defendant struggles with depression and anxiety. She is currently single and without children. After obtaining a college diploma in Recreation and Leisure Services, she enrolled at Brock University in the Outdoor Recreation program. This was not completed as the defendant was asked to leave the institution after being charged with the present offices. She presently works in the family business. The defendant began using alcohol and marihuana at 12 years old and progressed to prescription drugs and cocaine. The defendant reports that her use of cocaine at the time of these events was due to the "bad company she kept" (especially Mr. Heyes) and her depression/anxiety. She has been sober since these events. Yoga has become an integral part of her therapy. She has completed the Four Winds Light Body School in March 2018 at the Sanctuary at Sedona in Arizona. This is a holistic treatment facility for addictions and mental health. After her program she stayed there as a volunteer to assist other patients. The skills she has learned, including mindfulness and meditation, help her remain calm and avoid anxiety related to her domestic abuse and this incident. The defendant is sorry for the harm she caused.

[11] The Defence tendered three letters written in support of the defendant. A lawyer and police officer, both of whom have had a long association with the defendant and her family know her to be a polite and respectful young woman. They point out that she has distanced herself from 'bad company and drugs' since this incident. A third letter, from a family doctor, confirms that at the time of the offence, the defendant was suffering from depression and anxiety.

Sentencing Submissions

[12] Mr. Doherty submits that this was a consent fight between Mr. Heyes and the victims and that the defendant's actions were wholly disproportionate. Counsel acknowledges that the defendant is a first offender who, with the help of concerned parents, has made efforts to rehabilitate. As such, specific deterrence is not an issue. The Crown argues that denunciation and general deterrence warrant a sentence of 21 months in jail. In this regard, he relies on R v Tourville 2011 ONSC 1677.

[13] Mr. Richter notes that the defendant did nothing to cause the initial confrontation between Mr. Heyes and the victims. The latter, and Mr. Budgey, intervened to protect her from what they believed to be a hostile situation. The subsequent altercation justified a response by the defendant but this was found to be an over-reaction. Counsel suggests that in these circumstances the defendant's moral blameworthiness is not high. Counsel suggests that the defendant's rehabilitative efforts are a genuine response to a transformative event in which she attacked a former partner. She has done all that is required to be a positive member of society. As such, this is one of those exceptional cases that does not call for jail. In this regard, the Defence relies on R v White 2014 ONSC 2878.

Sentencing Principles

[14] The ultimate purpose of all sentences is protection of the public. The most important principle is that of proportionality; a sentence must be proportionate to the gravity of the offence and the degree of responsibility or moral blameworthiness of the offender. This requires a consideration of the aggravating and mitigating factors. This principle is discussed by the judges in the cases relied upon by the Crown and Defence before me.

[15] In Tourville, Justice Code sentenced an aboriginal man to 21 months in jail after finding him guilty of using excessive force in the course of a consent fight. The defendant had had a difficult upbringing. The court noted as follows:

[27] The parties have helpfully provided me with a large number of sentencing cases, dealing with the offence of aggravated assault. That offence, contrary to s. 268 of the Criminal Code, carries a maximum sentence of fourteen years imprisonment. The cases disclose a wide range of sentences. At the bottom end is an exceptional case like R. v. Peters (2010), 2010 ONCA 30, 250 C.C.C. (3d) 277 (Ont. C.A.) where an Aboriginal offender received a suspended sentence and three years probation on her guilty plea to aggravated assault. She was twenty-six years old with no prior adult record. She had used a broken beer bottle in the assault, during a bar room dispute, causing serious facial lacerations to the victim. The " Gladue report" disclosed a very difficult upbringing in a violent and abusive home, leading to alcoholism and drug abuse. By the time of sentencing, she had obtained employment and was making real progress in counseling for her substance abuse problems. Some of these features are not dissimilar to the case at bar.

[28] In the mid-range are cases where high reformatory sentences have been imposed of between eighteen months and two years less a day. These cases generally involve first offenders and generally contain some elements suggestive of consent fights but where the accused has resorted to excessive force. See: R. v. Chickekoo (2008), 79 W.C.B. (2d) 66 (Ont. C.A.); R. v. Moreira, [2006] O.J. No. 1248 (S.C.J.); R. v. Basilio (2003), 175 C.C.C. (3d) 440 (Ont. C.A.).

[30] At the high end of the range are cases where four to six years imprisonment have been imposed. These cases generally involve recidivists, with serious prior criminal records, or they involve "unprovoked" or "premeditated" assaults with no suggestion of any elements of consent or self-defence. See: R. v. Scott, [2002] O.J. No. 1210 (C.A.); R. v. Thompson, [2005] O.J. No. 1033 (C.A.); R. v. Vickerson (2005), 199 C.C.C. (3d) 165 (Ont. C.A.); R. v. Pakul, [2008] O.J. No. 1198 (C.A).

[16] In White, the defendant was a 22-year-old woman in a domestic relationship with a 36-year-old man. The latter, a soldier who had served in Afghanistan, suffered from post-traumatic stress disorder. While in a drunken state he repeatedly punched the accused in the face, causing much bleeding. The accused retreated and immediately returned with a knife. She stabbed him in the chest. The victim made a full recovery. Justice Ratushny noted that the defendant did not have a prior criminal record and had an excellent presentence report. In these circumstances, the judge concluded that a conditional sentence was appropriate. However, that was no longer available. Faced with a choice between jail and a suspended sentence, she chose the latter. In so doing, Justice Ratushny, like Justice Code in Tourney, considered what the Court of Appeal for Ontario had to say in R v Peters 2010 ONCA 30.

[17] In Peters, a majority of the Court of Appeal upheld a suspended sentence plus 3 years' probation where the accused had struck the victim in the face with a beer bottle, causing lacerations that required 21 stitches to close. Justice Watt, in dissent, noted that the probationary sentence imposed lacked denunciatory or deterrent value and was not faithful to the principle of proportionality. Justice Ratushny considered this dissent and said she did not take Justice Watt to be making a blanket statement applicable to all cases of aggravated assault.

[18] In my opinion, the majority and dissent in Peters are not in conflict; both hold that denunciation and deterrence will usually result in a jail sentence when the offender has used a knife to stab another person. However, the majority emphasized the desirability of deference to the trial judge:

[13] In the end – after balancing all of the factors relative to sentencing an aboriginal person, and after taking into account the seriousness of the offence and the aggravating and mitigating factors relating to it, the contents of the favourable Gladue report he had before him, the victim impact statements, and the particular circumstances of this offender – the sentencing judge simply decided that a period of incarceration was not the appropriate disposition for this offender in relation to this crime….

[14] It was open to the sentencing judge to come to this conclusion on the record before him. To say that the balance will often tilt in favour of deterrence and denunciation in the case of serious and violent offences, as this Court did in W.(R.), is not to say that it always will. Neither Gladue nor its progeny establish that aboriginal offenders are to be sentenced to terms of incarceration in all cases of serious offences. At the end of the day, as many authorities have noted, it remains for the sentencing judge to consider the case as a whole and to arrive at a sentence that is fit and just in the circumstances.

[15] I have read the draft reasons of my colleague, Justice Watt. Respectfully, I am unable to accept – as he concludes – that the sentencing judge failed to give effect to the predominant principles of denunciation, deterrence, promotion of responsibility and acknowledgement of harm. The sentencing judge gave very careful consideration to all of the principles of sentencing relating to aboriginal offenders, including the relevant jurisprudence (referred to above) and including the need to give effect to the objectives of denunciation and deterrence. He was also alert to the need to promote responsibility in offenders for their actions, and said so explicitly.

[16] For the reasons he clearly expressed, and after addressing all of the pertinent principles and factors, the sentencing judge concluded that a period of incarceration was not necessary to meet the needs of denunciation and deterrence and indeed that it would be counterproductive to achieving the restorative purposes that are of particular importance in the case of Aboriginal offenders. This he was entitled to do. The weight to be given to the various sentencing factors – including whether incarceration was necessary to meet the objectives of denunciation and deterrence – was for him to decide.

Analysis and Disposition

[19] Defence counsel suggested that the defendant did nothing to directly initiate the confrontation that resulted in her crime. That is true. However, the fact remains that the events occurred after she and Mr. Heyes came to a home in which he was not welcome, consumed cocaine, and ended up in a situation in which others reasonably believed she was in danger. Moreover, I disagree that her moral blameworthiness is not high. She cut and stabbed with a knife in response a confrontation involving no weapons. It was a disproportionate response based upon an unrealistic assessment of danger.

[20] I agree with the Defence that specific deterrence and rehabilitation are not factors in my decision. The defendant has taken steps since this offence to deal with her struggle with depression and anxiety. The skills she has learned at the wellness centre appear to be successful. Equally important, she reports abstinence from drugs. These efforts should allow her to be a happier and better person. I regret that the sentence I must impose will interrupt this progress. It is my hope that the sentence will not defeat it.

[21] I agree with Justice Ratushny in White 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". The reason is simple; denunciation and deterrence demand this response in most cases. In my opinion, the circumstances of this offence and offender do not justify a departure from the established sentencing principles. This does not mean that the defendant's background and post-offence efforts should be ignored. Indeed, they are mitigating factors and warrant a disposition below the mid-range sentences identified by Justice Code in Tourville.

[22] The defendant is sentenced to 12 months in custody. This will be followed by a period of probation for two years on terms that include, reporting to a probation officer, counselling as directed and no contact with the victims or Mr. Heyes. The defendant will provide a sample of her DNA and be bound by a weapons prohibition, pursuant to section 109 of the Criminal Code for 10 years.

Released: September 9, 2019

Signed: Justice J. De Filippis