Court Information

Ontario Court of Justice

Date: September 25, 2019

Court File No.: Central East - Newmarket – 4911 998 18 05994

Parties

Between:

Her Majesty the Queen

— And —

Rashon Mair

Before: Justice A.A. Ghosh

Heard on: August 29 and September 16, 2019

Counsel

M. Rumble — counsel for the Crown

M. Salih — counsel for the Accused Rashon Mair

Reasons for Sentence

Released on September 25, 2019

Introduction

[1] Rashon Mair pleaded guilty before me to "Aggravated Assault" and "Assault Causing Bodily Harm", contrary to the Criminal Code. Mr. Mair descended upon two male strangers outside of a Tim Horton's coffee shop and engaged in a senseless verbal conflict with them. The offender began fighting one of them, ultimately producing a blade and stabbing both men, injuring one more grievously than the other.

[2] The Crown has submitted for a global sentence of three years. Defence counsel has submitted for a 12-month custodial term. These are my reasons for sentence.

The Circumstances of the Offence

[3] An "Agreed Statement of Facts" was submitted at the sentencing hearing. On the evening of July 18, 2018, Nerses Kouchkerian, his brother-in-law Bedig Agob and Mr. Agob's father, Ohannes Agob, were outside of a Tim Horton's coffee shop in Richmond Hill. Rashon Mair approached them and asked Bedig Agob for a cigarette. Mr. Agob complied.

[4] The offender then angrily accused the two men of staring at him. Mr. Kouchkerian told Mr. Mair to leave them alone or he would call the police. Mr. Mair walked away and around the corner. The offender returned shortly with about six other men in tow. Mr. Kouchkerian said he was going to call the police and raised his cell phone in order to take a photograph of the offender.

[5] Mr. Mair then began to "assault" Mr. Kouchkerian, who fought back. During the assault, the offender stabbed Mr. Kouchkerian in the back, chest and forearm. When Bedig Agob intervened to assist, Mr. Mair stabbed him once in the hip. The offender and the men who accompanied him then fled the scene.

[6] Mr. Kouchkerian received four stab wounds: one in the front of his chest and one in the upper back in the area of his lungs and heart. He also received two stab wounds in his left forearm. He spent approximately a week in the hospital. Mr. Agob received stitches for the single stab wound and was released from the hospital the next morning.

[7] Rashon Mair was arrested six days after the incident.

Victim Impact Evidence

[8] No formal victim impact evidence was led. The "Agreed Statement of Facts" disclosed some of the physical impact of the offence on the two victims. The presentence report revealed that one of the victims advised that while the physical injuries had healed, he would "remember the events vividly for the rest of his life."

The Circumstances of Rashon Mair

[9] A presentence report was generated and Mr. Mair's counsel submitted additional materials outlining a host of mental health and addiction challenges faced by the offender. Mr. Mair was 23 years old at the time of the offence and has since taken some steps to address his issues. He has no criminal record. He was diagnosed as a child with Attention Deficit Hyperactivity Disorder and was placed in a special education program. Mr. Mair graduated high school and likely has additional learning disabilities.

[10] The presentence report revealed that he acquired a brain injury some years ago in a bar fight. His physician prescribed marihuana to manage the symptoms from the resultant concussion. His family reported that he has never been the same and his cognitive functioning has eroded as a result of the injury. The Canadian Mental Health Association assessed Mr. Mair and found that he demonstrated "PTSD-like symptoms" arising from being assaulted.

[11] While Mr. Mair continues to smoke marihuana daily, he has attended drug counselling sessions with the YMCA. At the time of the offence, he was consuming an inordinate amount of Xanax as well, and he reported that the excessive consumption of this drug informed the offending.

[12] Mr. Mair presently receives social assistance through Ontario Works, although he aspires to enter the trades one day. He has a great deal of family support and is described as shy and quiet. Family members and mental health workers have identified symptoms of depression and anxiety in the offender that either crystallized or became more acute after the acquired brain injury.

[13] When invited to address the court, Mr. Mair expressed that he was sorry for what he had done, and that the offence was informed by his excessive consumption of Xanax. He hoped that the victims could forgive him.

Analysis

Positions of the Parties

[14] The Crown submitted for a three-year penitentiary sentence, less credit for presentence custody. The Crown also submitted for a DNA databank order, a s.743.21 non-communication order and a s. 109 weapons prohibition for life.

[15] Defence counsel submitted for a 12-month custodial term, less credit for pretrial custody and for time spent on restrictive bail conditions. She made no submissions regarding the imposition of any of the ancillary orders, some of them compulsory, sought by the Crown.

Applicable Objectives and Principles of Sentencing

[16] The objectives of sentencing are codified in section 718 of the Criminal Code. In cases of extreme and unprovoked violence upon strangers, denunciation, and specific and general deterrence must be the paramount sentencing principles applied. While it is agreed that Mr. Mair must be separated from society by way of a custodial term, his rehabilitation must be of central concern as well.

[17] Section 718.1 directs that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. I must also apply the principle of parity codified in section 718.2(b). I am additionally mindful to apply restraint in sentencing a youthful first offender with addiction and mental health issues.

Sentencing Jurisprudence – Aggravated Assault

[18] It is agreed that a significant period of custody is necessary in this case. Our Court of Appeal has resisted setting out a range of sentence for the offence of aggravated assault. It has outlined malleable ranges for other offences. Defence counsel submitted a sentencing casebook of authorities with a chart summarizing the various dispositions in advocating for a middle reformatory term. The Crown also assisted by submitting cases in support of a penitentiary sentence.

[19] Given the absence of sentencing ranges set out by the Court of Appeal, I recognize that the analytical focus must remain on balancing the applicable sentencing principles with the competing considerations of this individual case. I approach dated and extra-provincial jurisprudence with the appropriate caution.

[20] Justice Code of our Superior Court in the frequently cited R. v. Tourville distilled the sentencing jurisprudence for aggravated assault into three flexible ranges of sentence.

[21] The first category at the bottom end of the range contemplated non-custodial dispositions in the exceptional case. The single Court of Appeal decision cited in support engaged Gladue principles and referenced a somewhat dramatic and positive transformation in the youthful first-time offender who had been struggling with abuse and addiction for much of her life.

[22] The second category characterized as "mid-range" involved high reformatory sentences in the range of eighteen months to two years less a day. These sentences often involved first offenders with facts supporting elements of consent conflicts where excessive force was applied.

[23] The third category characterized as the "high end of the range" involved penitentiary sentences in the four to six-year range. These rulings generally involved recidivists with serious criminal records, or they involved "unprovoked" or "premeditated" attacks without the hallmarks of consent or self-defence.

[24] I find Justice Code's analysis in Tourville regarding the various ranges of sentence still resonant today. In identifying and framing the ranges, His Honour referenced decisions of our Court of Appeal almost exclusively. R. v. Tourville has been cited twice with approval by our Court of Appeal: R. v. Pomanti; R. v. Jones.

Aggravating Factors

[25] The following aggravating factors have been established:

(a) Unprovoked attack on two strangers – It is clear the victims were not looking for a conflict of any sort. The men were in the company of their father. Mr. Mair initiated contact and then took offence that the victims were staring at him. He then attacked Mr. Kouchkerian for either attempting to photograph him or for indicating that he would call the police. When the victim defended himself, he was stabbed repeatedly. This was unprovoked and senseless.

(b) Weapon repeatedly employed against two victims – Mr. Mair produced an edged weapon during the fight with Mr. Kouchkerian and stabbed the victim repeatedly. When Mr. Agob attempted to intervene, he was stabbed too. Both victims were unarmed.

(c) Nature and location of injuries on Mr. Kouchkerian – Two of the stab wounds to Mr. Kouchkerian were inflicted on areas of the body where vital organs are housed. The victim underwent several medical procedures and was in the hospital for approximately a week. It is not an exaggeration to observe that he could have died.

Mitigating and Contextual Factors

[26] The following mitigating and contextual factors are present:

(a) Guilty Plea – Mr. Mair pleaded guilty partway through his preliminary inquiry after both victims had been cross-examined.

(b) Youthful First Offender – The offender was 23 years old at the time of the offence. He does not have a criminal record.

(c) Mental Health, Intoxication, and Addiction Issues – Mr. Mair was badly beaten in 2016 and suffered a consequent brain injury with lasting effects. He has been struggling with addiction issues as well. I accept the offender's representation that his consumption of Xanax informed his state of mind when he committed the offence. Mr. Mair has completed a regimen of counseling for substance abuse with the Youth Substance Abuse Program and he continues to pursue treatment for his brain injury and its effects on his mental health.

(d) Pretrial Custody – The offender has spent 91 days of presentence custody. He will receive enhanced credit for 137 days in accordance with s.719(3.1) and the principles outlined in R. v. Summers.

(e) Lockdowns during Pretrial Detention – It is not disputed that during his pretrial detention, Mr. Mair was subject to 225 hours of lockdowns at the Central East Correctional Centre. In certain circumstances, particularly harsh conditions during pretrial detention can result in mitigation above the 1.5 to 1 days as limited by s.719(3.1). Where there is no evidence regarding the adverse impact of the harsh conditions on the detainee, it may be appropriate to accord no further mitigation: R. v. Duncan.

Given Mr. Mair's demonstrated cognitive deficits resulting from an acquired brain injury, I will risk erring in his favour and infer the lockdowns were particularly harsh for him. There is no mathematical formula to be applied to credit for harsh conditions. Given the time spent in lockdown without direct evidence of its impact, I will afford Mr. Mair additional credit for a third of the time spent in pre-trial detention, reducing the global sentence by 30 real days.

(f) Credit for Time on Restrictive Bail: R. v. Downes – Mr. Mair was subject to a house arrest condition with limited exceptions for approximately ten months. Our Court of Appeal in R. v. Downes directed that "time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance. However, like any potential mitigating circumstance, there will be variations in its potential impact on the sentence and the circumstances may dictate that little or no credit should be given for presentence house arrest."

The exceptions to Mr. Mair's house arrest permitted him to be outside of the home in the company of no less than six members of his inner circle. The presentence report confirmed that any educational or employment pursuits were not so hampered by the bail conditions but by his addiction and mental health issues. No evidence was led as to the impact of the bail. I will nonetheless credit him with an additional 30 days for time spent on a house arrest condition with exceptions.

Discussion and Sentence

[27] I find that the circumstances of this offence contain elements of the mid to high range of sentence identified by Justice Code in Tourville. In summary, this was an unprovoked attack by an intoxicated, youthful first offender who is struggling with addiction and mental health.

[28] The fact that Mr. Kouchkerian fought back does not cause me to find that there were meaningful elements of a consent conflict. He had told the offender that he would call the police if the offender did not leave them alone. Again, Mr. Kouchkerian was at a coffee shop with his father-in-law. I find that he was actively attempting to avoid a conflict. That Mr. Kouchkerian defended himself only provides a limited context by which to frame Mr. Mair's moral responsibility for then repeatedly stabbing him.

[29] Mr. Mair is a youthful first offender, struggling with addiction and mental health. He was intoxicated when he committed the offence, explaining to some extent the random, bizarre and frightening nature of the encounter. These circumstances focus the need to exercise restraint in sentencing him to a significant term of custody. I am persuaded that recent appellate sentencing jurisprudence in our province supports an upper reformatory custodial term in somewhat similar circumstances: See R. v. Foster.

Conclusion

[30] Accordingly, Mr. Mair will receive a global sentence of 18 months, less the quantified credit for pretrial custody, lockdowns and time spent on restrictive bail conditions. The sentence will be apportioned as follows:

(a) Eighteen (18) months custody for "Aggravated Assault", less credit for:

i. Thirty (30) days for time spent on lockdown during pretrial detention;

ii. Thirty (30) days for time spent on restrictive bail conditions;

iii. Ninety-one (91) actual days of pretrial custody to be noted, to be accorded enhanced credit of 137 days;

iv. Three-hundred-forty-three (343) days remaining to be served.

(b) Six (6) months custody, concurrent, for "Assault Causing Bodily Harm".

(c) Two (2) years of probation with conditions as outlined in Appendix "A";

(d) DNA order – primary designated offences;

(e) Section 743.21 non-communication order regarding both victims;

(f) Section 109 weapons prohibition for life as outlined in Appendix "B".

[31] My thanks to both counsel.

Released: September 25, 2019

Signed: Justice A.A. Ghosh

Appendix "A"

R. v. Rashon Mair – Probation Conditions

1. Keep the peace and be of good behaviour;

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

3. Notify the court or 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 your release from custody and after that, at all times and places as directed;

5. Live at a place approved by your probation officer and not change that address without the prior consent of your probation officer;

6. You are not to contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with Nerses Kouchkerian or Bedig Agob;

7. You are not to be within 100 metres of any place where you know Nerses Kouchkerian or Bedig Agob to live, work, go to school, frequent or any place you know them to be;

8. You are not to possess any weapons as defined in the Criminal Code, which would include a firearm, imitation firearm, cross-bow, prohibited weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person;

9. You must attend and actively participate in all assessments, counselling or rehabilitative programs as directed and complete them to the satisfaction of your probation officer for substance abuse, mental health or as directed;

10. You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

Appendix "B"

R. v. Rashon Mair – Section 109 Weapons Prohibition

You are prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition, or explosive substance for a period of 10 years and you are prohibited from possessing any prohibited or restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

Signed: Justice A.A. Ghosh