ONTARIO COURT OF JUSTICE DATE: 2023 08 24 COURT FILE No.: 22-10006552 COURT FILE No.: 22-10005159 Toronto Region

BETWEEN:

HIS MAJESTY THE KING

— AND —

SAFFIRA ANDREWS

Before: Justice H. Pringle

Heard on: August 11, 2023

Reasons for Judgment released on: August 24, 2023

Counsel: Benjamin Janzen, for the Crown Ahmed Absiye, for the defendant

PRINGLE J.:

OVERVIEW OF THE CASE

[1] Ms. Andrews pled guilty to the offence of common assault. While in the stands at a baseball game she repeatedly, without provocation, punched a stranger. She must now be sentenced for her crime.

[2] The Crown elected summarily, and sought a suspended sentence with one year probation. The defence sought a conditional discharge.

[3] In addition to determining a fit sentence, this case must resolve a contested aggravating factor related to post-offence conduct. It must also separate the impact of Ms. Andrews’ assault from that caused by a subsequent, life altering assault committed by another person, upon the same victim on the same day.

CIRCUMSTANCES OF THE OFFENCE

[4] On August 26, 2022, the victim attended a baseball game. She was excited about that, and about spending some time with friends. Ms. Andrews and her co-accused, David Freeman, attended the same baseball game. They ended up sitting one row behind the victim and her friends.

[5] Some kind of verbal argument arose between Mr. Freeman and people in front of him, which included the victim. Ms. Andrews, who was significantly intoxicated, appeared not to have been substantively involved in this argument. Despite that, once the victim turned her back and sat down, Ms. Andrews reached over the railing, grabbed the unsuspecting victim's hair, pulled her forcefully out of the seat, and began whipping her head from side to side.

[6] The victim turned around to defend herself and, as the facts were put, “got tangled up with the defendant”. During this, Mr. Freeman punched the victim in the head, as did Ms. Andrews. More specifically, Ms. Andrews punched at the victim seven times, rapidly and over the course of under one minute.

[7] This assault was caught on a bystanders’ cell phone, albeit from a distance. In that video, Ms. Andrews’ intoxicated state was obvious. Not all seven punches connected with their intended target. But at least one punch connected solidly with the victim’s head, and two missed punches were also aimed at her head. Another two punches must have connected with the victim’s body or head, although where they landed was not clearly visible on video.

[8] Ms. Andrews and the victim were separated by others, and Ms. Andrews walked down the stairs, screaming “bitch”. The victim was still standing at that time, and seemed as though she was being held back by someone.

[9] I have made the latter observation not to find fault in any way, but as part of my assessment of the victim’s condition after this initial assault. She remained standing, engaged, and actively moving about. The evidence did not establish that the victim was physically injured by Ms. Andrews. However, I have no doubt that by this point, psychological trauma had already taken root.

[10] The area of the stands where the assault took place cleared out. To exit, people needed to go through a small concrete area called a vomitory. It was not monitored by any surveillance cameras.

[11] Ms. Andrews entered the vomitory first, followed by Mr. Freeman, followed by the victim. Mr. Freeman paused to let the victim walk past him. According to the Crown’s theory, Mr. Freeman then slammed the victim’s head against a concrete wall and left her there, unconscious and bleeding.

[12] The victim in this case provided compelling, heartbreaking evidence of how all the events of that day changed her life for the worse. Her victim impact statement addressed the impact of both assaults committed upon her on that day.

[13] While all this impact evidence went before the court, the Crown fairly acknowledged he could not prove that any of the victim’s physical injuries were caused by Ms. Andrews. I have thus disabused myself of any impact evidence that was not proven, beyond reasonable doubt, to be linked to the actions of Ms. Andrews. This is not to say that the victim was disbelieved on these points, but that those portions of her victim impact statement are for another court and another time.

[14] However, I did find impact evidence stemming directly from Ms. Andrews’ assault. Firstly, the victim has lost her sense of safety in public places. She wrote:

I was attacked and assaulted in a public "safe space"! It happened to me so quickly, and I'm baring the pain in many forms, but I hold guilt now have friends who will not go to Blue Jays games again or bring their kids. Friends and family who are scared to visit Toronto because of what Saffria Andrews and David Freeman did to (me) that day.

[15] The victim remains terrified of seeing Ms. Andrews and/or Mr. Freeman again. As she phrased it,

I've lived in fear that they may seek to impose further violence on me and my family. This has resulted in paranoia that has affected me immensely and my friends and family. I've had several incidents where I've had panic attacks because and a footprint I was unsure of outside of my door or a weird sound at night. I had a small oven fire that resulted in Firefighters coming to my house where I had a complete breakdown in front of them as the event triggered my PTSD.

[16] She has been deeply psychologically traumatized. While it is impossible to parse out what psychological harm, specifically, Ms. Andrews’ assault caused her, I accept that even had the victim not been subsequently assaulted by Mr. Freeman, she still would have been left with significant emotional damage.

[17] Finally, the victim continues to suffer the ongoing psychological impact of having her assault disseminated over the internet and TMZ in a frankly gross and misogynistic way.

[18] I was also convinced beyond reasonable doubt of this: I found Mr. Freeman obviously caused the life-altering injuries to the victim. I found Ms. Andrews must have been aware that Mr. Freeman committed a serious assault on the victim. I found that Ms. Andrews left the scene, knowing the victim had been incapacitated in some way by him.

[19] This finding was based on video footage of the area close to the vomitory. Mr. Freeman’s specific actions, vis a vis the victim, were not caught on camera. But the reaction of bystanders made it obvious that something disturbing happened inside that area, before Mr. Freeman and Ms. Andrews’ exited from there.

[20] The vomitory was a small area. Ms. Andrews’ position, relative to those bystanders and Mr. Freeman, placed her in a physical position to see him committing assault. Put otherwise, there is no way she was unaware of what he did. She may not remember it now, because at the time she was significantly intoxicated, but her actions on video show she knew what had just happened.

[21] Moreover, once the two exited that area, they walked away together and then, joining hands, began to run. I found the aggravating factor of callously leaving the scene, knowing the victim lay seriously injured on the floor, was proven beyond a reasonable doubt.

CIRCUMSTANCES OF THE OFFENDER

[22] Ms. Andrews will turn 27 years old in a few weeks, and has no prior criminal record. She is, in part, of Metis heritage. As a child, growing up in a different province, she was victimized in multiple ways by persons who should have been caring for her.

[23] As an adult, this pattern repeated and she found herself the victim of significant intimate partner abuse. She ultimately fled to Toronto to escape that person.

[24] Alcohol abuse runs through her family line, and Ms. Andrews herself struggles with abuse of alcohol, cocaine, and crystal meth. At the time Ms. Andrews assaulted the victim in this case, she was significantly intoxicated by both alcohol and cocaine.

[25] She is unemployed and on ODSP as a direct result of mental health diagnoses; schizoaffective disorder, Post Traumatic Syndrome Disorder, and several substance use disorders. She had been receiving mental health treatment but, upon moving to Toronto, this treatment regime became disrupted.

[26] The evidence confirmed a link between that fact and the commission of this assault. As a result of this disruption in treatment, psychiatrist from Anishnawbe Health wrote, Ms. Andrews “became highly unstable over the late summer, fall and winter 2022” and that “her psychiatric illnesses were likely highly relevant to any behaviours she was exhibiting at that time”.

[27] From the mental health perspective Ms. Andrews has since stabilized herself. She reconnected with her treatment team, is back on her medication, and is getting regular monitoring from a psychiatrist and a mental health nurse at Anishnawbe Health Toronto.

[28] Shortly after committing this assault, Ms. Andrews made a significant, sincere attempt to address the causes of her violent behavior. First, she successfully completed a three-week day program at the Jean Tweed Centre. This program supports women to learn about the impact of their substance abuse on behavior, relationships, and mental health. It involved group therapy, individual counseling, educational workshops, and life skill programming.

[29] A few weeks after completing that program, Ms. Andrews sought support from the Concurrent Disorder Service Co-ordination of the Native Child and Family Services of Toronto. This support included attending medical appointments, building healthy coping strategies, communication skills, grounding techniques, and supportive counseling. Ms. Andrews continues to engage in their services to this day.

[30] She has been sober for approximately five months. She is stable on her current treatment regime, including medication. There is compelling evidence that she was experiencing a mental health crisis when she committed this offence, exacerbated by abuse of alcohol and drugs. While on bail, she reported to bail program without fail. The Bail Supervisor opined that, based on her compliance with supervision thus far, she would maintain compliance with any court order.

FUNDAMENTAL PURPOSE AND OBJECTIVES OF SENTENCING

[31] When a judge considers what sentence to impose on a person, that sentence must reflect what we call the fundamental purpose of sentencing. That purpose is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing sanctions that have one or more of the following objectives:

• denunciation;
• general and specific deterrence;
• separation of offenders from society where necessary;
• rehabilitation;
• promotion of a sense of responsibility in the offender;
• an acknowledgment of harm to victims, and;
• reparation where appropriate to victims and community.

[32] A sentencing judge must be mindful of other sentencing principles in addition to this list – including the principle of restraint, the circumstances of indigenous offenders, and the need to ensure sentences are similar to those imposed on similar offenders for similar offences.

[33] Achieving a fit sentence necessitates the balance of competing objectives. For example, sentencing a first offender is primarily guided by individual deterrence and rehabilitation. But when their offence is violent, denunciation and general deterrence must gain prominence in the analysis.

[34] I found that general deterrence and denunciation must be expressed in the sentence imposed upon Ms. Andrews. The repeated nature of the punches, the public forum in which the assault was committed, and the dissemination of the assault on the internet express this need quite clearly.

[35] But in my view, these objectives should not overwhelm my analysis either. This is a relatively youthful first offender who committed her offence during a mental health crisis. She is of indigenous heritage, with a fractured and tumultuous upbringing. It is imperative that this sentence achieve the goals of rehabilitation and specific deterrence.

RANGE OF SENTENCE

[36] Both a suspended sentence and a conditional discharge are within an appropriate range of sentence. That said, the Court of Appeal has directed that, in sentencing offenders for crimes of serious violence, a discharge will rarely be consistent with the principles of sentencing. As per para. 4 of R. v. Wood, (1975) 24 C.C.C.79 (Ont. C.A.), the Court held that:

… in cases of violence resulting in injury the requirement of general deterrence to the public militates, in almost every case, against the grant of a conditional discharge, notwithstanding considerations personal to the accused.

[37] Wood was relied upon in R. v. Huh, 2015 ONCA 356. There, the Court of Appeal overturned a discharge and imposed six months imprisonment. The respondent, an intoxicated youthful first offender, had beaten his victim to the extent of causing brain damage. The Court, in overturning the discharge, said at para. 11:

The Crown submits that the sentence imposed in this case was manifestly unfit. We agree. The sentence was not proportionate to the gravity of the offence. The conditional discharge did not reflect the degree of violence of the respondent's assault, the seriousness of the injuries he inflicted on the victim, or the applicable sentencing principles.

[38] But the Wood decision does not purport to set out an absolute rule. Each case, even those involving violence, must be considered on their individualized facts, as Molloy J. made clear in the summary conviction appeal decision of R. v. Parker-Ford, 2020 ONSC 5951. After reviewing the Wood decision, she said at para 39:

In more recent years, there are many examples in which the particular circumstances of a case have caused judges to grant discharges, even where the underlying offences were acts of violence. For example:

• R. v. McGee, 2011 ONSC 1195: a 19-year-old first offender, while very drunk, punched a vulnerable cab driver in the face in a two-on-one altercation (but he had no record, was a good student, had a supportive family, and was getting treatment for his alcohol abuse)
• R. v. Tran, [2015] O.J. No. 7144: a young female first offender, while drunk, assaulted another woman with a beer bottle causing two wounds requiring a total of 7 stitches (but she just completed college, had a young baby, showed remorse, and would have difficulty in her career as a registered massage therapist if she had a criminal record)
• R. v. Cruz, 2018 ONCJ 8: a 32-year-old father of two punched another man in a bar, causing serious injuries (but he was previously of good character, had already undertaken anger management counselling by the time of trial, and would be prevented from volunteering for activities in his children's school if he had a criminal record)
• R. v. Huezo-Contreras, 2018 ONCJ 63: an 18-year-old first offender started a fist fight with another man, causing severe injuries, including rendering him unconscious (but he showed remorse, was previously of good character, had excellent references, was a full-time student aspiring to be a physiotherapist, and had completed substantial community service hours)

[39] Molloy J. referenced two more examples which I have omitted here, and then at para. 41 added:

From these precedents I conclude that in sentencing for crimes of violence, general deterrence, denunciation, and retribution tend to be more important factors. Often, these factors will override other factors that might support the appropriateness of a conditional discharge. However, the fact that an offence was a violent one, standing alone, does not render a conditional discharge unfit.

[40] In Ms. Andrews’ case, both a suspended sentence and a conditional discharge are within a fit range of sentence. Ultimately, where her sentence is placed on that range is relative to the gravity of her offence and her degree of moral blameworthiness in committing it.

AGGRAVATING AND MITIGATING FACTORS

[41] Weighing aggravating and mitigating factors assists to locate where the offending conduct must be placed on that range. Factors that aggravate, or increase the seriousness of this offence and/or Ms. Andrews’ moral blameworthiness in committing it, are:

• Her callous decision to leave the victim, hurt and helpless, after Mr. Freeman’s assault upon her;
• The public nature of the assault, which placed other members of the community at risk by virtue of their proximity;
• The unprovoked and repeated nature of the assault. This was not a one-off. The victim was pulled up by her hair and repeatedly punched;
• The harm done to the victim, meaning not just the physical pain of being repeatedly punched but the emotional trauma that will continue to exact a psychological toll on her for life.

[42] Factors that mitigate the seriousness of the offence are:

• Ms. Andrews’ status as a relatively young, indigenous first offender;
• Her plea of guilt to the offence, which I accept is a reflection of her remorse as well as the assumption of responsibility for her actions;
• The up-front work that she has placed into stabilizing and rehabilitating herself;
• The time that she spent in presentence custody at Vanier, and;
• Her mental health status.

[43] To expand upon the latter, I have employed Ms. Andrews’ mental health crisis, and its meaningful correlation to her commission of this assault, as a mitigating factor. This, in turn, has reduced her moral blameworthiness.

[44] I relied upon two appellate cases to reach this conclusion. Firstly, in R. v. Dedeckere, 2017 ONCA 799, the Court overturned a penitentiary sentence because the sentencing judge had failed to consider the offender’s significant mental health issues and wrongly placed exclusive emphasis on denunciation and deterrence. As per para. 14:

….general deterrence is a factor of decreased significance when sentencing those whose behaviour is driven by mental illness. As explained by Gillese J.A. in R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643, at para. 38, when "mental health problems play a central role in the commission of the offence ... deterrence and punishment assume less importance.

[45] In R. v. Fabbro, 2021 ONCA 494 the Court explained the role of mental illness in sentencing at para. 25:

The question is not whether the appellant was suffering from delusions or a mental disorder. For mental health to be considered a mitigating factor in sentencing, the offender must show a causal link between their illness and their criminal conduct. That is, the illness must be an underlying reason for the conduct.

[46] That evidentiary connection was present in Fabbro, and contributed to a reduction of sentence on appeal. Similarly, there was an undisputed connection between Ms. Andrews’ mental health and commission of the assault. I have employed this circumstance as a meaningful mitigating factor which reduced her moral blameworthiness.

TEST FOR CONDITIONAL DISCHARGE

[47] There is a statutory test that must be met in order for a discharge to be lawfully imposed. A discharge must be in Ms. Andrews’ best interest and it cannot be contrary to the public interest.

[48] The first aspect of the test was clearly met. In assessing the second aspect of the test, I adopt R. v. Holder-Zirbser, 2018 ONCJ 59 at para. 8:

The accused does not have to satisfy the Court that the discharge is in the public interest, but rather, only that it is not contrary to the public interest. R. v. Bothman, [1983] O.J. 70 (Ont. C.A.). The standard of not being contrary to the public interest is far lower than being in the public interest. Gilles Renaud, Sentencing in Ontario (Landon Legal Library Press, 2012) vol. 1 at 91.

[49] To this, I add Hill J.’s thorough analysis from R. v. Pera, 2016 ONSC 2800 at para. 95:

Our sentencing jurisprudence has developed certain governing principles relating to discharge dispositions including the following:

(1) A conditional discharge is a real sentencing disposition whereby an offender is subject to probation conditions to earn a full discharge -- see R. v. Menezes, [1974] O.J. No. 736 (C.A.), at paragraph 12:

It is always to be borne in mind that a person who is granted a conditional discharge does not go scot-free after committing an offence.

(2) A suspended sentence is not necessarily a greater deterrent to others than a conditional discharge: R. v. Cheung & Chow (1976), 19 Crim. L.Q. 281 (Ont. C.A.)

(3) While discharges are not restricted to trivial matters (R. v. Vincente (1975), 18 Crim. L.Q. 292 (Ont. C.A.)), and therefore over-emphasis on the nature of the offence as not warranting a conditional discharge must be avoided (R. v. D'Souza, 2015 ONCA 805, at paragraphs 3-5), in the case of violence resulting in injury, the requirement of general deterrence generally militates against the grant of a discharge notwithstanding considerations personal to the accused: R. v. Huh, 2015 ONCA 356, at paragraph 12.

(4) The sentencing court may take into account any particular hardship a conviction and criminal record may have insofar as it relates to an offender's travel and employment: R. v. Neundorf, 2011 ONCA 732, at paragraphs 31-35; R. v. Myers, (1978), 37 C.C.C. (2d), 182 (Ont. C.A.), at pages 184-185.

(5) In considering the fitness of a discharge at the time of sentencing, a court may take into account punishment already imposed by virtue of presentence custody: R. v. Udoka, 2014 ONCA 347, at paragraph 3.

SENTENCE IMPOSED

[50] After considering all the relevant aspects of this case, including the violent, unprovoked nature of the offence and the impact it had on the victim, I concluded a conditional discharge would not be contrary to the public interest here.

[51] The circumstances that led Ms. Andrews to commit this offence include mental health and substance abuse disorders, all of which no doubt arose from her own historical victimization. Ms. Andrews has shown insight into her offending, a sincere desire to change, and strong rehabilitative potential. The test has been met.

[52] Ms. Andrews will be conditionally discharged, with probation conditions she must follow for one year as follows:

• Keep the peace and be of good behaviour;
• Appear before the court when required to do so;
• Not to change your name, address, employment, occupation unless you notify your probation officer or the court in advance;
• Report within seven calendar days and thereafter as directed by probation;
• Attend and actively participate in counselling as directed by the probation officer including for anger management, substance abuse, and mental health;
• Sign consents necessary to enable the probation officer to monitor your attendance, and progress with counselling as directed by the probation officer;
• No contact in/directly with [name of victim vetted];
• Not to be within 100m of anywhere you know [name of victim vetted] to live, work, frequent, or where she happens to be;
• No contact in/directly with David Freeman except at required court appearances;
• Not to attend the Rogers Centre, at 1 Blue Jays Way in Toronto ON;
• Not to possess any weapons as defined by the Criminal Code.

[53] After considering the factors under s. 487.051(3)(b), I found it was in the best interests of justice to order Ms. Andrews to provide a sample of her DNA. There will also be a weapons prohibition order for five years under s. 110. Given her lack of income, the victim fine surcharge will be waived.

Released: August 24, 2023 Signed: Justice H. Pringle