Court File and Parties
ONTARIO COURT OF JUSTICE DATE: 2024 05 07 COURT FILE No.: 22-50004957 Toronto Region
BETWEEN: HIS MAJESTY THE KING — AND — Nadjah Jalene ANDERSON
Before: Justice C. Faria Heard on: May 1, 2024 Reasons for Sentence released on: May 7, 2024
Counsel: Brady Donohue................................................................................... counsel for the Crown Sohana Chowdhury............... counsel for the defendant Nadjah Jalene ANDERSON
Faria J.:
Introduction
[1] On April 25, 2024, I found Nadjah Jalene Anderson guilty of assault causing bodily harm to Ilona Mikulas. The matter was adjourned for submissions to May 1, 2024, and then to today for sentence.
[2] There are two unusual features to this case. The first is that though Ms. Anderson had a trial, she testified she did assault Ms. Mikulas, and she did cause bodily harm. The purpose of the trial was to tell the court that Ms. Mikulas pushed her first, and swore at her, though she conceded she had no legal defence. The second feature is that Ms. Anderson submits that her admission of the offence during the trial should be a mitigating consideration to her benefit on sentence.
The Offence
[3] On November 16, 2022, Ms. Anderson boarded a Toronto Transit bus without the full student fare. She wanted a free ride to the station where she could load her transit card. The bus driver explained she would have to pay the full fare or get off the bus. She did not, so he stopped the bus.
[4] On the same bus, on her way to work was Ms. Mikulas. When the bus stopped moving, she walked to the front of the bus to deboard and walked by Ms. Anderson who was engaged in conversation with the driver. The bus driver saw no physical contact between the two women but did observe an exchange of words though he did not hear what was said.
[5] Regardless, as Ms. Mikulas stepped off the bus, Ms. Anderson pushed her from behind with both hands and knocked Ms. Mikulas to the ground. Ms. Mikulas sustained a fractured arm because of the push.
The Offender
[6] Ms. Anderson is 23 years old and had just turned 22 at the time of the offence. She has no criminal record and is currently taking a nine-month esthetics programme in college. I accept her counsel’s submission that as a Black woman, she has experienced anti-Black racism in our community. [1]
[7] She has had a challenging life. Her parents separated when she was 7 years old, and due to her mother’s behaviour and new partner, Ms. Anderson had to move in with her father at the age of 12. She was diagnosed with anxiety and depression. Her father abused her and became financially demanding when she turned 17. She obtained a full-time job at the age of 18. She moved out and into a shelter at the age of 20. While in the shelter, she completed an on-line business administration program in 2021 and moved into her own apartment. She was also in a motor vehicle accident, and she was physically injured. Her mental health deteriorated to the point she needed medication and therapy.
Effect on the Victim
[8] In addition to the fractured arm, this offence also caused several other negative consequences to Ms. Mikulas as follows:
i. Emotionally: She is afraid of travelling on public transit. She has nightmares. She has gone to counselling but she is still afraid and is constantly looking over her shoulder.
ii. Physically: She still has mobility issues with her right arm. This causes her daily difficulty with dressing and washing her hair. She went to physio- therapy but cannot financially afford to continue. She also sustained a knee injury from the fall that affects her ability to walk long distances.
iii. Economically: She was unable to work as a crossing guard for 4 months, her unemployment insurance was less than her salary and it ran out before she could go back to work. Her benefits did not cover physiotherapy. She had to replace her damaged coat, and due to her fear of travelling on transit, she had to buy a motor vehicle.
Position of the Parties
[9] The Crown recommends a 4-month Conditional Sentence, a 12-month probation order with terms, and two ancillary orders to reflect the principles of denunciation and deterrence for what she submits was an unprovoked assault on public transit which has seriously impacted the victim.
[10] The Defence recommends a Conditional Discharge and takes no issue with the period of probation, its terms, or the ancillary orders. Counsel emphasizes Ms. Anderson’s difficult upbringing, her youth, that she felt she was “standing up for herself” and that she took responsibility when she testified.
Sentencing Principles
[11] Section 718 of the Criminal Code provides guidance and the sanction I impose should have one or more of the following objectives:
- to denounce unlawful conduct
- to deter the offender and other persons from committing offences
- to separate offenders from society, where necessary
- to assist in rehabilitating offenders
- to provide reparations for harm done to victims or to the community
- to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.
[12] The fundamental principle is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. I must also consider the applicable aggravating and mitigating factors.
Aggravating Factors
[13] This assault occurred on public transit in Toronto which is used by over a 1.5 million residents daily to get to where they need to go: work, school, appointments, home. Safety is essential to both the wellbeing of these commuters and to the smooth operation of transportation in the city. Violence on the transit system undermines the sense of security of all commuters and indeed all Toronto residents, therefore the location of this offence is an aggravating factor.
[14] Ms. Mikulas is a visibly older, heavier, and slower person than the younger, lighter, and more agile Ms. Anderson. This disparity in physical strength and mobility placed Ms. Mikulas at a serious disadvantage when Ms. Anderson pushed her from behind.
[15] The impact on Ms. Mikulas was significant. In addition to having her arm in a sling for several weeks, the injury caused her physical limitations, serious mental and psychological harm, and significant financial hardship.
Mitigating Factors
[16] Ms. Anderson has no criminal record, a solid employment history and is in school.
[17] She is a youthful first offender who has demonstrated resilience and achieved success with little family support. She has also overcome physical and mental challenges. This speaks to her commitment to self-improvement.
Analysis
[18] The principles of denunciation and deterrence both specific and general, are the primary principles in this case given the nature and circumstances of the offence, the location of the violence and the extensive harm caused to the victim.
[19] A Conditional Sentence is available for this offence and would reflect this denunciation and deterrence. However, I must also consider the principle of restraint as Ms. Anderson is a youthful first offender.
[20] An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances, and all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to a victim and a community should be considered pursuant to s.718.2(d) of the Criminal Code.
[21] A Conditional Sentence would be a significant limitation of Ms. Anderson’s liberty and therefore too harsh a sanction in these circumstances.
[22] I then turn my mind to the Defence recommendation of a Conditional Discharge. It too is available in these circumstances, but I am guided by R. v. Huh, 2015 ONCA 356 as to whether it is an appropriate sentence in this case.
[23] The Court found a Conditional Discharge to be an unfit sentence for assault causing bodily harm by a 21-year-old offender who originally had little insight into his behaviour, but then did 144 hours of community service, addressed his substance addiction, was awaiting counselling for mental health and had several letters of reference outlining his community activities. The Court stated that a Conditional Discharge was not proportionate to the gravity of the offence and the blameworthiness of the offender.
[24] In this case, Ms. Mikulas was not as injured as the victim in Huh, however she was seriously injured. Ms. Anderson has no addiction problems, has done no counselling and no upfront community service.
[25] Although Ms. Anderson did admit she pushed the victim during her testimony, and did express regret about Ms. Mikulas’ injuries, this is not the equivalent of a guilty plea and an expression of remorse obviating a trial and does not warrant the same recognition and benefit on sentence as if she had pled guilty.
[26] Ms. Anderson had a trial, as she is entitled to have. That is not aggravating. She did not plead guilty, and cannot have the same mitigation as if she did.
[27] I find Ms. Anderson to be immature, impulsive, and self-centered in her understanding of where and how she participates within a larger community. She did not have the fare, and yet felt entitled to a ride from the bus driver. She saw that passengers were delayed and frustrated because of her behaviour, yet she did not get off the bus.
[28] She was unable or unwilling to regulate her emotions – indeed – she did not even admit her emotions as she continues to assert that she was “pushed first” and sworn at which was the cause of her conduct, rather than accepting that violence was how she chose to express her anger.
[29] This is a disconcerting lack of insight into the seriousness of her behaviour and its impact. She regrets the victim was injured but maintains her entitlement to have pushed the victim in the back insisting she was “standing up for herself” when clearly, she was not.
[30] Although a Conditional Discharge would be in her best interest, it would be contrary to the public interest and would not be proportionate to the gravity of the assault and Ms. Anderson’s blameworthiness.
[31] A conviction is warranted in these circumstances as are terms that aim to assist Ms. Anderson’s rehabilitation and offer her an opportunity to see herself as a part of a larger community by providing reparations to the community.
Sentence
[32] Ms. Anderson, I find that a Suspended Sentence and a two-year probation is the fit sentence. During the period of probation, you will follow the statutory terms, and in addition, you will:
- Report a Probation Officer within 24 hours and thereafter at least once a month.
- Complete 20 hours of anger management and provide proof of completion of this counselling to your Probation Officer within the first 12 months of your probation.
- Sign releases to permit your Probation Officer to monitor your attendance and completion of the counselling.
- Perform 100 hours of community service and provide proof of completion of this work to your probation officer within the first 12 months of your probation.
- Possess no weapons as defined by the Criminal Code.
- Have no contact directly or indirectly with the victim.
[33] I will also order that you provide a sample of your DNA and you will be prohibited from possession weapons for a period of two years pursuant to s. 110 of the Criminal Code. As you are not working at this time, I will waive the Victim Fine Surcharge as it will cause you undue hardship.
Released: May 7, 2024 Signed: Justice Cidalia C. G. Faria