CITATION: R. v. Walia, 2016 ONSC 7495

COURT FILE NO.: CRIMJ(P) 1172/15

DATE: 20161201

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Robin Prihar, for the Crown

• and -

KAMALPREET WALIA

Rashid Mann, for the Defence

Defendant

HEARD: November 30, 2016

REASONS FOR SENTENCE

M. J. Donohue, J.

Overview

1A jury found Kamalpreet Walia was not guilty of assault with a weapon but guilty of aggravated assault. Their verdict was given on September 22, 2016.

2The defence was unintentional act or involuntary act.

The Evidence at Trial

3The complainant Inderjit Kaur was visiting her parents at 25 Tawnberry Circle in Brampton, on July 1, 2014. Her sister-in-law, the defendant, Ms. Walia, resided there with her husband and two children, her husband’s brother and his wife and two children, as well as her husband’s parents.

4In the late afternoon an argument arose in the family room between Ms. Walia and her sister-in-law Jaspreet. Her mother-in-law intervened and the argument escalated. The complainant Ms. Kaur entered the argument. Ms. Walia left the room to service a hairdressing client in the salon room near the front door.

5Ms. Walia left the salon room and went down the hall to the family room to warn Ms. Kaur that she was recording what Ms. Kaur said and that she had a witness to what Ms. Kaur was saying. Ms. Walia said she was going to call the police and went back to the salon room.

6Ms. Kaur went to the salon room and spoke with the hairdressing client. Ms. Kaur testified that she asked the client if she was the witness and the woman just smiled back at her. Ms. Walia and the client, Ms. Bedi, testified that Ms. Kaur asked, “Are you recording? I will show you how to record.” Ms. Walia told Ms. Kaur to get out of the salon room. Ms. Kaur told her that she did not have to leave her father’s house. Ms. Walia sent her client home early.

7The evidence was that Ms. Walia and Ms. Kaur were yelling at one another and they each spat twice in each other’s face. They were facing one another and were about a foot and a half apart. Ms. Kaur’s daughter, Jasmine, age 14, saw both women. She said her aunt, Jaspreet, was in the hall near the living room as was her grandmother.

8Ms. Walia testified that Ms. Kaur struck her on the left side of her face with a cell phone in her hand. Jaspreet testified that she had loaned her cell phone to Ms. Kaur. Ms. Bedi, the client, testified that she had seen a cell phone in Ms. Kaur’s hand in the salon room.

9Jasmine said her mother did not have anything in her hands and did not strike Ms. Walia. Rather, she said that Ms. Walia spat first and it was on Ms. Kaur’s feet and then spat again on Ms. Kaur’s face. After each spat in the other’s face twice, Jasmine observed Ms. Walia to take the water glass in her right hand and hit Ms. Kaur in the face. She described it as “whipping” the glass at her.

10Ms. Walia’s evidence was that after being struck by Ms. Kaur she went black and when she opened her eyes she saw she had the shattered glass in her right hand and she did not know what had happened.

11Ms. Kaur had a large laceration on her left cheek that required 12 stitches and plastic surgery. She also required a stitch on her right hand. It has left a large facial disfiguring scar on her left cheek. She required further plastic surgery.

Circumstances of the Offence

12The jury, in convicting Ms. Walia of aggravated assault, did not accept her explanation that her actions were involuntary, unintentional and that she did not know what had happened.

13What is implicit from the findings of the jury was that Ms. Walia had the intention to apply force to the complainant, Ms. Kaur, which resulted in wounding her. Ms. Kaur did not consent to the force applied and Ms. Walia knew she did not consent.

14By convicting, the jury found that a reasonable person would realize the risk of bodily harm that would result from throwing the glass at Ms. Kaur.

15By acquitting Ms. Walia on the charge of assault with a weapon the jury was not satisfied beyond a reasonable doubt that the glass was used as a weapon.

16Counsel for Ms. Walia has suggested that these were inconsistent verdicts and urged the court to order a suspended sentence as a result.

Determining Facts for Sentence Following a Jury Verdict

17Section 724(2) of the Criminal Code, R.S.C. 1985, c. C-46, provides that:

724 (2) Where the court is composed of a judge and jury, the court

(a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and

(b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.

18In R. v. Landry, 2016 NSCA 53, 338 C.C.C. (3d) 162, at paras. 39-52, the court discussed at length the implications of this statutory directive and concluded that the following principles should govern:

1. The sentencing judge shall accept as proven all facts, express or implied, that are essential for the jury’s guilty verdict.

2. When the jury finding is ambiguous, the sentencing judge should not attempt to follow the logic of the jury. Instead, he or she must make their own independent determination as to the relevant facts.

3. The sentencing judge should only find those facts necessary to permit the proper sentence to be imposed.

4. The sentencing judge may not find as fact things that were rejected by the jury’s verdict.

5. Following a jury verdict, an accused is not entitled to be sentenced according to the most lenient view of the circumstances consistent with the jury verdict.

6. For any aggravating fact, the sentencing judge must be satisfied that the evidence is sufficiently cogent to enable him or her to find it proved beyond a reasonable doubt.

Circumstances of the Offender

19Ms. Walia was 36 at the time of the offence and is now 39. She is married and a mother of two. She resides with her husband and 15 year old son 11 year old daughter. She has no prior criminal record.

20Ms. Walia is the primary caregiver for her two children.

21In support of her position on sentencing, Ms. Walia submitted a Documents Brief containing a letter from Red Door Family Shelter along with numerous personal references from friends, coworkers and clients.

22The Red Door Family Shelter letter confirms that Ms. Walia was fleeing family-in-law abuse when she stayed with them from October 18, 2003 until December 8, 2003, ten years prior to this assault.

23The personal references filed in support of Ms. Walia are consistent in characterizing her as a kind and caring friend and a loving mother of her two children. Many writers expressed surprise at the fact that Ms. Walia was found guilty of this offence and noted that this incident was inconsistent with her usual personality as a calm and patient person.

Right of Allocution

24Ms. Walia was offered the right of allocution

25She said simply that she was sorry Ms. Kaur was injured.

26Ms. Walia testified that her own extended family resides in India. Since coming to Canada in 1999 she suffered physical abuse from her husband and separated from him a number of times. She suffered physical abuse and injury from her brother-in-law in the family home. In 2001. she testified that the complainant, Ms. Kaur, choked her neck, lifting her off the ground.

Impact on the Victim and/or Community

27Ms. Kaur has been left with a long, highly visible disfiguring scar on her face. She endured pain and two surgeries.

28A Victim Impact Statement was sought by the Crown but not received. Ms. Kaur did not attend the sentencing hearing.

Legal Parameters

29The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. This is achieved by imposing just sanctions that have a number of objectives among which are to: denounce unlawful conduct; to deter the offender and others from committing offences; to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community: Criminal Code, s. 718.

30Aggravated assault is an indictable offence and Ms. Walia, having been found guilty of this offence, is liable to imprisonment for a term not exceeding 14 years: Criminal Code, s. 268. There is no mandatory minimum sentence.

Positions of Crown and Defence

31The Defence position on sentencing is as follows:

1. A suspended sentence.

2. Three years’ probation, including:

• A 12 to 18 month term of house arrest, with Ms. Walia being required to remain in her home from 9:00 p.m. until 6:00 a.m.;

• Completion of 140 community service hours; and

• Counselling as directed by a probation officer.

3. A fine between $3,000 and $5,000, payable within 36 months and including a 30% victim surcharge.

4. Restitution for any Ontario Health and/or out-of-pocket medical expenses incurred by Ms. Kaur.

5. A DNA order as required by s. 487.051 of the Criminal Code.

6. A weapons prohibition order as required by s. 109 of the Criminal Code.

32The Crown position on sentencing is as follows:

1. A period of incarceration between 12 to 15 months in custody.

2. Two years probation.

3. A DNA order as required by s. 487.051 of the Criminal Code.

4. A weapons prohibition order as required by s. 109 of the Criminal Code.

Case Law

33Both the Crown and counsel for the defence have drawn my attention to the decision of the Supreme Court of Canada in R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 18, where the Chief Justice McLachlin highlighted the importance of the sentencing judge not trying to following the logical process of the jury where the factual implications of their decision are ambiguous:

[The sentencing judge] should come to his or her own independent determination of the relevant facts: Brown; R. v. Fiqia (1994), 1994 ABCA 402, 162 A.R. 117 (C.A.). In doing so, the sentencing judge “may find any other relevant fact that was disclosed by evidence at the trial to be proven” (s. 724(2)(b)). To rely upon an aggravating fact or previous conviction, the sentencing judge must be convinced of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities: ss. 724(3)(d) and 724(3)(e); see also R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368; R. v. Lawrence (1987), 1987 CanLII 9452 (ON SC), 58 C.R. (3d) 71 (Ont. H.C.). It follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues.

34The Crown relies upon the decisions in R. v. MacDonald, 2010 ONCA 178, 259 O.A.C. 308, R. v. Stalker, 2011 BCSC 1401, [2011] B.C.J. No. 1950 (Q.L.), and R. v. Boyd, [2004] O.J. No. 3735 (Q.L.), which call for incarceration. In each of these cases, the accused was found guilty of aggravated assault after striking/slashing the victim in the face with a beer bottle.

35The sentence in Stalker was incarceration for two years less a day for an accused with a criminal record.

36The sentence in MacDonald was 12 months imprisonment and 12 months probation. The sentence in Bond was 7 months imprisonment following a guilty plea.

37Counsel for Ms. Walia provided me with a number of cases where the accused was not subject to a period of incarceration, and rather, faced a suspended sentence with a period of probation.

38In R. v. Peters, 2010 ONCA 30, 250 C.C.C. (3d) 277, the accused, an Aboriginal offender, pled guilty to aggravated assault after a preliminary hearing. The accused had hit the complainant over the head with a beer bottle following an argument at a bar. On sentencing, Nordheimer J. considered a number of relevant factors, including Peters’ personal circumstances as an Aboriginal offender, and imposed a suspended sentence plus three years’ probation. The Court of Appeal upheld this decision.

39R. v. Powell (1994), 1994 NSCA 204, 134 N.S.R. (2d) 236 (C.A.), involved an accused who was found guilty of aggravated assault after getting into a fight with and causing injury to his mother’s boyfriend. In reaching the decision to impose a suspended sentence with three years’ probation, the court considered the past record of the accused, the fact that it was a family argument, and that all parties had been drinking at the time of the offence.

40In R. v. White, 2014 ONSC 2878, [2014] O.J. No. 2344 (Q.L.), the accused was given a suspended sentence with two years’ probation. In that case, the accused stabbed the complainant once in the chest with a steak knife after being severely beaten and after the complainant threatened to kill her. The accused was 22 at the time of the crime, had no criminal record, an excellent work history and no alcohol or drug issues.

41R. v. Foreman, 2015 BCPC 104, [2015] B.C.J. No. 866 (Q.L.), involved an accused who pled guilty to aggravated assault as a result of an incident where she was drinking with the complainant, became angry, and slashed the complainant’s arm with a knife. She was ultimately sentenced to a suspended sentence with two years’ probation. The court considered the fact that Foreman was an alcoholic on her path to recovery and that she had a very positive pre-sentence report.

42In R. v. Ross, 2015 SKQB 150, 475 Sask.R. 181, the accused was convicted of aggravated assault after stabbing her sister in the cheek during a fight over a bottle of whiskey. In imposing a suspended sentence with two years’ probation, R.D. Maher J. placed considerable weight on Gladue factors, as there was a causal link between the background of the Aboriginal offender and the commission of the offence. The court noted that an aggravating factor was the victim had been an active participant in the fight.

43R. v. Nicholls, 2013 BCSC 1145, [2013] B.C.J. 1369, involved an Aboriginal offender who was found guilty of aggravated assault and assault with a weapon. The accused and complainant had been smoking marijuana together when the complainant teased the victim, which resulted in the accused attacking the victim with a three-inch knife. The accused was given a suspended sentence with 30 months’ probation. In reaching this decision, the court considered, among other things, that the accused was Aboriginal, was raised by an alcoholic mother, moved frequently and was bullied as a child.

44I find the defence cases involving Aboriginal offenders less helpful as we do not have a Gladue component in this matter.

Mitigating and Aggravating Factors

45There are a number of mitigating factors in this case.

46Ms. Walia has the support of many good friends and co-workers who find her to be a kind and gentle person.

47She works full-time as a hair stylist and as a mother.

48This is her first offence. She has no criminal record

49Her employer and co-workers and customers speak highly of her dedication to work and of her loving nature.

50Ms. Walia has been fully compliant with her bail conditions.

51Ms. Walia has been the victim of physical abuse by her husband and in-laws.

52There are a number of aggravating factors in this case.

53The injury to Ms. Kaur was disfiguring, painful and required further plastic surgery. She is left with a terrible facial scar for the rest of her life.

54I find on the evidence of Jasmine Walia who was very persuasive that Ms. Walia was the instigator of the physical violence by being the first to begin spitting at Ms. Kaur.

Principles of Sentencing

55The Criminal Code sets out for the purpose and principles of sentencing:

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

Reasons

56I find beyond a reasonable doubt that the facts and the jury’s decision support that Ms. Walia intended to strike Ms. Kaur which resulted in a serious wound. I am satisfied that there is a sufficient distinction between the two verdicts which make it appropriate for me to find the facts for the aggravated assault.

57I find the facts and the jury’s decision support that Ms. Walia’s action was a sudden and unplanned spontaneous act in the heat of an argument with Ms. Kaur.

58By all accounts Ms. Walia is and has been a gentle hard working calm contributor to family and community.

59The consequences of her violent action were very serious and require a sentence which reflects the principles of denunciation and deterrence.

60A suspended sentence would not satisfy the seriousness of this offence.

61In considering the mitigating and aggravating circumstances, the lack of premeditation and the principles of sentencing, particularly denunciation and deterrence I consider a custodial sentence is required.

62In the circumstances of this case with this offender and the seriousness of the injury to Ms. Kaur I find a period of twelve months in custody is appropriate plus 1 year of probation.

Ancillary Orders

63A DNA order as required by s. 487.051 of the Criminal Code.

64A weapons prohibition order as required by s. 109 of the Criminal Code.

Final Decision

65I sentence Ms. Walia to serve twelve months in custody followed by 1 year probation.

66I order a DNA order and weapons prohibition.

M. J. Donohue, J.