CITATION: R. v. Aziz, 2017 ONSC 5384

COURT FILE NO.: CR-15-30000650-0000 DATE: 20170922

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ZAKIR AZIZ

Joshua Levy, for the Crown

Robert Warren, Q.C., for the Accused

HEARD: September 11 and 18, 2017

REASONS FOR SENTENCE

garton j.

[1] The offender, Zakir Aziz, age 53, was convicted after trial of committing an aggravated assault on the victim, Vidyam Ramjit. He was also convicted of assaulting Mr. Ramjit using a weapon, namely, a beer bottle, and possession of that weapon for the purpose of committing an offence.

Circumstances of the Offences

[2] The evidence was reviewed in detail in my reasons for judgment. Briefly, the charges arose from an incident that took place shortly after midnight on September 16, 2012, outside a bar in Scarborough. Mr. Ramjit and his girlfriend, Elvita Pitamber, were at the bar that night, as were Mr. Aziz and his two former co-accused, Harry Fredericks and Jaianand Naipaul. Mr. Fredericks and Mr. Naipaul were found not guilty of the charges, as I was not satisfied that the Crown had proved its case against them beyond a reasonable doubt.

[3] Ms. Pitamber had known the three accused for a number of years and got along well with all of them. Mr. Ramjit was new to this circle of friends. He only met Ms. Pitamber a few months prior to this incident. He moved into her apartment two days before the assault.

[4] Footage from surveillance cameras inside the bar on the evening in question shows Mr. Aziz, Mr. Fredericks, and Mr. Naipaul socializing and drinking with others at a table near the dance floor. Ms. Pitamber and Mr. Ramjit were, for the most part, together at the bar and were drinking beer. At one point, Mr. Aziz joined them. Although there is no audio on the surveillance recordings, Mr. Aziz’s interactions with Mr. Ramjit and Ms. Pitamber appear to be amiable.

[5] Things only began to “go off the rails” when Mr. Aziz started “dirty dancing” with Ms. Pitamber. Mr. Ramjit became upset about the way they were dancing. After watching them for a few minutes, he picked up two beer bottles, approached them on the dance floor, and proceeded to splash both of them with beer. He then returned to the bar, put down the two bottles, and left the premise. As he was leaving, Mr. Aziz threw the glass that he was holding at Mr. Ramjit, but it missed its mark. Mr. Ramjit was unaware that Mr. Aziz had thrown the glass.

[6] Mr. Naipaul, Mr. Aziz, and Mr. Fredericks, in that order, followed Mr. Ramjit outside. Before leaving the bar, Mr. Aziz picked up two beer bottles and was holding one in each hand as he pursued Mr. Ramjit. Mr. Naipaul was not holding anything in his hands. He testified that after seeing Mr. Aziz throw the glass and pick up the beer bottles, he put down his own beer bottle, extended out his right arm towards Mr. Aziz as Mr. Aziz was heading out the door, and told him to wait or hold on. It was Mr. Naipaul’s intention to try to de-escalate matters by speaking to Mr. Ramjit. However, Mr. Aziz did not wait, and exited the bar on the heels of Mr. Naipaul. Mr. Aziz was followed by Mr. Fredericks, who was holding a glass and walking some feet behind Mr. Aziz.

[7] Based on the video surveillance, there is no evidence to suggest that Mr. Aziz and Mr. Fredericks spoke to one another in the bar after the beer-spilling incident and prior to Mr. Aziz leaving the bar with the bottles in his hand. Nor is there any evidence to indicate that Mr. Aziz was aware that Mr. Fredericks followed him outside and was walking behind him.

[8] The video surveillance shows Mr. Ramjit walking in an unhurried manner along the sidewalk of the strip mall after exiting the bar. The moment at which Mr. Naipaul, Mr. Aziz, and Mr. Fredericks caught up to him, and the assault that followed, took place just out of range of the surveillance cameras.

[9] Mr. Ramjit testified that he turned around when he heard people behind him. When he turned, he saw Mr. Aziz, who hit him over the head or on the forehead with a beer bottle. The bottle broke. Mr. Ramjit immediately put his hands to his face and was falling to the ground when he was hit a second time with what he believed was a bottle. Mr. Ramjit testified that Mr. Naipaul delivered this second blow, although in a statement to police he indicated that he did not see the face of the second assailant. For the reasons given in my reasons for judgment, including the fact that Mr. Naipaul was not carrying any bottles or glass, I found that Mr. Ramjit incorrectly identified Mr. Naipaul as the second assailant. The second blow caused severe lacerations to Mr. Ramjit’s right cheek and under his right eye.

[10] The position of the Crown at trial was that Mr. Fredericks was the person who delivered the second blow. After considering all of the evidence, I found that although Mr. Fredericks was probably the second assailant, I was not satisfied in that regard beyond a reasonable doubt. One of a number of factors that I took into account in coming to this conclusion was that another individual, namely, Mr. Aziz, was in close proximity to Mr. Ramjit at the relevant time. After breaking the bottle over Mr. Ramjit’s head, Mr. Aziz was left holding the broken neck of the bottle, which, with its jagged and sharp edges, had the potential to cause the wounds suffered by Mr. Ramjit to the right side of his face.

[11] As stated, this piece of evidence played a role in my finding that the Crown had not met its burden with respect to the charges against Mr. Fredericks. However, in terms of the Crown’s case against Mr. Aziz, and taking into account my finding that Mr. Frederick’s was probably the second assailant, there is a reasonable doubt that Mr. Aziz caused the cuts to Mr. Ramjit’s right cheek and under his eye. Thus, in determining the appropriate sentence in this case, I have proceeded on the basis that the only physical act of violence committed by Mr. Aziz on Mr. Ramjit was his striking him with the beer bottle on the forehead.

[12] Mr. Aziz, Mr. Fredericks and Mr. Naipaul left the scene prior to the arrival of the police. Ms. Pitamber attended to Mr. Ramjit, who was on the sidewalk and bleeding profusely. Mr. Aziz turned himself in to the authorities three days later.

[13] Crown counsel submits that assuming Mr. Fredericks caused the injuries to the right side of Mr. Ramjit’s face, Mr. Aziz is liable as a party to that assault. Mr. Levy submits that Mr. Aziz was the instigator or leader of the attack. He was the one with a motive to cause harm to Mr. Ramjit, and was the first one to assault him by breaking the beer bottle over his head. Mr. Levy argues that a “group attack” was reasonably foreseeable in the circumstances.

[14] Mr. Warren submits that the evidence does not establish that Mr. Aziz and Mr. Fredericks were acting together as part of a joint plan or agreement to commit an assault on Mr. Ramjit. Mr. Warren noted that no one other than Mr. Aziz was on the receiving end of the beer-spilling incident. Thus, Mr. Aziz would have no reason to anticipate that Mr. Fredericks or anyone else would become involved in the fray. Mr. Aziz was the first person to confront Mr. Ramjit and almost immediately hit him with the bottle. That was the extent of his assaultive behaviour towards Mr. Ramjit. He could not have reasonably foreseen the assault perpetrated by Mr. Fredericks.

[15] Having considered all of the evidence and submissions of counsel, I am not satisfied that Mr. Aziz is liable as a party to the assault committed by Mr. Fredericks.

[16] As noted earlier, there is no evidence that Mr. Aziz and Mr. Fredericks spoke to one another or communicated in any way after the beer-spilling incident and before Mr. Aziz left the bar. After the beer was spilled on him, Mr. Aziz immediately threw the glass at Mr. Ramjit, and headed out the door in pursuit of him. It appears from the video surveillance that the only person that Mr. Aziz had contact with prior to leaving the bar was Mr. Naipaul, who told him to wait. Mr. Aziz ignored that instruction and exited the bar with the intent of assaulting Mr. Ramjit. There is nothing in his actions that indicates he was looking for any help in that regard.

[17] I note that the dispute between Mr. Aziz and Mr. Ramjit inside the bar – that is, the spilling of the beer by Mr. Ramjit and the throwing of the glass by Mr. Aziz – did not trigger other violence or a brawl. Other patrons did not become involved in the dispute or display aggressive behaviour towards either party or anyone else. For example, no one ran up to Mr. Ramjit and tried to prevent him from leaving. No one assaulted him. There was no mass exodus of patrons who followed Mr. Ramjit and Mr. Aziz out of the bar. The presence of such a crowd would have been a factor in determining whether it was reasonably foreseeable to Mr. Aziz that by assaulting Mr. Ramjit he would provoke the intervention of others that could result in further harm to Mr. Ramjit. The only people who left the bar after Mr. Fredericks were an individual by the name of Chris Subdan and Ms. Pitamber. The assault on Mr. Ramjit took place within seconds of Ms. Pitamber’s exit.

[18] The video surveillance indicates that Mr. Aziz would not have been aware that Mr. Fredericks left the bar and followed him outside. Mr. Fredericks was still some feet behind Mr. Aziz at the point where Mr. Aziz went out of view of the camera. It is unlikely that Mr. Aziz realized Mr. Fredericks was present until Mr. Ramjit turned around. According to Mr. Naipaul, that was the point when he, Mr. Aziz, and Mr. Fredericks caught up to Mr. Ramjit. Almost immediately, Mr. Aziz struck Mr. Ramjit with the bottle. Mr. Naipaul testified that it happened so fast that Mr. Ramjit had no time to respond to his question, “What’s happening?” Mr. Fredericks then hit Mr. Ramjit in the face with the glass.

[19] Although both Mr. Aziz and Mr. Fredericks assaulted Mr. Ramjit, I am not satisfied in all of the circumstances that this was a joint venture. Mr. Aziz at no point solicited Mr. Fredericks’ or anyone else’s help. He paid no heed to Mr. Naipaul’s advice to wait, and pursued Mr. Ramjit on his own. He did not know that Mr. Fredericks had followed him out of the bar, and would have become aware of his presence only very briefly after Mr. Ramjit stopped and turned around. Mr. Aziz almost immediately struck Mr. Ramjit over the head with the bottle. I am not satisfied that Mr. Aziz had any expectation or would reasonably have foreseen that Mr. Fredericks would also strike Mr. Ramjit.

[20] It is noteworthy that the full extent of Mr. Aziz’s assault on Mr. Ramjit was his striking him with the bottle. Had Mr. Aziz continued to assault Mr. Ramjit in any way after Mr. Fredericks had struck him with the glass, the inference could be drawn that he and Mr. Fredericks were acting together as part of a joint plan or agreement. However, there is no evidence that Mr. Aziz had any further physical contact with Mr. Ramjit after he hit him with the bottle.

Impact of the Assaults on Mr. Ramjit

[21] There is no question that the assaults, and particularly the injuries he sustained to the right side of his face, have had a serious impact on Mr. Ramjit’s life. In his Victim Impact Statement, Mr. Ramjit states that he thinks about it all the time and is fearful of appearing in public. He is concerned about what may happen to Ms. Pitamber. Their relationship has changed since the assault and they now argue all the time because of his reluctance to go out.

[22] Mr. Ramjit describes experiencing mental and emotional pain every morning when he looks at himself in the mirror and sees the scars on his cheek and under his eye. He also suffers constant pain in his right eye, and describes having to hold down the eye because the vein is “pounding so hard.” He also sustained a small scar and bump on his forehead as a result of the beer bottle being broken over his head.

[23] Although Mr. Ramjit requires physiotherapy and further surgeries with respect to the scars, it is difficult for him to take the necessary time off work.

[24] Mr. Ramjit was in the hospital for one night, and required many stitches for the wounds to the right side of his face. When he returned to work after six weeks, he lost a three-month contract because of his appearance. His employer told him that people were nervous around him as he looked like “a bad guy” because of the scars, which were still healing. The contract was worth $12,000. This loss of income resulted in financial hardship for Mr. Ramjit as he had to cover his living expenses with his credit card, which he “maxed out” at $10,000.

Circumstances of Mr. Aziz

[25] Mr. Aziz was born in Guyana. His father died when he was six years old. One year later, his mother immigrated to Canada, leaving Mr. Aziz in the care of his maternal grandparents. His three siblings were left in the care of his paternal grandparents.

[26] Mr. Aziz advised Sangeetha Ranganathan, who authored the pre-sentence report (the “PSR”), that it was difficult growing up while separated from his siblings. Mr. Aziz was suspended several times from school, expelled on one occasion for poor attendance, and finally dropped out for good when he was only ten years old. At age 14, he took up fishing, which was how he eventually made a living and supported his family. When he was twenty, he married his first wife, with whom he had four children – two sons and two daughters. Mr. Aziz and his wife separated when he was 26 years old.

[27] Sometime after his divorce, Mr. Aziz was in a car accident in which he sustained a severe head injury. He has visible scars on his head and forehead. He advised that much of his earnings were spent on plastic surgery and follow-up corrective interventions. Since arriving in Canada, he has undergone several additional surgeries as a result of complications. Defence counsel advises that further surgery is required with respect to what was described as a partially collapsed skull at the top of his head. Mr. Aziz continues to suffer from headaches, and takes Oxycontin on a regular basis to control the pain. There is no suggestion that he is addicted to Oxycontin or any other drug.

[28] Mr. Aziz was sponsored to Canada by his mother. He arrived here in 1994 when he was thirty years old, and lived with his mother for a couple of years. He moved out after finding work. Shortly thereafter, he met his common-law partner, Ingrid Toney. They have one daughter, Shania Aziz, who is now 18 years old. Ms. Toney also had three children from a previous union. Mr. Aziz has a good relationship with his step-children, who are now adults and who regard him as their father. Two of his step-children acted as sureties for Mr. Aziz with respect to the current charges; one of them has been assisting him with his legal fees.

[29] Ms. Toney, who was present in court for these sentencing proceedings, is very supportive of Mr. Aziz, whom she described as a “great father.” Mr. Aziz cooked, did household chores, and cared for the children when they were young. More recently, he has been caring for Ms. Toney as she struggles with some medical issues and recuperates from surgery.

[30] A letter written by Shania Aziz, and which has been filed as an exhibit, attests to the fact that Mr. Aziz is a caring and loving father. He was very involved in Shania’s upbringing, and encouraged her in her studies. He continues to be very involved in her life.

[31] Mr. Aziz’s step-daughter, Shelly Kelowan, advised that although she was aware of anger and arguments between Mr. Aziz and her mother while she was growing up, these issues never affected the way in which Mr. Aziz treated her or her siblings. He was consistently a good father and a “good person overall.”

[32] Ms. Toney acknowledged that she and Mr. Aziz have had their problems in the past. Mr. Aziz’s criminal record includes three convictions for assault – one in 2000, and two in 2002. Ms. Toney was the complainant in all three instances. She noted that in the past, Mr. Aziz would often move out to live with his mother. However, he is now living with Ms. Toney, who indicates that they have put aside their differences and are assisting each other going forward.

[33] Mr. Aziz has a good relationship with his mother, whom he has been helping out while she copes with some health issues.

[34] In 1998, Mr. Aziz, with Ms. Toney’s support, sponsored his ex-wife and their four children to Canada. His ex-wife lived with her extended family, and Mr. Aziz supported them financially until they became independent. However, his two sons were often in trouble with the law, and have now been deported. Mr. Aziz reported that he felt let down by his children’s inability to make a living here. He no longer has any contact with his ex-wife or their four children, even though his two daughters live in Toronto.

[35] After arriving in Canada, Mr. Aziz obtained a job loading and unloading transportation trucks. He was employed at the same company for five years but was ultimately fired for missing work. He explained to Ms. Ranganathan that he was unable to tolerate the loud noise in the work place, and that it interferred with his concentration and ability to do his job. He had difficulty keeping jobs thereafter because of the time he was taking off to attend medical appointments and surgeries.

[36] Mr. Aziz’s employment opportunities are limited by the fact that he neither reads nor writes. He currently works as a cleaner on a part time basis, but stated that he can only work for two or three hours at a time “due to his limitations.” For the past year, he has been receiving funds from the Ontario Disability Support Program. Prior to that, he received assistance from Ontario Works. More recently, Mr. Aziz has been spending most of his time caring for his two-year-old granddaughter who, along with her mother, Ms. Kelowan, lives with him and Ms. Toney.

[37] Mr. Aziz described himself as a “social drinker.” He acknowledged that alcohol, as well as his impulsivity, played a role in his commission of the present offences, and that he “has learned his lesson.” However, he continues to drink with friends at a bar where they regularly meet after cricket games and practices. Mr. Aziz described his intake of alcohol on these occasions as about four to five shots of vodka and/or three to four beers.

[38] Ms. Ranganathan noted that Mr. Aziz completed an alcohol addiction counselling program at the Scarborough Hospital in 2014. However, she was of the view that he minimizes his drinking and its consequences, as well as the major role that alcohol continues to play in his social life.

[39] Mr. Aziz’s criminal record is as follows:

Aug. 29, 2000: Assault Suspended Sentence and Probation for one year

July 31, 2002 (1) Assault 15 days intermittent (+ 6 days PTC) + 2 yrs. probation

(2) Assault 15 days intermittent + 2 yrs. probation (conc) + s. 109 order

Nov. 16, 2012 Fail to Comply with Recognizance 14 days

Sept. 18, 2014 Fail to Comply with a Recognizance $750 fine + 2 days PTC

[40] Both Fail to Comply charges involved breaches of conditions relating to Mr. Aziz’s bail conditions on the current charges.

[41] When discussing the impact of his actions on the victim, Mr. Aziz told Ms. Ranganathan that if he had a chance to go back in time, he would not have acted as he did. He expressed remorse, and stated, “I hide my own scars and know how bad the victim must feel.” Mr. Aziz expressed similar sentiments to the court following counsels’ submissions. I accept his expressions of remorse as sincere. Mr. Aziz also advised Ms. Ranganathan that he was willing to take an anger management program if so ordered by the court.

[42] Mr. Aziz is not a Canadian citizen. He is a permanent resident. Under section 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”), a permanent resident is “inadmissible” on grounds of “serious criminality” for having been convicted in Canada of an offence punishable by a maximum term of imprisonment of at least 10 years. Aggravated assault under s. 268 of the Criminal Code – Count One in the indictment – is punishable by a maximum term of 14 years, and Counts 2 and 3 are each punishable by a maximum term of 10 years. Mr. Aziz’s inadmissibility by virtue of s. 36(1)(a) makes him vulnerable to a removal order leading to deportation.

[43] Depending on the length of sentence imposed, Mr. Aziz may or may not have a right of appeal against a removal order. Under s. 63(3) of IRPA, a permanent resident may appeal to the Immigration Appeal Division (“IAD”) against a removal order. The IAD can stay a removal order if it is satisfied that sufficient humanitarian and compassionate considerations warrant special relief in all of the circumstances: IRPA, s. 68(1).

[44] However, a permanent resident can only appeal a removal order to the IAD if the ground of serious criminality is based on a crime that was punished by a term of less than six months. The relevant portions of sections 64 (1) and (2) state as follows:

64 (1) No appeal may be made to the Immigration Appeal Division … by a permanent resident if … the permanent resident has been found to be inadmissible on grounds of … serious criminality.

(2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least six months …

[45] This means that if Mr. Aziz receives a sentence of six months or more with respect to any of the offences for which he has been convicted, he will not have the right to appeal a removal order. I note that at the time that Mr. Aziz committed these offences, the term of imprisonment referred to in s. 64(2) was two years. However, on June 19, 2013, nine months after Mr. Aziz’s arrest, Bill C-43, “Faster Removal of Foreign Criminals Act”, reduced the term to six months.

Deportation as a Consideration on Sentencing

[46] In R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, the Supreme Court of Canada explained how collateral immigration consequences are to be taken into account on sentencing. Justice Wagner, writing for the Court, explained that the collateral consequences of a sentence are any consequences that the sentence has on the particular offender and may be taken into account as part of the offender’s personal circumstances. They are neither aggravating nor mitigating factors. Their relevance flows from the application of the principles of individualization and parity, and may also flow from the sentencing objective of rehabilitation. When two possible sentences are both appropriate as regards the gravity of the offence and the responsibility of the offender, the most suitable one may be the one that better contributes to the offender’s rehabilitation. The weight to be given to collateral consequences varies from case to case and should be determined having regard to the type and seriousness of the offence. Therefore, collateral immigration consequences may be relevant in tailoring the sentence, but their significance depends on and has to be determined in accordance with the facts of the particular case: Pham, at paras. 11-13.

[47] The sentence imposed must be fit having regard to the particular crime and the particular offender. While a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, the sentence ultimately imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The collateral immigration consequences must not be allowed to dominate the sentencing exercise or skew the process: Pham, at paras. 14-16.

[48] At para. 19, the Court in Pham adopted the position asserted by Doherty J.A. in R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1 (C.A.), at para. 156, where he stated:

… the risk of deportation cannot justify a sentence which is inconsistent with the fundamental purpose and the principles of sentencing identified in the Criminal Code. The sentencing process cannot be used to circumvent the provisions and policies of the Immigration and Refugee Act. As indicated above, however, there is seldom only one correct sentencing response. The risk of deportation can be a factor to be taken into consideration in choosing among the appropriate sentencing responses and tailoring the sentence to best fit the crime and the offender … .

[49] The decisions in R. v. Nassri, 2015 ONCA 316 and R. v. Sohal, 2017 ONCA 425, which were provided by Crown counsel, are examples of the application of the principles in Pham. I bear those principles in mind in determining the appropriate sentence in this case.

Positions of the Crown and Defence Counsel

[50] Based on his position that Mr. Aziz was a party to the assault perpetrated by Mr. Fredericks, Crown counsel took the position that a lower range penitentiary term is appropriate. Mr. Levy submits that denunciation and deterrence must be the primary considerations, given the injuries suffered by Mr. Ramjit and the fact that Mr. Aziz attacked him as Mr. Ramjit was walking away from the bar. Mr. Ramjit posed no threat to Mr. Aziz. Mr. Aziz’s actions in pursuing him and striking him over the head with a bottle were out of all proportion to the beer-spilling incident and were probably fuelled, at least in part, by his consumption of alcohol. Crown counsel questioned whether Mr. Aziz has any insight into his criminal behaviour, and noted that alcohol still appears to play a major role in Mr. Aziz’s social life. This is a negative factor in terms of Mr. Aziz’s prospects for rehabilitation.

[51] Crown counsel also noted Mr. Aziz’s prior convictions for assault, although he acknowledged that they are dated, having taken place 15 and 17 years ago. The context in which Mr. Aziz committed those offences, that is, in a domestic setting, was quite different from the context in which the present offences occurred. Nevertheless, the Crown submits that they are an indication that Mr. Aziz has some anger management issues. Mr. Aziz’s flight from the scene, and his two convictions for breaching his bail conditions are aggravating factors.

[52] The position of the defence is that the appropriate sentence for these offences falls within a range of 90 days to eighteen months. Mr. Warren suggested that in the particular circumstances of this case, a sentence of six months followed by a period of probation would adequately address the principles of denunciation and deterrence. It would also reflect the fact that the Crown failed to establish beyond a reasonable doubt that Mr. Aziz inflicted the more serious wounds sustained by Mr. Ramjit – that is, the injuries to his right cheek and under his right eye.

[53] Mr. Warren submits that although Mr. Ramjit could not be said to have provoked the assault in the legal sense of that word, his action in splashing beer on Mr. Aziz is what led to the commission of these offences. Up until that time, there was no animosity between the two men, who had earlier been conversing in a friendly manner at the bar. Technically speaking, the splashing of the beer on Mr. Aziz constituted an assault, albeit a very minor one.

[54] Mr. Warren noted that the PSR is generally quite positive. Despite his limited education and having sustained a serious head injury in a car accident, Mr. Aziz has managed to work, even if it is in a limited capacity. Mr. Aziz has taken responsibility for his actions and expressed remorse to the court. He is willing to take counselling. These factors are positive indicators in terms of his rehabilitation.

[55] Mr. Warren asks the court to exercise its discretion pursuant to Pham in the event that I determine that a sentence of six months or more is appropriate. For example, if the appropriate sentence is six months, Mr. Warren asks the court to consider imposing a sentence of six months less one day in order to preserve Mr. Aziz’s right to appeal a deportation order. Similarly, if the appropriate sentence were determined to be 18 months, a sentence of six months less one day could be imposed on each of the three counts in the indictment, to run consecutively. Mr. Warren referred to two unreported cases – one in the Ontario Court of Justice and another in the Superior Court – where sentencing judges have imposed such a sentence. Such a sentence is no guarantee that Mr. Aziz would not be deported, but his right to appeal the deportation order on compassionate and humanitarian grounds would be maintained.

[56] The position of the Crown is that three consecutive sentences of six months less one day would run contrary to Pham, where the court, at para. 15, cautioned against the imposition of “artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament’s will.”

Case law

[57] The Crown and defence counsel observed that the cases disclose a wide range of sentences for the offence of aggravated assault.

[58] Mr. Levy referred to the Ontario Court of Appeal decision in R. v. Jones, 2013 ONCA 245, [2013] O.J. No. 1786. The appellant, who was Aboriginal, was convicted of aggravated assault and two counts of assault with a weapon (a knife). The trial judge applied the Gladue factors and imposed a sentence of 23 months less one day, although he expressed the view that a penitentiary sentence would otherwise have been necessary for a non-aboriginal offender. The appellant was also convicted of assault with a weapon on a second complainant, and received a consecutive sentence of one month. He appealed the convictions and sentence relating to the first complainant only. His appeals were dismissed. The Court did not review the facts in great detail, nor the background of the appellant. However, the Court emphasized the serious injuries sustained by the complainant, describing her face as terribly scarred by the knife cuts, and the devastating emotional impact that the attack had on her. The Court also noted that the sentence was very close to the sentence imposed in R. v. Tourville, 2011 ONSC 1677, where a 28-year-old Aboriginal first time offender was sentenced to 21 months incarceration and two years probation for aggravated assault and assault with a weapon.

[59] Unlike the present case, the appellant in Jones was responsible for all of the complainant’s injuries sustained in the assault, as was the accused in Tourville. Mr. Tourville was charged with attempt murder (with aggravated assault as an included offence), assault with a weapon and possession of a weapon dangerous. The offences related to a fight between the accused and the victim that took place outside a bar. The jury acquitted the accused of attempt murder and possession of a weapon dangerous, but convicted him of aggravated assault and assault with a weapon.

[60] The injuries sustained by the victim in Tourville were far more serious than the injuries inflicted by Mr. Aziz on Mr. Ramjit. The assault in Tourville consisted of multiple acts of wounding with a knife, nine of which were very serious. There were four cuts to the victim’s left arm, two of which were so deep that they penetrated the bone. There was one cut to the right bicep. The victim also sustained defensive injuries. The Crown submitted that the appropriate sentence was five years imprisonment. The position of the defence was that a sentence of 18 months to two years less a day was appropriate. Code J. imposed a 21-month term, followed by probation.

[61] In Tourville, Code J. attempted to classify the usual range for sentences for aggravated assault depending on the circumstances of the offence and the offender. At the bottom of the range are the exceptional cases, such as R. v. Peters, (2010) 250 C.C.C. (3d) 277 (Ont. C.A.), 2010 ONCA 30, where the 26-year-old Aboriginal first offender received a suspended sentence and three years’ probation on a guilty plea to aggravated assault. She had used a broken beer bottle in a barroom dispute causing serious facial lacerations to the victim. The victim was permanently scarred and suffered ongoing pain. The offender had obtained employment and was making progress in counselling for drug abuse.

[62] Code J. summarized the mid-range of cases where high reformatory sentences have been imposed as generally involving first offenders and containing some element suggestive of consent fights where the offender had resorted to excessive force.

[63] Code J. concluded that the cases at the high end of the range, where sentences of four to six years have been imposed, generally involve recidivists with serious prior criminal records, or unprovoked or premeditated assaults with no element of consent or self-defence.

[64] Mr. Warren provided the court with the following cases: R. v. Bainbridge, 2016 ONSC 2119, [2016] O.J. No. 1753; R. v. Pulido, 2010 ONSC 3143, [2010] O.J. No. 2282; R. v. Almotairi, 2013 BCSC 2132, [2013] B.C.J. No. 2545; and R. v. Howe, 2015 NBQB 75, [2015] N.B.J. No. 109.

[65] In Bainbridge, the accused was a 40-year-old mother of six children. She was convicted after trial of aggravated assault by pouring hot oil over the head, neck and back of the victim, who was engaged in a physical fight with her son. The victim suffered severe burns, a great deal of pain as the burns healed, and permanent scars on the back of his head. There was a significant area down the back of his head where the hair will not grow. The accused grew up in a dysfunctional family. She had no criminal record. She had a good work record, was a good mother, and expressed remorse. There was concern about the effect of incarceration on her children. Spies J. found that the appropriate sentence was closer to that imposed in Peters than the sentences imposed in the mid-level cases referred to by Code J. She imposed a 90-day intermittent sentence plus two years’ probation.

[66] In Pulido, as in the present case, the trial judge found that the accused was not responsible for causing all of the injuries to the complainant. The 35-year-old accused got into a bar fight after drinking and struck another patron with a beer bottle, resulting in cuts to the victim’s hand. The accused was provoked to a certain degree by the victim, who had told him to leave the bar and had pushed him. The accused grabbed a beer bottle and brought it down towards the victim’s head. The victim put up his hand to stop the blow. The bottle broke on impact and cut the tendons in the victim’s hand. Several other individuals then got involved in the brawl, one of whom struck the victim on the neck with a broken bottle. The victim sustained a serious injury to his neck with permanent scarring and numbness. The trial judge convicted the accused of aggravated assault on the basis of the injury he caused to the victim’s hand, but found that he was not guilty of the injury to the victim’s neck. The accused had a previous but dated conviction for assault that arose from a bar fight and involved serious injury to the victim. The accused was under the influence of alcohol on that occasion. From that time onward, he had led a productive life, both in the work place and as a father. He admitted responsibility for his act and expressed remorse. Baltman J. imposed a 90-day intermittent sentence followed by 18 months’ probation.

[67] In arriving at an appropriate sentence for Mr. Pulido, Baltman J., at paras. 20-23, reviewed a number of cases that involved the use of a beer bottle as a weapon. Again, there is a considerable range, depending on the facts of each case. At the higher end, in R. v. MacDonald, 2010 ONCA 178, [2010] O.J. No. 912, the Court of Appeal upheld a one-year jail term for a youthful first offender who threw a beer bottle in a bar setting, seriously injuring the victim. The Court also upheld a ten-month sentence in R. v. Vang, 1999 CanLII 2310 (ON CA), [1999] O.J. No. 91, where the offender was party to a stabbing incident in a bar. In R. v. O’Quinn, 2002 CanLII 44942 (ON CA), [2002] O.J. No. 2016, the Court substituted a 15-month sentence for a sentence of two years less one day imposed by the sentencing judge. That case involved more serious injuries than in the present case. The victim was struck over the head with a beer bottle, punched, kicked, struck again with a beer bottle, was rendered unconscious and remained in a coma for some time.

[68] Cases reviewed by Baltman J. at the lower end included R. v. Crooks, [2004] O.J. No. 4050 (S.C.), where the court sentenced the two offenders to intermittent sentences of 80 and 90 days respectively following a guilty plea to aggravated assault. The co-accused were involved in an altercation between two groups of young men. Although they were youthful offenders and neither was responsible for the stab wounds suffered by the victim, both had participated in kicking and punching him once he was on the ground, and the attack was part of a planned episode of group violence.

[69] In R. v. Mann, [2006] O.J. No. 2446 (S.C.), the trial judge imposed an intermittent sentence of 60 days plus 18 months’ probation following the offender’s conviction for assault with a weapon. That case also involved an assault with a beer bottle in a bar setting, and the offender had three prior convictions, including one for assault with a weapon and one for assault causing bodily harm. The Court of Appeal, at 2007 ONCA 146, [2007] O.J. No. 802, saw “no error” in the sentence but modified it to time served, given the delay at the summary conviction appeal stage, the time that the appellant had already served, and the fact that he had successfully completed his probation and an anger management program.

[70] In R. v. Farah, [2006] O.J. No. 4369 (S.C.), the court imposed a sentence of four months on a youthful first offender who pleaded guilty to aggravated assault. He had stabbed the victim in the abdomen. The injuries were serious and took place in a school setting. After granting credit for pre-trial custody, the trial judge reduced the sentence to 75 days, to be served intermittently.

[71] In Almotairi, the accused was convicted of aggravated assault and assault using a weapon. The victim, who was angry that the accused had not attended his birthday party, aggressively approached the accused on three occasions as the accused was playing pool. On the third occasion, the victim punched the complainant in the face. The accused reacted “spontaneously” by thrusting his pool cue towards the victim. The cue struck the victim in the eye, causing him serious injury. He suffered a traumatic brain injury that required three surgeries, remained in the hospital for five months, and had partial paralysis in his left arm and leg, as well as a droopy eyelid. The accused was a 27-year-old student with no prior criminal record. He expressed remorse. The trial judge imposed 6 months on each charge, to be served concurrently. Unlike the present case, there was considerable aggression on the part of the victim. However, the injuries were far more serious than those suffered by Mr. Ramjit from the assault perpetrated by Mr. Aziz.

[72] I have also read and considered the Howe decision from the New Brunswick Court of Queen’s Bench.

The Appropriate Sentence in this Case

[73] Sentencing is a highly individualized process that requires the assessment of many factors in order to determine the most appropriate sentence.

[74] An aggravating factor in this case is the serious nature of the assault committed by Mr. Aziz. Breaking a beer bottle over someone’s head is a violent act that has the potential to cause extremely serious injuries. Mr. Ramjit sustained a small scar and a bump on his forehead as a result of the assault. However, his injuries could easily have been much worse.

[75] Mr. Aziz’s actions in throwing a glass at Mr. Ramjit, pursuing him out of the bar after arming himself with two beer bottles, and breaking one of the bottles over Mr. Ramjit’s head were out of all proportion to the “wrong” perpetrated by Mr. Ramjit – that is, the splashing of beer on him. At the same time, this is not a case where Mr. Aziz, out of the blue, attacked Mr. Ramjit. As Mr. Warren put it, had Mr. Ramjit not thrown the beer at Mr. Aziz, “we wouldn’t be here.” That was the triggering event.

[76] Mr. Ramjit posed no threat to Mr. Aziz at the time of the assault. He was walking away from the bar and was completely unaware that he was being pursued by Mr. Aziz.

[77] Mr. Aziz has three prior assault convictions, although they are very dated and took place in an entirely different context from that of the present offences.

[78] In 2012 and again in 2014, Mr. Aziz was convicted of failing to comply with his recognizance. Sometimes it may be inferred that an accused who has breached the terms of his bail will not obey other court orders or the recommendations of his probation officer that he take certain counselling programs. I do not draw that inference in this case. I note that Mr. Aziz completed an addiction counselling program in 2014.

[79] Although Mr. Aziz has acknowledged that alcohol played a role in his commission of these offences, it is apparent that he continues to drink fairly significant quantities of alcohol when he meets with his friends in bars. He is clearly in need of further substance abuse counselling.

[80] In terms of mitigating factors, Mr. Aziz experienced a number of hardships growing up – his father’s death when he was only six, the separation from his mother and siblings when he was seven, and no schooling after the age of ten. He worked as a fisherman from the age of 14, and relied on that livelihood to support his wife and family. Four years after the dissolution of his marriage, he came to Canada, where he had the same job for five years. Mr. Aziz has continued to work part time, despite the limitations he experiences as a result of the head injury he sustained in the car accident. He has undergone a number of surgeries over the years with respect to that injury. Further surgery is required.

[81] Mr. Aziz has the support of his common-law wife of 21 years, despite some past difficulties in their relationship. He has, by all accounts, been a devoted father to his daughter and three step-children, and was very involved in their upbringing.

[82] Mr. Aziz is currently caring for Ms. Toney as she recovers from surgery. He is also helping out his mother, who has some health issues. In addition, Mr. Aziz has child care responsibilities with respect to his granddaughter, who lives with him.

[83] Although Mr. Aziz appears to minimize his drinking and its consequences, his acknowledgement that alcohol played a role in these offences shows that he has some insight into his criminal behaviour. He also recognizes that impulsivity played a role, and has expressed a willingness to enroll in an anger management program if the court so orders.

[84] Mr. Aziz expressed remorse to the probation officer and the court for having harmed Mr. Ramjit. Although he does not take responsibility for the injuries to the right side of Mr. Ramjit’s face, he did express sympathy for him in terms of the scars, having experienced facial scarring himself as a result of the car accident.

[85] Bearing in mind that denunciation and deterrence are important objectives for sentencing in this case, but also taking into account rehabilitation and the other sentencing principles set out in ss. 718 to 718.2 of the Code, I am of the view that a fit and proper sentence is six months. However, taking into account the collateral immigration consequences to Mr. Aziz that would flow from such a sentence, the sentence imposed is six months less one day, to be followed by a probationary term of two years. The same sentence is imposed on all three counts in the indictment, to be served concurrently.

[86] The terms of the probation order are as follows:

1. Keep the peace and be of good behaviour;

2. Abstain from communicating, directly or indirectly, with the victim, Vidyam Ramjit;

3. Appear before the court when required to do so by the court;

4. Notify the court or your probation officer in advance of any change of name or address, and promptly notify the court or probation officer of any change of employment or occupation;

5. Report to a probation officer within two working days of your release from custody, and thereafter when required by the probation officer and in the manner directed by the probation officer;

6. Attend and participate in counselling or rehabilitative programs as directed by your probation officer, including programs for alcohol abuse and anger management. You are to provide proof of such attendance to your probation officer and sign all necessary releases to permit the probation officer to monitor your attendance;

7. You are not to own, acquire or be in possession of a weapon, as that term is defined in the Criminal Code.

Ancillary Orders

[87] There will be an order under s. 487.051(1) of the Criminal Code requiring Mr. Aziz to provide the number of samples of bodily substances that is reasonably required for the purpose of DNA testing.

[88] There is also a firearms prohibition order under s. 109 of the Code for life.

GARTON J.

Released: September 22, 2017

CITATION: R. v. Aziz, 2017 ONSC 5384

COURT FILE NO.: CR-15-30000650-0000 DATE: 20170922

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ZAKIR AZIZ

Accused

REASONS FOR sentence

GARTON J.

Released: September 22, 2017