R. v. Ashkani, 2017 ONSC 7345

CITATION: R. v. Ashkani, 2017 ONSC 7345

COURT FILE NO.: CR-17-5000-085

DATE: 20171212

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SHIVA ASHKANI

Respondent

Sharon Blondell, for the Crown

Coulson Mills, for the Respondent

HEARD: December 12, 2017

REASONS FOR JUDGMENT

A.J. O’MARRA J.

1Ms. Shiva Ashkani is alleged to have committed fraud by representing herself as a registered nurse and by committing a number of assaultive offences by injecting Botox and collagen fillers into the faces of the complainants, causing a number of injuries.

2Specifically, Ms. Ashkani is charged with the following:

1. Defrauding members of the public of a sum of money not exceeding $5,000, contrary to s. 380(1)(b)(i);

2. Assaulting Susan Carpenter with a weapon, a needle, contrary to s. 267(a);

3. Wounding or disfiguring Susan Carpenter, committing an aggravated assault, contrary to s. 268;

4. Assaulting Alison Nicholson with a weapon, a needle, contrary to s. 267(a);

5. Wounding Alison Nicholson, committing an aggravated assault, contrary to s. 268;

6. Uttering a threat to cause bodily harm to Alison Nicholson, contrary to s. 264.1(2)(a);

7. Assaulting Brittany Churchill with a weapon, a needle, contrary to s. 267(a); and

8. Wounding Brittany Churchill, committing an aggravated assault, contrary to s. 268 of the Criminal Code.

Factual Background

3Ms. Melanie Martins-Grzybowski and her husband, Paul Grzybowski, are the owners of a tanning salon called Tanning is the Lifestyle at 1197 The Queensway, Toronto. In July 2015 they were interested in making an arrangement with a registered nurse to provide Botox and filler treatments as a cosmetic service to their clients in their salon. Ms. Martins-Grzybowski went online to search for registered nurses who could provide such services. She found Ms. Ashkani’s advertisement on a website called Kijiji, which stated Ms. Ashkani was a registered nurse with 13 years of experience working with surgeons and 21 years as a medical cosmetician in Beverly Hills, Vancouver and Toronto providing Botox and collagen filler by syringe.

4Ms. Martins-Grzybowski and her husband met with Ms. Ashkani at a restaurant during which Ms. Ashkani provided documentation by way of certificates and diploma as a registered nurse and price lists of products she worked with as a registered nurse. They came to an arrangement whereby Ms. Martins-Grzybowski would pay for the product procured by Ms. Ashkani, and they would split the fees charged by Ms. Ashkani on a 60-40 basis in providing Botox and filler injections to customers of the tanning salon. She would attend the salon a couple of days a week when clients made appointments.

5Botox, botulinum is a neurotoxin, a poison is used in the cosmetic industry to reduce facial lines and wrinkles by paralyzing the underlying muscles. It is administered by injecting a minute quantity by syringe. Similarly, collagen filler is injected under the skin by syringe. Ms. Martins-Grzybowski understood that such injections could only be administered by a medical professional.

6Mr. Daniel Falconer the Deputy Registrar of the College of Physicians and Surgeons for Ontario (CPSO) testified that there are a number of controlled acts as specified in the Regulated Health Professions Act, 1991 (RHPA) which may only be performed by authorized regulated health professionals, one of which is administering a substance by injection, another is performing a procedure on tissue below the dermis. However, a physician may delegate these tasks to another person, a delegate who has the authority under his or her professional Regulatory Act to be delegated, such as a registered nurse, by direct order and under supervision, on the physician being satisfied the person has the knowledge, skill and judgment to administer the injection or perform a procedure on tissue below the dermis.

7Where a delegation has occurred, the accountability and responsibility for the act delegated remains with the delegating physician. A physician delegating a controlled act must provide the appropriate level of supervision to ensure that the act is performed properly and safely. A physician must ensure that there is a communication path that will enable the individual implementing a directive to identify the physician responsible for the care of the patient in order to contact him or her immediately, if necessary. The physician must ensure that any adverse event that occurs will be managed appropriately, either by the delegate or by the delegating physician.

8The physician must confirm that patients have provided informed consent for the performance of the controlled act, whether consent is obtained by the physician him or herself or by the delegate.

9Ms. Ashkani was neither a registered nurse nor under the direct order or supervision of a physician. There was no physician involved in any of the administrations that occurred in this case.

Alison Nicholson

10Ms. Alison Nicholson, the manager of the tanning salon met with Ms. Ashkani after Ms. Martins-Grzybowski made their arrangement with her. She decided, with the approval of Ms. Martins-Grzybowski to have Botox and filler injections. She was given a discount, her employer’s cost for the product, on the understanding that she would promote the Botox and filler service to their customers.

11Ms. Nicholson testified that she had Botox treatments about a year before at another salon that had been administered by a registered nurse. She agreed to have it done by Ms. Ashkani because she understood she was a nurse. Ms. Ashkani had told her that she was a registered nurse and had been doing Botox and filler injections for 15 or 17 years. There is no mention of a doctor being involved in the administration of the cosmetic treatments.

12On July 31,2015 Ms. Ashkani administered the Botox by needle injection across Ms. Nicholson’s forehead which resulted in quite a bit of bleeding, more than she had experienced before and numerous pea size bumps at each injection site.

13Ms. Ashkani then injected filler into Ms. Nicholson’s forehead and her around eyes and nose. The filler was put mostly into the middle of her forehead. She paid Ms. Ashkani the cost of the product which she recalled was close to $700.00.

14Ms. Nicholson testified that after the treatments she felt quite ill and the area under and to the side of her eyes began to blacken where the injections had occurred.

15She went to her employer’s home that night and complained that as a result of the injections she developed a “hole” in the middle of her forehead. She asked her boss whether she was sure Ms. Ashkani was a nurse. Ms. Martins-Grzybowski told her that it would get better. She testified that she was unable to see the hole complained of by Ms. Nicholson.

16Ms. Nicholson testified she spent the next two days in bed because it felt like she had the flu and she had some trouble breathing. The blackening around her eyes lasted for three weeks. Little balls, lumps that had formed under her eyes took a little longer to disappear. Later, she went to a clinic to effect repairs for the hole or scar in the centre of her forehead.

17A series of photographs of Ms. Nicholson were introduced in evidence. The first, Exhibit 5 A is a photograph of Ms. Nicholson taken on her birthday before Ms. Ashkani injected Botox and fillers. Subsequent photographs taken within days of the injections show their effects. Exhibits 5B, C and H show a distinct depression in the middle of Ms. Nicholson’s forehead – the “hole” as characterized by the complainant. Ms. Nicholson testified that it felt like she had putty in her forehead. Exhibits 5D, F and G show distinct darkening underneath and to the side of the left eye.

18Subsequent to Ms. Nicholson’s treatment by Ms. Ashkani another customer had received treatment and also complained to Ms. Martins-Grzybowski about the results. Ms. Martins-Grzybowski decided that she had to speak with Ms. Ashkani. In order to have her come into the salon she told her there was a consultation with another client for her. On August 23, 2015, Ms. Ashkani appeared and she was confronted by the customer, who complained, Ms. Nicholson and Ms. Martins-Grzybowski.

19Ms. Ashkani was told that the customers would be refunded. Ms. Ashkani became upset and appeared to blame Ms. Nicholson for the confrontation. She was given a cheque for the product used. She tore up the contents of the files that had been made before leaving the store. At one point Ms. Nicholson’s 6 year old son was brought into the store by Ms. Martins-Grzybowski’s husband as she argued with Ms. Nicholson when Ms. Ashkani asked if the boy was her son. Ms. Nicholson said “yes”. Then Ms. Ashkani stated “I’m going to get you”. Ms. Nicholson asked if she was threatening her to which she responded “absolutely”. Ms. Nicholson then left the store with her son.

20Ms. Martins-Grzybowski who was standing on the other side of the counter with her husband said that she heard some verbal argument between Ms. Nicholson and Ms. Ashkani and heard Alison say, “Are you threatening me?” She testified that she did not hear what the accused said but that her response to Ms. Ashkani was “Don’t threaten my employee”.

21After Ms. Ashkani left the store Ms. Martins-Grzybowski called the police and cancelled payment of the cheque given to the accused.

22Later, Ms. Nicholson attended the clinic where she had Botox cosmetic treatments in the past because she was concerned about the outcome from the injections administered by the accused. Her case was reviewed by the medical director of the clinic, Dr. David Kazdan, M.D. who advised no further treatments until she was further assessed and recommended a consult by a plastic surgeon. She testified that she spent in excess of $4,000 for repairs to her face and the hole or “scar” to the centre of her forehead.

23In observing Ms. Nicholson testify, the depression as depicted in the exhibit photographs has greatly diminished to being almost imperceptible. I would not describe it as a hole or scar. However, I have no doubt that its presence was alarming to her for an extended period of time. It is perhaps more magnified in her eyes today than to others, which in no way is meant to diminish the psychological anguish suffered by her.

Brittany Churchill

24Ms. Brittany Churchill, a model and actress, also received Botox and filler injections from the accused through the tanning salon in early August 2015. She saw a pamphlet on the counter at the salon provided by the accused. She understood the accused was a registered nurse. She had had Botox treatments elsewhere in the past administered by a registered nurse under the supervision of a doctor.

25In this instance, the accused injected Botox into her forehead and filler to areas around her eyes and her mouth. She paid Ms. Ashkani $800.00.

26She felt fine after the treatment that day. The only noticeable effect was that the skin around the eye became discoloured and raised, which lasted until just a few months ago. However, by the next day August 4, 2015 she had developed an allergic reaction displayed by a rash around her eyes, on her scalp, down the back of her neck, and which progressed to her groin area. She attended the emergency department of St. Joseph’s Hospital where they recommended she take allergy medicine such as Reactine. Later, she re-attended as a result of experiencing hallucinations and an increase in the spread of the rash.

27She acknowledged that she had been taking antibiotics for several days prior to the Botox and filler treatment and, that during an earlier photo shoot she was in a “swamp area” of northern Ontario. She acknowledged candidly that the origin of the rash was unknown and it could have been from a number of factors. As she said, “it’s a mystery”.

28Ms. Churchill testified that had she known that Ms. Ashkani was not a registered nurse she would not have undertaken the Botox and filler injections.

Susan Carpenter

29The third complainant, Susan Carpenter, age 40 testified that she found Ms. Ashkani while looking for someone to do cosmetic procedures, preferably at her home as a matter of convenience. She searched Kijiji and found Ms. Ashkani's advertisement, which described her as a registered nurse who would come to a client’s home to provide Botox and filler injections.

30She testified that there were a number of factors which led her to arrange with Ms. Ashkani to come to her home in February 2015: convenience, the price was right, approximately $500.00 and she was a registered nurse.

31Ms. Ashkani arrived at her home and set up in the washroom. She put on a lab coat. She showed Ms. Carpenter the boxes which said contained the Botox and filler. She then proceeded to inject the substances into her forehead, around the eyes and down her nose. She felt that there was little effect from the Botox injections and possibly some difference from the filler.

32Ms. Carpenter had Botox treatments before administered by a registered nurse under the supervision of a doctor. During the procedure Ms. Ashkani told Ms. Carpenter that she was working with a doctor.

33After the procedure Ms. Ashkani also told her that she had space in a facility in Brampton where she would conduct chemical face peels.

34About a week later, Ms. Carpenter went to Ms. Ashkani’s Brampton office to have a chemical face peel. There, she was told her that there would be two layers of the substance put on her face for the peel. However, as the first layer was administered she felt burning and experienced excruciating pain which caused her to scream out for Ms. Ashkani to stop. Ms. Ashkani splashed water on her face to wash it off. However, her face continued to burn. Her face appeared purple and swollen. Her eyes were almost swollen shut. When she left the room others in the waiting room gasped she believed because she looked “like a freak”. Ms. Ashkani assured her it would get better soon. She paid Ms. Ashkani approximately $850 for the filler and peel.

35It remained purple and swollen for some time. She contacted the accused within a number of days because it was not healing as she was told. Ms. Ashkani told her that it was normal and that she should use a number of things to make the swelling go down.

36Ms. Carpenter went to her family doctor who referred her to a dermatologist, Dr. Raman, at the Centre for Dermatology, Toronto. He treated her over a period of a number of months for scarring mostly in the chin area caused by the chemical peel. However, there was also some scarring in the cheek area and under her left eye.

37On her first assessment September 10, 2015 at the Centre for Dermatology it was noted in their records, entered as Exhibit No. 9: “facial scarring with inflamed cysts and milia formation due to previous chemical peel. Infraorbital edema due to poor dermal filler placement.” The records also contain photographs taken at the clinic which show considerable scarring to Ms. Carpenter’s face principally the chin area.

38She received as treatment a course of antibiotics for pockets of infection under her skin, as well as steroid injections. Ms. Carpenter continued thereafter to have laser treatments to assist in the recovery of the damage suffered. The course of treatment cost Ms. Carpenter approximately $3,300.

39Following the arrest of the accused, all of the complainants were required to undergo blood tests to determine whether they had contracted HIV or hepatitis as a result of the injections administered by the accused and the unknown nature of the substance injected.

40In this instance, there is no evidence of a physician having been involved with Ms. Ashkani in the deliverance of the acts administered, more particularly the injection of Botox and fillers to the complainants. There is evidence that Ms. Ashkani was aware of the requirement that a delegate providing injections be under the supervision of a physician given the conversation she had with Ms. Martins-Grzybowski when in discussions about providing the service. At one point Ms. Ashkani told her that she worked with a doctor however, if they cut him out it would mean more for them from the fees. Further, Ms. Nicholson testified that when Ms. Ashkani asked her to photocopy a waiver form she was asked to white out the doctor’s name.

Offences

i) Fraud

41In terms of the offence of fraud under $5,000 I am satisfied that Ms. Ashkani misrepresented herself as a registered nurse competent to provide Botox and filler injections as well as other cosmetic services and received payment as a result of the false representation. She performed the controlled acts by injecting Botox and filler into Ms. Carpenter, Ms. Nicholson and Ms. Churchill, for which she received payment. I am satisfied that each complainant undertook the procedure on the belief that Ms. Ashkani was a registered nurse and would not have done so had they known she was not.

ii) Assault

42With respect to the assault charges, under s. 265(1) (a) a person commits an assault when without the consent of another person, he or she applies force intentionally to that other person, directly or indirectly… Further, at s. 265(3) (c) it states that no consent is obtained where the complainant submits or does not resist by reason of fraud.

43In this instance, counsel for Ms. Ashkani argued that each of the complainants submitted to the acts administered by Ms. Ashkani out of convenience and/or because of the low price of the services, regardless of whether she held herself out as a registered nurse.

44While price and convenience were no doubt considerations of each of the complainants, as consumers, they all testified, which I accept, they entered into the arrangement for the administration of the injections and other services because Ms. Ashkani held herself out as a registered nurse. As such, any consent given for the application of the force applied to pierce the dermis of their skin and to inject substances into them was vitiated by Ms. Ashkani’s fraudulent misrepresentation.

45I am satisfied, with respect to each of the complainants, Ms. Ashkani committed an assault in applying force directly or indirectly without consent, it having been vitiated by fraud.

iii) Assault with a weapon

46A weapon is defined in s.2 of the Criminal Code as anything used, designed to be used or intended for use (a) in causing death or injury to any person, or (b) for the purpose of threatening or intimidating any person…

47The use of the syringe needle in administering Botox and fillers as a “weapon” as defined, turns on whether it being used caused injury. There has to be both causation and injury.

48In R. v. Lamy, 2002 SCC 25, [2002] 1 SCR 860, it was noted that the expression “injury” used in s. 2 (a) of the definition of weapon is not to be taken as being synonymous with “bodily harm”, which must be more than trifling or transitory in nature. It can be something less than bodily harm.

49While a syringe or needle is not designed or intended as a weapon, it can be used to cause an injury. The injury is the piercing or puncturing of the skin. It is an injury caused on consent for the anticipated benefits of the injection. The injury may extend beyond the piercing of the skin as a result of the substance injected. However, where the person’s skin was pierced, causing an injury without consent, it is an assault by use of the needle, the syringe and substance injected.

50With respect to Alison Nicholson, in addition to the piercing injury and bleeding, there were other injuries following the injection of substances by syringe, specifically bumps to her forehead, black eyes and a hole or depression in the middle of her forehead.

51With respect to Ms. Carpenter, beyond the piercing of the skin by the needle there appears not to have been any adverse effects which can be attributed to the administration of Botox, or the filler. Rather, her injuries were attributable to the chemical peel administered subsequently.

52As for Brittany Churchill, there is evidence that the accused administered both the Botox syringe and the filler syringe which led to a piercing of the skin which in and of itself amounts to an injury, albeit minor in nature. However, there were a number of factors which could have caused the rash and other maladies suffered by Ms. Churchill afterwards. I am not satisfied that there is a causal connection to those reactions. However, the use of the needle without consent where the skin was pierced and substances injected amounts to an assault with a weapon.

53With respect to each complainant, I am satisfied beyond a reasonable doubt that the accused assaulted each of them with a weapon, by injecting substances into them through their skin without consent, having fraudulently misrepresented herself as a registered nurse.

Aggravated Assault

54In considering the aggravated assault count involving Ms. Carpenter, which adverts to wounding or disfigurement, the evidence of the chemical peel administered by the accused that led to an extended course of treatment for pockets of infection and the scarring effects to her chin, noted in the medical records from the Centre of Dermatology, Exhibit No. 9 support a finding of disfigurement caused by the application of a chemical substance to her face. It was done without her consent, it having been vitiated by the fraudulent misrepresentation by the accused. I find the accused guilty of disfiguring Ms. Carpenter.

55With respect to the count of aggravated assault by wounding involving Ms. Nicholson, while there was no breaking, tearing or cutting of the skin there was a piercing by way of the needle syringe, which led to injuries, some of which were more transitory than others, although none of which can be considered trifling. Assault causing bodily harm is an included offence of aggravated assault, where the injury does not constitute wounding, disfigurement or maiming but is more than merely transient or trifling in nature. See R. v. R. (G.) (2005), 2005 SCC 45, 198 C.C.C. 3d 161 at paras. 25-34 (S.C.C.). The black eyes lasted for several weeks and hole or depression to the middle of her forehead persisted, although diminished are more in the nature of “bodily harm” than wounding or disfigurement. I find the accused guilty of the included offence of assault causing bodily harm.

56In considering the count of aggravated assault by wounding of Ms. Churchill, while she developed significant problems after the administration of the Botox and filler by the accused, there is an absence of evidence to support a causal connection between the acts and the subsequent condition, given that Ms. Churchill was on antibiotics at the time, the reference in her medical chart to her being allergic to penicillin, and as she testified, it was a “mystery” as to what led to her breathing difficulties and rash. While I am satisfied that Ms. Ashkani assaulted Ms. Churchill, I am unable to conclude beyond a reasonable doubt she committed an aggravated assault. I find the accused guilty of the included offence of assault.

Threatening Bodily Harm

57To threaten bodily harm under s. 264.1(2) (a) means to threaten any hurt or injury whether physical or psychological that interferes in a substantial way with the physical or psychological integrity, health or well-being of the complainant. The words, viewed objectively in the context or circumstances, must be such that they would convey a threat of bodily harm to a reasonable person.

58In this instance, I accept Ms. Nicholson’s description of events on August 23, 2015 in which the accused, in the context of a tense encounter with Ms. Nicholson, asked if the little boy present was Ms. Nicholson’s then she would get her for the surprise confrontation at the salon, just. The accused asked if she was threatening her, to which the accused affirmed she was.

59Further, I accept that even though Ms. Martins-Grzybowski did not hear Ms. Ashkani’s comments or response, she did confirm that Ms. Nicholson was alarmed enough in the circumstances by whatever was said for Ms. Nicholson to ask the accused if the she was threatening her. The circumstances and the words heard were also enough for Ms. Martins-Grzybowski to tell the accused to not threaten her employee. Clearly, Ms. Ashkani was agitated as depicted in the store security video, Exhibit No. 4 as she tore up the contents of files.

60In the result I find the following:

Count No. 1 fraud under $5,000 – guilty

Count No. 2 assault with a weapon with respect to Susan Carpenter – guilty

Count No. 3 aggravated assault with respect to Susan Carpenter – guilty

Count No. 4 assault with a weapon with respect to Alison Nicholson – guilty

Count No. 5 aggravated assault with respect to Alison Nicholson – not guilty, but guilty of assault causing bodily harm.

Count No. 6 threatening bodily harm – guilty

Count No. 7 assault with a weapon with respect to Brittany Churchill – guilty

Count No. 8 aggravated assault with respect to Brittany Churchill – not guilty, but guilty of the included offence of assault.

A.J. O’Marra J.