Court File and Parties

COURT FILE NO.: CR-17-8979 DATE: 2018-11-30 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. THEO CLELAND and HUSSEIN KARSHE

BEFORE: Justice D.A. Broad

COUNSEL: Jonathon Thompson, for the Crown Arun S. Maini and Stefan Peters, for Theo Cleland Anthony G. Bryant, for Hussein Karshe

HEARD: October 11 and November 29, 2018

Reasons for Sentence

Background and Overview

[1] The offenders Theo Cleland and Hussein Karshe were each convicted, following a jury trial, of aggravated assault contrary to s. 268 of the Criminal Code of Canada.

[2] As the trial was by judge and jury, s. 724(2) of the Criminal Code directs that I must accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty and may find any other relevant fact that was disclosed by the evidence at the trial to be proven. Pursuant to s. 724(3)(d), the court must be satisfied on a balance of probabilities of the existence of a disputed fact before relying on it in determining the sentence, provided that the existence of any aggravating fact must be proved by the prosecutor beyond a reasonable doubt.

[3] The following outline of the facts are not in dispute.

[4] At the time of the offences Messrs. Cleland and Karshe were each full-time university students in the City of Waterloo. They were among a group of individuals who attempted to crash a party being held at a residence on Hemlock Street in the vicinity of the Wilfrid Laurier University campus to introduce potential recruits to a campus club. The victim of the assault Mitchell Wotton was an invited guest at the party and became involved, along with other guests, in resisting the attempt by the uninvited group to gain entry to the party.

[5] Shortly after the altercation at the party, Mr. Wotton and three friends, two male and one female, were walking home on University Avenue in Waterloo when they encountered Mr. Cleland and Mr. Karshe’s group on the street. That group comprised some 5 or 6 individuals. Mr. Cleland and Mr. Karshe and the other members of their group were standing in the vicinity of a bus stop. As Mr. Wotton’s group approached, members of the two groups began a verbal exchange, led mainly by Mr. Karshe and Mr. Wotton. As Mr. Wotton’s group began to move past the other group, Mr. Karshe and Mr. Wotton got into a brief physical altercation, involving at first mutual pushing followed by an exchange of blows. In the course of the altercation Mr. Karshe hit the ground twice. When he hit the ground the second time the other members of his group converged on Mr. Wotton, causing him to be knocked to the ground, whereupon the members of the group, including Mr. Cleland and Mr. Karshe, began kicking Mr. Wotton, including in the head, while he lay defenceless on the ground.

[6] Mr. Wotton’s two male friends moved in to come to Mr. Wotton’s aid by attempting to pull his attackers away and to fend off their blows. His female friend made an emergency call which resulted in Wilfrid Laurier University Police attending at the scene. Upon the arrival of the Campus Police Mr. Cleland and Mr. Karshe and the other members of their group fled the scene.

[7] Mr. Wotton sustained very serious injuries as a result of the assault, consisting of a broken jaw which involved the full separation of the two sides of his jaw, a broken tooth and a laceration on his forehead. Mr. Wotton required emergency surgery which involved the placement of a metal plate to hold his jaw together, He had to live with having his jaw wired shut for two months and was required to wear braces for a further number of months to realign his teeth. Although he has largely recovered from his injury, Mr. Wotton continues to experience pain and discomfort from his injuries. He will have a steel plate connecting his jaw bone for the rest of his life.

[8] There was no evidence that any kicks or blows inflicted by Mr. Cleland or Mr. Karshe specifically, or any other individual member of the group that attacked Mr. Wotton in concert, caused his injuries.

Disputed Facts

[9] Mr. Karshe disputes the assertion of the Crown that he was the aggressor in the initial altercation between himself and Mr. Wotton and that the altercation was anything other than a consensual fight. He also disputes the position of the Crown that he was the aggressor when he earlier attempted to gain entry into the party, that he wielded a broken beer bottle when he returned to the scene of the party, and had to be talked down from his aggressive posture at the party.

[10] Mr. Thompson for the Crown argues that, based upon the evidence, I can find beyond a reasonable doubt that Mr. Karshe was the aggressor in the altercation with Mr. Wotton. He points to Mr. Wotton’s evidence that, as he walked past Mr. Cleland and Mr. Karshe’s group, Mr. Karshe got “in his face.” Although Mr. Wotton may have initiated the first push and later the first punch, he did not consent to a fight with Mr. Karshe, but rather responded in self-defence to Mr. Karshe’s threatening gestures and invasion of his personal space. He submits that Mr. Karshe, by advancing towards Mr. Wotton in a threatening way, committed assault by gesture, to which Mr. Wotton was entitled to respond in self-defence.

[11] Mr. Thompson also submits that I can also find that Mr. Karshe did act aggressively in order to attempt to enter the party uninvited and, based upon the evidence of Ms. Rachel Gluek, wielded a broken beer bottle when he re-attended at the party looking for a T-shirt.

[12] Mr. Bryant for Mr. Karshe submits that, although I may find that Mr. Karshe got into Mr. Wotton’s face and his personal space and even that he committed “assault by gesture,” Mr. Wotton’s reaction by pushing Mr. Karshe, leading to Mr. Karshe pushing back and then the two of them exchanging blows constituted a consensual fight. He submits that Mr. Wotton knocked Mr. Karshe to the ground in the course of the consensual fight and that, up to that point, Mr. Karshe’s response was not inappropriate. He submits that it was not until the rest of the group joined in and began punching and kicking Mr. Wotton that the aggravated assault against Mr. Wotton commenced.

[13] In my view the Crown has established beyond a reasonable doubt that Mr. Karshe was the instigator of the altercation with Mr. Wotton, and that Mr. Wotton was acting in self-defence in the actions he took by initially pushing Mr. Karshe and then punching when Mr. Karshe pushed back. The initial altercation between Mr. Karshe and Mr. Wotton was not a consensual fight. I accept Mr. Wotton’s evidence when he stated “I was in a fight I did not want to be in.” Mr. Wotton’s version of the altercation with Mr. Karshe in this respect was corroborated by the testimony of Messrs. Redmond, Zaduban and Ms. D’Amelio.

[14] I also find that the Crown has proven beyond a reasonable doubt that Mr. Karshe acted aggressively in attempting, with others, to gain forced entry to the party. However, I am not satisfied beyond a reasonable doubt that he wielded a broken beer bottle upon returning looking for a T-shirt. Ms. Gluek’s testimony in this respect was not corroborated by any other witness, notwithstanding that there were a number of others present.

[15] Although the parties agree that Messrs. Cleland and Karshe fled the scene when the Campus Police arrived they do not agree on the import of that fact as an aggravating factor on sentencing. The Crown argues that Messrs. Cleland and Mr. Karshe fled the scene knowing that it was reasonably foreseeable that Mr. Wotton would be seriously injured and, with reckless disregard, did nothing to assist him.

[16] Mr. Bryant for Mr. Karshe argues that there is no evidence that, in fleeing the scene, Mr. Karshe knew the extent of Mr. Wotton’s injuries. He says that his flight from the scene can only be aggravating if Mr. Karshe had that knowledge and ran in order to avoid the consequences. Mr. Maini for Mr. Cleland argues that when Mr. Cleland left the scene Mr. Wotton was in the hands of police and his friends and therefore there was no necessity or reason for him to remain at the scene to lend assistance. He submits that Mr. Cleland’s failure to remain at the scene to cooperate with police cannot be considered aggravating, but rather it supports the absence of a mitigating factor that would apply had he stayed behind for that purpose.

[17] I find that in order for the offenders’ flight from the scene to be considered as aggravating, it is not necessary for the Crown to prove that they had actual knowledge of the nature and extent of Mr. Wotton’s injuries. It is sufficient that there be proof beyond a reasonable doubt, based upon their actions and those of their companions in kicking Mr. Wotton in the head while he was on the ground, that it was reasonably foreseeable to Messrs. Cleland and Karshe that Mr. Wotton would be seriously injured and in need of assistance and that they nevertheless fled without making any enquiries to ensure that he would be properly cared for. I find that the Crown has discharged that onus. However the impact of this as an aggravating factor is diminished by the fact that Messrs. Cleland and Karshe would also have known that there were others on the scene who were in a position to offer assistance to Mr. Wotton and he was not left entirely on his own.

Victim Impact Statements

[18] Mitchell Wotton and his mother Catherine Wotton read Victim Impact Statements at the sentencing hearing.

[19] Mr. Wotton described the trauma of finding himself, after the attack, in the hospital, not knowing what the outcome would be, as well as the physical pain and discomfort he experienced in the hospital and in the months following. His regular routines of school and daily living, including personal hygiene and nutrition, were altered significantly. He described the event as a “scab” in his life “where the band-aid was never ripped off, but torn off slowly over the past three years.” He stated that, although he used to be angry, upset and frustrated with having to deal with the consequence of an event he did not ask for or deserve, he no longer experiences those feelings and “forgives these men for an event they have never shown remorse for, but I won’t ever forget.”

[20] This statement accords with what Mr. Wotton told the author of Mr. Cleland’s pre-sentence report - that he did not want the event to define the offenders’ lives and would like them to become productive members of society, adding that “I don’t think their lives should stop here.”

[21] In her statement Ms. Wotton described in detail the shock, anguish and emotional turmoil she experienced upon by being advised of her son’s admittance to hospital and having to undergo emergency surgery, attending to his needs following his discharge from hospital and being concerned about the possibility of lasting effects on his physical and mental well-being. She described how she was impacted by recurrent thoughts of what might have happened if the police had not arrived at the scene when they did.

[22] It is evident that the impacts of the incident and its aftermath on both Mitchell Wotton and his mother Catherine Wotton have been significant, and especially in the case of Mr. Wotton, life-altering and long-lasting.

Pre-Sentence Reports

[23] Pre-sentence reports were prepared for each of Mr. Cleland and Mr. Karshe. These reports disclosed, among other things, the following:

(a) Theo Cleland

Mr. Cleland is currently 23 years of age and resides with his parents and his brother who suffers from Christianson syndrome, a disabling genetic disorder. Theo Cleland plays a significant role in his brother’s life helping him on some weekends at home, and is very supportive and protective of him. He also has an older sister.

Mr. Cleland described his upbringing as positive and that his home was free of violence, drugs and all forms of abuse.

Mr. Cleland attended school in Toronto followed by a University degree program in mathematics and physics. He was expelled from the University following the incident in September, 2015 and was re-admitted six months later. He completed his program in April 2018.

At the time of preparation of the pre-sentence report Mr. Cleland was employed as a research assistant at a hospital in Toronto in the summer student research program and had been so employed since May, 2016. In the past he has worked as a tutor, swimming instructor and general labourer.

Mr. Cleland reported that he started drinking alcohol at the age of 15 but denied that he had abused alcohol during his adolescence. He did not consume alcohol between the ages of 20 and 21 and resumed occasional consumption approximately 18 months ago. While he admitted that alcohol was a factor during the offence, and that, although he was “intoxicated” on that day, he maintained that he was not “drunk.”

Mr. Cleland reported that he has smoked cannabis in the past, starting when he was 15 years of age. He used cannabis on a daily basis but has not used the drug since age 20. He currently does not use any illegal drugs. He was required by the University to attend and complete a program for substance abuse following the September, 2015 incident and was readmitted into the University upon completion of the program.

Mr. Cleland reported that he does not suffer from any mental illness or disorders.

During the interview with the author of the pre-sentence report Mr. Cleland accepted responsibility for the offence and expressed regret and remorse for his actions, acknowledging that there was no excuse for them. He was not thinking at the time and stated that alcohol was a factor. He stated that he should have walked away but didn’t because he did not want his friends to think he was a coward. He stated that he fully understands the impact of his actions on the victim, and that the victim did not deserve what happened to him. He stated that what he did to the victim and the things that the victim had to endure because of his actions weighed very heavily on him.

Mr. Cleland’s parents described him in very positive terms and stated that he is not a violent person, they have never witnessed him being physically aggressive to anyone, and that the offence was out of character. Other collaterals, including Mr. Cleland’s aunt and a family friend also described him in positive terms.

Mr. Cleland is a first-time offender with no previous criminal convictions.

(b) Hussein Karshe

Mr. Karshe is currently 24 years of age. His parents and older brother immigrated to Canada from Somalia in 1992 as refugees. He was born in Canada, as were his two younger sisters. Mr. Karshe described his childhood upbringing as positive. He was close to his family. He completed grade 12 in 2013, describing himself as an A average student involved in sports teams. He moved to Waterloo at the age of 19 to attend University in the biochemistry program. After two years of studies he was required to withdraw from the program due to his involvement in the subject incident on September, 2015. He was excluded from the school property as result of the incident.

Mr. Karshe has recently taken three elective courses online from January to April, 2018. He indicated that he is hoping to return to University in order to complete his studies. His goal is to complete his undergraduate program and apply for post-graduate studies. He would like to work in physiotherapy.

Mr. Karshe indicated that he was first employed at a fast food restaurant in grade 10 and worked there on a part-time basis for three years. He became employed again at the age of 20 doing various temporary jobs during school breaks and through the summer, such as window cleaning, selling products and as a general labourer. He last worked for a moving company for six or seven months stopping in December 2017 to prepare for his online courses. He has been supported by Ontario Works for two years and has his tuition costs covered by OSAP. Most recently Mr. Karshe has registered with two temporary employment agencies as a general labourer.

Mr. Karshe reported that he first experimented with cannabis in grade 11 and smoked cannabis on the weekends with his friends. He said that he stopped smoking cannabis at the age of 19 and has never experimented with other illicit drugs. He first experimented with alcohol at age 18 and increased his alcohol use while attending University, drinking on the weekends with his friends. He admitted that there were times when he drank to the point of intoxication. He advised that he has stopped drinking consistently when the offence occurred in September 2015, however he has returned to drinking a year ago on a limited basis.

Mr. Karshe described himself as a happy and sociable person when he drinks and agreed that he could get confrontational and argumentative with other people while under the influence of alcohol. He later changed his statement, maintaining that there was no correlation between alcohol use and violent behaviour in him. He believes that he does not have a problem with alcohol. He had attended the drug and alcohol awareness seminar at St. Mary’s Counselling Service in 2015. He has not completed any further counselling for substance use.

Mr. Karshe has no criminal convictions on record.

Mr. Karshe told the author of the pre-sentence report that he does feel remorseful for the injuries that the victim had suffered and would not want this to happen to anyone. He stated that he has accepted responsibility for getting into the altercation to begin with. He feels frustrated with how the incident has affected his education and future goals.

The author of the presentence report indicated that Mr. Karshe does not seem to have any mental health or physical health issues and he has good insight into his recent ordeal and how it has affected his school, self-esteem and future career. The author of the report indicated areas of concern are Mr. Karshe’s history of alcohol use and anger management and stated that he could benefit from counselling to address these issues.

Other Evidence

(a) Psychological Risk Assessments

[24] Counsel for each of Mr. Cleland and Mr. Karshe filed Psychological Risk Assessment reports prepared by Dr. Giorgio E. Ilacqua, Clinical Psychologist. The report for Mr. Cleland was dated December 7, 2015 and the report for Mr. Karshe was dated May 8, 2017. An updated report respecting Mr. Cleland dated October 10, 2018 was filed by his counsel. The assessment for each of Mr. Cleland and Mr. Karshe were required as part of the process for being re-admitted to their University campuses.

(i) Theo Cleland

[25] In his initial report respecting Mr. Cleland, Dr. Ilacqua stated that, based on his clinical interview, collateral information, observations and psychometric testing, including risk assessment measures, Mr. Cleland presented with an overall low/moderate risk for future legal involvement, but with sobriety maintenance, elimination of negative associates and psychological assistance, his overall risk is likely to be low.

[26] In his updated report, Dr. Ilacqua noted that, since the earlier assessment, Mr. Cleland completed his undergraduate studies in mathematics and physics and has accepted a full-time position as an assistant researcher at Sunnybrook Hospital and has also commenced a start-up business in web development with a friend. He also noted that Mr. Cleland participated in eight individual counselling sessions as well as four group therapy sessions through St. Mary’s Counselling Services in Waterloo in relation to substance use.

(ii) Hussein Karshe

[27] Based upon a combination of Mr. Karshe’s self-report, collateral information, file review and the psychometrics administered, including risk assessment measures, Dr. Ilacqua offered the opinion that Mr. Karshe presents with a low risk for future legal involvement and that his risk for future violent offences and behaviours is in the low range. He did state that, although Mr. Karshe did not meet criteria for psychopathy, his testing results exhibited some areas that need to be attended to in individual psychotherapy, namely glibness/superficial charm, grandiose sense of self-worth and poor behavioural controls. Dr. Ilacqua stated that he did not feel that Mr. Karshe would present a significant risk to the community if the areas of need, identified in the assessment, are professionally and effectively targeted.

(b) Letters of support for Mr. Cleland

[28] Counsel for Mr. Cleland filed 27 letters of support including the following:

(a) six employment-related letters, including two from supervisors at Sunnybrook Hospital, his current place of employment, his business partner in a start-up web design enterprise, and three former employers; (b) two education-related letters including one from an Assistant Dean at the University of Waterloo and one from his former high school principal; (c) twelve letters from school and university friends and parents of friends; and (d) seven letters from family members including his father, mother, sister, aunt, uncle, grandfather and grandmother.

[29] A number of themes permeated the letters of support including Mr. Cleland’s caring nature, his dedication to his academic studies and to his employment, his devotion to his family, including his disabled brother, how out of character the incident was, his remorse for his actions and his acceptance of responsibility.

(c) Testimony of Dr. James Mainprize

[30] In addition to filing a letter of support, Dr. James Mainprize gave viva voce evidence respecting the nature and importance of Mr. Cleland’s role as a research assistant in a specialized research project involving breast cancer and mammography at Sunnybrook Research Institute, and the adverse impact that any absence or interruption in Mr. Cleland’s service to the project would have on the viability and success of the project.

(d) Testimony of Drew Cleland

[31] Theo Cleland’s father Drew Cleland testified with respect to the care and devotion which Theo Cleland has always shown and continues to show to his younger brother Nigel who is profoundly disabled with a rare genetic disorder, and his dependence on him to provide assistance for Nigel’s care in the evenings and weekends. A series of photographs and video were entered into evidence depicting Theo Cleland’s caring interactions with Nigel. A further letter from Mr. Drew Cleland was filed with the court on the return of the hearing on November 29, 2018, which I have read carefully.

Guiding Principles

[32] As set forth in s. 718 of the Criminal Code, the 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 on the offender. The stated objectives of any sentencing decision include denunciation, deterrence, rehabilitation, reparation for harm done, promotion of offender responsibility and acknowledgement of harm done.

[33] Section 718.1 of the Code explicitly states that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[34] The principle of parity requires a sentence to be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances, however, sentencing remains an individualized process such that sentences imposed for similar offences may not be identical (see R. v. Cox, 2011 ONCA 58 (Ont. C.A.) at para. 45).

[35] Under the introductory portion of s. 718.2(a) a sentence is to be reduced to take into account mitigating circumstances relating to the offence or the offender or increased to account for any aggravating circumstances.

[36] Section 718.2(b) requires that a sentence be similar to those imposed on similar offenders in similar circumstances, and s. 718.2 (d) and (e) provide that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.

Position of the Crown

[37] The Crown seeks a sentence for each of Mr. Karshe and Cleland involving a period of incarceration of 18 to 24 months, followed by a period of probation which would include a requirement to perform community service and receive anger management or substance abuse counselling. As ancillary orders the Crown seeks a weapons prohibition under section 109 of the Criminal Code, the requirement that each offender provide a blood sample for DNA analysis as aggravated assault is a primary designated offence, an order that both offenders not have any contact with Mr. Wotton or members of his immediate family, and that they pay restitution in the sum of $ 5,962.00 for expenses incurred as a result of Mr. Wotton’s injuries, of which $3,490.00 would be payable to Sun Life Assurance, Mr. Wotton’s dental care insurer.

[38] The Crown submits that Mr. Karshe bears a greater degree of moral responsibility than Mr. Cleland based upon his actions in instigating the altercation with Mr. Wotton, which may be reflected in the sentencing determination.

Position of Theo Cleland

[39] Mr. Maini for Mr. Cleland submits that a fit sentence would consist of 90 days’ incarceration to be served intermittently, followed by one to two years of probation, which would include a requirement to complete significant community service and receive appropriate counselling, together with a restitution order for the Wotton family’s uninsured out-of-pocket expenses.

Position of Hussein Karshe

[40] Mr. Bryant advises that it is Mr. Karshe’s fervent hope that he receive a suspended sentence followed by three years’ probation, but acknowledges, as Mr. Karshe’s counsel, that there are no exceptional circumstances which would support such a disposition. Mr. Bryant, agrees with Mr. Maini that a fit sentence would include a period of incarceration of 90 days, served intermittently, but submits that, based upon the information in Mr. Karshe’s pre-sentence report, the probation period should be three years as Mr. Karshe would benefit from the guidance and support which would be offered by a probation officer during and following the completion of an intermittent term of incarceration. He also submits that the probation order should include a requirement for significant community service.

Analysis

(a) Sentencing Principles and Authorities

[41] Counsel for the Crown and for Mr. Cleland and Mr. Karshe are not in disagreement on the guiding principles, and, in particular, that the objectives of denunciation and deterrence are the primary sentencing objectives in this case, given the circumstances of the offence and the injuries sustained by Mr. Wotton. I agree with this proposition. However, other objectives, including in particular, rehabilitation of the offenders, are also important in this case.

[42] The sentencing of an individual is one of the most difficult tasks for a judge. It is well recognized that determining a fit sentence is an individualized process. Each case is unique, with a different factual context and different circumstances of the individual offender.

[43] The task of the court in this case is to craft a fit sentence which will adequately address the predominant principles of denunciation and deterrence while also promoting the objective of rehabilitation in Mr. Cleland’s and Mr. Karshe’s individual circumstances. As I have stated, the Criminal Code directs sentencing judges to determine the least restrictive sentence that would meet the purpose and principles of sentencing.

[44] Counsel have been helpful in providing numerous case authorities on sentencing including sentencing in cases of aggravated assault and assault causing bodily harm. Between them Messrs. Maini and Bryant for the defence submitted some 34 cases and the Crown submitted 12.

[45] Aggravated assault is the most serious of the assault offences in the Criminal Code carrying with it a maximum sentence of 14 years imprisonment. A broad range of sentences is exemplified in the case-law which is reflective of the wide variations in circumstances and conduct which may give rise to a conviction for aggravated assault and the variations in the individual circumstances of persons convicted of the offence. Indeed, it has been observed that aggravated assault has one of the widest sentencing ranges in the Criminal Code (see R. v. Atkinson, 2016 ONSC 7005 (S.C.J.) at para. 58).

[46] Justice Code, in the case of R. v. Tourville, 2011 ONSC 1677, [2011] O.J. No. 1245 (S.C.J.) at paras. 27 - 30 divided the ranges of sentences in cases of aggravated assault into three broad categories. He stated that at the bottom end are exceptional cases like R. v. Peters (2010), 2010 ONCA 30, 250 C.C.C. (3d) 277 (Ont. C.A.) in which an aboriginal offender received a suspended sentence and three years’ probation on her guilty plea to aggravated assault. The offender was 26 years old with no prior adult record. She had used a broken beer bottle in a bar room assault, causing serious facial lacerations to the victim. She had a very difficult upbringing in a violent and abusive home, leading to alcoholism and drug abuse, however by the time of sentencing, she had obtained employment and was making real progress in counselling for substance abuse problems.

[47] Justice Code identified a mid-range of cases where high reformatory sentences have been imposed between 18 months and two years less a day. He observed that these cases generally involve first offenders and some elements suggestive of consent fights but where the offender had resorted to excessive force.

[48] Finally, Justice Code pointed to cases at the high end of the range where 4 to 6 years imprisonment have been imposed. These cases generally involved repeat offenders, with serious prior criminal records or involved unprovoked or premeditated assaults with no suggestion of any elements of consent or self-defence.

[49] The Crown argues that the present case involving Mr. Cleland and Mr. Karshe falls within the mid-range of cases identified by Justice Code.

[50] Mr. Thompson pointed to a number of cases, including the following, in support of his position that a period of incarceration in the high reformatory range should be imposed:

• R. v. Atkinson, 2016 ONSC 7005 (S.C.J.)
• R. v. Broughan, [2014] O.J. No. 2166 (C.A.)
• R. v. Brouillard, [2016] O.J. No. 2394 (C.A.)
• R. v. Lewis, 2016 ONSC 2547 (S.C.J.)
• R. v. Mikasonovic, 2017 ONSC 2699 (S.C.J.), aff’d 2018 ONCA 3329 (C.A.)
• R. v. Mirza, [2006] O.J. No. 1806 (S.C.J.)
• R. v. Rocchetta, 2016 ONCA 577, [2016] O.J. No. 3871 (C.A.)
• R. v. Yarmoluk, 2018 ONSC 1917 (S.C.J.)

[51] Mr. Peters, on behalf of Mr. Cleland, pointed to seven cases in which intermittent sentences, not exceeding 90 days, were imposed following convictions for aggravated assault. Notably five of these followed trial and two followed guilty pleas. Mr. Peters referred to the following cases specifically in oral submissions:

• R. v. Bainbridge, 2016 ONSC 2119 (S.C.J.)
• R. v. Gagaruban, 2016 ONSC 3243 (S.C.J.)
• R. v. Smart and Camilleri, 2013 ONSC 600 (S.C.J.)
• R. v. Summerton, 2015 ABQB (Alta. Q.B.)

Mr. Peters also referred to a number of cases which exemplified the role that counselling and community service, as rehabilitative measures, may play in complementing an intermittent custodial term to achieve balance between the sentencing goals of denunciation, deterrence, rehabilitation and restraint, as follows:

• R. v. Smart and Camilleri, 2013 ONSC 600 (S.C.J.)
• R. v. Fensom, 2016 ONSC 4709 (S.C.J.)
• R. v. Hunter, 2015 ONSC 325 (S.C.J.)
• R. v. Peterson, 2018 ONSC 1373 (S.C.J.)
• R. v. Taha, [2014] O.J. No. 5448 (O.C.J.)

(b) Aggravating and Mitigating Circumstances

[52] The aggravating circumstances in this case are as follows:

(a) The attack on Mr. Wotton was extremely serious, involving kicks to Mr. Wotton’s head, and was perpetrated by a group, including Mr. Cleland and Mr. Karshe, while Mr. Wotton lay defenceless on the ground; (b) The injuries inflicted on Mr. Wotton were also very serious, requiring surgery and a lengthy period of recovery, with ongoing pain and discomfort. Given the severity of the attack, the injuries to Mr. Wotton could have been much worse; (c) The attack was associated with excessive consumption of alcohol on the part of the offenders; (d) The group attack on Mr. Wotton was preceded by a non-consensual fight instigated by Mr. Karshe by threatening gestures towards Mr. Wotton; and (e) The offenders fled the scene upon arrival of police, making no effort to assist Mr. Wotton, although as mentioned, this factor is diminished as an aggravating factor because there were persons on the scene to assist Mr. Wotton and he was not left on his own in an injured state.

[53] The mitigating circumstances include the following:

(a) Neither Mr. Cleland nor Mr. Karshe have any criminal record; (b) Mr. Cleland and Mr. Karshe are each youthful first offenders; (c) The attack was spontaneous and did not involve any pre-planning or coordination; (d) The attack was not motivated by hatred or prejudice against any ethnic group or other community; (e) Participation in the attack was completely out of character for each of Mr. Cleland and Mr. Karshe, neither having any history of violent or anti-social behavior or attitude; (f) Although Mr. Cleland and Mr. Karshe were initially excluded from their respective university campuses following the incident, they have each shown significant initiative in satisfying the requirements of the University for re-admittance and in continuing with their academic studies; (g) Each of Mr. Cleland and Mr. Karshe had stable upbringings and enjoyed the support and encouragement of their families; and (h) Mr. Cleland and Mr. Karshe have each pursued gainful employment opportunities.

[54] It noted that, although not an aggravating factor, neither Mr. Cleland nor Mr. Karshe benefit from the mitigation which would accompany a guilty plea or early acceptance of responsibility.

(c) Discussion

[55] A tension exists between the applicable sentencing principles in crafting a fit sentence in this case. Mr. Cleland and Mr. Karshe have been convicted of aggravated assault, the most serious assault offence in the Criminal Code. Their attack on Mr. Wotton together with others, was vicious and brutal, involving kicks to his head and body while he lay defenceless on the ground and resulted in serious injuries and intense suffering to Mr. Wotton over a number of months and profound worry and distress to his family. The consequences to Mr. Wotton could very well have been much worse. Mr. Cleland and Mr. Karshe are fortunate that Mr. Wotton was spared more permanent and life-changing injury or worse. Denunciation and deterrence come to the forefront as sentencing principles for offences such as was perpetrated in this case. The application of these principles call for incarceration in some form to reflect society’s abhorrence of crimes involving groups of typically young men, often fuelled by alcohol, engaging in gratuitous and senseless violence and the need to deter others from engaging in this type of behaviour.

[56] On the other hand, the case-law directs the court to take into account the goal of rehabilitation, particularly in the context of Mr. Cleland’s and Mr. Karshe’s relative youth and the fact that they have led largely trouble-free lives to date. They have each shown, though their academic endeavours and employment history, potential to make valuable contributions to society in the future in their own individual ways. The case-law also instructs the court to apply the principle of restraint in cases involving first-time young offenders, calling for a first sentence of imprisonment to be as short as possible and tailored to the individual circumstances of the offender rather than solely for the purpose of general deterrence (see R. v. Hayman, 135 C.C.C. (3d) 338 (Ont. C.A.) at para. 22).

[57] I take into account the numerous letters of support for Mr. Cleland and the valuable contribution he is already making in the area of medical research though his employment at Sunnybrook Research Foundation.

[58] Mr. Karshe, as a child of parents who came to Canada as refugees, may not have enjoyed some of the social and economic advantages that Mr. Cleland has benefitted from through his upbringing. Despite this, Mr. Karshe has shown significant initiative by furthering his education by taking on-line courses while the criminal proceeding was pending, with the goal of obtaining his University degree and go on to post-graduate studies in the medical health field. He has also been gainfully employed and has supported his family through some recent economic hardship.

[59] I have read the extensive case-law cited by counsel in their briefs and in their oral submissions. Of all the cases cited I find the case of R. v. Smart and Camilleri, 2013 ONSC 600, a decision of Molloy, J. to be particularly instructive.

[60] In Smart and Camilleri, two offenders were convicted by a jury of aggravated assault. The victim was attacked on the dance floor of a busy nightclub and sustained serious injuries, including a fractured jaw in two places, and displaced and fractured teeth. As in the present case, the victim required surgery which involved the implantation of a metal plate in his chin. In addition to his physical injuries, the attack had a continuing emotional impact on the victim. The assault was unprovoked. One of the offenders held the victim back while the other delivered the blows. Justice Molloy found that there was clearly some coordination of efforts between the two assailants and that one of them had a motive for the attack related to a previous debt and the other was helping him in the attack - serious aggravating circumstances that are not present in this case.

[61] One offender was 24 years old at the time of the offence and the other was 26.

[62] As in this case, the Crown sought a sentence of 18 months to two years less a day followed by a period of probation. The defence argued for a sentence of 90 days intermittent followed by a period of probation.

[63] Justice Molloy imposed a sentence on each offender of 90 days to be served intermittently followed by three years’ probation, the longest period of probation available. In doing so she made the following important observation:

I consider it to be vitally important for these two young men to keep them employed and functional in their community. I do not want to see them get off the productive paths they are now on. Putting them in prison for some period of months would only serve to undermine their future prospects for employment and integration into society, thereby jeopardizing the very real prospects of rehabilitation, for very little gain.

[64] In balancing these principles of sentencing in the present case, I likewise see no benefit or advantage to society in imposing a lengthy period of incarceration on either Mr. Cleland or Mr. Karshe which would only have the effect of interrupting or stopping their progress towards rehabilitation, removing them from the workforce and jeopardizing the fulfillment of their potential to contribute to society in meaningful ways.

[65] I find the risk of either Mr. Cleland or Mr. Karshe re-offending to be negligible. Specific deterrence is therefore not a relevant consideration. The experience of the prosecution against them, the trial, the interruption in their academic progress, the shame and stigma which they have experienced by the charge and their conviction, and the criminal record that each of them have acquired, will serve to deter them from any re-offending. Their expressions of remorse to the authors of the pre-sentence reports and in what I found to be sincere expressions of remorse and empathy towards Mr. Wotton, at the conclusion of the sentencing hearing, although not made early enough to be considered as a mitigating factor, do indicate that each of them understand and appreciate the suffering their actions have caused and convey to the court that rehabilitation is a realistic goal for each of them.

[66] I am of the view that, in order to make a determination that an intermittent sentence is appropriate, I need not undertake a formulaic two-step process of first determining whether an appropriate period of incarceration would be 90 days or less before proceeding to consider the use of an intermittent term. No authority to that effect has been cited to me. Rather it is open to me to take a more holistic approach to the question of whether the imposition of an intermittent period of incarceration, coupled with other sentencing measures such as probation with community service, is appropriate in the circumstances of this offence and these offenders and adequately addresses the applicable sentencing principles.

[67] I find that a sentence requiring Mr. Cleland and Mr. Karshe to serve a period of 90 days incarceration on an intermittent basis, followed by the maximum period of probation available, which will include a requirement that they perform community service and receive appropriate counselling, will adequately fulfil the sentencing goals of denunciation, deterrence, rehabilitation and restraint. I find that Mr. Cleland and Mr. Karshe will benefit from the guidance and supervision that would be offered by a three year probation period.

[68] I am unable to accede to Mr. Thompson’s suggestion that Mr. Karshe bears greater moral culpability than Mr. Cleland by reason of his having initiated the altercation with Mr. Wotton. Although I have found that he did instigate the altercation, the evidence did not support an inference that he had foreknowledge that Mr. Cleland and the others in the group would join in an attack on Mr. Wotton. Mr. Cleland and Mr. Karshe bear equal criminal responsibility for participating in the group attack which formed the basis of the aggravated assault conviction.

[69] I am mindful that some may view sentences of 90 days, served intermittently, to be overly lenient. I say in particular to Mitchell Wotton and to his family that I have heeded what was stated in the very eloquent and heartfelt Victim Impact Statements which were read. I have considered carefully the impact that Mr Cleland’s and Mr. Karshe’s actions have had on Mr. Wotton and his family. I note that Mr. Wotton himself, in his Victim Impact Testament and his statement to the author of the pre-sentence report, endorsed the exercise of restraint in the approach to sentencing Mr. Cleland and Mr. Karshe, observing that he did not want to see the incident define or stop their lives.

[70] There is nothing that I can do in sentencing Mr. Cleland and Mr. Karshe that will undo the damage that was inflicted on Mr. Wotton. What I can do is to avoid compounding the damage arising from what was, and continues to be, a very tragic event, by exercising restraint in imposing punishment on the offenders in a way which will facilitate their rehabilitation and to encourage them to live productive and contributing lives, as I am bound by law to do.

[71] With respect to restitution, although the court has the power to make a restitution order in favour of an insurer (see R. v. Popert, 2010 ONCA 89, [2010] O.J. No. 401 (C.A.)) I would not exercise that power in this case. I am satisfied that the imposition of a substantial restitution order would be a hardship particularly for Mr. Karshe. It is appropriate to order each of Mr. Cleland and Mr. Karshe to make restitution, as a condition of probation, equal to one-half of Ms. Wotton’s uninsured out-of –pocket expenses.

Disposition

[72] Mr. Cleland and Mr. Karshe – would you please stand.

[73] Theo Cleland and Hussein Karshe, you will each be incarcerated for an intermittent term of 90 days. The sentences will be served today for processing and thereafter on consecutive weekends until the sentences are served, from 7 PM each Friday to 6 AM on the following Monday commencing Friday, December 7, 2018.

[74] I recommend that Mr. Cleland be permitted to serve his intermittent sentence at the Toronto South Detention Centre as he lives and works in Toronto. In the event that he is required to serve any part of his intermittent sentence at the Maplehurst Detention Centre I recommend that the times for such service be from Friday at 8:00 P.M. to Monday at 5:00 A.M. to accommodate the time it will take him to travel from and to his work at Sunnybrook Hospital.

[75] Commencing immediately upon completion of the intermittent sentences, you will each be further subject to a probationary period of three years on the mandatory statutory terms and on the following additional terms:

(a) you shall each abstain from the purchase, possession or consumption of alcohol, cannabis or other intoxicating substances; (b) you shall each attend and participate in counselling or rehabilitative programs as directed by your probation officer. You shall each provide proof of such attendance to your probation officer and/or sign all necessary releases to permit your probation officer to monitor your attendance; (c) Neither of you shall associate, contact or attempt to communicate directly or indirectly, including by any internet means or social media, with Mitchell Wotton, or come within 200 m of any place where you know Mitchell Wotton or members of his immediate family to be present; (d) you shall each perform 240 hours of community service; (e) you shall each maintain employment or schooling and provide proof of same to your probation officer; and (f) you shall each pay restitution in the sum of $1,236.00 in equal monthly instalments of a minimum of $34.33 until paid commencing on a date to be determined by your probation officer.

[76] During the period that your intermittent sentences are being served, when not in confinement, you shall keep the peace and be of good behaviour and shall surrender to the appropriate jail in a condition where you are neither under the influence of alcohol, cannabis or non-prescription drugs, and shall abide by the conditions set out in the foregoing probation order.

[77] You shall each provide a blood sample for DNA analysis;

[78] You shall each be subject to a weapons prohibition for a period of 10 years pursuant to s. 109 of the Criminal Code of Canada.

[79] I wish to commend and thank all counsel for the professional manner in which this proceeding was conducted and for their very helpful submissions.

D.A. Broad, J.

Date: November 30, 2018