R. v. Ashkani, 2019 ONSC 1922

Court File and Parties

Court File No.: CR-17-5000-085 Date: 2019-03-28 Ontario Superior Court of Justice

Between: Her Majesty The Queen And: Shiva Ashkani, Defendant

Counsel: Cheryl Blondell, for the Crown Maureen Addie, Amicus Curiae

Heard: March 19, 2019

Reasons for Sentence

A.J. O’Marra J.

1Shiva Ashkani, who held herself out as a registered nurse, both qualified and physician supervised as a medical cosmetician to inject Botox and collagen fillers, was found guilty after trial of having committed a number of assaultive offences that resulted in injuries to the victims. The details of the offences can be found at R. v. Ashkani, 2017 ONSC 7345.

2Following trial she was found guilty of the following:

1. Fraud under $5,000.00 by misrepresentation;
2. Three counts of assault with a weapon, a syringe;
3. Aggravated assault;
4. Assault causing bodily harm;
5. Assault;
6. Threatening bodily harm.

3She is here today to be sentenced.

Circumstances of the Offences

4In July 2015 the owners of a tanning salon, The Martins-Grzybowski sought to make an arrangement with a registered nurse to provide Botox and filler treatments as a cosmetic service to their clients. Ms. Martins-Grzybowski searched online and found Ms. Ashkani’s website which indicated she was a registered nurse with 13 years’ experience working with surgeons and 21 years as a medical cosmetician in Beverly Hills, California, Vancouver, British Columbia and Toronto, Ontario providing Botox and collagen filler by syringe. Ms. Ashkani has never held a registration or licensor as a registered nurse.

5Ms. Ashkani administered Botox by needle injection to Ms. Allison Nicholson, a manager of the tanning salon which resulted in her falling ill for a period of time, the area around her eyes to blacken and a disfigurement characterized as a hole or a scar to the center of her forehead. Ms. Nicholson spent an excess of $4,000.00 to effect repairs to the injuries to her face.

6Ms. Brittany Churchill underwent Botox and filler injection treatment by Ms. Ashkani, after which the skin around her eye became discoloured and raised which lasted a few months.

7Ms. Susan Carpenter received Botox and filler injections by Ms. Ashkani at her home and then later attended to a place where Ms. Ashkani was operating her business in Brampton to receive a chemical face peel. After substances were placed on her face Ms. Carpenter felt burning sensation and excruciating pain which turned her face purple and swollen. It resulted in infection and scarring to her cheeks and chin area which led to painful treatments by a dermatologist to correct the damage. In a victim impact statement Ms. Carpenter stated the following:

“I was led to believe Ms. Ashkani was a professional. I have suffered a great deal of pain, embarrassment, fear and sadness as a result of this decision. . . . Ms. Ashkani presented me with her credentials during her first visit. I have since learned that what I was shown were fake documents. Nothing seemed suspicious or alarming to me until Ms. Ashkani began the acid rejuvenating peel . . . when it became apparent something was very wrong. I was in such excruciating pain with whatever substance she applied to my face that it was physically impossible to endure. . . . It is also unknown what was injected into my face on either occasion. I was referred to see Dr. Raman at the Centre for Dermatology by my family physician to follow up treatments after I began to experience serious side effects (swelling and open weeping sores), followed by my skin peel and injections from Ms. Ashkani. I was placed on antibiotics for three months for the infection that developed under my skin. Once the antibiotic therapy was completed Dr. Raman recommended profractional laser therapy for 5 – 8 weeks. My laser treatment would only go as deep as 450 microns. My scars go well beyond 800 microns. . . . The laser treatments were incredibly painful and traumatic. On two occasions I required a full facial block. Ten to twelve needles injected into my face to freeze it. This was incredibly painful.

8In addition to attending for the treatments and having paid in excess of $5,200.00, and more for after care products, Ms. Carpenter was required to take time from work. Further, Ms. Carpenter stated: “the physical and emotional damage that Ms. Ashkani has caused me will be permanent. I have been left with scars and severe damage to my skin that I have come to accept will be lifelong”.

9When Ms. Martins-Grzybowski received complaints about Ms. Ashkani, a confrontation occurred at their business during which she threatened Ms. Nicholson for having made the complaint.

10All of the victims were required to undergo blood tests to determine whether they had contracted HIV or hepatitis as a result of the injections administered and the unknown nature of the substances.

11Ms. Martins-Grzybowski provided a victim impact statement in which she noted that Ms. Ashkani’s involvement with their salon has caused much stress to her life. She is in litigation as a result of the Botox victim instituting a claim against her. Due to all of the stress, emotionally and financially it has caused severe marital issues that developed between her and her husband. She continues to feel anxiety and has been undergoing cognitive therapy to deal with the stress and depression. She fears the loss of her business.

Background of the Offender

12Ms. Ashkani, 43 years old is a single woman with a criminal record which consists of the following:

• January 15, 2013 – Newmarket, Ontario – Aggravated assault for which she received 11 months incarceration plus probation for 3 years with credit for the equivalent of 396 days presentence custody with a mandatory weapons prohibition, s. 109, and
• Assault with a weapon for which she was sentenced to 6 months concurrent.

13Ms. Ashkani was born in Tehran, Iran. She completed high school in Iran and immigrated to Canada at the age of 18. In 1999 she spent a period of time in California where she lived in a common-law relationship. She then subsequently moved to Vancouver where she lived until she met her ex-husband who she describes as having been abusive. They married in 2005 and separated and divorced in 2012. Since 2005 she has continued to live in the Greater Toronto area. She purports to have completed a cosmetology certificate in 1996 and worked in the field of aesthetics, but never completed her diploma at the Institute of Cosmetology in Vancouver due to non-attendance.

14Presently she is financially supported by the Ontario Disability Support Program and been a recipient of social assistance since 2014. In addition to working in the area of aesthetics and cosmetology she has worked in the food service industry, insurance, telemarketing and as a labourer.

15At the conclusion of the trial, her trial counsel was removed from the record as a result of a breakdown in communications with Ms. Ashkani. Amicus Curiae, Maureen Addie was appointed as a result to assist Ms. Ashkani and the court. At a number of subsequent appearances to arrange a sentencing date Ms. Ashkani became hysterical and at times incomprehensible.

16Following a period of hospitalization in July 2018 Ms. Ashkani’s fitness was called into question which resulted in a brief assessment and subsequent 30 day assessment and resultant reports provided to the court. The most recent, the clinical assessment conducted at St. Joseph’s Hospital in Hamilton was prepared by Dr. Gary Chaimowitz following which Ms. Ashkani was confirmed fit to continue the sentencing process.

17Ms. Ashkani has a significant history of mental health issues. In Dr. Chaimowitz’s report her psychiatric history indicated that she has an established diagnosis of bipolar disorder and borderline personality disorder. She has made a number of suicide gestures throughout her life.

18She has had two hospitalizations where she was experiencing episodes of mania with psychotic symptoms. The first noted episode was when she was admitted to St. Paul’s Hospital in Vancouver in January 2005 after experiencing mood changes, grandiosity and other delusions. The second episode was during her most recent admission to the Brampton Civic Hospital in July 2018 during which she was noted to be experiencing flight of ideas, rapid speech and mood lability as well as beliefs that she was being persecuted by members of the Iranian community. She has been stable since being discharged, compliant with her medication regime and being seen weekly by a Canadian Mental Health Association worker.

19During the period when the offences occurred Ms. Ashkani had been receiving monthly follow-up appointments with Dr. V. Srinivasan, a psychiatrist associated with a probation office in Brampton who reported that since the initial interview with her there had not been any depressed or manic phase or any signs or symptoms of a psychotic illness. Ms. Ashkani’s psychiatric condition was managed by Dr. Srinivasan by medication.

20In the mental status examination portion of the report Dr. Chaimowitz states:

She showed good insight into her circumstances and identified that she has benefited from ongoing treatment for her established diagnosis of bipolar disorder. She advised that she is compliant with her medications, including her intramuscular depot medication, which she receives on a monthly basis. There is no evidence of an acute disturbance and mood, nor was there any suggestion that she is experiencing symptoms consistent with an acute psychosis. Ms. Ashkani did present as suggestible and may be prone to over endorsing psychiatric symptoms. . . . As noted previously, Ms. Ashkani does experience chronic and transient suicidal ideation. She repeatedly brought up her thoughts of self-immolation and being a “living bomb”. Ms. Ashkani expressed thoughts of killing herself to draw attention to her plight, as she asserts that she is the victim of these proceedings.

21Ms. Ashkani has assumed no responsibility for her actions. During her initial fitness assessment with Dr. Derek Pallandi, he wrote that she “conveyed a rather bizarre and convoluted story that the complainants, in fact, had fabricated parts or all of their version of events leading to her arrest, out of a motivation to seek compensation from the Criminal Injuries Compensation Board . . . she added, “I never touched anyone with a needle . . . the two complainants are definitely lying because of the Criminal Injuries Compensation Board . . .”.

22Further, during a course of Ms. Carpenter reading her victim impact statement to the court Ms. Ashkani again made an outburst to the effect that she was only seeking to collect from the Criminal Injuries Compensation Board. Ms. Ashkani has absolutely no comprehension or insight into the consequences of her actions.

Position of the Parties

23The Crown suggests that a period of incarceration of 3½ years would be appropriate in the circumstances to give effect to sentencing objectives of deterrence and denunciation. In addition the Crown seeks ancillary orders of providing a sample for DNA purposes and a s.109 Order for 10 years.

24Ms. Addie, amicus curiae in submissions suggested that a period of incarceration in the range of 18 months to 2 years less a day, together with the maximum 3 years’ period of probation as appropriate in the circumstances in order to effect a greater period of control and support for Ms. Ashkani.

The Law

25Section 718 of the Criminal Code directs that the fundamental purpose of sentencing is to ensure respect for the law, the maintenance of just, peaceful and safe society. The sentence imposed should have regard to the objectives of denunciation, deterrence, rehabilitation and the promotion of a sense of responsibility in offenders. The sentence must be proportionate to the gravity of the offence and the offender’s degree of responsibility (s. 718.1 of the Criminal Code).

26Pursuant to s. 718.2 of the Criminal Code the court is to take into account the aggravating and mitigating factors, evidence that the offence has had a significant impact on the victims, that the sentence shall be similar to sentences imposed on similar offenders for similar offences and in similar circumstances, and where consecutive sentences are imposed the combined sentences should not be unduly long or harsh.

27The only case which has been referred to the court that deals with a similar means of committing the offence of aggravated assault in performing cosmetic injections and other applications is Regina v. Reid, 2015 ONSC 1919. There are however significant distinguishing aspects, particularly with respect to the number of severely affected victims.

28In Reid the defendant pleaded guilty to committing a number of aggravating assaults involving the injection of silicone into the buttocks of eight victims unauthorized and with substances not approved for the purpose. The victims suffered serious infections and long-term consequences to their health. A number of the victims required surgical intervention and several weeks of hospitalization.

29The offender, 50 years of age with no criminal record was sentenced to 8 years in prison in order to denounce her conduct and deter others from “setting up a business on the internet providing services to those members of the public who can be detrimentally affected both physically and financially through fraudulent misrepresentations.”

30Ms. Ashkani maintains that she is the victim in this matter and she did no harm. While there is an absence of remorse, it is of course not an aggravating factor. It is however, an absence of a mitigating factor which would convey an acceptance of responsibility for her crimes “relevant to whether restorative objectives can be satisfied” and entitle the offender to a sentence reduction, (see Regina v. Atwal, 2006 ONSC 3668 at para. 61).

31Ms. Ashkani is deserving of the penitentiary sentence as submitted by Crown counsel. She knowingly injected substances and applied material to the faces of her victims that brought significant psychological and physical pain, as well as financial harm. She has a criminal record of committing an aggravated assault and assault with a weapon. I take into account however, the mental disorder issues noted above and the need to ensure her access to treatment and continuing control and supervision of Ms. Ashkani beyond incarceration.

32In my view, the community would be better protected by having Ms. Ashkani under an extended period of supervision effected by maximum reformatory incarceration and probation. By imposing a total sentence of two years less a day with a three year probation period attached there will be five years of some supervision and control in the community, which will give effect to the sentencing principles of deterrence, denunciation, rehabilitation and protect the community.

33There will be credit of 2 months for the approximately 40 days spent in pre-trial custody on a 1 to 1.5 basis.

34In the result the sentence is as follows:

• Aggravated assault by wounding – 2 years less 1 day incarceration, (less pre-trial custody credit of 2 months) and 3 years’ probation.
• Three counts of assault with a weapon, a syringe – 18 months incarceration concurrent on each count to the aggravated assault.
• Assault causing bodily harm – 12 months incarceration concurrent to all other counts.
• Assault – 6 months incarceration concurrent to all other counts.
• Threatening bodily harm – 3 months incarceration concurrent to all other counts.
• Fraud under $5,000.00 by misrepresentation, 4 months incarceration concurrent to all other counts.

35On release from custody Ms. Ashkani will placed on probation for 3 years and is required to:

1. Keep the peace and be of good behaviour;
2. Appear before the court when required to do so;
3. Notify the court or probation officer in advance of any changes that are made in your address;
4. Report within 72 hours of release from custody in person to a probation officer;
5. Report thereafter as required;
6. Attend and actively participate in any assessment and counselling, as recommended by your probation officer and to complete such programs to the satisfaction of the probation officer;
7. Sign any releases so the probation officer can confirm participation in the assessment, counselling or treatment programs;
8. Notify the probation officer of any employment and/or business activity;
9. Prohibited from providing any aesthetic or cosmetology services to anyone during the period of the probation order.

36In addition there shall be the ancillary orders that you provide a sample of your bodily substances for the purpose of DNA analysis pursuant to s. 487.051 of the Criminal Code, and a firearm, ammunition and other weapons prohibition for life pursuant to s. 109 of the Criminal Code.

A.J. O’Marra J.

Released: March 28, 2019