COURT FILE NO.: CR-18-7-226

DATE: 2020121

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SPIRO RUSHA

Defendant

Vicki Hentz, for the Crown

Randall Barrs, for the Defendant

HEARD: May 22, June 25, August 29, and October 4, 2019 and January 17, 2020

spies j.

REASONS FOR SENTENCE

Overview

1On April 31, 2019, I found the Defendant, Spiro Rusha, guilty of four counts in connection with his admitted stabbing with a knife of Kadri Okurlu and Taylon Harris, while they were sitting in a vehicle that was situated on a driveway on the night of December 8, 2016. In particular, he was convicted of two counts of assault using a weapon, namely a knife with respect to Messrs. Okurlu (Count 3) and Harris (Count 1), contrary to s. 267(a) of the Criminal Code; one count of aggravated assault contrary to s. 268(2) of the Criminal Code with respect to Mr. Okurlu (Count 2) and one count of assault causing bodily harm contrary to s. 267(b) of the Criminal Code with respect to Mr. Harris (Count 4).

2On May 22, 2019, counsel appeared before me for the purpose of scheduling Mr. Rusha’s sentencing hearing. At that time, Mr. Barrs advised that as a result of a gunshot wound to his abdomen, Mr. Rusha required further surgery. He provided a handwritten note from his surgeon, a Dr. De Rezende-Neto, dated May 15, 2019, stating that he estimated Mr. Rusha’s operation would take place in approximately three to six months and that he would need approximately six months of recovery time from the date of the operation.

3The parties appeared before me to make their sentencing submissions on June 25, 2019. Mr. Barrs advised that Mr. Rusha’s surgery was now scheduled for August 21, 2019. I accepted Mr. Barrs’ request to not give my sentence on that date, and the sentencing hearing was adjourned to August 29, 2019 on the condition that I would be provided with a report from Dr. De Rezende-Neto explaining what kind of recovery time Mr. Rusha required. The issue was whether or not his surgery could be accommodated if he were incarcerated.

4On August 29, 2019, I was provided with a letter from Dr. De Rezende-Neto dated August 21, 2019 advising that Mr. Rusha’s surgery had not proceeded and that although there was no new date scheduled, his next operating time was in December 2019. Ms. Hentz objected to any further adjournment of the sentencing of Mr. Rusha. I asked Ms. Hentz to obtain evidence as to how Mr. Rusha would be cared for if he were sentenced to either a penitentiary or jail sentence.

5On October 5, 2019, Ms. Hentz filed the evidence that I had requested. She objected to any further delay in sentencing and was concerned about the delay in light of R v. Charley, 2019 ONCA 726, [2019] O.J. No. 4693 (Ont. C.A.) where the court confirmed that s. 11(b) of the Charter applies to the time of sentencing. Mr. Barrs asked that Mr. Rusha’s sentencing be adjourned to January 31, 2020 so that his surgeon of choice could perform the surgery. He argued that there was no urgency and that his greatest concern was that something would happen to Mr. Rusha while in custody. Mr. Barrs agreed, on behalf of Mr. Rusha, to waive any concerns of the Crown with respect to R. v. Jordan, 2016 SCC 27.

6I stated that in light of the information provided by Ms. Hentz as to how Mr. Rusha’s medical needs would be accommodated, I was of the view that I could sentence Mr. Rusha but that since Ms. Hentz was looking for a penitentiary sentence in which case Mr. Rusha would not have his surgeon of choice. In all of the circumstances, I granted the adjournment request to January 31, 2020, but advised the parties that this would be the final adjournment. That way if Mr. Rusha had his surgery in December 2019, he would have had one month of time to recover in which case he could go into custody.

7Counsel and Mr. Rusha appeared before me on January 17, 2020. I was advised that on January 5, 2020, Mr. Rusha had been arrested on other charges and was now in custody. Mr. Barrs advised that Mr. Rusha was doing well and that he was being housed in the medical unit at the Toronto South Detention Centre (“TSDC”). I was also advised that his surgery had not in fact proceeded in December 2019 and was now scheduled to January 27, 2020. As a result, I decided to move up the sentencing of Mr. Rusha to January 17, 2020.

8Ms. Hentz agreed that I should stay my findings of guilt with respect to the assault with a weapon charges against Mr. Harris (Count 1) and Mr. Okurlu (Count 3), because of the principles in R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729.

The Facts

The circumstances of the offences

9Mr. Okurlu and Mr. Harris were stabbed by Mr. Rusha while they were sitting in a vehicle that was situated on the driveway between 69 and 85 Gamble Avenue in city of Toronto. Mr. Okurlu was in the front passenger seat and Mr. Harris was behind him in the rear seat. Both were stabbed in their upper leg. Mr. Rusha admitted the stabbing but defended the charges on the basis that he was acting in defence of his mother in accordance with s. 34 of the Criminal Code. I found that the Crown had proven beyond a reasonable doubt that this was not the case.

10Mr. Rusha had been in several altercations over the course of the night of December 8, 2016 with Mr. Harris, as set out along with all of the circumstances of the offences in my judgment; R. v. Rusha, 2019 ONSC 5133. No weapon was ever recovered but I found that Mr. Rusha used a paring knife with a three-inch blade that he obtained from the kitchen of his apartment. I concluded that Mr. Rusha intended to stab Mr. Harris when he had the opportunity and that his purpose in stabbing them must have been for revenge because of the beatings that Mr. Harris had inflicted on him that night. I also concluded that his only reason in stabbing Mr. Okurlu was that in the heat of the moment he mistook him for Mr. Harris and then when he realized Mr. Harris was in the back seat of the vehicle, he decided to stab him as well. I also accepted the defence position that by stabbing Messrs. Okurlu and Harris in the leg that Mr. Rusha did not intend to kill them although I appreciate Mr. Okurlu’s evidence that such a stab wound could be fatal given the major arteries in that location. Although the injury inflicted on Mr. Okurlu by Mr. Rusha could easily have been fatal, I found that if Mr. Rusha intended to kill Mr. Okurlu and Mr. Harris that he would have aimed for their chest or neck. However, Mr. Rusha made no effort to get medical attention for either Mr. Okurlu or Mr. Harris. He and his mother simply returned to their apartment and waited for police.

The circumstances of the Complainants

(a) Mr. Okurlu

11Mr. Okurlu and Mr. Harris were in court on June 25, 2019, at the time of Mr. Rusha’s sentencing submissions. Mr. Okurlu provided a written Victim Impact Statement (“VIS”).

12Mr. Okurlu gave evidence at the trial in some detail about his injuries and the five surgeries he has had to undergo to deal with those injuries and the permanent impact that the knife wound has had on him physically. He is lucky to be alive but since the repercussions of the knife wound may also prematurely end his career in the armed services, clearly the impact is much more than physical. He provided further information about the impact in his VIS.

13In his statement, Mr. Okurlu states that he has had many injuries, both physical and psychological from the fact that he was stabbed by Mr. Rusha. He recounts in his VIS how he felt immediately after he was stabbed and how he realized, given where he was stabbed, that he would die within minutes if he did not act quickly. He found out that he lost two litres of blood within minutes on the scene, and a litre while getting rushed to hospital. He was unconscious some of this time and regained consciousness in the trauma room at St. Michael’s Trauma Centre with a lot of medical staff around him. One of the staff members had his thumb in his artery with a tourniquet to try and stop the bleeding until he went into emergency surgery. Mr. Okurlu only remembers bits and pieces of this now. He woke up in the ICU heavily sedated with a gigantic right leg that was no longer able to move. When he saw the huge surgery scar, he had a mental breakdown. Mr. Okurlu had life-threatening injuries but states that thanks to the paramedics and doctors he is alive today.

14Mr. Okurlu needed further surgery because his leg had developed compartment syndrome. This time when he woke up, he saw the surgery done to his calf muscle and he states in his VIS that he cannot explain the experience that he had then in the hospital. He experienced excruciating physical pain whenever the morphine lost its effect and psychological pain all the time. Initially he was told he would never be able to walk again or function as he used to. This devastated him and he just wanted to die.

15Mr. Okurlu had a third surgery that was done as a result of a blood clot the doctors found in his artery. After that surgery, he went back to the ward where he underwent many dressing changes, blood drawings every single day, and “ever more bad news”. He was bedridden for a week and a half before they started to slowly move him to the side of the bed to try and get him up. He states that this was the most excruciating painful experience of his life because whenever he attempted to stand up, the blood running through his veins was so painful that he would scream and cry. With every attempt he got more and more depressed. He cried for hours because his life as he knew it was over. His toes started going necrotic and turning into dead tissue and he has lost the end of some of his toes.

16Eventually Mr. Okurlu was able to get in a wheelchair with the help of medical personnel and over time he got up to an hour of pain resistance, making him feel a little happier because it showed improvement. He speaks in his VIS of how embarrassed he was that he could not get out of bed and had to do his “toilet business” in bed for the majority of his hospital stay. He could not walk or shower or do other normal day-to-day tasks for two months. Mr. Okurlu describes the pain from the dressing changes of the donor and recipient sites of the surgery as “unexplainable”. He has had four surgeries in total while an in-patient, and one in May 2017 for an angioplasty because his by-pass was having more complications. After a month at St. Michael’s he was transferred to rehab where he went through exercises to train his brain to acknowledge that he still had a right leg because of the permanent nerve damage from the knee down. He is lucky that he is able to move his knee which is essential to walking. The rehab was very difficult.

17Mr. Okurlu states that he was very physically and mentally active before the attack and was rarely sick or hurt but that his incident has turned his life upside down. Since the attack it has felt like his world had stopped. Mr. Okurlu explains that he will not be able to enjoy life to its fullest anymore as with any activity that he tries to do he is reminded of his impediment as it is always a restriction. All of his past recreational activities of running, walking, playing soccer, playing basketball and even negotiating stairs have been compromised.

18At the time of the assault, Mr. Okurlu was a full-time student at Ryerson University. He had to take time off school because he missed too much of it as a result of his hospitalization. Since the incident, he has never had the same psychological drive to go back to school. His career in the military has been adversely affected. He can no longer fulfill his duties as an armoured crewman, but because of the support from his unit, he has been offered office work. He states however that his future with the military is unknown if he cannot complete the basic physical test and, in that event, he will be “kicked out”. He expects that the recommendation will be that he be released. Although Mr. Okurlu expected to know the decision last August 2019, I was advised by Ms. Hentz at the attendance on October 4, 2019, that he still did not know what the decision was.

19Mr. Okurlu states in his VIS that he is:

… haunted psychologically and emotionally, whenever I think about the incident I just cry and have suicidal thoughts. I have bad dreams. I get upset all the time, and for no reason. I used to be calm. Now, I am very moody and irritable. I will have lifelong medical consequences that will never go away. I experience nightmares three to four times a week, mostly consisting of the uncertainties that my future holds for me due to my physical limitations and educational setback.

20I hope that Mr. Okurlu will be allowed to continue his desk job although I appreciate that is small consolation in the circumstances. If Mr. Okurlu was released from the military, his future in the workplace is unknown and he does not know if he’s even going to be able to hold down a job of any sort of gainful capacity as he did prior to the incident. He states in his VIS:

[t]his person ruined my life, my future, and the job that I loved the most. Once they release me from the military, I don’t know what will happen to me. I can no longer enjoy life without watching my back and being overly concerned for my parents’ lives on top of the physical and psychological pain that I endure.

(b) Mr. Harris

21Mr. Harris did not file a VIS. He was relatively fortunate and did not suffer permanent injuries from this stabbing. However, Ms. Hentz advised that he still has some emotional issues following the stabbing.

The circumstances of the Defendant

22I received a Pre-Sentence report (“PSR”) dated May 16, 2019 that I would say is neutral. Mr. Rusha was born in Athens, Greece and is the eldest of two children. He has a younger sister. His parents brought the family to Canada in 2002 when he was three years old. His father owns a roofing company, and his mother currently works for a large department warehouse. He had a normal childhood and is close to his parents and his family.

23Mr. Rusha turned 18 the day before he committed these offences. He is now 21. At the age of 20, Mr. Rusha was shot twice in the stomach during a robbery in downtown Toronto. As a result, currently he has a colostomy bag and he requires further surgery.

24Mr. Rusha has been in two serious relationships in his life. He is in his second relationship now with a young woman who he met at college. They do not live together, nor do they have any children. Mr. Rusha currently lives in a two-bedroom apartment with his parents and sisters. He hopes to finish his school program and begin working. He has been working for his father doing paperwork until he fully heals.

25Mr. Rusha completed Grade 12 and took three semesters studying to be a heating and ventilation air conditioning (“HVAC”) technician. He left college to earn money to continue his schooling. He plans to return to college after his surgery to earn his HVAC certification. Mr. Rusha has been working for his father’s company since he was 15, until he had to stop working, because of his other injuries. He has never received unemployment insurance or social assistance. He pays no rent to his parents but contributes towards the household income when he works. Of his own accord, Mr. Rusha has also volunteered at Good Shepherd Ministries, and a letter from them confirmed he volunteered as a kitchen aide for almost 21 hours in March and April 2018.

26Mr. Rusha told the probation officer that since he was shot in January 2019, he suffers from nightmares and problems sleeping. His family doctor has provided him with antidepressants and medication for anxiety. When the probation officer spoke to this doctor, however, he was advised that he was not in fact Mr. Rusha’s family doctor and that he had only met with him at a walk-in medical clinic on two occasions. This doctor did confirm, however, that he prescribed medication for depression, as Mr. Rusha told him that he was losing weight and anxious following being shot. This physician advised the probation officer that the prescription for the medication will end shortly. Mr. Rusha also met with a counsellor at the Sherbourne Health Center a few times and as of October 4, 2019, was still on a waiting list for counselling for anxiety. This information was confirmed by the probation officer with the Center. Mr. Rusha does not appear to have a drug or alcohol problem.

27Mr. Rusha’s parents and his current girlfriend do not believe that he has an anger management problem. Nevertheless, his mother told the probation officer that he completed an anger management program which involved attending one-hour individual counselling sessions with a registered psychotherapist.

28Mr. Rusha does not have a criminal record.

29When discussing his offences before this Court with the probation officer, he states in the PSR that Mr. Rusha “portrayed himself as a victim”, and that “he appears to have little insight with regard to his offending behaviour. He rationalized and minimized his behaviour stating he was defending his mother”. At the end of the sentencing submissions, Mr. Rusha did address this Court. He said he did not want anyone to get hurt and that he was sorry for what had happened and sorry for everyone who got hurt, including the families. He said that he only wanted to go home that night and that he was “truly sorry”. I have no doubt that Mr. Rusha is sorry for what happened but believe this has more to do with the consequences he is now facing.

The information from Dr. De Rezende-Neto

30Dr. De Rezende-Neto is a Trauma and Acute Care Surgeon at St. Michael’s Hospital. He confirmed to the author of the PSR that Mr. Rusha requires further surgery. In his letter of August 21, 2019, he stated that once Mr. Rusha has this surgery, he would stay in hospital for five to seven days, and he would then be limited in his physical activity for two to three weeks. He would need a follow up appointment one month following the surgery. He would then have limited restriction for exercise and other physical activities for another 30 days. In Dr. De Rezende-Neto’s opinion there is a 30% chance that Mr. Rusha will need further surgery in three to six months after his first surgery.

31On January 17, 2020, Mr. Barrs provided a document Mr. Rusha received in connection with his surgery which is now scheduled for January 27, 2020. It sets out that he is to attend at St. Michael’s Hospital and what he needs to do to prepare for the surgery. To get his surgery time he must call on January 24, 2020 which I presume his mother can and will do.

The evidence as to how Mr. Rusha’s surgery would be dealt with if he is incarcerated.

(a) Federal Correctional Institutions

32Ms. Hentz spoke to Debra Denny, the Chief of Healthcare at Joyceville Institution (“Joyceville”), a medium facility in Kingston, Ontario. Although she did not have an affidavit Mr. Barrs took no issue with the fact that what Ms. Hentz stated was in fact information from Ms. Denny. Ms. Denny advised that if Mr. Rusha were sentenced to a penitentiary sentence, he would be sent to Joyceville for assessment. There he would see a nurse within 24 hours of admission. With his consent, Dr. De Rezende-Neto would be asked for his medical records which would then be reviewed by a staff family doctor. Mr. Rusha would be referred to a gastroenterologist surgeon at the Kingston General Hospital, which is a teaching hospital, within days of his admission. That is where his surgery would be done. Mr. Rusha would not be transported back to Toronto to his own surgeon for the surgery. If Mr. Rusha needed surgery within a couple of months, he would be kept at Joyceville or he would be sent to a minimum-security institution.

33Ms. Denny advised Ms. Hentz that persons like Mr. Rusha, who have suffered from a gunshot wound resulting in a colostomy bag is a very routine situation they are faced with in her experience and that she had absolutely no concerns about caring for Mr. Rusha should he be admitted to a penitentiary. Nurses on staff would teach him how to care for his colostomy bag and assist him as needed.

(b) Ontario Correctional Institutions

34Ms. Hentz filed an affidavit sworn on October 3, 2019 by Crystal Miller, a Health Care Manager with the Ministry of the Solicitor General. She provided general information about the health care services provided by the Ministry. She deposed that medical needs are a key factor when determining which institution an offender will be housed in and that an offender must be medically stable prior to being transferred to another institution. Within an institution there are different areas where patients are housed that correspond to the level of health care services they require. Ms. Miller deposed that persons with colostomy bags are routinely cared for in correctional institutions and that those patients generally manage the colostomy bag themselves. In her 11 years of experience there have not been any issues, serious injuries or deaths of people with a colostomy because of their incarceration. She also confirmed that she had reviewed the restrictions prescribed by Mr. Rusha’s surgeon and that Ontario’s correctional institutions would be able to accommodate these needs. Finally, her affidavit sets out in detail how logistical matters related to surgery are dealt with such as required medical appointments, the surgery, and health care needs upon discharge. Individuals that are post-operative are monitored regularly by health care staff and physicians.

Legal Parameters

35The maximum sentence for aggravated assault is 14 years pursuant to s. 268(2) of the Criminal Code and ten years for assault causing bodily pursuant to s. 267 of the Criminal Code. There is no minimum sentence for either of these convictions.

Positions of Crown and Defence

36Ms. Hentz, counsel for the Crown, submitted that a significant penitentiary sentence is required in this case. She argued that the appropriate sentence in this case is four and one-half years with respect to the offences committed against Mr. Okurlu and three to six months consecutive for the conviction with respect to Mr. Harris. Ms. Hentz submitted that the sentence with respect to Mr. Harris would otherwise be longer but that she had applied the totality principle. She also asked for ancillary orders, namely a DNA order on the primary ground and a mandatory ten-year weapons’ prohibition order pursuant to s. 109(1) of the Criminal Code.

37Mr. Barrs submitted that a short reformatory sentence is in order with respect to the assault on Mr. Okurlu and that there should be no custodial sentence with respect to Mr. Harris. He submitted that a 90-day intermittent sentence or a very short reformatory sentence in the range of four to nine months would be appropriate. He took no issue with the ancillary orders requested.

Case Law – Range of Sentence for Aggravated Assault with a Weapon

38Both counsel provided case law in support of their positions. No case is on all fours with the case at bar, which is to be expected, as sentencing is a very individualized process depending in each case on the particular facts of the offences, the circumstances of the offender, and the impact on the complainants. As a result, it is helpful to begin by considering what has been determined to be an appropriate range of sentence, recognizing that ranges are for this Court’s guidance only.

39Code J. in R. v. Tourville, 2011 ONSC 1677, reviewed the wide range of sentence for aggravated assaults with a weapon. He summarized the mid-range of cases, where high reformatory sentences have been imposed between 18 months and two years less a day, as those that "generally involve first offenders and generally contain some elements suggestive of consent fights but where the accused has resorted to excessive force": para. 28. At the high end of the range are cases where four to six years' imprisonment have been imposed. These cases generally involve offenders with serious criminal records, or unprovoked or premeditated assaults with no suggestion of any elements of consent or self-defence: para. 30.

40I turn then to the other cases relied upon by the Crown, firstly, the cases decided before Tourville, that I found of assistance.

R. v. Vickerson 2005 23678 (ON CA), [2005], O.J. No. 2798 (C.A.)

41The offender was convicted of aggravated assault and assault with a weapon. The two victims were attacked after they insulted the offender's girlfriend. The offender hit them in the face with a metal bar from a weightlifting set. The injuries were not life-threatening, but they were substantial and permanent.

42The Court of Appeal found that the sentencing judge did not err in finding that there was some premeditation to the attack, as this was evidenced by the offender bringing the metal bar with him to the scene after receiving the call from his girlfriend: para. 60. Given the seriousness of the assaults, and the appellant's prior substantial criminal record, the global sentence of six years was within the appropriate range.

R. v. Scott [2002] O.J. No. 1210 (C.A.)

43The appellant had been sentenced to imprisonment for four years concurrently for charges of aggravated assault and assault with a weapon. He had attacked the victim with broken beer bottles during a fight at a party. The victim suffered extensive scarring on her face, arms, torso and legs. The appellant's main argument about his sentence related to its disparity with the sentence of his co-accused, who had received a 12-month conditional sentence.

44Charron J.A., speaking for the Court, found that the sentencing judge had addressed this specific concern in her reasons and that the difference was justified by the co-accused's lesser degree of involvement and the particular personal circumstances of each: para. 18. Having regard to the viciousness of the attack on the victim, the serious and permanent nature of the injuries, the emotional impact on her, and the appellant's antecedents, which included a previous incarceration for 20 months, the sentence was not unfit: para. 19.

R. v. Dunn [2002] O.J. No. 864 (C.A.)

45The facts in this case are quite different than the case at bar but the case is of assistance in considering how unintended consequences should be factored into an appropriate sentence. The offender appealed his sentence of nine years' imprisonment for aggravated assault and submitted that, although harmful consequences are a pertinent consideration on sentencing, the trial judge erred in allowing the severe consequences of the appellant's conduct to dominate the sentencing: para. 32. Weiler J.A. speaking for the Court, disagreed, and found that the trial judge made no error in her analysis and had properly considered this factor and the other aggravating factors, including the brutality of the attack, the fact that the victim was a "generous friend" of the appellant, and the appellant's callousness in leaving the victim when he was in need of medical attention: para. 34.

R. v. Ryan, 2006 NLTD 167, 261 Nfld. & P.E.I.R. 326

46Although this is a trial decision from another jurisdiction, this case is helpful as there are some similarities to the case at bar in that the offence involved the stabbing of two people and the impact on the complainants was serious. This offender stabbed the first victim in the lower stomach and wounded him in the arm after being attacked by him. The second victim, a police officer, tried to intervene. The offender stabbed him in the lower back and cut him on his finger. The offender was convicted of two counts of aggravated assault and two counts of uttering threats.

47The trial judge, O'Regan J., found that both assaults were very serious. The first victim's bowel was perforated, which required surgery. This wound was potentially life-threatening. The stab to the back of the second victim fortunately missed major organs and was not life-threatening. Although the offender was struggling for his own safety, he used an excessive degree of violence. The impact on the lives of the victims was serious. The trial judge held that a double stabbing in a public place calls for denunciation: para. 13. The offender was a young man in his early twenties with strong family support. Despite his extensive criminal record - 51 prior convictions, including crimes of violence, he exhibited some potential for future rehabilitation.

48O'Regan J. stated that unprovoked attacks with extreme violence, as well as offences that involve more than one victim and the use of knives usually attract lengthy sentences: para. 59. He imposed six years for both counts of aggravated assault, to be served concurrently, and one month for each count of uttering threats, to be served consecutively, for a total sentence of six years and two months.

49For the cases relied upon by the Crown post Tourville, that I find of assistance, they are as follows:

R. v. Stephens, 2019 ONSC 693

50The offender was found guilty of aggravated assault. He had gotten into a dispute with the victim in a bar. The victim threw a drink in his face and punched him several times around the head. Stephens produced a knife and pursued the victim into a parking lot. He stabbed the victim in the back as he fell to the ground. The victim managed to block further attacks but suffered knife wounds on his forearms and a puncture wound on his back that lacerated his liver and required surgery.

51The offender was 24, and an immigrant from St. Vincent on a six-month visa that had long expired. He was awaiting deportation at the time of sentencing. He had completed some high school and had been working since he was 11 in construction, roofing, and tree service. He had a criminal record for forgery and was on bail for an assault charge at the time of the aggravated assault. He was later convicted of the assault.

52The Crown sought three-and one-half years' imprisonment. The defence requested six months less a day, taking into account the offender's immigration status and the conditions of his pre-sentence custody. Akhtar J. found that although the event was provoked, the offender’s reaction to it was not only excessive but potentially catastrophic: para. 45. It was aggravating that the knife attack could have had far more catastrophic consequences had the victim not blocked the attack with his arms, and that the injuries were serious: paras. 30-31. It was mitigating that, prior to this offence, the offender had no criminal convictions for assault: para. 33. It was also significantly mitigating that the victim provoked the attack by punching Stephens. In the absence of those actions, there is no doubt that Stephens would not have attacked the victim: para. 34.

53Akhtar J. rejected the argument that immigration consequences should reduce the offender's sentence: para. 43. The incident occurred while he was on bail for the same type of offence. Justice Akhtar found that the appropriate sentence was three years' imprisonment: paras. 45-46.

54I find that of the cases provided to me by counsel, this case is the closest to the facts of the case at bar. The offender in this case stabbed the victim in the back which makes it more serious. However, he was reacting immediately to the actions of the victim who Justice Akhtar characterized as the aggressor; albeit one who only used his fists not a weapon. The offender was 24 – still youthful, but not as young as Mr. Rusha.

R. v. Paul, 2018 ONSC 2892

55The offender was found guilty of aggravated assault and assault with a weapon. He became involved in a dispute with another man, "Tall P", as they left a bar. He retrieved a machete from his van and moved towards Tall P but was restrained and returned it to his van. The conflict escalated to a fight in which Tall P wielded a machete and a knife and the offender wielded a sledgehammer. The offender eventually picked up Tall P's machete and slashed his hand with it.

56The wound to Tall P's hand was serious, requiring surgery and plastic surgery. However, there was no evidentiary foundation to conclude it was permanent: para. 26. It was aggravating that the offender was the initial instigator of the fight and that he was driving in a vehicle knowing that there was a machete inside: paras. 23-27. The offender's criminal record was unrelated and dated. He was 33, and a convention refugee from St. Lucia. He was the sole provider for his two young sons: paras. 16-17, 32.

57Dunnet J. held that in cases of aggravated assault, denunciation and deterrence were the primary sentencing principles. “Those who arm themselves with weapons … and use them to cause grievous bodily harm must be deterred”, at para. 31. Dunnet J. had found that the fight was almost consensual, at para. 12, and imposed a sentence of two years less a day. The consensual aspect of this fight is a distinguishing feature from the case at bar.

R. v. Haly, 2012 ONSC 2302

58The offender pleaded guilty to aggravated assault for stabbing the victim in the back with a hunting knife while the victim was working out at the gym where he was a manager. He stopped stabbing the victim after he was tackled by other employees. The victim suffered a number of stab wounds to his upper back, arm, side, leg and ear. Fortunately, all were non-life-threatening soft tissue injuries that did not require surgery. For the purposes of sentencing, the parties agreed that while the victim had done nothing to provoke the offender, the offender mistakenly believed that he had insulted him. The physical impact on the victim was not permanent, but the victim suffered immense and lasting emotional harm.

59The offender was 28, with no prior criminal record. He was unemployed and living at home with family at the time of the offence. He had a family history of mental illness and had been diagnosed with major depressive disorder. The Crown sought a sentence of five years' imprisonment. The defence submitted that a penitentiary sentence in the range of two to three years was appropriate.

60The offender's guilty plea was a mitigating factor as was his lack of a criminal record. However, MacDonnell J. found that the link between the offender's mental health issues and the crime was tenuous, and as such not a significant mitigating factor: paras. 35-36. The offender’s misperception that the victim had insulted him perhaps made his conduct less disturbing, but even if he had been correct, his response would have been so grossly disproportionate as to render the distinction between it and a random attack meaningless: para. 38.

61MacDonnell J. held that the case did not fall at the bottom of the range. The fact that the wounds were not lethal was pure chance, and the attack would have been even more catastrophic were it not for the courage of those who intervened: para. 40. Before taking into account pre-sentence custody, he found that the appropriate sentence would be four and a half years' imprisonment: para. 41.

62As for the cases relied upon by the Defence, they are as follows.

R. v. Simonian (June 11, 2018), Toronto, 16-7-355 (Ont. S.C.) #5922

63Simonian was convicted of aggravated assault for using a heavy metal baton that he kept in his car for self-protection to inflict a number of blows on the victim's upper body after a road-rage incident. He retrieved it before even stepping out of his car, showing an element of premeditation. The attack was unprovoked, but at the same time it was not a case where the offender had attacked a mere bystander. Both the victim and offender were actively confronting each other. Both were yelling at each other and had gotten out of their vehicles. This context lessened the gravity of the potentially aggravating factor of an unprovoked attack.

64There was a significant impact on the victim, including long-term emotional impact. Simonian had no prior criminal record and was relatively young. He had strong family and friend support and was stable and running his own business. The offence was totally out of character. He had also completed counselling and programming. The fact that he had been recently diagnosed with PTSD from being attacked by a group of men in the past had limited mitigating value. Simonian had very good prospects for rehabilitation. Specific deterrence played no role in the sentence.

65Simonian had expressed remorse but had not pleaded guilty. Nakatsuru J. rejected his evidence that he acted out of fear, finding he acted out of anger, but he did attribute some mitigating effect to the offender's remorse. The sentence imposed was 14 months.

66Mr. Barrs relies on this decision in support of his primary submission that Mr. Rusha should receive no more than a reformatory sentence and in fact it should be less than 14 months as he submits the facts in Simonian were more serious. Ms. Hentz submitted that this was a case of road rage which is a distinguishing feature. Justice Nakatsuru gave his reasons orally, and I do not know what authorities he relied upon in coming to this decision. The circumstances before him were different in that both the victim and offender were actively confronting each other which suggests an element of a consensual fight not present in the case at bar, certainly not with respect to Mr. Okurlu.

R. v. Phillips (April 10, 2018), St. Thomas, 0711-998-17-1166-00 (Ont. C.J.) Skowronski J.

67Mr. Barrs provided this case to me not because it is relevant on the facts but rather to demonstrate that there is no bottom to the range of possible sentences in this case. In the unique circumstances of this case, which was also a case of road rage, coupled by the offender experiencing a drug-induced psychotic episode, the Crown asked for a suspended sentence for three years, while the defence asked for a 12-month conditional discharge. The trial judge imposed a conditional discharge for three years, with terms including counselling and abstinence from marijuana. This outcome prevented the offender, who was a lawyer, from having a record, which would have likely affected his practice of law, and allowed him an opportunity to learn about his mental illness.

Case Law - Impact of the Offender’s Medical Condition

68Ms. Hentz provided two cases that are of assistance as to how Mr. Rusha’s medical condition, and need for surgery, should be considered on sentencing:

R. v. Aquino, [2002] O.J. No. 3631 (Ont. C.A.)

69In this case the offender was seriously disabled and required special care and rehabilitative therapy. The Crown appealed from a sentence of 18 months' imprisonment which the offender conceded fell below the acceptable range. Given the serious stroke suffered by the offender after the imposition of the sentence, and the extremely serious circumstances underlying the offence [not specified], the Court of Appeal imposed a sentence of four years. The Court of Appeal noted at para. 2, that the correctional authorities were obliged to provide the offender with proper medical care and stated that the offender should be assessed immediately, including rehabilitative treatment which the evidence indicated he required and that appropriate steps should be taken to provide the proper medical care.

R. v. H.S. [2014] ONCA 323

70This was a case of sexual assault. The sentencing judge imposed a conditional sentence of two years less a day to be served in the community with terms that amounted to strict house arrest, as well as probation and 360 hours of community service. The Crown appealed. Epstein J.A. speaking for the court held that the sentencing judge had made a number of errors including treating the offender's health problems as a mitigating factor on sentencing. She followed Aquino, supra, and other authorities from the Court of Appeal and held that no reduction in an otherwise fit sentence is warranted where it has not been proven that the offender's medical conditions could not be properly treated while he is incarcerated: paras. 37-38.

71I conclude from these authorities from the Court of Appeal that the onus is on the defence to prove that Mr. Rusha’s medical condition cannot be properly treated if he is incarcerated.

Principles of Sentencing

72The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to ensure respect for the law and the maintenance of a just, peaceful and safe society. The imposition of just sanctions requires me to consider the sentencing objectives referred to in that section, which the sentence I impose should attempt to achieve. These are denunciation, deterrence; both specific and general, separation of offenders from society when necessary, rehabilitation, reparation for harm done and the promotion of a sense of responsibility in offenders and acknowledgment of the harm which criminal activity brings to our community. In addition, in imposing sentence I must take into account the principle of proportionality and the applicable aggravating and mitigating circumstances relating to the offences as set out in s. 718.2, including the principle of restraint.

Analysis

Positions of Counsel

73With respect to the Crown’s cases, Mr. Barrs submitted that they all involve premeditation and or stabbing in the chest where one could expect death. As can be seen from my summary of the cases that I did find of assistance, that it is true that the cases of Ryan, Haly, and Stephens, supra involved stabbing in the back which I accept is more serious. Although I accept this is a distinguishing feature, I do not accept that there was no premeditation in this case. Mr. Rusha had plenty of time to think about what he was going to do. He was in his apartment and decided to arm himself with a kitchen paring knife and he ran down the stairs, out of his apartment building and approached the complainants while they were seated in a stationary vehicle. I found that he did not act in defence of his mother. Mr. Rusha’s intention to stab at least Mr. Harris with a knife was clear. I accept that by stabbing Messrs. Okurlu and Harris in the top of the leg, Mr. Rusha did not intend to kill and that he could not anticipate that he would hit an artery in Mr. Okurlu’s leg, but the fact remains that he did and that at the very least he intended to inflict a serious injury. The damage to Mr. Okurlu physically and emotionally is permanent and severe.

74Ms. Hentz submitted that the PSR was neutral and the only thing that could be said is that Mr. Rusha has a positive family support system. I agree. Mr. Barrs advised that Mr. Rusha’s girlfriend who testified on his behalf at the trial was his first girlfriend. His second girlfriend was in court at the time of the sentencing submissions, and she is supportive. He described Mr. Rusha’s parents as “salt of the earth people” and stated that these convictions had been difficult for them. I accept that Mr. Rusha has strong family support.

75Mr. Barrs also relied heavily on the fact that if this incident had occurred only a day earlier Mr. Rusha would have dealt with it in Youth Court. Mr. Barrs submitted that these convictions were totally out of character for Mr. Rusha, and although I have little evidence about Mr. Rusha’s personality, the fact is that he is a first-time offender and there is no history of his use of violence at school or otherwise. He submitted that Mr. Rusha does not need specific deterrence.

76As Ms. Hentz noted, much of the PSR deals with Mr. Rusha’s physical problems resulting from his being stabbed in the abdomen in an unrelated incident. This does not reduce his moral culpability for the offences before this Court.

77Mr. Barrs made somewhat inconsistent submissions because, on the one hand, he submitted that Mr. Rusha thought that the three young men were acting in concert and on the other hand, he agrees with my finding that Mr. Rusha did not intend to stab Mr. Okurlu and there is no suggestion that he tried to stab Era Nustafa. Mr. Barrs made much of the fact that Mr. Rusha was assaulted a number of times in the period of time leading up to the stabbings. I accept that the fact the stabbing was provoked by Mr. Harris’ assault on Mr. Rusha is a mitigating factor, but as I have said Mr. Rusha’s decision to use a weapon – a knife was premeditated. Furthermore Mr. Rusha should not have acted out of revenge. He had many other alternatives for dealing with Mr. Harris’ conduct, including simply calling the police.

78Although all of the assaults were committed by Mr. Harris, Mr. Barrs argued that Mr. Okurlu and Mr. Nustafa were parties “at law”. He submitted that this was “extreme provocation”, that the whole time Mr. Rusha was in fear for himself and his mother who was in front of the car and that Mr. Rusha just intended to “freeze him in that spot” and that after the stabbing he was then running for his life because he figured Mr. Okurlu would go after him and he expected retaliation. He also argued that the fact that Mr. Rusha did not intend to stab Mr. Okurlu is relevant. It was Mr. Barrs position that this was a “borderline” case of self defence.

79This is not the time to reargue my conclusions in convicting Mr. Rusha. However, this was not a borderline case for the Crown. I found that the Crown had proven beyond a reasonable doubt that all three possible elements to justify a defence of self defence did not apply; namely that Mr. Rusha did not believe, on reasonable grounds, that force was being used or threatened against his mother at the time he decided to stab Messrs. Okurlu and Harris, that the Crown had proven that Mr. Rusha did not stab them for the purpose of defending or protecting his mother and that his reason for stabbing Mr. Harris at least was for revenge and that stabbing them was not reasonable. The fact that he may not have intended to stab Mr. Okurlu is of no moment as his decision to stab the person in the front seat was deliberate as was his decision to stab Mr. Harris in the back seat.

80In the same vein, Mr. Barrs argued that this was not a case where Mr. Rusha hunted someone down and it was Mr. Rusha who was in fact being ambushed. It is his position that Mr. Rusha was the completely innocent victim that night of a series of assaults. He took issue with the suggestion that Mr. Rusha was a vigilante. It is unfortunate that Mr. Barrs takes this position because Mr. Rusha also portrayed himself as the victim when he discussed his offences before this Court with the probation officer. Although he is entitled to maintain his innocence, he continues to rationalize and minimize his behaviour. The fact Mr. Rusha still sees himself as the victim and has little insight in his offending behaviour. This does not bode well in terms of specific deterrence.

Mitigating Circumstances

81I turn now to the mitigating circumstances relevant to sentence:

(a) As Ms. Hentz conceded, Mr. Rusha is a youthful, first-time offender. He was barely 18 years old at the time of the offence. He was not intoxicated at the time of the offence.

(b) I find that it is also mitigating that Mr. Harris provoked Mr. Rusha by inflicting several beatings over the course of the night. However, I found that Mr. Harris had only used his fists. Furthermore, time had passed, and Mr. Rusha had other options than to stab Messrs. Okurlu and Harris.

(c) As I have already stated, Mr. Rusha has a positive family support system and this is a mitigating factor, although I must say that based on the evidence his mother gave at the trial, I believe that she too thinks of her son as a victim.

(d) Mr. Rusha maintains his innocence which he has a right to do. This is a neutral factor although it means that he does not get any reduction in sentence for a guilty plea.

(e) Mr. Rusha has minimized and rationalized his behaviour and characterized himself as the victim. That is how he impressed the probation officer and is consistent with what Mr. Barrs submitted on sentencing. Mr. Barrs also submitted that Mr. Rusha is very remorseful for what he has learned about what Mr. Okurlu has suffered. When Mr. Rusha addressed this Court, he did say he is “truly sorry” for what had happened and sorry for everyone who got hurt, including the families. I have concerns however as to whether or not this was sincere given Mr. Rusha still sees himself as the victim. In any event, I accept that this too is a neutral factor although it is relevant to whether or not I can be satisfied that Mr. Rusha would not engage in this type of behaviour again. I appreciate that there is no drug or alcohol addiction but there may still be a need for further anger management counselling. In my view, in all of these circumstances, there is still a need for specific deterrence.

Aggravating Factors

82I find that the following circumstances are aggravating:

(a) Two individuals were stabbed and Mr. Okurlu in particular has suffered serious and permanent injuries; both physical and emotional. Although that may not have been intended and I accept that Mr. Rusha did not intend to kill, he should have appreciated that serious consequences could result from the stabbing. Mr. Rusha’s stabbing of Mr. Okurlu could have had far more catastrophic consequences and cost him his life. I intend to follow Dunn, supra and consider the serious consequences suffered, particularly by Mr. Okurlu as an aggravating factor on sentence.

(b) In line with Dunn, supra as well, Mr. Rusha acted callously in leaving Mr. Okurlu bleeding profusely without calling 9-1-1 or taking any other steps to assist in obtaining medical attention.

(c) The stabbing was premeditated. Mr. Rusha armed himself with a weapon, namely a knife that he got from the kitchen. Mr. Rusha did not have the knife in his possession for a lawful purpose.

(d) Although Mr. Rusha did not intend to stab Mr. Okurlu, he did intend to stab Mr. Harris. Mr. Rusha had a vigilante attitude, acted in revenge and used street justice to correct a perceived wrong.

(e) Although I found that Mr. Rusha did not intend to stab Mr. Okurlu, his doing so was entirely unprovoked as Mr. Okurlu had acted as a peacekeeper the entire night.

(f) There was an ambush element to the offences because Mr. Rusha ran up to the car and stabbed the two Complainants without notice.

(g) Mr. Okurlu was unable to defend himself and was never armed with a knife.

What is the impact of Mr. Rusha’s need for surgery?

83Mr. Barrs submitted that Mr. Rusha and his family have a lot of confidence in Dr. De Rezende-Neto. At the October 4, 2019 attendance, Mr. Barrs’ advised that he did not have any confidence in the affidavit of Ms. Miller, and he challenged the information provided to Ms. Hentz by Ms. Denny. However, Mr. Barrs at no time filed any evidence challenging the information obtained by Ms. Hentz.

84I conclude, from the authorities from the Court of Appeal of Aquino and H.S., supra, that the onus is on the defence to prove that Mr. Rusha’s medical condition cannot be properly treated if he is incarcerated. Mr. Barrs did not provide any evidence to support this proposition. At my request, Ms. Hentz did obtain evidence for my consideration. I have set out that evidence and, in my view, in addition to the fact that as a matter of law the correctional authorities are obliged to provide Mr. Rusha with proper medical care, the evidence provided by Ms. Hentz establishes that that Mr. Rusha’s medical condition will be properly treated while he is incarcerated. Accordingly, in light of H.S. supra, at paras. 37-38, I must not consider Mr. Rusha’s medical condition as a reason to reduce an otherwise fit sentence.

What is an Appropriate Sentence in this Case?

85I turn then to what is an appropriate sentence in this case. The Court of Appeal for Ontario in R. v. Priest, 1996 1381 (ON CA), [1996] O.J. No. 3369 was a case of a young first offender and stated at para. 17 that: “[t]he primary objectives in sentencing a first offender are individual deterrence and rehabilitation. Except for very serious offences and offences involving violence, this court has held that these objectives are not only paramount but best achieved by either a suspended sentence and probation or a very short term of imprisonment followed by a term of probation”. The court went on to say at para. 23, that: “…it is a well-established principle of sentencing laid down by this court that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence”. [emphasis added].

86In R. v. Borde, 2003 4187 (ON CA), [2006] 168 O.A.C. 317 (Ont. C.A.) the court at para. 36 stated:

Aside from the gravity of the appellant's crimes, the overwhelming factor is his youth… the trial judge erred in principle in focusing almost exclusively on the objectives of denunciation and general deterrence, given the appellant's age and that this was his first adult prison sentence and his first penitentiary sentence. The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence. [emphasis added]

87Although, as I have said, sentencing is a very individualized process depending in each case on the particular facts of the offences, the circumstances of the offender and the impact on the complainants, it is helpful to consider what the appropriate range of sentence is in this case. Having regard to the decision of Code J. in Tourville, supra. I find that this case falls somewhere between the mid-range cases and the high end of the range. Mr. Rusha is a young first offender, but these were serious crimes of violence and the harm to Mr. Okurlu is severe. His life will never be the same. At the time of the stabbings there was no aspect of a consensual fight. These were premeditated assaults and Mr. Rusha acted out of a need for revenge. The assaults were not unprovoked in the sense that he had been beaten several times by Mr. Harris, but I found that Mr. Rusha was not acting in self-defence. On this basis, the appropriate range of sentence for the offence committed against Mr. Okurlu would be in the range of two to four years, although I appreciate that this range is only a guide.

88In light of Priest and Borde, and the fact that these were serious crimes of violence I conclude that although the paramount objectives in my sentencing Mr. Rusha are specific deterrence and rehabilitation, general deterrence is also important. We hear too often of young people resorting to knives to settle a dispute. They must know that this is not the answer and that the cost of doing so can be extremely high to everyone involved.

89In my view, the sentence that Ms. Hentz requests is too high. The position taken by Mr. Barrs with respect to Mr. Okurlu, is too low and does not reflect the seriousness of the offences.

90Having carefully considered the authorities provided to me by counsel and all of the mitigating and aggravating factors that I have set out, I find that a fit sentence for the aggravated assault of Mr. Okurlu (Count 2) is two-and one-half years. As for the conviction of assault causing bodily harm (Count 4) with respect to Mr. Harris, having regard to the principle of totality, I find that the appropriate sentence is three months. In my view, that sentence should run consecutively, and Mr. Barrs did not suggest otherwise. Mr. Rusha made a separate decision to stab Mr. Harris after stabbing Mr. Okurlu.

91Mr. Rusha was released after two days in custody, which based on a 1:1.5 ratio equates to three days presentence custody. Until recently he was on bail with terms that were not onerous. He had a 9 p.m. curfew for half of the time he was on bail. Those hours were then extended. On January 5, 2020, Mr. Rusha was charged with other offences and his bail was cancelled. He has been in custody since then. Mr. Barrs asked that this time be credited to his sentence on this matter. It is agreed that there should be a further deduction of 25 days (after enhancement) from the sentence that I impose. Accordingly, I find that there should be a total deduction of 28 days from Mr. Rusha’s global sentence.

Final Disposition

92Mr. Rusha, please stand.

93As already stated, my findings of guilt with respect to Counts #1 and #3, the assaults on Taylon Harris and on Kadri Okurlu, using a weapon, namely a knife, contrary to s. 267(a) of the Criminal Code, shall be stayed.

94With respect to your conviction on Count #2 - aggravated assault on Kadri Okurlu, contrary to s. 268(2) of the Criminal Code, I sentence you to two-and one-half years.

95With respect to your conviction on Count #4 - assault on Taylon Harris causing bodily harm, contrary to s. 267(b) of the Criminal Code, I sentence you to three months to run consecutive to your other sentences.

96From your global sentence of 33 months, there shall be a deduction of 28 days for pre-sentence custody.

97In addition, there will be a mandatory weapons prohibition order pursuant to s. 109(1) of the Criminal Code for ten years and an order pursuant to s. 487.051(2) of the Criminal Code authorizing the taking of a DNA sample since aggravated assault is a primary designated offence.

98Finally, I will include a copy of these Reasons, and Dr. De Rezende-Neto’s letter of August 21, 2019 (Exhibit 4) and the Surgery Preparation Form (Exhibit 6), with your remand papers. I understand that you will be sent back to TSDC because you are being held on other charges and there you should be assessed immediately to determine your medical care needs and the arrangements that are necessary so you can have your surgery as currently scheduled.

Spies J.