R. v. Mahmodian, 2021 ONSC 7477

Her Majesty the Queen v. Mehrdad Mahmodian

COURT FILE NO.: CR-21-40000015

DATE: 20211112

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN

– and –

MEHRDAD MAHMODIAN

Rebecca De Filippis for the Crown

Harry Black for the accused

HEARD: November 8, 2021

g. roberts j.:

[1]

Overview

Mehrdad Mahmodian pleaded guilty to assault in relation to his arrest of Qasim Chowdhury on October 17, 2019 around 1 am. Mr. Mahmodian acknowledged kicking Mr. Chowdhury in the torso while Mr. Chowdhury lay face down on the ground with his hands handcuffed behind his back. As part of the facts read in on the guilty plea, Mr. Mahmodian admitted giving a false account of the arrest in his memo book, and a similar false account in a use of force report.

[2]

Positions of the Parties

The Crown took the position that a custodial sentence of 60 days was required given that Mr. Chowdhury was assaulted while in police custody, in a completely vulnerable state, and Mr. Mahmodian lied about the circumstances of the arrest. Defence counsel took the position that a discharge, or, at the highest, a suspended sentence, was appropriate given that the assault was a momentary lapse by an otherwise excellent officer that caused no injury, Mr. Mahmodian pleaded guilty at an early time, and Mr. Mahmodian's otherwise good character and excellent work record.

3After being repeatedly shown surveillance video of the arrest, including frame by frame at points, together with a narration, and hearing detailed submissions from both parties, including Mr. Mahmodian's background, and an extensive review of the relevant case law, the sentencing judge reserved his decision. He ultimately imposed a sentence of 30 days intermittent. He gave extensive reasons which included a scrupulously detailed account of what he saw in the surveillance video that captured the arrest, and how this differed from the false accounts Mr. Mahmodian provided of the arrest.

[4]

The Appeal

Mr. Mahmodian appeals the sentence. At the core of the defence position is an insistence that the admittedly false accounts about the use of a taser during the arrest have nothing to do with the assault which was the subject of the guilty plea. Defence counsel urges that when the assault is properly understood as a single frustrated kick which caused no injury, a custodial sentence carrying the devastating consequence of certain dismissal is simply unprecedented. It is grossly outside the relevant range and manifestly disproportionate to the circumstances of the offence and the offender.

5Consistent with the central theme of the defence position, defence counsel argues that the sentencing judge was wrong to consider the following circumstances as aggravating:

• the use of the taser, as there was no admission, or proof, that Mr. Mahmodian was wrong to deploy it, nor any evidence that it caused "extreme" pain;

• the lies Mr. Mahmodian told about the arrest, as they related to the use of the taser, not the kick;

• the fact that Mr. Mahmodian was in a position of trust, and that the assault had real potential to diminish public respect for the police, as there was no evidence it had any effect on the reputation of the police.

6In addition, defence counsel complains that the sentencing judge failed to adequately consider the collateral consequence of a custodial sentence, namely the certainty that Mr. Mahmodian would lose his job as a police officer. Similarly, he did not adequately consider Mr. Mahmodian's stellar record with the TPS, or as a member of the wider community.

[7]

Standard of Review

It is well-established that a sentencing judge has a broad discretion to craft a sentence that is proportionate to the circumstances of the offence and the offender in light of the relevant range of sentence, and applicable principles of sentence. Sentencing judges are the ones who hear the evidence, and best understand the circumstances and needs of their community. Absent an error in law or principle which affected the ultimate sentence, or a sentence which is so far outside the relevant range as to be manifestly unreasonable, a reviewing court should not intervene: R. v. Lacasse, 2015 SCC 64.

[8]

Analysis

I begin with the central premise of the appeal: was the assault a momentary lapse of judgment which resulted in no injury, or was it part of a larger transaction that included two false reports about what happened? I am satisfied that it was open to the sentencing judge to conclude it was the latter. This conclusion did not involve making factual findings about aggravating circumstances in the absence of proof beyond a reasonable doubt. Nor would it have taken defence counsel by surprise. It was a central issue at the sentencing hearing, if not the central issue. It was the focus of the Crown's reply submissions. Not only do I think it was open to the sentencing judge to consider the transaction as a whole, including the false accounts of the arrest, but I believe he was correct to do so. It would defy the reality of the situation to parse out the kick and consider it in isolation from the context in which it occurred.

9I am satisfied that the sentencing judge did not make any of the errors asserted by the appellant. Beginning with the use of the taser, this was an important part of the context of the assault, quite apart from the question of whether the use of the taser was improper or amounted to a separate offence. As noted, the sentencing judge set out what he saw in the surveillance video entered as an exhibit on the sentencing hearing in scrupulous detail. These are factual findings. Having now watched the surveillance video myself multiple times, I am satisfied that they reflect no palpable and over-riding error and were open to the sentencing judge to make. In particular the sentencing judge noted the following:

• As soon as Mr. Mahmodian commanded Mr. Chowdhury to stop, Mr. Chowdhury laid down, with his stomach flat on the sidewalk and his arms extended above his head.

• Just as Mr. Mahmodian's escort PC Mills reached for Mr. Chowdhury's right arm, Mr. Mahmodian shouted "hands up" and fired his taser at Mr. Chowdhury who responded in pain. Mr. Mahmodian then shouted "Taser. Taser. Taser."

• PC Mills grabbed Mr. Chowdhury's right arm and appeared to have trouble putting the handcuffs on but "Mr. Chowdhury is doing nothing to resist her efforts…or to otherwise resist arrest."

• As both officers are shouting commands at "an apparently confused Mr. Chowdhury", Mr. Mahmodian "applies his taser in drive stun mode directly against Mr. Chowdhury's torso and fires twice; Mr. Chowdhury responds by emitting a series of screams in obvious pain."

• C Mills finally handcuffed Mr. Chowdhury and Mr. Mahmodian walked out of view. PC Mills waits with Mr. Chowdhury, who lies quiet and motionless on his stomach with his hands handcuffed behind his back for the next 45 seconds. When Mr. Mahmodian returns into view he kicks Mr. Chowdhury in the side of the chest as he walks past.

The fact that Mr. Chowdhury had been repeatedly tased exacerbated his vulnerability at the time of the kick. The repeated use of the taser was also relevant to Mr. Mahmodian's circumstances: the kick was entirely gratuitous. In sum, it was open to the sentencing judge to conclude that it was an aggravating circumstance that Mr. Chowdhury was kicked after he had been repeatedly tased.

10The sentencing judge was right to consider the false accounts Mr. Mahmodian gave of the arrest in his memo book notes, and in the use of force report, as a significant aggravating factor. They show that Mr. Mahmodian was dishonest about the arrest as a whole, including failing to note the kick. As Crown counsel notes, police officers have a duty to make accurate and complete notes. The failure to note the kick was a significant omission. In addition, the false accounts potentially aggravated the harm to Mr. Chowdhury by painting him as aggressive and difficult. As the sentencing judge noted, if the false accounts had not been discovered, they would have been part of the information kept by police, and disclosed to the Crown, possibly giving rise to additional charges, and certainly relevant to the Crown position on sentence, and Mr. Chowdhury's ability to respond to the charges. In sum, the false accounts aggravated the seriousness of Mr. Mahmodian's misconduct in relation to the arrest as a whole, and the potential harm to Mr. Chowdhury.

11The sentencing judge was right to consider the fact that Mr. Mahmodian was in a position of trust at the time of the kick, and that his actions had the potential to diminish public respect for police. The kick was delivered while Mr. Chowdhury was lying handcuffed face-down on the ground, having been repeatedly tased after surrendering, and 45 seconds after the handcuffs were secured. It is well-established that police officers are in a position of trust towards those in their custody. As the sentencing judge noted, the Court of Appeal has repeatedly held that when police officers commit assault in this context, custodial sentences will generally be imposed in order to adequately provide for general deterrence and denunciation, and protect the public: R. v. Theriault, 2020 ONSC 6768 at paras.45-56, aff'd 2021 ONCA 517; R. v. Forcillo, 2018 ONCA 402 at paras.133, 198-99; R. v. Byrne, 2009 ONCA 134 at para.14-20; R. v. Preston, [2005] O.J. No.6450 (Prov.Ct), aff'd 2008 ONCA 530. As the trial Crown succinctly put it, the Court of Appeal has been clear that those who commit "gratuitous assaults on prisoners who are vulnerable should be sentenced to jail." The trial Crown added that this case was particularly serious because "here it's not just the kick, it's the deceit."

12The sentencing judge did not err in concluding that the breach of trust was not diminished because the assault occurred in the middle of the night with no one watching. To the contrary, this was a reason to take Mr. Mahmodian's behaviour extremely seriously. How police officers behave when they think no one is looking is an aspect of the trust society places in them. In addition, the assault occurred in front of a junior officer. As the sentencing judge noted "Constable Mills was a young, inexperienced constable who had been teamed up with the experienced, accomplished Mr. Mahmodian. He should have been acting as her role mode; instead, he set a horrible example." In sum, the sentencing judge was entirely correct to consider Mr. Mahmodian's actions to involve a serious breach of trust, capable of diminishing public respect for the police.

13It was an agreed fact that any period of custody would cause Mr. Mahmodian to lose his job. When the reasons are read in context, it is apparent that the sentencing judge appreciated this, and considered it, notwithstanding that at one point he noted Mr. Mahmodian "may" lose his job in the event of a custodial sentence. During submissions, the sentencing judge challenged the Crown submission that this collateral consequence was of diminished significance in so far as it flowed directly from the commission of the offence. The Crown took the sentencing judge to the following portion of para.49 in Suter, 2018 SCC 34: "where the consequence is so directly linked to the nature of an offence as to be almost inevitable, its role as a mitigating factor is greatly diminished." The sentencing judge properly relied on this principle in his reasons, quoting it, while still considering the collateral consequence of job loss. In any event, a collateral consequence, no matter how significant, cannot justify the imposition of an unfit sentence.

14The sentencing judge carefully noted and considered the mitigating circumstances, including Mr. Mahmodian's positive antecedents both in the TPS and in the community. Nonetheless, it was open to him to conclude that a 30-day sentence was required, given the circumstances of the assault, including the false reports about the arrest.

[15]

Conclusion

In sum, there is no error in law or principle that would justify re-considering the sentence. Nor is the sentence so far out of the range as to be manifestly unreasonable. The appeal is dismissed.