BARRIE COURT FILE NO.: CR-19-119-00 DATE: 20230707

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – OMER ARSHI and SALVATORE CARAVELLA Defendants

Counsel: Mary-Anne Alexander, for the Crown Michael Owoh, for the Defendant Omer Arshi Karen Symes, for the Defendant Salvatore Caravella

HEARD: January 30-31; Februrary 1-3, 6-10, 13-14; June 1, 2023

REASONS FOR SENTENCE

Dawe J.

I. Overview

1Omer Arshi and Salvatore (Sam) Caravella were tried before me, sitting with a jury. They were jointly charged with committing an aggravated assault on Jordan McAllister (Count 1), and Mr. Caravella was also charged separately with assaulting Dalton Murphy (Count 2).

2Both charges arose out of a fight on New Year’s Eve of 2017-18 at a bar called Escrow Restolounge, which Mr. Arshi owned at the time, and where Mr. Caravella was working as a DJ. Mr. McAllister and Mr. Murphy were part of a group that got into an argument with Mr. Arshi over their unpaid bar tab, and the dispute became violent.

3On February 14, 2023 the jury delivered its verdicts. On Count 1, the aggravated assault charge relating to Mr. McAllister, the jury found Mr. Arshi guilty as charged and Mr. Caravella not guilty. On Count 2, the assault charge relating to Mr. Murphy, the jury found Mr. Caravella guilty.

4I must now determine fit sentences for both defendants.

II. General principles

5Sentences “must be proportionate to the gravity of the offence and the degree of responsibility of the offender” (Criminal Code, R.S.C., 1985, c. C-46, s. 718.1), and must reflect the purposes and principles of sentencing as codified in Part XXIII of the Criminal Code and as established by the sentencing case law.

6To determine fit sentences for Mr. Arshi and Mr. Caravella, I must identify the range of appropriate sentences for the offence each was found to have committed, having regard to the applicable statutory provisions and jurisprudence. I must then situate the offenders’ sentences within the applicable ranges by considering both their own particular circumstances and the specific circumstances of their offences. In so doing I must balance the mitigating factors in their cases against the aggravating factors that have been established beyond a reasonable doubt.

7Assessing the gravity of Mr. Arshi and Mr. Caravella’s offences requires me to make findings of fact about what each was proved at trial to have done. In making these findings, I am bound by the express and implied factual implications of the jury’s verdicts: see R. v. Brown, [1991] 2 SCR 518, at p. 523; Criminal Code, s. 742(2)(a). However, on issues where the jury’s verdicts do not necessarily imply that all of the jurors must have made a specific finding of fact, I must draw my own factual conclusions by applying the criminal standard of proof beyond a reasonable doubt to my own assessment of the evidence. My factual findings cannot be inconsistent with the jury’s verdicts, but otherwise I “should not attempt to follow the logical process of the jury, but should come to [my] own independent determination of the relevant facts”: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 18.

8Since Mr. Arshi and Mr. Caravella have been found guilty of committing separate assaults on different victims, I will approach the task of crafting fit sentences for each of them separately.

III. Omer Arshi

9I will begin by determining what would be a fit sentence for Mr. Arshi on Count 1. As a first step in my analysis, I must determine what factual findings are necessarily implied by the jury’s verdict on this count.

A. Findings of fact

10For the jury to properly find Mr. Arshi guilty of committing an aggravated assault on Mr. McAllister, the jurors must have all found beyond a reasonable doubt:

a) That Mr. Arshi intentionally applied force to Mr. McAllister;

b) That Mr. McAllister did not consent to Mr. Arshi’s application of force;

c) That Mr. Arshi’s application of force to Mr. McAllister was unlawful because he was not acting in lawful self defence; and

d) That Mr. Arshi was legally responsible for at least some of Mr. McAllister’s injuries that amounted to “wounding or maiming”.

11Security video recordings from inside Escrow Restolounge that were put in evidence at trial show a man who is identifiable as Mr. Arshi standing on the edge of a crowd of people. He can then be seen throwing an overhand punch with his right hand, which connects with someone in the crowd, causing this person to fall back. The recording from a different camera above the bar shows even more clearly that Mr. Arshi’s punch struck this other person in the head. However, neither recording is clear enough to allow the person who was hit to be visually identified.

12Approximately thirty seconds later, after the crowd in the area clears, a man who other witnesses identified as Mr. McAllister can be seen on the video lying unconscious on the floor a short distance away. I am satisfied that the jury must have concluded beyond a reasonable doubt that Mr. McAllister was the person who Mr. Arshi punched in the head, and that his punch knocked Mr. McAllister unconscious. I am further satisfied that the jury must have found that at least some of Mr. McAllister’s serious head injuries were caused either by the punch itself, or by his hitting his head on the floor when he fell down unconscious. I would add I would have reached these same findings of fact myself even if I were not bound by the findings that are necessarily implied by the jury’s verdict.

13The jury must also have found that Mr. McAllister did not give legally effective consent to Mr. Arshi’s punch. However, there were two alternative routes by which the jurors could have reached this conclusion: some jurors may have found that Mr. McAllister did not consent to being hit at all, while other jurors may have found that his consent was vitiated by Mr. Arshi’s intention to cause him non-trivial bodily harm: see R. v. Jobidon at p. 766. Since I cannot determine which route the jurors took, and since different jurors could have taken different routes, I must make my own findings of fact on this issue.

14On the evidence before me, I cannot rule out beyond a reasonable doubt the possibility that Mr. McAllister said or did something that indicated that he was consenting to a fist fight. However, the videos show that Mr. Arshi punched Mr. McAllister in the head with considerable force, and I am satisfied beyond a reasonable doubt that he must have subjectively intended to cause Mr. McAllister bodily harm that was neither transient nor trifling, thereby vitiating any ostensible consent that Mr. McAllister might have given to being punched.

15Finally, the jury’s verdict necessarily implies that the jurors were all satisfied beyond a reasonable doubt that Mr. Arshi did not punch Mr. McAllister in lawful self defence. However, there are also multiple routes different jurors could have taken to reach this this conclusion. For example, some jurors may have found that Mr. Arshi did not have a defensive purpose. Other jurors might have been left with a reasonable doubt about whether he did have a defensive purpose, but found that his actions were not reasonable in the circumstances. Since I cannot conclusively determine how the jury approached these issues, I must draw my own factual conclusions.

16The evidence that Mr. Arshi was acting for a defensive purpose came primarily from Tessa Reck, who testified that she saw a man wearing a camouflage shirt push Mr. Arshi, who then pushed the man back. According to Ms. Reck, the other man then punched Mr. Arshi, at which point she looked away so she did not see what, if anything, Mr. Arshi did in response. Nevertheless, if Ms. Reck’s evidence about what she saw were accepted, it would be a reasonable inference that the punch that Mr. Arshi can be seen throwing on the video recordings was a reaction to his having been punched himself.

17However, Ms. Reck’s evidence had some significant problems. First, when she testified at the preliminary inquiry she gave a completely different account, stating that she did not see anyone hit or push Mr. Arshi. Second, Ms. Reck’s evidence as a whole was badly undermined by the video recordings.

18Most notably, Ms. Reck gave a very detailed account of seeing Mr. Caravella running past her and stomping on Mr. McAllister’s head after he fell unconscious to the floor, explaining how she had tried unsuccessfully to move to block him as he ran past her. The videos conclusively showed that when the fight started Mr. Caravella had been on the other side of the crowd, standing beside Mr. Arshi, and that he did not run past Ms. Reck from the direction of the dance floor as she claimed, or indeed run past her at all. Her account of how she moved to try to block him was either a concoction or a confabulation. The jurors evidently did not accept Ms. Reck’s evidence as far as Mr. Caravella was concerned, since they acquitted him on Count 1.

19I am mindful that since the police only seized security video footage that starts a few seconds before Mr. Arshi punched Mr. McAllister, the video evidence that was adduced at trial does not directly contradict Ms. Reck’s trial testimony about Mr. Arshi’s altercation with the man in a camouflage shirt. However, I am satisfied from my own review of the video that this possibility can safely be dismissed.

20The video recording from the VIP area of the lounge starts just before Mr. Arshi can be seen throwing his punch. When the recording starts, he is standing in a stationary position on the edge of a crowd of people, and he remains stationary until he suddenly lunges forward and punches into the crowd. I am satisfied that if Mr. Arshi had been pushed or punched by someone just before the recording starts, he would have already been in motion when the recording begins. It is also worth noting that the recording does not show anyone wearing a camouflage shirt in Mr. Arshi’s vicinity, although I acknowledge that the quality of the recording is poor and that it does not entirely rule out the possibility that there was such a man somewhere in the crowd.

21Based on my own review and assessment of the evidence, I find Ms. Reck to have been a thoroughly unreliable witness whose evidence I entirely reject on all points where it is not confirmed by the video recordings. I am satisfied beyond a reasonable doubt that when Mr. Arshi punched into the crowd he was not reacting to any physical force that had been applied to him before the recording starts.

22That said, I am not satisfied beyond a reasonable doubt that Mr. Arshi’s punch was entirely unprovoked. It is clear from all of the evidence that Mr. Arshi was engaged in a heated argument with Mr. McAllister’s group about their unpaid bar bill. As I have already discussed, it is necessarily implied by the jurors’ verdict on Count 1 that they found that Mr. McAllister was the person in the group who Mr. Arshi punched. While there is no reliable direct evidence of exactly what was said during the argument, or what role Mr. McAllister played in the dispute, I think it is at least reasonably possible that someone in the group, whether it was Mr. McAllister or someone else, said something that caused Mr. Arshi to react as he did.

23Finally, it is necessarily implied by the jury’s verdict that Mr. Arshi was guilty of aggravated assault that the jurors were all satisfied that Mr. Arshi was legally responsible for at least some of Mr. McAllister’s injuries that amounted to wounding or maiming. The jurors could have been satisfied about this on either of the two alternative legal bases that I left with them, namely: (i) on the grounds that Mr. Arshi’s punch was a significant contributing cause of these injuries, or (ii) on the alternative basis that Mr. Arshi was liable as a co-principal for the infliction of these injuries on Mr. McAllister by someone else.

24Since the jurors found Mr. Caravella not guilty on Count 1, they were plainly not satisfied beyond a reasonable doubt that Mr. Caravella and Mr. Arshi assaulted Mr. McAllister as co-principals. I entirely agree with this conclusion, which is binding on me in any event.

25However, this does not entirely rule out the possibility that the jury found Mr. Arshi guilty on the basis of co-principal liability, since the jurors were instructed that he could potentially be found liable as a co-principal if Mr. McAllister had been assaulted by someone other than Mr. Caravella after he was knocked to the floor. In this regard, there was some evidence apart from Ms. Reck’s testimony supporting the possibility that there was a second assailant, since Justin Brain testified that he saw someone’s feet kicking Mr. McAllister in the head as he was lying on the floor, although he could not identify the person who did this.

26Since the jury’s verdict does not clearly indicate which route the jurors took to attach liability to Mr. Arshi for Mr. McAllister’s injuries, and since it is conceivable that different jurors took different paths, I must reach my own conclusions.

27I am satisfied from the evidence as a whole that Mr. Arshi directly caused most, if not all, of Mr. McAllister’s more serious injuries, both directly from the force of his punch, and indirectly, as a result of his punch knocking Mr. McAllister unconscious, causing him to fall down and hit his head on the floor. I am further satisfied that if Mr. McAllister was then kicked in the head by someone else, any injuries that he sustained as a result of the kicks were comparatively insignificant.

28I draw this latter conclusion from the medical evidence. Mr. McAllister had an x-shaped laceration on the right side of his forehead, and three broken bones on the right side of his skull. He also had a small brain bleed on the right side of his head, and a contusion on the left side of his brain which Dr. Armstrong, the emergency room doctor who treated him, described as a “contra-coup” injury that was probably caused by a blunt force impact to the right side of his head.

29All of the evidence, including the video recordings, show that Mr. McAllister wound up lying on the floor on his right side. I am satisfied beyond a reasonable doubt that all of the major injuries that were described by Dr. Armstrong were caused either by Mr. Arshi’s initial punch, or by the impact of the right side of Mr. McAllister’s head hitting the floor when he fell down unconscious. If someone then did kick the left side of Mr. McAllister’s head while he lay on the floor on his right side, I find that any such kicks only caused relatively minor additional injuries.

30In any event, I am also satisfied that Mr. Arshi’s initial punch can be viewed as a significant contributing cause of any injuries that Mr. McAllister then suffered as a result of being kicked while he lay unconscious on the floor. If there was a kicker, he or she acted within seconds of Mr. Arshi’s punch, and was able to kick Mr. McAllister in the head only because he was unconscious on the floor. Any such kicks were accordingly closely connected in time, place, circumstance, nature and effect to Mr. Arshi’s punch, and were administered at a time when the effects of Mr. Arshi’s punch were still subsisting and not spent.

31In these circumstances, I find that Mr. Arshi is legally responsible for all of Mr. McAllister’s physical injuries, regardless of exactly how they were inflicted. That said, I am also satisfied beyond a reasonable doubt that Mr. McAllister’s most serious injuries were directly caused by Mr. Arshi’s punch and the force of Mr. McAllister’s head then hitting the floor when he fell down unconscious.

B. The circumstances of the offender

32Omer Arshi is now 39 years old. He was 33 years old on New Years’ Day of 2018, when he punched Mr. McAllister in the head.

33I have been provided with a pre-sentence report that recounts Mr. Arshi’s life and work history. He grew up in Barrie, and seems to have had an unexceptional childhood. His father died many years ago and he is now estranged from his two older brothers, but he maintains a close relationship with his mother. However, Mr. Arshi told the author of the pre-sentence report that he did not want to involve his mother, and as a result she was not interviewed. Mr. Arshi is married but is separated from his wife, and has no children.

34Mr. Arshi completed high school but dropped out of university. He then had a series of jobs at different car dealerships, and he also invested in real estate, buying, renovating and selling residential properties. When he was in his late 20s he sold his real estate holdings and put his money into buying Escrow Restolounge, which he owned and operated from 2015 until February 2018.

35In around 2017 Mr. Arshi also founded a construction company that he described to the author of the PSR as a successful business which now has several employees.

36The PSR’s author described Mr. Arshi “as polite and respectful but somewhat guarded with the information he provided during the interview”. He told her that he “has few close personal relationships”. The only other person the PSR author spoke to was a friend who has known Mr. Arshi for five years, who described him as “a kind-hearted, generous person with whom he can rely on for help whenever it’s needed”.

37In his trial testimony, Mr. Caravella also described Mr. Arshi in glowing terms. In 2017 he had been working full-time for Mr. Arshi’s construction company as well as working on weekends as the DJ at Mr. Arshi’s nightclub. Mr. Caravella characterized Mr. Arshi as his “saviour”, explaining that he had struggled with depression for much of his life, and that Mr. Arshi “took [him] out of a very dark place” by giving him a job.

C. Positions of the parties

38For the Crown, Ms. Alexander submits that a fit sentence for Mr. Arshi would be a penitentiary sentence in the range of 2½ to 3 years.

39For the defence, Mr. Owoh submits that Mr. Arshi should receive a twelve-month conditional sentence.

D. The sentencing range for aggravated assault

40The offence of aggravated assault in s. 268 of the Criminal Code carries a maximum sentence of 14 years imprisonment, and has no minimum sentence.

41The seriousness of a particular instance of this offence, and the degree of moral blameworthiness of a particular offender, can both be measured along multiple different axes. How and why the assault was committed, and its impact on the victim, will generally both be important factors. However, the extent of the victim’s injuries will not always strongly correlate with the offender’s level of moral fault. While in some cases the offender will have meant to cause serious harm to the victim, in other cases the gravity of the victim’s injuries will be at least partly due to chance, and may not have been intended by the offender, or even readily foreseeable by him or her.

42Both parties relied on R. v. Tourville, 2011 ONSC 1677, where my colleague Code J. identified three broad ranges of sentence in aggravated assault cases. He explained at paras. 27-30:

At the bottom end is an exceptional case like R. v. Peters (2010), 2010 ONCA 30, 250 C.C.C. (3d) 277 (Ont. C.A.) where an Aboriginal offender received a suspended sentence and three years probation on her guilty plea to aggravated assault.

In the mid-range are cases where high reformatory sentences have been imposed of between eighteen months and two years less a day. These cases generally involve first offenders and generally contain some elements suggestive of consent fights but where the accused has resorted to excessive force.

At the high end of the range are cases where four to six years imprisonment have been imposed. These cases generally involve recidivists, with serious prior criminal records, or they involve “unprovoked” or “premeditated” assaults with no suggestion of any elements of consent or self-defence.

43The Crown referred me to several other sentencing decisions that, like the case at bar, also involved “one punch” assaults where the victim suffered serious injury, or in two of these cases, died.

44For various reasons, I find that none of these cases serves as an especially close comparator to the case at bar. Two of these cases, R. v. Braune, 2006 ONCJ 50 and R. v. Isenor, 2007 NSPC 70, were ones where the victims died, so the defendants were being sentenced for the more serious offence of manslaughter, which carries a maximum sentence of life imprisonment. Moreover, in Braune and in two of the other cases relied on by the Crown, R. v. Brethour, 2013 ONSC 1167, and R. v. Brouillard and Taing, 2014 CarswellOnt 15547, the assaults were found to have been entirely unprovoked. This is one of the aggravating factors that Code J. identified in Tourville as justifying a sentence at the higher end of the range.

45The cases relied on by Mr. Owoh, for the defence, are in my view even less directly comparable on their facts. [1] Most involved assaults with knives, or in one case with a sword. This made them more serious when viewed along one particular axis of measurement. At the same time, these cases also all presented mitigating factors that arguably reduced their overall level of gravity below the level of seriousness of Mr. Arshi’s offence.

46Sentencing is a highly individualized process, and the offence of aggravated assault can be committed in a wide range of different circumstances, so it is unsurprising that the cases to which the parties referred me are not directly comparable on their particular facts. As with all sentencing decisions, I must try to arrive at a fit sentence for Mr. Arshi that properly balances all of the competing sentencing objectives, accords with the applicable sentencing principles, and adequately takes into account all of the relevant factors in his particular case.

47As I have already noted, the fundamental principle of sentencing enshrined in s. 718.1 of the Criminal Code is that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. The “gravity of the offence” can be measured in multiple different ways, some of which focus on Mr. Arshi’s degree of fault and personal moral blameworthiness, and others that focus on the consequences of his actions for his victim, Mr. McAllister.

48One way to measure the moral blameworthiness of Mr. Arshi’s conduct is to focus on his physical acts. He punched Mr. McAllister only one time, but hit him in the head with a hard punch that evidently had enough force to knock Mr. McAllister unconscious. This was an inherently dangerous act: it was objectively foreseeable that Mr. McAllister would probably suffer at least some injury, and that he could possibly be hurt very badly, particularly if he fell down and hit his head, as he then did.

49At the same time, this is not a case where the amount of force Mr. Arshi used was so extreme that it was highly likely that Mr. McAllister would be badly hurt. The gravity of Mr. Arshi’s conduct would have been even worse if he had assaulted Mr. McAllister with a deadly weapon, or if he had continued to assault him after he was lying unconscious on the floor.

50A second axis on which Mr. Arshi’s moral blameworthiness can be measured looks to the circumstances in which he punched Mr. McAllister. Mr. Arshi, who owned the bar where the assault took place, was involved in a heated altercation with a group of inebriated patrons who were refusing to pay their bar tab. His victim, Mr. McAllister, was part of this group. While I do not find that Mr. Arshi either started the argument or initiated the confrontation, he was responsible for turning it from a verbal argument into a physical fight. As I have already discussed, the jury was evidently satisfied beyond a reasonable doubt that Mr. Arshi was not acting in lawful self defence when he punched Mr. McAllister, and I am satisfied that this was not a situation where he acted for a defensive purpose but used excessive force. Rather, I find instead that he punched Mr. McAllister in anger, not to defend himself.

51However, I also find that Mr. Arshi acted spontaneously and without any real forethought. As I have already mentioned, I think it is likely that someone in the group, whether Mr. McAllister or one of his friends, said or did something that provoked Mr. Arshi to punch Mr. McAllister. It is also at least reasonably possible that whoever did this meant to start a fight. This does not justify or excuse Mr. Arshi’s subsequent actions. Nevertheless, I find that the context in which Mr. Arshi punched Mr. McAllister puts this case within the Tourville class of aggravated assault cases where there are at least “ some elements suggestive of consent fights but where the accused has resorted to excessive force”, rather than in the more serious class that “involve ‘unprovoked’ or ‘premeditated’ assaults with no suggestion of any elements of consent or self-defence”: Tourville, at paras. 28, 30.

52In summary, while my findings that Mr. Arshi acted in anger and performed an objectively dangerous act when he punched Mr. McAllister in the head with considerable force are both somewhat aggravating, they are only aggravating up to a point. Mr. Arshi’s conduct would have been worse on these particular metrics if he had acted with forethought or premeditation, or if he had hit Mr. McAllister multiple times.

53For instance, in R. v. Brouillard and Taing, one of the cases relied on by the Crown, the two defendants were bar employees who had followed an apparently rowdy bar patron outside after he had been removed from the bar by a bouncer. They proceeded to both gratuitously attack him, even though the patron was no longer doing anything to provoke them. The first defendant punched the victim in the head and knocked him to the ground, and as soon as the victim got to his feet the second defendant punched him in the head again. The combined effect of the two blows caused extremely serious injuries to the victim, who was in a coma for some time, during which he suffered a debilitating stroke. The trial judge noted that “[t]he assaults were not premeditated for any lengthy period of time, but neither [were] they spontaneous” (at para. 23). In contrast, I find as fact that Mr. Arshi’s assault on Mr. McAllister was spontaneous.

54Mr. Arshi’s conduct would also have been even worse on this particular measure if he had vented his anger on an entirely innocent bystander. In Brethour, one of the other cases relied on by the Crown, the accused had randomly attacked a man who he encountered coming out of a gas station convenience store. The trial judge found:

Mr. Brethour was angry about the frustrating events that had happened earlier in the evening and that had spoiled his planned birthday celebrations. Mr. Nazary [the victim] was not involved in any of those prior events; he simply was the person who bore the brunt of that anger. This was an unprovoked assault against a stranger in a public place.

55While I cannot determine on the record before me whether Mr. McAllister personally did or said anything to provoke Mr. Arshi, he was part of the group of friends who were arguing with Mr. Arshi over their unpaid bar tab. As I have already noted, I find Tessa Reck’s evidence to be generally unreliable, and I do not accept her evidence that Mr. McAllister was only standing on the outskirts of this group. Rather, I think that it is necessarily implied by the jury’s conclusion that Mr. McAllister was the person who Mr. Arshi punched that he must have been standing in the middle of the group, within punching distance of Mr. Arshi.

56A third and different measure of Mr. Arshi’s moral blameworthiness looks to his own antecedents and personal history. In this regard, his lack of any prior criminal record, particularly for previous crimes of violence, is significantly mitigating. Although I find that Mr. Arshi acted out of anger on this occasion, there is no evidence that he has any established propensity for violent outbursts. I am satisfied that his conduct in punching Mr. McAllister was out of character for him.

57The moral blameworthiness of Mr. Arshi’s conduct can also be measured in a fourth way, by considering the consequences the assault has had for Mr. McAllister and his family.

58Mr. McAllister’s immediate injuries included a cut to his forehead that required stitches and three broken bones in his skull, along with what appeared to be relatively minor bleeding inside his cranium. He was kept in the hospital overnight for observation to make sure that his condition did not worsen, but when it did not he was discharged the next day.

59Most unfortunately, Mr. McAllister does not seem to have yet made a full recovery. More than five years later, he still has memory problems and other cognitive issues that are still interfering with his day-to-day life and with his ability to work. Mr. McAllister and his mother both filed victim impact statements that discuss his ongoing difficulties, and how the assault has changed their lives. It was apparent to me when Mr. McAllister testified at trial that he has some cognitive deficits, although I have no way to compare how he presents now with how he appeared before the assault.

60However, while it can reasonably be inferred that Mr. McAllister must have suffered some form of brain injury as a result being punched in the head and then hitting his head on the floor, the Crown did not present any evidence about the exact nature of this injury, which seems not to have been identified when he was discharged from the hospital after being observed overnight. Among other things, this prevents me from assessing whether there is any prospect of his condition eventually improving over time. It would be speculative for me to assume, with no evidence, that Mr. McAllister’s current deficits will necessarily be permanent: see, e.g., R. v. Moreira, at p. 11 (Ont. S.C.J.). The assault has nevertheless “had a significant impact” on Mr. McAllister, who is still struggling with its consequences more than five years later. This is a significant aggravating factor: see s. 718.2(iii.1) of the Criminal Code.

61I am also not satisfied that Mr. Arshi meant to injure Mr. McAllister as badly as he did. While it was objectively foreseeable that punching Mr. McAllister in the head might cause him to suffer a serious injury, I do not think that it was foreseeably likely that he would be hurt as badly as he was. Mr. Arshi’s moral culpability would have been even higher if he had used even more extreme force, or if he had assaulted Mr. McAllister with a dangerous weapon, thereby making it highly probable that Mr. McAllister would be seriously injured. Mr. Arshi must still be held responsible for the consequences of his actions, but his offence would have been even worse if he had intended to bring about these consequences, or if they had been the virtually inevitable result of his conduct.

62In contrast, Tourville itself, as well as the other cases that Code J. cited at para. 28 of his judgment as examples of cases that fell into the middle sentencing range, all involved aggravated assaults that were committed with knives. Although even a single blow from a fist can sometimes cause serious or even fatal injuries, the danger to the victim increases significantly when a deadly weapon such as a knife is used to commit an assault.

63A further consideration is that Mr. Arshi’s punching of Mr. McAllister cannot “be characterized as ‘unprovoked’ or ‘premeditated’”, as Code J. used those terms in Tourville, at para. 31. Even though I am satisfied beyond a reasonable doubt that it was Mr. Arshi who threw the first punch, I also find that he acted spontaneously, without subjectively considering or reflecting on the potential consequences of his actions.

64As I have already noted, Mr. Arshi’s status as a first offender is also a significant mitigating factor, as is his positive life and work history. I accept that it was out of character for Mr. Arshi to act out violently as he did on this occasion.

65I am also mindful that unlike the defendants in some of the cases relied on by both parties, Mr. Arshi is not entitled to claim any additional mitigation arising from his having entered a guilty plea, although his exercise of his right to a trial is also not an aggravating factor. Moreover, while Mr. Arshi’s lack of any prior criminal record is a significant mitigating factor, he was in his early 30s when he committed the offence, and thus cannot invoke the special considerations that apply when sentencing “youthful first offenders”: see, e.g., R. v. Priest. However, I agree that rehabilitation remains an important sentencing objective when sentencing any first offender, regardless of his or her age, even if it must be weighed against the objectives of denunciation and general deterrence.

66Balancing all of these considerations, I am not persuaded that the aggravating factors in this case elevate the overall seriousness of Mr. Arshi’s offence to the level where a penitentiary sentence is required, having regard to the mitigating factors that are also present. Rather, I find that his case falls within the middle sentencing range identified by Code J. in Tourville, where the appropriate sentence is a sentence of imprisonment in the mid-to-upper reformatory range.

67I am also satisfied that this is not an exceptional case where a non-custodial disposition is warranted. The assault on Mr. McAllister was serious, and he is still experiencing long-lasting consequences from it more than five years later, even if I cannot conclude on the evidence before me that he has necessarily suffered a permanent brain injury. However, while I accept that these aggravating factors justify a mid-to-upper level reformatory sentence, they are not sufficient on their own to mandate a penitentiary sentence for a first offender like Mr. Arshi, having regard to the principle of restraint and the objective of rehabilitation.

E. Should Mr. Arshi be ordered to serve his sentence in the community as a conditional sentence?

68Once a judge has determined that an offender should receive a reformatory-length sentence, rather than a penitentiary-length sentence or a non-custodial disposition, the possibility of ordering that the sentence be served in the community becomes an option.

69The first question that must then be considered is whether the legislature has eliminated the conditional sentence option for the specific offence at issue.

70For many years Parliament did not permit conditional sentences to be imposed for the offence of aggravated assault: see, e.g., R. v. Peters, 2010 ONCA 30, at para. 4; see also the previous versions of ss. 742.1(c) and (e)(i) of the Code, both now repealed or amended). However, as a result of a series of court decisions and subsequent statutory amendments, a conditional sentence is now an available sentencing option for an expanded range of offences, including aggravated assault: see R. v. Sharma, 2020 ONCA 478, rev’d 2022 SCC 39; R. v. Ali, 2022 ONCA 736, at para. 13; Bill C-5; and s. 11(i) of the Canadian Charter of Rights and Freedoms. See also R v. Beals, 2023 ONSC 555, at para. 122, for a discussion of this somewhat convoluted judicial and legislative history.

71The availability of a conditional sentence thus hinges on the factors in s. 742.1(a) of the Criminal Code, which require a court to consider: (i) whether service of the sentence in the community would endanger the safety of the community; and (ii) whether making a conditional sentence order “would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code”.

72In this case, I have no difficulty concluding that having Mr. Arshi serve his sentence of imprisonment in the community would not endanger community safety. He has no prior criminal record, and no history of reoffending or noncompliance with his bail conditions during the more than five years he has spent awaiting trial.

73The more difficult question is whether imposing a conditional sentence in this case would accord with the fundamental purposes and principles of sentencing that are set out in ss. 718 to 718.2 of the Criminal Code.

74As Zarnett J.A. noted in R. v. Ali, at para. 27, “the level of violence involved in [an] aggravated assault does not automatically exclude an appropriately crafted conditional sentence”. He explained further at para. 27:

Case law establishes that a conditional sentence can provide deterrence and denunciation, and thus may be appropriate for a crime involving violence, such as aggravated assault, even when deterrence and denunciation are paramount considerations. Conditional sentences have been found appropriate in cases when similar, or more extreme, violence has been present compared to what occurred here.

75In Ali, two brothers had attacked the victim at his workplace, a day after the victim had been in a fight with a third brother. However, the trial judge was not satisfied that the attack was planned or premeditated. One of the defendants punched the victim in the head “causing his head to bounce off the concrete floor”, and they both then proceeded to kick him repeatedly in the head. One of the brothers was 28 years old at the time of sentencing and was a first offender, and the other was 35 years old and had a dated prior conviction for impaired driving. The Ontario Court of Appeal substituted 15 month conditional sentences for the sentences of imprisonment that had been imposed on both brothers at trial. Zarnett J.A. cited two other cases, R. v. Johnson, [2005] O.J. No. 1762 and R. v. Nguyen, 2021 ONCJ 512, that he noted had involved “a level of violence similar to or more serious” than in Ali, but where conditional sentences had also been imposed (18 months in Johnson, and 16 months in Nguyen).

76By many measures, the assaults in all of these cases can be seen as graver offences than Mr. Arshi’s single-punch assault on Mr. McAllister. Ali and Nguyen both involved two-on-one attacks in which the defendants continued to kick the victim after he lay defenceless on the ground, while in Johnson the accused, who had an extensive prior criminal record, had attacked two men with a golf club, fracturing the first victim’s skull and knocking him unconscious before stabbing the second victim with the broken club shaft.

77Although these cases all involved a greater level of violence than the case at bar, the victims in these cases fortunately avoided being as badly injured as Mr. McAllister was. While Mr. McAllister’s more severe injuries are one aggravating factor, the gravity of his injuries is only one of several different ways of measuring the seriousness of Mr. Arshi’s offence, as I have already discussed.

78In my view, this single factor cannot overwhelm the analysis. When all of the relevant factors are accounted for, I do not think Mr. Arshi’s offence can properly be viewed as more serious overall than the offences in Ali, Johnson, and Nguyen, such that a conditional sentence is necessarily precluded in this case.

79Moreover, as Zarnett J.A. observed in Ali, at para. 28 (italics in original):

[G]iven that a conditional sentence may be appropriate in a case involving violence, and in which it is necessary for the sentence to address denunciation and deterrence, a sentencing judge should determine whether one is appropriate by considering, and weighing, the ability of a conditional sentence to meet the deterrence and denunciation objectives and other relevant sentencing objectives, including restraint and rehabilitation.

80Zarnett J.A. observed further (at para. 40) that:

[T]he restraint principle requires a sentencing judge to consider all sanctions apart from incarceration, especially for first offenders. It is an error, especially when sentencing a first offender, to focus exclusively on general deterrence and to fail to consider individual deterrence and rehabilitation.

81In R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 102, Lamer C.J.C. explained that conditional sentences can often achieve the sentencing objective of denunciation:

Incarceration will usually provide more denunciation than a conditional sentence, as a conditional sentence is generally a more lenient sentence than a jail term of equivalent duration. That said, a conditional sentence can still provide a significant amount of denunciation. This is particularly so when onerous conditions are imposed and the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances.

82With respect to the objective of deterrence, Lamer C.J.C. recognized that even though incarceration “is ordinarily a harsher sanction, … a conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed and the public is made aware of the severity of these sentences”: Proulx, at para. 107.

83In the case at bar, having concluded that a fit jail sentence for Mr. Arshi would have been somewhere in the mid-to-upper reformatory range, I can increase the deterrent effect and denunciatory impact of a conditional sentence by making it significantly longer than what would have been a fit jail sentence, and also by including a community service term, which can be seen as having both punitive and rehabilitative aspects.

84I am also satisfied that specific deterrence is not an essential sentencing objective in this case, nor do I see any need to separate Mr. Arshi from society to protect the public (s. 718(c) of the Criminal Code). While I agree with the Crown that denunciation and general deterrence are the paramount sentencing objectives in this case, rehabilitation must also be a primary objective when sentencing a first offender like Mr. Arshi: Ali, at para. 40. As Lamer C.J.C. observed in Proulx, at para. 109, “a conditional sentence is generally better suited to achieving the restorative objectives of rehabilitation, reparations, and promotion of a sense of responsibility in the offender.”

85In my view, a conditional sentence order can be crafted for Mr. Arshi that will adequately achieve the primary objectives of denunciation and deterrence while simultaneously advancing the goal of rehabilitation and giving effect to the principle of restraint.

86In Ali, the Ontario Court of Appeal imposed conditional sentences of 15 months on both offenders, while noting that they had already served approximately one month of the jail sentences imposed on them at trial before they had been released on bail pending appeal. In R. v. Cameron, at para. 41, a different panel of the Court of Appeal set aside the 120 day custodial sentence that had been imposed on the defendant at trial and noted that it “would have imposed a conditional sentence of about 6 to 8 months”. However, the defendant in that case had already served an 8 month conditional sentence on a dangerous driving charge arising out of the same incident, and the Court of Appeal concluded that “[n]othing would be gained by imposing a second conditional sentence at this time”, so it suspended the passing of sentence.

87I have also considered the conditional sentences that were imposed in R. v. Johnson (18 months), R. v. Nguyen (16 months), as well as in R. v. Gauthier, 2023 ONSC 2762, where a 12-month sentence was imposed on an offender who punched another man a single time during a recreational soccer game, breaking his right orbital bone and causing a cut that required 18 stitches.

88In my view, Mr. Arshi’s offence and personal circumstances justify a sentence comparable in length to that imposed by the Court of Appeal in Ali.

89As I have already discussed, the assault in Ali can be seen on several different measures as worse than Mr. Arshi’s assault on Mr. McAllister, since it involved a two-on-one attack in which both defendants kicked the victim while he lay defenceless on the floor. The defendants in Ali were similar in age to Mr. Arshi and, like him, “had lived pro-social lives [and] were gainfully employed”. One, like Mr. Arshi, was a first offender, while the other had a dated and unrelated criminal record.

90The only measure on which Mr. Arshi’s single-punch assault of Mr. McAllister can be seen as more serious than the assault in Ali is in its consequences for the victim: while the victim in Ali made essentially a full recovery after a year, Mr. McAllister is still struggling with the impact of his injuries more than five years after the assault.

91While this is an important factor, it is in my view largely offset by the higher level of violence that was used by the defendants in Ali. The fact that the victim in Ali was not hurt as badly as Mr. McAllister is not in my view something for which the defendants in that case can claim any real credit.

92I would also situate Mr. Arshi’s offence as somewhat more serious overall than the assault in Gauthier, which also involved a single punch by a single assailant that fractured a bone in the victim’s skull and caused a significant laceration. The accused in that case was a 40 year old first offender with comparably good antecedents to Mr. Arshi. In my view, the longer-lasting consequences Mr. Arshi’s assault has had for Mr. McAllister justifies a somewhat longer sentence than the 12-month conditional sentence that was imposed in Gauthier.

93Accordingly, I sentence Mr. Arshi to a 15-month conditional sentence, to be followed by a 15-month period of probation.

94The conditional sentence will include the mandatory conditions required by s. 742.3(1) of the Criminal Code. It will also include the following additional conditions under s. 742.3(2) of the Criminal Code:

i) Mr. Arshi will cooperate with his supervisor, sign any releases necessary to permit the supervisor to monitor his compliance, and provide proof of compliance with any condition of this order to his supervisor on request.

ii) House arrest: for the first 12 months of his conditional sentence Mr. Arshi is to remain in his residence at all times except:

(1) for medical or other emergencies involving himself or his mother;

(2) for going directly to and from or being at employment; legal or medical or dental appointments; or performing community service hours. Mr. Arshi will confirm his schedule in advance with his supervisor setting out the times for these activities;

(3) with the prior written approval of his supervisor, which he must carry with him during these times;

(4) for five hours on Saturday, to attend his father’s grave with his mother and acquire the necessities of life;

(5) for carrying out any legal obligations regarding compliance with this Order.

iii) During his home confinement, Mr. Arshi must present himself at his doorway upon the request of his supervisor or a peace officer, for the purpose of verifying his compliance with his home confinement condition.

iv) Mr. Arshi is not to buy, possess or consume any alcohol or drug or substance prohibited by the Controlled Drugs and Substances Act unless with a valid medical prescription.

v) Mr. Arshi is to attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the supervisor and complete them to the satisfaction of the supervisor. He will sign any release of information forms as will enable his supervisor to monitor his attendance and completion of any such programs.

vi) Mr. Arshi will perform 100 hours of community service work on a rate and schedule to be directed by the supervisor, but which must be completed within 15 months of the start date of this order.

vii) Mr. Arshi is not to contact or communicate, directly or indirectly, by physical, electronic, or other means with Jordan McAllister or his parents, except through legal counsel.

viii) Mr. Arshi shall notify his supervisor of any change of employment, and provide proof of any new employment as required by his supervisor.

95After Mr. Arshi has completed the house arrest portion of the conditional sentence, he shall abide by a curfew from 9 p.m. to 5:00 a.m. for the remaining three months, subject to medical emergencies involving himself and his mother.

96After Mr. Arshi has completed the conditional sentence, he will be placed under probation for 15 months. The terms of his probation will be the same as the terms of his conditional sentence order, with the exception of the house arrest and monitoring terms in ii) and iii) above, and the community service term in vi).

97I should note that in Ali, the Ontario Court of Appeal imposed house arrest for the first eight months of the conditional sentences that it imposed on the two offending brothers in place of the reformatory sentences that had been imposed on them at trial. However, the Court of Appeal’s judgment does not expressly state that the house arrest terms contained exceptions allowing the brothers to leave their residences to attend work. I am relaxing the terms of Mr. Arshi’s house arrest to include a work exception, because I think that doing this will promote the sentencing objective of rehabilitation, particularly in view of the evidence that Mr. Arshi owns and operates his own business. For this reason I am extending the period of house arrest for Mr. Arshi to twelve months.

98Since I did not receive full submissions from counsel about these proposed conditional sentence and probationary terms, I will hear submissions from them at the conclusion of this hearing, and vary these terms if I consider it advisable.

F. Ancillary orders

99The Crown also seeks a DNA order and a s. 109 weapons prohibition order for 10 years.

100Aggravated assault is a primary designated offence under s. 487.04 of the Code, and also falls within the offences listed in s. 109(1)(a) of the Criminal Code. Mr. Owoh takes no issue with either of these proposed orders.

101Under s. 737 of the Criminal Code, I must also impose a $200 victim fine surcharge unless I am satisfied that it would either “cause undue hardship to the offender,” or “would be disproportionate to the gravity of the offence or the degree of responsibility of the offender”. I am not satisfied that either of these exceptions apply, particularly since I am imposing conditional sentence terms on Mr. Arshi under which he will be permitted to continue working. Accordingly, Mr. Arshi will pay a $200 victim fine surcharge within 60 days.

IV. Sam Caravella

102I turn now to the determination of a fit sentence for Mr. Caravella.

A. Findings of fact

103The jury acquitted Mr. Caravella of assaulting Mr. McAllister, as charged in Count 1, but found him guilty of assaulting Mr. Murphy, as charged in Count 2.

104It was undisputed at trial that Mr. Caravella used force against Mr. Murphy. Indeed, the VIP room video recording shows him pushing Mr. Murphy to the ground and then stomping twice on his head. However, this video recording shows only how their altercation ended, but not how it started.

105The main disputed questions the jury had to decide in relation to Count 2 were whether, from Mr. Murphy’s perspective, the altercation was a consensual fistfight, and whether Mr. Caravella had been acting in lawful self defence.

106The jury’s verdict necessarily implies that the jurors were all satisfied beyond a reasonable doubt both that Mr. Murphy did not consent to at least some of the force that Mr. Caravella applied to him, and that Mr. Caravella knew that Mr. Murphy was not consenting. The verdict also necessarily implies that the jurors were all satisfied that Mr. Caravella was not acting in lawful self defence.

107However, there are multiple different routes the jurors could have taken to reach both of these conclusions. Mr. Murphy had no memory of the fight, or indeed of anything that had happened for several hours preceding it, which I attribute to his consumption of alcohol that evening rather than to any injuries he sustained during the fight. With no direct evidence from Mr. Murphy about what he did or what he was thinking, the jury had to rely primarily on the video evidence and on Mr. Caravella’s testimony, to the extent that the jurors accepted it.

108In my view, the jury’s verdict does not necessarily imply that the jurors all entirely rejected Mr. Caravella’s evidence that it was Mr. Murphy who started the fight. Rather, some jurors might have found that Mr. Murphy communicated his initial consent to a fistfight by punching Mr. Caravella in the head, as Mr. Caravella maintained, but nevertheless concluded that when Mr. Caravella stomped on Mr. Murphy’s head twice after Mr. Murphy had fallen to the floor, he went beyond the scope of any consent that Mr. Murphy had given, and that Mr. Caravella knew this.

109Likewise, at least some jurors might have rejected Mr. Caravella’s defence of self defence on the basis that when he stomped on Mr. Murphy’s head he was either no longer acting defensively, or that he was using force that was not reasonable in the circumstances, without entirely rejecting Mr. Caravella’s testimony that the fight started because Mr. Murphy attacked him.

110Since I cannot draw conclusive inferences about the jury’s findings on these issues from its verdict on Count 2, I must make my own findings of fact.

111The VIP room video shows that when Mr. Arshi punched Mr. McAllister, Mr. Caravella was standing beside him. It also shows that Mr. Murphy was standing behind Mr. Caravella. After Mr. Arshi throws his punch, Mr. Caravella can be seen going into the crowd and out of view of the camera, and Mr. Murphy then follows him into the crowd and also disappears from view.

112A few seconds later, Mr. Murphy can again be seen in the crowd with his back to the camera. Someone then punches him twice, and Mr. Murphy staggers back and falls down. Mr. Caravella follows him out of the crowd, revealing himself to be the person who has just been punching Mr. Murphy.

113Mr. Murphy can then be seen falling down onto his left side, although it is not clear from the video if Mr. Caravella knocked him down or if he tripped. As Mr. Murphy is falling Mr. Caravella appears to push Mr. Murphy’s head towards the floor with his left hand. He then stomps twice on Mr. Murphy’s head with his right foot. At this point another man, who was identified at trial as Chad Stewart, can be seen coming out of the crowd and punching Mr. Caravella in the head. Mr. Caravella then turns his attention to Mr. Stewart and can be seen punching him several times as their fight moves out of the camera frame.

114On the evidence as a whole, I cannot entirely reject Mr. Caravella’s account of how his fight with Mr. Murphy started. Justin Brain described the situation in the crowd as “absolutely insane for 30 seconds”. Mr. Murphy was standing on the edge of the crowd when the melee started, but a few seconds later he can be seen moving into the fray after Mr. Caravella. I cannot reject the possibility that while they were both out sight of the camera Mr. Murphy punched Mr. Caravella, even though by the time they re-emerge into view of the camera it is plainly Mr. Caravella who is punching Mr. Murphy, and Mr. Murphy is not throwing any punches back.

115I also cannot reject Mr. Caravella’s testimony that he suffers from an anxiety disorder, and that he began having a panic attack when he found himself in the middle of the fracas. That said, I do not accept Mr. Caravella’s evidence that he was an entirely unwilling participant in the fight. The video shows that after the fight broke out, he followed Mr. Arshi into the crowd, when he could easily have retreated and disengaged from the altercation. Nevertheless, I cannot reject the possibility that once Mr. Caravella was in the midst of the fracas he might have panicked, and that this may partially explain his subsequent conduct.

116However, fear and anger are not mutually exclusive mental states. Even though I do not reject Mr. Caravella’s evidence that he was fearful, I am satisfied that he was also angry.

117I must bear in mind that events were unfolding very quickly, and that Mr. Caravella’s use of what may have started out as lawful defensive force against Mr. Murphy cannot be weighed to a nicety. However, I am satisfied on the evidence as a whole that at some point during the fight with Mr. Murphy, Mr. Caravella stopped acting defensively. By the time he and Mr. Murphy re-emerge into view of the camera, Mr. Caravella is plainly dominating the fight. The video shows him punching Mr. Murphy several times while Mr. Murphy is retreating and making no further aggressive actions of his own. I am satisfied that at least by the time Mr. Murphy fell to ground, Mr. Caravella would have realized that he no longer presented any threat. I find that Mr. Caravella continued to assault Mr. Murphy by stomping twice on his head because he was angry, not because he was still acting for what he subjectively viewed as a defensive purpose.

118If it were necessary to do so, I would also have found that Mr. Caravella’s actions at this point were no longer objectively reasonable in the circumstances. Mr. Murphy was lying on the ground defenseless, and plainly had no further appetite for fighting Mr. Caravella, who evidently overmatched him. In these circumstances, I find that a reasonable person in Mr. Caravella’s position would not have seen any need to incapacitate Mr. Murphy further as a means of safely disengaging from the fight.

119I also find that even if Mr. Caravella believed that Mr. Murphy was initially consenting to a fist fight, he knew that Mr. Murphy’s consent did not extend to being stomped on the head after he was lying on the ground and defenseless.

B. The circumstances of the offender

120Mr. Caravella is now 45 years old. He grew up in the Barrie area but now lives in Calgary. He has two adult children and a younger daughter who is now 12 years old. He works as a journeyman carpenter, but his true passion is his part-time work as a DJ.

121Ms. Symes advised me during her sentencing submissions that Mr. Caravella had a very difficult childhood. When he was thirteen years old he was sent to live with relatives in Montreal, which led to him being the victim of “very serious and repeated intimate abuse”. Since then, Mr. Caravella has had ongoing mental health issues that have led to him making repeated suicide attempts. Ms. Symes advised me that Mr. Caravella has been diagnosed with depression and panic disorder, for which he has been receiving treatment that has significantly improved his condition. Mr. Caravella also gave evidence about his mental health struggles during his trial testimony.

122Although Mr. Caravella did not present any confirmatory medical documentation, I accept his evidence about his mental health history and his condition. In particular, I accept that his panic disorder may have played a role in his reacting as did when he found himself in the midst of the group fight that suddenly broke out after Mr. Arshi punched Mr. McAllister.

123Mr. Caravella has submitted letters from his sister, from his former spouse, and from several friends, who all describe him as a hardworking and devoted father who was acting out of character when he assaulted Mr. Murphy. He has also written his own letter in which he apologizes for his actions and expresses his remorse.

124Mr. Caravella has a somewhat dated prior criminal record consisting of convictions between 1998 and 2011 for fraud under $5,000, two counts of failing to comply with a probation order, uttering a forged document, and obstructing a police officer. He received a suspended sentence and probation on the fraud under and the uttering forged documents charges in 1998 and 2006, and a fine on the obstruct conviction in 2011. His only prior jail sentence was for the two fail to comply convictions in 2000, for which he received concurrent 30-day jail sentences.

125Significantly, none of Mr. Caravella’s prior convictions are for violent offences. The same is true of a more recent conviction he has on his record for fraud under $5,000, for which he received a suspended sentence and probation, including a restitution order. This latter conviction is not properly viewed as a “prior criminal record”, since it was registered in 2021 for an offence that Mr. Caravella committed in 2020, several years after his assault on Mr. Murphy: see, e.g., R. v. Jama, 2021 ONSC 4871, at para. 48; R. v. Wilson, 2020 ONCA 3, at para. 61.

C. Positions of the parties

126For the Crown, Ms. Alexander submits that Mr. Caravella should receive a reformatory-length sentence of between 4 to 6 months imprisonment.

127For the defence, Ms. Symes takes the position that Mr. Caravella should receive a conditional discharge, or in the alternative, a suspended sentence.

D. The sentencing range for common assault

128Common assault carries a maximum sentence of five years imprisonment when prosecuted by indictment. There is no minimum sentence. Because this offence can be committed in a wide variety of circumstances by offenders with disparate antecedents, the range of sentences that can be imposed is very broad. In R. v. Theriault, 2020 ONSC 6768, at para. 65, my colleague Di Luca J. referred with apparent approval to the defence submission:

…that the usual sentence for assault prosecuted by indictment is a non-custodial sentence, and even where custody is imposed it tends to be in the intermittent range in the absence of particularly aggravating features and/or prior criminal records.

129The Crown did not provide any authorities in support of its position that Mr. Caravella should receive a custodial sentence in this case, let alone one as long as four to six months. Conversely, the defence has directed me to number of cases where non-custodial dispositions were imposed for similarly serious assaults.

130Of the cases that were provided to me, I find two decisions to be of particular assistance. In the first decision, R. v. Rocchetta, 2014 ONSC 5668, two brothers were found to have attacked the victim in sequence. The first brother punched the victim in the face, knocking him to the ground and causing a serious and permanent injury that left him “legally blind” in his right eye (at para. 42). The second brother then kicked and punched the victim as he lay defenceless and semi-conscious on the ground. The trial judge found the first brother guilty of aggravated assault and the second brother guilty of common assault, rejecting the Crown’s argument that the second brother was a party to the assault by the first brother that had caused the victim’s lasting injury. He imposed a custodial sentence on the first brother, which that was later reduced on appeal (see 2016 ONCA 577), and gave the second brother a suspended sentence and probation.

131In the second decision, R. v. Shahcheraghi, 2017 ONSC 574, rev’d 2018 ONCA 29, the accused was a bar bouncer who the trial judge found “administered a beating” to a drunk but non-violent patron, during which he “smashed [the victim’s] head into a glass door and punched him in the face multiple times”. The trial judge found the accused guilty of aggravated assault and imposed a suspended sentence and probation. On appeal, the Crown conceded that the trial judge had misapprehended the evidence in a way that undermined his conclusion that the defendant had caused the victim’s injuries. The Ontario Court of Appeal substituted a conviction for common assault but reimposed the sentence that had imposed at trial, noting at para. 14 that: “ [i]n light of the substituted verdict the Crown is not pursuing its sentence appeal”.

132In my view, the assaults in Rocchetta and Shahcheraghi were on most measures both considerably more serious than Mr. Caravella’s assault on Mr. Murphy. In both cases the force the defendant applied to the victim was more severe, and there was no element of self defence. Although I am satisfied beyond a reasonable doubt that Mr. Caravella was no longer acting defensively when he stomped on Mr. Murphy’s head, I cannot rule out the possibility that Mr. Murphy was the initial aggressor, and that Mr. Caravella’s initial use of force was defensive.

133The only aggravating factor in Mr. Caravella’s case that was not present in these other cases is that the defendants in Rocchetta and Shahcheraghi had no previous criminal records. In contrast, Mr. Caravella is not a first offender. However, his rather dated prior criminal record for non-violent offences does not in my view require that he receive a custodial sentence, let alone a sentence as lengthy as the Crown proposes.

134While I also accept that Mr. Caravella’s anxiety disorder would make serving a sentence of incarceration especially challenging for him, I am not satisfied that a custodial sentence would otherwise be fit or necessary in the circumstances of this case.

135The remaining question I must consider is whether I should discharge Mr. Caravella conditionally and place him on probation, rather than suspending the passage of sentence while imposing a similar term of probation. The difference between these two dispositions is that Canadian law would not treat a conditional discharge as a “conviction”.

136Section 730 of the Criminal Code permits a sentencing court to discharge a defendant either absolutely or conditionally when satisfied that doing so would be in the best interests of the accused, and not contrary to the public interest.

137From Mr. Caravella’s perspective, there would plainly be no disadvantage to his receiving a conditional discharge. However, the extent to which he would positively benefit from a conditional discharge is uncertain and speculative. Since he already has previous criminal convictions on his record, he is not in a situation where receiving a discharge on this offence would allow him to truthfully state that he has no “criminal record”.

138Ms. Symes notes that Mr. Caravella’s secondary career as a DJ sometimes requires him to travel to work in foreign countries, and she raises the possibility that his having a conviction for assault might make this more difficult. However, she acknowledges that she has no specific information about any international jurisdictions that might refuse to admit Mr. Caravella to work if he has a conviction for assault, in addition to his pre-existing convictions for other offences, including fraud charges.

139I would note in passing that while there is no evidence before me as to whether imposing a conditional discharge would facilitate Mr. Caravella’s ability to travel to the United States in particular, other judges of this court have found that “the American authorities consider a conditional discharge to be the equivalent of a criminal conviction for the purposes of admission to the United States”: R. v. Dzabic, at para. 52 (Ont. S.C.J.). There is also commentary stating that the American authorities consider fraud convictions to be offences of “moral turpitude” that make foreign nationals inadmissible without a waiver, but that a conviction for simple assault does not carry this consequence: see S. Pratt, “Criminal Convictions and Immigration Consequences”, Crown's Newsletter, 2018Docs 10544 at p. 30. While I cannot resolve this question on the very limited evidential record before me, I will simply observe that it is not apparent that receiving a conditional discharge rather than a suspended sentence will necessarily have any practical impact on Mr. Caravella’s ability to travel, although I accept that it could possibly make a difference to his ability to enter and/or work in some jurisdictions.

140Turning to the question of whether a discharge would be contrary to the public interest, the Ontario Court of Appeal has held that “[i]n cases of violence resulting in injury the requirement of general deterrence to the public militates, in almost every case, against the grant of a conditional discharge, notwithstanding considerations personal to the accused”: R. v. Wood, at para. 4 (Ont. C.A.); R. v. Huh, 2015 ONCA 356, at para. 12. While Mr. Murphy’s injuries were not especially serious – he suffered a black eye and a cut lip – the violence Mr. Caravella used was significant. He and Mr. Murphy are both fortunate that Mr. Murphy’s injuries were not worse than they were. In contrast, in R. v. Rice, 2015 ONCA 478 and R. v. Land, [2000] O.J. No. 4983 (Ont. S.C.J.), the two cases to which the defence referred me in which conditional discharges were imposed on appeal, the victims do not seem to have suffered any significant injury.

141It is also a relevant consideration that Mr. Caravella already has a prior criminal record that includes two convictions for which he has received jail time. While I agree with Ms. Symes that the existence of a prior criminal record does not automatically disentitle a defendant from receiving a conditional discharge, it would be unusual to grant Mr. Caravella a significantly more lenient disposition now than those he has received previously, albeit for very different offences.

142In my view, the nature of the assault Mr. Caravella committed also strongly weighs against granting him a conditional discharge. As Mr. Caravella recognizes in his letter of apology, Mr. Murphy could very easily have been hurt much more badly than he was. On the facts of this case, I find that the sentencing objectives of denunciation and general deterrence would not be adequately achieved by granting Mr. Caravella a conditional discharge.

143I will accordingly suspend the passing of sentence and place Mr. Caravella on probation for 12 months. The probation order will have the compulsory terms listed in s. 732.1(2) of the Criminal Code. Mr. Caravella will also be required to report to a probation officer within two working days of this order under s. 732.1(3)(a) of the Criminal Code. However, since he is now lives in Calgary, I will not require him to report in person thereafter as directed by his probation officer, but will specify that any subsequent reporting may be done by telephone or videoconference.

E. Ancillary orders

144The Crown also seeks a DNA order and a s. 110 weapons prohibition order for 5 years.

145Common assault is a secondary designated offence under s. 487.04 of the Code. When considering a request by the Crown for a discretionary order under s. 487.051(3)(b) of the Criminal Code, courts must decide whether “it is in the best interests of the administration of justice” to make such an order, after considering:

… the person’s criminal record, … the nature of the offence, the circumstances surrounding its commission and the impact such an order would have on the person’s privacy and security of the person and shall give reasons for its decision.

146In this case, Mr. Caravella has been found guilty of assaulting a stranger in a bar. It is conceivable that DNA evidence could have some investigative utility if he were to commit a similar offence in the future. Mr. Caravella also has a prior criminal record. On the other side of the ledger, there is no particular reason to think that ordering him to provide a DNA sample would have an especially significant impact on his privacy and security of the person. On balance, I am satisfied that making the proposed order would be in the best interests of the administration of justice.

147With respect to the Crown’s request for a s. 110 weapons prohibition order, Mr. Caravella has been convicted of “an offence … in the commission of which violence against a person was used”: s. 110(1)(a) of the Criminal Code. I must accordingly:

… consider whether it is desirable, in the interests of the safety of the person or of any other person, to make an order prohibiting the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things …

148For Mr. Caravella, Ms. Symes notes that he is not a hunter and has no need to possess any of the listed weapons, devices or things. On balance, I am satisfied that making the prohibition order sought for a period of five years would be “desirable” in the interests of public safety.

149Under s. 737 of the Criminal Code, I must also impose a $200 victim fine surcharge unless I am satisfied that it would either “cause undue hardship to the offender,” or “would be disproportionate to the gravity of the offence or the degree of responsibility of the offender”. I am not satisfied that either of these exceptions apply here, since Mr. Caravella is receiving a non-custodial disposition that will not affect his ability to work. Accordingly, I direct that Mr. Caravella will pay a $200 victim fine surcharge within 60 days.

V. Disposition

150In summary, on Count 1 Mr. Arshi is sentenced to a 15-month conditional sentence, to be followed by 15 months probation, on the terms I have outlined. He will also be subject to the ancillary orders that I have already discussed.

151On Count 2, I will suspend the passing of sentence on Mr. Caravella and place him on probation for 12 months, on the terms I have outlined. He will also be subject to the ancillary orders I have already discussed.

The Honourable J. Dawe

Released: July 7, 2023

NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If any discrepancies between the oral and written versions, it is the official written Ruling that is to be relied upon

BARRIE COURT FILE NO.: CR-19-119-00 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – OMER ARSHI and SALVATORE CARAVELLA REASONS FOR SENTENCE The Honourable J. Dawe

Released: July 7, 2023

1R. v. Cameron, 2022 ONCA 710; R. v. Nicholls, 2022 ONCJ 433; R. v. Randhawa, 2020 ONCA 668; R. v. Veenhof, 2011 ONCA 195.