His Majesty the King v. Eryk Andrade, 2026 ONSC 3692

CITATION: R. v. Andrade, 2026 ONSC 3692

COURT FILE NO.: CR-24-10000743-0000

DATE: 20260625

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

ERYK ANDRADE

Katalin Kirec and Chris Kim, for the Crown

Nate Jackson, for Eryk Andrade

HEARD: June 15, 2026

R.F. GOLDSTEIN J.

1On February 1, 2024, Eryk Andrade and his then-girlfriend Nikki Shaver were on a TTC streetcar heading towards the Dundas West subway station. Also on the streetcar were Pedro De Medeiros Araujo and his friend Ruben Ferreira. Mr. De Medeiros Araujo and Mr. Ferreira sat near to Mr. Andrade and Ms. Shaver. Mr. De Medeiros Araujo and Mr. Ferreira began to taunt Mr. Andrade and Ms. Shaver. They made sexual comments about Ms. Shaver. Mr. Andrade and Ms. Shaver moved away. Video of the rest of the incident was played in court. Mr. De Medeiros Araujo and Mr. Ferreira continued to make taunting comments towards Mr. Andrade and Ms. Shaver. At one point Mr. Andrade appeared to take a small folding knife from his backpack and ready it. He should not have had the knife. At the time he was subject to a s. 810 Criminal Code peace bond that prohibited him from having weapons.

2Mr. De Medeiros Araujo – who, it must be said, is a smaller man that Mr. Andrade – started to move towards Mr. Andrade and Ms. Shaver. Mr. Andrade got up and positioned himself between Ms. Shaver and Mr. De Medeiros Araujo. Mr. De Medeiros Araujo threw a punch and connected with Mr. Andrade. A fight ensued. Mr. Andrade stabbed Mr. De Medeiros Araujo multiple times.

3Mr. De Medeiros Araujo was taken to an emergency room and then to intensive care. He sustained the following injuries:

• a 2 cm stab wound to the left neck;

• a 6 cm laceration/stab wound to the left upper chest/shoulder;

• four smaller 1 cm laceration/stab wounds to the left side of the torso and back of the torso;

• He continues to have scars and nerve damage.

4Mr. Andrade was arrested and charged with aggravated assault. On June 15, 2026, he was arraigned before me on a charge of aggravated assault but pleaded guilty to the lesser and included offence of assault causing bodily harm. Crown counsel accepted the plea. I entered a conviction for assault causing bodily harm. Sentencing was adjourned. On June 18, 2026, I heard sentencing submissions.

5The following documents were filed at the sentencing hearing:

• The Agreed Statement of Facts;

• The video from the TTC streetcar;

• A victim impact statement from Mr. De Medeiros Araujo;

• A copy of the s. 810 recognizance that Mr. Andrade was subject to at the time;

• Letters of support for Mr. Andrade; and,

• A photograph of the knife.

6Mr. Andrade was in custody for four months and five days before he was granted bail. He was effectively on house arrest. He then breached his bail. He was outside of his residence for about twenty minutes. He spent those 20 minutes with his girlfriend in his car and then went back into his residence. The police became aware of the breach because it was reported by the company monitoring his GPS. Mr. Andrade went back into custody for another 6 months and 22 days. Thus he served custodial time of 10 months and 27 days, or just under 11 months. He pleaded guilty to breaching his recognizance and received a conditional discharge.

7The Crown does not make much of the breach. There was no associated criminality – Mr. Andrade did not rob a bank or deal drugs. He spent time in a car with his girlfriend. Ms. Kirec, very fairly, characterized it as relatively minor and technical and does not suggest it is a significant aggravating factor. I agree.

8As a result, Mr. Andrade spent about 11 real months in custody. Credited at 1.5:1 pursuant to s. 719(3.1) of the Criminal Code, that works out to 16 ½ months of custody on an enhanced basis. That is a significant amount of time at a remand facility, with poor conditions such as triple bunking and lockdowns. I take that into account.

9I turn to the impact on the victim and the community. Obviously, violence on the TTC is a major threat to community safety. We all use the TTC. This was a fight that involved a significant breach of the peace. In his victim impact statement, Mr. De Medeiros Araujo set out some of the permanent harm that he has suffered, including a droop on his face and ongoing pain.

10In this case, I see no need for any further jail. The 11 months of real custody is, in my view, sufficient to meet the needs of general and specific deterrence, and denunciation. Ms. Kirec suggests another further six months would be in order, but her real submission – again, very fairly – is whether, considering the time spent in custody, I should impose a suspended sentence or grant Mr. Andrade a conditional discharge.

11It is important to set out the aggravating and mitigating factors before analyzing whether a discharge should be granted.

12There are important aggravating factors here. Mr. Andrade was subject to a peace bond. He was not to have weapons, and yet he had a knife. I was provided with the following explanation: Mr. Andrade had helped a friend move earlier in the day and had the knife with him as a sort of box cutter. I accept the explanation for his possession of the knife – the Crown does not dispute it – but I do not accept that it is a reasonable excuse. He was with Ms. Shaver. He knew he was not supposed to the knife. It would have been a very simple matter for her to carry it for him. He was also not, arguably, keeping the peace and being of good behaviour as was required by the peace bond.

13There are, however, mitigating factors. The first is of course the plea of guilty, especially in the face of triable issues. There is no doubt that Mr. Andrade had a realistic defence of self-defence. He was being taunted. Mr. De Medeiros Araujo approached him before he got up and then threw the first punch. The Crown does not dispute that Mr. Andrade acted in self-defence. The real problem, as Mr. Jackson acknowledges, is that a jury might well have found that the force used went beyond that which was reasonable. I think that is a very reasonable acknowledgement.

14It is also a mitigating factor that Mr. Andrade continues to have family and community support. I have reviewed the letters of support, including letters from Mr. Andrade mother; his two brothers; his family friend Dawn-Marie Maiato; his friend Sara Assadi; his potential work partner Kole Jean-Paul Simoneau, who lives in Calgary; and his friend Eero Van Elslander. They are all positive and show that he has important support in the community, including support from his family. Mr. Jackson indicated to me that his former girlfriend, Ms. Shaver, also remains supportive of him.

15I turn to the real issue here, which is whether I should grant a discharge.

16Section 730(1) of the Criminal Code states:

730 (1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

17A court must consider two questions: would a discharge be in the best interests of the accused? And, would a discharge be contrary to the public interest? Crown and defence counsel have both cited cases to me where courts have considered the circumstances under which a discharge should be granted.

18Crown counsel relies on R. v. Huh, 2015 ONCA 356. The Crown appealed the sentencing judge’s imposition of a conditional discharge and probation. The 21-year-old offender was found guilty of assault causing bodily harm. By way of background, the Court stated at paras. 4-5:

The assault committed by the respondent while he was severely intoxicated, was extraordinarily violent. The beating left the victim with facial fractures and post-concussion syndrome. He suffered brain damage with impairment in the higher executive functions. The victim was forced to withdraw from his university courses in finance. He has problems communicating in a fluent manner due to difficulties in organizing his thoughts. He also is fearful for his safety and for his future.

The pre-sentence report about the appellant was not especially positive. He was presented as a multi-substance abuser in denial of his need for rehabilitation. The Crown proposed a "significant" jail sentence within the reformatory range, on the basis that, according to the pre-sentence report, the respondent had no insight into his behaviour and the public ought to be protected from him.

19The Court of Appeal found that the conditional discharge was manifestly unfit, given the extraordinary degree of violence. The Court went on to say at para. 12:

We adopt the observation in R. v. Wood (1975), 1975 CanLII 1410 (ON CA), 24 C.C.C. (2d) 79 (C.A.), at para 4: "[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."

20The court found that the sentencing objectives of denunciation and deterrence could only be met, in that particular case, with a jail sentence. The Court imposed a sentence of six months and two years probation.

21The Crown also points to the Alberta Court of Appeal’s decision in R. v. J.C.K., 2013 ABCA 50. The offender went to the complainant’s trailer. They were both intoxicated. The complainant was stabbed multiple times during a violent fight. The offender pleaded guilty to assault causing bodily harm. The sentencing judge imposed a sentence of nine months less pre-sentence custody and two years probation. The Court of Appeal described the fight this way:

… the respondent, in a state of intoxicated anger, took a knife to confront someone she felt had wronged her over some imprecisely described taking of property. According to the agreed facts, the respondent refused to leave and chose to fight. While she was being subjected to physical resistance in this endeavour by Ms. Stoney, with whom she had no prior "beef", she stabbed Ms. Stoney at least 10 times in a manner which just fortuitously avoided being fatal. It would appear that the location of the events was such that prompt medical attention was possible. Such an attack would ordinarily attract a penitentiary sentence in this province. Diminishing that assessment of culpability, and blurring that message to the public because of the sad personal circumstances of this respondent, as the sentencing judge effectively did, was not justified.

22The Court of Appeal substituted a sentence of two years less a day.

23Other cases relied on by the Crown include: R. v. Rodrigues,[2008] O.J. No. 2125, 2008 CarswellOnt 3088 (Sup.Ct.), where Spies J. refused to grant a discharge and sentenced an unremorseful offender after he unsuccessfully pleaded self-defence at trial. She sentenced the offender to a six-month conditional sentence.

24R. v. Singh, 2023 ONSC 4949, is a decision of Justice Durno. I found this decision to be very helpful. Singh and other men accused the female victim of stealing marijuana while they attempted to recruit her for the sex trade. The men administered beatings on two separate occasions. After the second beating she suffered a perforated eardrum, swollen eyes, burn marks, and bruises. One the men threatened to kill her. The offender participated in the beating and was obviously party to any blows that he did not strike. Singh was from India. He had a work permit, but it had expired and he no status in Canada. He had a heroin addiction but was in treatment. Justice Durno treated Singh as a first offender. He pleaded guilty to assault causing bodily harm. His moral culpability was high, given his participation in two serious assaults causing significant damage to a vulnerable victim. In considering whether a discharge was in the best interests of the offender, Justice Durno stated at para. 62:

To satisfy the first criteria, it presupposes specific deterrence is not a relevant consideration, except to the extent required in a probation order, nor is the offender's rehabilitation through correctional or treatment centers required, except to the same extent. Normally the offender is a person of good character, without previous conviction, it is not necessary to enter a conviction to deter them from future offences or to rehabilitate them, and the entry of a conviction may have significant adverse repercussions. In some cases the relatively minor or trivial nature of the offence will be an important consideration and in others the unusual circumstances peculiar to the offender may lead to an order that would not be made in the case of another offender: R. v. Sanchez-Pino (1973), 1973 CanLII 794 (ON CA), 11 C.C.C. (2d) 53 (Ont. C.A.); R. v. Fallofield (1973), 1973 CanLII 1412 (BC CA), 13 C.C.C. (2d) 450 (B.C.C.A.) However, it is not a prerequisite to imposing a discharge that there be significant adverse consequences: R. v. Myers (1997), 1977 CanLII 1959 (ON CA), 37 C.C.C. (2d) 182 (Ont. C.A.).

25In considering the public interest criteria, Justice Durno stated at paras. 63-64:

… When considering this area, the concern for general deterrence, while it must be given due weight, does not preclude the judicious use of the provisions: Fallowfield, supra. If there is a necessity for a sentence that will deter others, it is a factor telling against the imposition of a discharge: Sanchez-Pino, supra. The general principles of punishment must always be pliable enough to accommodate a careful consideration of the effect of punishment on the individual. Knowledge of speedy apprehension, arrest and trial should be an effective deterrent to persons like the offender who may be tempted to commit such an offence: R. v. Meneses (1974), 25 C.C.C. (3d) 115, at p. 117.

Further, an offender who receives a discharge does not get off "Scott-free." They are bound by probation with a conditional discharge and earn their discharge by complying with the terms. Meneses, at p. 117. If there are further offences, the discharge can be vacated: s. 730(5)

26After a lengthy analysis of cases from this court and the Court of Appeal, Justice Durno stated at para. 91:

The following points can be derived from the authorities:

1. Discharges are available for any criminal offence for which there is no minimum sentence provided the maximum sentence is under 14 years.

2. While most often imposed for minor offences that is not prerequisite to granting a discharge.

3. At times where the offence is more serious, if the offender was acting out-of-character, under particular stress or other unusual circumstances a discharge could be appropriate.

4. The more serious the offence, the rarer a discharge will be.

5. That an offender has served some time in pre-sentence custody does not preclude the imposition of a discharge. How the pre-sentence custody is addressed varies. Section 719(3) of the Criminal Code provides that a court may take into account any time spent in pre-trial custody. It is not mandatory. Similarly, it is not mandatory to consider or apply Duncan mitigation. Accordingly, a sentencing judge is not required to reference pre-trial custody.

27Justice Durno also commented:

It is apparent from the authorities that in the majority of cases where discharges have been imposed where there was pre-sentence custody that the pre-trial custody is regarded as a mitigating factor but not included in the actual sentence. This would appear to be the appropriate way to address the issue if it is going to be considered. All of the Court of Appeal judgments noted earlier where discharges were imposed and there was pre-trial custody proceeded on that basis.

28Ultimately Justice Durno determined that Mr. Singh’s immigration status (or lack of status) should play no role. Considering the participation in two assaults he imposed a sentence reflecting time served and refused to impose a discharge.

29Sanchez-Pino was a very early discharge case. In it, Arnup J.A. noted that the discharge section was not confined to any particular class of offences. He stated that it was only common sense that the more serious the offence, the less likely it will be that a discharge is not contrary to the public interest. He especially noted:

In some cases, the trivial nature of the offence will be an important consideration; in others, unusual circumstances peculiar to the offender in question may lead to an order that would not be made in the case of another offender.

30Mr. Jackson cited multiple cases in this court and the Ontario Court of Justice where courts have granted discharges in cases of assault causing bodily harm. I need only mention a few.

31R. v. Epure, 2019 ONSC 722, was another decision of Justice Durno. The offender was involved in an assault arising from some kind of altercation at a bus terminal, involving university students. The offender participated in the assault along with others. The victim suffered a concussion and other injuries. He was convicted of assault causing bodily harm after trial. The sentencing judge sentenced him to a conditional sentence and probation. He appealed, arguing that the sentencing judge should have granted a conditional discharge. Justice Durno, relying on a decision of Justice Casey Hill, stated at para. 28:

In R. v. Hayes, [1999] O.J. No. 938 (Ont. Gen. Div.), Hill J. provided the following helpful comments on discharges. Discharges are not restricted to trivial matters. Where an offender has acted out-of-character, perhaps in the context of unusual pressure or stress, a discharge may be fit. Where a criminal record will have a tendency to interfere with employment or perhaps important travel, a discharge may be given serious consideration. A suspended sentence is not necessarily a greater deterrent than a discharge.

32Justice Durno found that the sentencing judge had erred (for other reasons) and granted the discharge. See also R. v. Parker-Ford, 2020 ONSC 5951, where Justic Molloy upheld a conditional discharge granted by Justice Chapman of the Ontario Court of Justice. I find that decisions by these three judges (two of this court and one of the Ontario Court) are always very helpful and persuasive.

33Mr. Jackson also points to R. v. Whiteley, 2017 ONCA 804. The offender had acted in self defence but used excessive force. The Court of Appeal stated at para. 15:

Mr. Downey's role in the altercation and the fact that the appellant was justified in using significant force against Mr. Downey, should have been treated as significant mitigating factors on sentence.

34I turn to the analysis here. In my view, it would not be contrary to Mr. Andrade’s interests to grant a discharge. I take into account the fact that he spent 11 months in custody, or about 16 ½ months when enhanced. I also take into account that Mr. Andrade has career plans that may require him to travel. I accept that his plans are nascent at this stage, and may never come to fruition, but at least he has a plan. If his current career plan was the only factor, I might not find it persuasive, but it is something to consider as part of the mix. Mr. Andrade’s record on bail is not perfect, but I do not think his one relatively minor breach is a factor and I give it little weight.

35As is often the case when considering a discharge, the harder question is whether it would be contrary to the public interest to grant one. Certain things militate against it. The fact that Mr. Andrade was subject to a peace bond and should not have been carrying a knife pushes directly against a discharge. As well, it would be a rare thing for there to be a discharge when a person has been convicted of assault causing bodily harm by stabbing. It is not a trivial offence; at the same time, as the cases note, discharges are not confined to trivial offences. The fact that this was a matter of self-defence is highly relevant. No doubt Mr. Andrade did use excessive force, but when the adrenaline is pumping, one is in a fight started by someone else, and one is defending one’s girlfriend from an actual threat, it is hard to finely gauge what force is too much. Moreover, this incident happened over a very short period of time. Mr. Andrade was subject to a peace bond, but he has no criminal record and comes before the court as a first offender. In my view, the fact that Mr. Andrade was on a peace bond is not disqualifying. It is a factor to be considered in the overall context. Ultimately, I accept that Mr. Andrade is a person of good character – although he may be too quick to anger, which is something he should think deeply about.

36Although not often mentioned in the cases, I think another relevant factor to consider is the reputation of the administration of justice. I think it is obvious that if a discharge would bring the administration of justice into disrepute, it would be contrary to the public interest to grant one. I do not think that a discharge would bring the administration of justice into disrepute in this case. A reasonable member of the public, informed of all the relevant facts, would have little trouble understanding that Mr. Andrade did not start the fight, was acting in self-defence, that the excessive force was understandable if not excusable, and that he has plans (admittedly, no more than plans at this stage) to start a career that may require travel. When I consider all the factors, I find that it would not be contrary to the public interest to grant a conditional discharge.

37Accordingly, Mr. Andrade is discharged. I know that the suggestion is for one year of probation but given the s. 810 breach I think a longer period of probation is required. Mr. Andrade will be placed on probation for 36 months. In addition to the statutory terms he will be subject to the following terms:

• He will report to a probation officer once, and thereafter as required.

• He will have no contact, directly or indirectly, with Pedro De Medeiros Araujo and Ruben Ferreira and not be within 100m of anywhere he knows either of them to live, work, worship, or go to school.

• He is to have no weapons as defined by the Criminal Code.

38Mr. Andrade will also provide a sample of his DNA as assault causing bodily harm is a primary designated offence. He will also be subject to a s. 109 order for ten years.

R.F. Goldstein J.

Released: June 25, 2026

CITATION: R. v. Andrade, 2026 ONSC 3692