



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ashkani, 2013 ONCA 351

DATE: 20130529

DOCKET: C56567

Watt, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shiva Ashkani

Appellant

Shiva Ashkani, appearing in person

Susan Chapman, acting as duty counsel

Deborah Krick, for the respondent

Heard: May 13, 2013

On appeal from the convictions entered on September 4,
    2012 and the sentence imposed on January 15, 2013 by Justice Kelly Wright of
    the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of assault with a weapon and aggravated
    assault.  She was sentenced to a custodial sentence of 11 months, in addition
    to 396 days of pre-trial custody, which reflected actual pre-trial detention of
    264 days, calculated on a 1.5 to 1 basis.  This sentence represented a global
    sentence of two years less one day, plus three years probation.

[2]

The appellants spouse is the complainant.  The appeal focused on the
    conviction for aggravated assault.

[3]

The complainants evidence was that the appellant attacked him:

And suddenly, she came over and with all force on her body, she
    gave me two smash here. Here, between two bones.  There, start here, on the top
    of the stomach here.

THE COURT:        I want to say the diaphragm area.

MR. NEZIOL:         I think thats fair.

THE COURT:        Yes, sternum, diaphragm.

ANSWER:              And that was very, very painful.                                       Then
    she continued

ANSWER:              Exactly what else, she continued                                    she
    tried to continue.  In order to                                      avoid, I
    got her neck and head with                                    my arm like
    this.  Like her head here                                     in order to stop
    her.

QUESTION:           Okay?

ANSWER:              And here, she bite me.

[4]

The complainant testified that the pain in his torso got worse over the
    next few days. His abdomen started to swell and he could not eat or go to the
    bathroom.  He saw Dr. Justin Lee at the York Central Hospital.  Dr. Lee
    testified that a C.T. scan of the complainants belly and pelvis showed that it
    was filled with blood.  The complainant was bleeding from his spleen which had
    to be surgically removed.  Dr. Lee testified that the complainant lost 3.5 litres of blood.  The complainant originally told the doctor that he had slipped and fallen on a
    chair causing the injury.  It later transpired, however, that the complainant
    disclosed that his wife had beaten him.

[5]

In his expert evidence, Dr. Lee, who was also the treating physician,
    testified that a rupture of the spleen is usually caused by one significant
    blow.  He testified: I would suspect that a more forceful injury would be
    required to rupture the spleen than a punch.

[6]

Based on Dr. Lees evidence, the defence took the position that the
    Crown had not proven causation beyond a reasonable doubt.

[7]

The trial judge found as a fact that the complainant was assaulted by
    the appellant:

[64] I find that a reasonable person in the same circumstances
    punching someone as hard as they could in the upper abdomen would realize and
    expect that doing so would put that person at risk for suffering some kind of
    bodily harm and some kind of injury more than just brief and fleeting.

[8]

The trial judge then turned to the issue of causation:

[66] I must go on to consider if I am satisfied beyond a
    reasonable doubt that those punches caused the spleen of Mr. Danesh to
    rupture.  Defence counsel argues that the punches did not and could not have
    caused Mr. Daneshs spleen to rupture.  Defence counsel said there must have
    been some other intervening acts that caused the injury.

[67] Defence counsel directs my attention to the explanation
    that Mr. Danesh first gave to Dr. Lee when he was admitted to hospital.  He
    told Dr. Lee that he was getting out of a chair and slipped and hit his chest. 
    Mr. Danesh told this court that he did not fall getting out of a chair.  He
    said he intentionally lied to the doctor to protect his wife and prevent the
    police from becoming involved.  As set out in my reasons above I accept Mr.
    Daneshs evidence and explanation in that regard.

[9]

The trial judge then considered the evidence of Dr. Lee at length and
    concluded:

[80] I have considered Dr. Lees opinion that the amount of
    blood in Mr. Daneshs belly was more consistent with an immediate bleed than a
    delayed rupture but I also take into account that the doctor qualified his
    answer by saying that he had never personally dealt with a delayed rupture of
    the spleen and could only reiterate what he had read in literature.

[81] In fact, Dr. Lee indicated that his opinion was based
    solely on his experiences with ruptured spleens, and I remain uncertain about
    the breadth of that experience.

[82] I am satisfied beyond a reasonable doubt that Mr. Danesh
    suffered no other blunt force trauma other than punches from Ms. Ashkani
    between April 14
th
and April 23
rd
, 2012.  I am satisfied
    beyond a reasonable doubt that when Shiva Ashkani punched Mr. Danesh on April
    19
th
, 2012 she did so with enough force to rupture his spleen.

[10]

Duty
    counsel argues that in reaching this conclusion, the trial judge made palpable
    and overriding errors in assessing the evidence.  We disagree.  Scientific
    proof of causation is not required and common sense inferences from the facts
    may suffice, as they do in this case, to establish the causal link between the
    appellants assault and the complainants injury.

[11]

In
    terms of the sentence, we observe that even if aggravated assault could not
    have been proven on the facts, but only assault causing bodily harm, the
    sentence imposed by the trial judge would still have been fit.

[12]

For
    these reasons, the appeal from conviction is dismissed.  Leave to appeal
    sentence is granted, but the appeal from sentence is also dismissed.

David Watt J.A.

M. Tulloch J.A.

P. Lauwers J.A.


