



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Shahcheraghi, 2018 ONCA 29

DATE: 20180115

DOCKET: C63388 & C63240

Rouleau, Watt, Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent/Applicant/Appellant

and

Amir Shahcheraghi

Appellant/Respondent

Catriona Verner, for the appellant

Frank Au, for the respondent

Heard and released orally: January 10, 2018

On appeal from the conviction entered on November 10,
    2016 and the sentence imposed on January 24, 2017 by Justice Edward M. Morgan
    of the Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION


[1]

Amir Shahcheraghi, whom we will describe as the appellant, was convicted
    of aggravated assault after a trial before a judge sitting without a jury. The
    passing of sentence was suspended and the appellant ordered to comply with the
    terms of a probation order for three years.

[2]

The events that gave rise to the charge occurred when the complainant, a
    severally intoxicated young man, was asked to leave a bar where the appellant
    was the head of security. While outside the bar, the complainant became
    involved in a verbal exchange with the appellant and a second member of the
    security team. A skirmish followed. The complainant, probably more due to the
    extent of his intoxication than anything else, pushed into the other security
    guard causing that guard to lose his balance and fall to the ground with the
    complainant, a large man, on top of him. The appellant walked over and pulled
    the complainant off the security guard.

[3]

Three witnesses testified about having seen the appellant smash the
    complainants head against a set of glass doors, and two of them claimed to
    have seen the appellant punch the complainant in the face. There was also
    evidence that the other security guard had punched the complainant in the face
    several times with considerable force.

[4]

The appellant testified in his own defence.  He acknowledged having
    restrained the complainant up against the glass doors, but denied doing so
    forcibly and denied punching the complainant in the face.

[5]

The complainant suffered two lacerations to the area of his left eye and
    cheek, including one that severed his tear duct. The defence conceded that the
    tear duct injury met the definition of wounding in s. 268 of the
Criminal
    Code.
Fortuitously, expert medical care at St. Michaels Hospital repaired
    the damage, leaving the complainant without any apparent lasting impacts.

[6]

The appellant appeals his conviction of aggravated assault. The Crown
    appeals the sentence imposed.

The Appeal from Conviction

[7]

On the appeal from conviction the appellant advanced three grounds of
    appeal. He says that the trial judge:

i.

misapprehended evidence about the appellants conduct during the assault
    and relied upon his incorrect understanding of the evidence to find that the
    appellant had caused the complainants injury;

ii.

failed to consider other reasonable possibilities as to what caused the
    complainants eye injury; and

iii.

failed to properly address potential collusion amongst prosecution
    witnesses.

[8]

For our purposes it is sufficient to consider only the first ground of
    appeal.

[9]

The respondent agrees that the trial judge made several mistakes about
    the substance of the evidence given at trial. Those errors were critical to his
    finding on causation, the central issue at trial. The respondent acknowledges
    that these errors not only related to a material issue, but also played an
    essential role in the reasoning process leading to the appellants conviction
    of aggravated assault. As a result, the respondent concedes those errors warrant
    appellate intervention. We agree: see
R. v. Lohrer,
2004 SCC 80, at
    paras. 1 and 2.

[10]

In
    the usual course, the errors identified and acknowledged here would warrant an
    order quashing the appellants conviction and directing that a new trial be
    held on the indictment. However, counsel jointly propose a different result. They
    say that we should exercise our authority under ss. 686(1)(b)(i) and (3) of the
Criminal Code
to substitute a verdict of assault
simpliciter
in
    place of that recorded at trial, aggravated assault.

[11]

It
    is well settled that the fault element in aggravated assault is the fault
    element in assault, coupled with objective foresight of the risk of bodily
    harm. The aggravation lies in the consequences of the assault, and the nexus
    between those consequences, in this case said to be wounding, and the assault
    itself.

[12]

In
    this case, the errors of the trial judge had to do with the essential link
    between the appellants assault and the consequences, the wounding, to the complainant.
    But those errors do not vitiate the finding that an assault occurred and that
    the appellant committed it.

[13]

In
    the result, we are satisfied that, although the appellant was not properly
    convicted of the count of aggravated assault, he was properly found guilty of
    the included offence of assault
simpliciter
. Accordingly, as s. 686(3)
    authorizes but does not require us to do, we dismiss the appeal from the
    conviction of aggravated assault and substitute a finding of guilt of assault
simpliciter
.
    We use the term finding of guilt at this stage because the parties invite us
    to determine a fit sentence, and the appellant asks us to impose an absolute
    discharge.

[14]

In
    light of the substituted verdict the Crown is not pursuing its sentence appeal.

The Appeal from Sentence

[15]

The
    appellant and respondent invite us to deal with the issue of sentence, rather
    than to remit it to the trial court, as we are permitted to do.

[16]

The
    appellant asks us not to enter a conviction, but rather to discharge the
    appellant absolutely or, in the alternative, conditionally.  The appellant
    submits that it is not contrary to the public interest to do so and manifestly
    in his interest that he be discharged. After all, he is a first offender with
    excellent prospects, who has already complied with probationary terms for a
    year including counselling and community service requirements. What is more, a
    conviction may well jeopardize his prospect for a renewal of his security licence.

[17]

We
    are not persuaded that a discharge, whether absolute or conditional, is the
    appropriate sentencing disposition in this case.

[18]

This
    was a serious offence. It involved repeated striking of the complainants head
    against a glass door. It represented significantly excessive force against the
    patron who, though grossly intoxicated and perhaps somewhat obnoxious, was in
    no condition to threaten or resist, and had not exhibited any meaningful
    aggressive tendencies.

Conclusion

[19]

In
    the result, the appeal from conviction of aggravated assault is dismissed and a
    conviction of assault
simpliciter
is entered. We affirm the sentence
    imposed by the trial judge. In light of the substituted verdict, the Crowns
    appeal from sentence on the original conviction is dismissed.

Paul Rouleau J.A.
David Watt J.A.
David Brown J.A.


