



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Randhawa, 2020 ONCA 668

DATE: 20201023

DOCKET: C67018

Juriansz, Tulloch and Jamal
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ashmin Randhawa

Appellant

Ian B. Kasper, for the appellant

Elena Middelkamp, for the respondent

Heard: September 1, 2020 by videoconference

On appeal from the conviction entered by
    Justice Joseph A. de Filippis of the Ontario Court of Justice on April 29, 2019,
    with reasons reported at 2019 ONCJ 270, and from the sentence imposed on September
    9, 2019, with reasons reported at 2019 ONCJ 633.

Juriansz J.A.:


A.

Introduction

[1]

The appellant appeals her conviction on one count of aggravated assault
    and one count of assault with a weapon. She also seeks leave to appeal her
    sentence of 12 months in custody followed by two years of probation. For the
    reasons below, I would dismiss the conviction appeal, grant leave to appeal the
    sentence, and allow the sentence appeal.

B.

Facts

[2]

On October 23, 2017 there was a physical confrontation between Zachary
    Heyes and three other men including Clayton Pye, a muscular 200-pound wrestler,
    Vladimir Kazbekov, a wrestler trained in mixed martial arts, and Mr. Budgey,
    another wrestler. The appellant, who witnessed the confrontation, stabbed Mr.
    Pye with a knife and caused a minor cut to Mr. Kazbekov.

[3]

At the time of the incident, the appellant was in a troubled romantic relationship
    with Mr. Heyes. Mr. Pye, who previously had been in a romantic relationship
    with the appellant, knew of the appellants troubled relationship with Mr.
    Heyes and saw himself as the appellants guardian. Mr. Pye lived in a house
    with other members of the Brock University wrestling team. The appellant, who is
    not a wrestler, also lived in the house.

[4]

On the day of the incident, Mr. Heyes and the appellant were in the appellants
    room. They had consumed cocaine.

[5]

Sometime after 6 p.m., soon after Mr. Heyes departure, Mr. Pye offered
    to take the appellant to her disabled vehicle. The appellant suddenly ran down
    the street. Mr. Pye, Mr. Kazbekov, and Mr. Budgey followed the appellant down
    the street. As they turned a corner, Mr. Pye saw Mr. Heyes standing in front of
    the appellant who had her back to a wall. Mr. Pye and Mr. Kazbekov, concerned
    for the appellants well-being, went to confront Mr. Heyes.

[6]

Despite minor inconsistencies in the witness testimonies about how the
    fight unfolded, the trial judge accepted it started between Mr. Kazbekov and
    Mr. Heyes. Mr. Heyes tried to punch Mr. Kazbekov. Mr. Kazbekov ducked, threw
    Mr. Heyes to the ground, and punched him on the head more than once. Mr. Kazbekov
    let Mr. Heyes stand and said, we are done. As he stood up, Mr. Heyes tried to
    attack Mr. Kazbekov but was taken down again and punched. Mr. Heyes tried several
    times to get up and attack Mr. Kazbekov but was taken down each time with greater
    force. At this point, the appellant tried to intervene but was restrained by
    Mr. Pye. Mr. Heyes then stood up and tried to punch Mr. Pye who also threw Mr.
    Heyes to the ground in a wrestling maneuver and punched him in the head three
    to four times. Mr. Heyes then tried to punch Mr. Budgey, who had also arrived
    at the scene, and suffered the same consequences. The trial judge accepted Mr. Heyes
    may have been physically restrained concurrently by more than one of his
    opponents during the confrontation.

[7]

After about five to ten seconds, Mr. Heyes and Mr. Pye stood a few feet
    apart. Mr. Pye believed the fight had ended. He started to walk away but, after
    Mr. Heyes said something to him, turned to face Mr. Heyes. They resumed arguing
    with each other. At this point, the appellant ran to Mr. Kazbekov and pushed
    him to the ground. As he stood up, the appellant took out a knife from a sheath
    hanging on her neck and swung at Mr. Kazbekov, causing him a minor cut. She
    then moved towards Mr. Pye, raised her arm, and stabbed him in the left
    clavicle area.

[8]

After the stabbing, a witness heard the appellant say, I didnt mean to
    do it, I had to do it, they were going to kill him. The parties agreed that,
    at the police station, the appellant told an officer she believed Mr. Pye, Mr.
    Kazbekov, and Mr. Budgey [did] not like Mr. Heyes and were beating him up.

C.

Conviction Appeal

(1)

Trial Judges Reasons for Conviction

[9]

The appellant did not testify at trial. She took the position she acted in
    defence of Mr. Heyes and her actions were justified under s. 34 of the
Criminal
    Code
. The issue before the trial judge was whether the Crown had proved
    beyond a reasonable doubt that the appellant did not lawfully act in defence of
    Mr. Heyes under s. 34.

[10]

Section
    34 of the
Criminal Code
, which replaced the earlier provisions
    relating to self-defence in 2013, provides:

Defence  use or threat of force

(1) A person is not guilty of an offence if

(a)
they
    believe on reasonable grounds that force is being used against them or another
    person or that a threat of force is being made against them or another person;

(b)
the act
    that constitutes the offence is committed for the purpose of defending or
    protecting themselves or the other person from that use or threat of force; and

(c)
the act
    committed is reasonable in the circumstances.

Factors

(2) In determining whether the act committed
    is reasonable in the circumstances, the court shall consider the relevant
    circumstances of the person, the other parties and the act, including, but not
    limited to, the following factors:

(a) the nature of the
    force or threat;

(b) the extent to which
    the use of force was imminent and whether there were other means available to
    respond to the potential use of force;

(c) the person's role in
    the incident;

(d) whether any party to
    the incident used or threatened to use a weapon;

(e) the size, age, gender
    and physical capabilities of the parties to the incident;

(f) the nature, duration
    and history of any relationship between the parties to the incident, including
    any prior use or threat of force and the nature of that force or threat;

(f.1) any history of
    interaction or communication between the parties to the incident;

(g) the nature and
    proportionality of the person's response to the use or threat of force; and

(h) whether the act
    committed was in response to a use or threat of force that the person knew was
    lawful.


[11]

The
    trial judge found the requirements of ss. 34(1)(a) and (b) were satisfied. He rejected
    the Crowns argument that the appellant knew the fight was over when she
    attacked Mr. Pye and Mr. Kazbekov and found the appellant acted for the purpose
    of defending Mr. Heyes from the wrestlers attacks.

[12]

The
    sole issue in the case was whether s. 34(1)(c) was satisfied; i.e. whether the appellant
    had acted reasonably in the circumstances. The trial judge proceeded,
    correctly, on the basis that while the appellants intoxication by cocaine may
    have affected her subjective perception, the objective reasonableness element
    of self-defence is based on a sober person facing the relevant threat of force.

[13]

The
    trial judge found the appellants apprehension that the wrestlers were going
    to kill [Mr. Heyes] was not grounded in reality. Rather, they had used their
    arms, legs, and bodies in wrestling maneuvers to repeatedly take Mr. Heyes to
    the ground and punch him. Their taking Mr. Heyes to the ground and punching him
    were not remotely life threatening. They did not use weapons. They did not
    want to prolong the confrontation. On the other hand, the appellants conduct
    was wholly disproportionate to the threat Mr. Heyes faced. The appellant could
    have appealed to Mr. Heyes to back off or shouted for help to stop the fight. The
    trial judge concluded no reasonable person in the appellants circumstances
    would have over-reacted and used the knife as she did.

(2)

Issues Raised in the Conviction Appeal

[14]

The appellants first ground of appeal is that the trial judge erred in
    his analysis of whether the appellants actions were reasonable in the
    circumstances. The appellant submits the trial judge erred
by treating the
    proportionality of the appellants use of force as determinative of its
    reasonableness. The appellant argues that while proportionality was
    determinative under the pre-2013 self-defence provisions, s. 34 now requires
    the consideration of all the factors set out in s. 34(2), one of which is proportionality.

[15]

Second,
    the appellant argues the trial judge did not consider the evidence as a whole
    and, consequently, drew factual conclusions contrary to or not logically
    arising from the evidence. The trial judge erred by conducting a frame-by-frame
    analysis of the fight rather than considering the persuasive effect of the
    totality of the evidence.

[16]

Third,
    the appellant argues the guilty verdicts on the charges of aggravated assault
    and assault with a weapon were unreasonable.

(3)

Discussion of Conviction Appeal

[17]

I am
    not persuaded that the trial judge used the proportionality of the appellants
    use of force as determinative of its reasonableness.

[18]

A
    trial judge is not required to specifically identify and discuss each of the
    factors listed in s. 34(2). Here, the trial judges reasons, read as a whole, show
    that he considered all the relevant factors. He found the force Mr. Heyes faced
    was not life-threatening: s. 34(2)(a). He noted evidence the fight may have ended
    five to ten seconds before the appellant stabbed Mr. Pye and found the
    appellant could have shouted for help instead of stabbing Mr. Pye: s. 34(2)(b).
    He considered the appellants actions before, during, and after Mr. Pye was
    stabbed, including her consumption of cocaine earlier, her erratic
behaviour
, and her attempts to verbally and physically
    intervene in the fight: s. 34(2)(c). He pointed out that the wrestlers were
    unarmed and that only the appellant carried and used a knife: s. 34(2)(d). He referred
    repeatedly to Mr. Pyes muscular build and expertise in wrestling and Mr. Kazbekovs
    training in mixed martial arts. He noted Mr. Heyes lack of training as a
    fighter. He was well aware that the appellant is a petite female: s. 34(2)(e).
    He considered the nature and history of the relationships between the appellant,
    Mr. Pye, and Mr. Heyes, including past confrontations between Mr. Pye and Mr.
    Heyes, and their impact on the appellants subjective perception of the threat
    faced by Mr. Heyes: s. 34(2)(f) and (f1).  Finally, he considered whether,
    given the fight may have been over or at least paused, the appellants use of her
    knife was proportional to the threat of being taken down that Mr. Heyes faced: s. 34(2)(g).

[19]

The
    trial judges findings of fact support his weighing of the various factors and
    his conclusion the appellants acts were not reasonable in the circumstances.  I
    would not give effect to the appellants first ground of appeal.

[20]

I
    would also reject the appellants second ground of appeal. The trial judge did
    not consider aspects of the evidence in isolation. The trial judge acknowledged
    the appellants attacks occurred within the context of several physical
    confrontations that quickly unfolded. He considered the evidence of all the
    witnesses taken as a whole and noted the minor inconsistencies. While he rejected
    Mr. Pyes testimony that the appellant swung her knife at him a second time, he
    was entitled to accept other parts of his testimony.

[21]

Finally,
    I do not agree that the guilty verdicts were unreasonable. The evidence was
    sufficient for a reasonable trier of fact properly instructed and acting judicially
    to find the appellant guilty.

D.

Sentence Appeal

(1)

Trial Judges Reasons for Sentence

[22]

At
    the sentencing hearing, the Crown sought a 21-month jail sentence relying on
    the mid-range sentences for aggravated assault described in
R. v. Tourville
,
    2011 ONSC 1677. The appellant sought a suspended sentence to be followed by a
    period of probation, relying on
R. v. White
, 2014 ONSC 2878. The trial
    judge sentenced the appellant to 12 months in custody followed by two years of
    probation. He further imposed a ten-year weapons prohibition and a DNA order.

[23]

In
    sentencing the appellant, the trial judge emphasized denunciation and
    deterrence. He quoted and agreed with the statement in
White
, at para.
    3, that it is a rare case when a stabbing that has occurred without legal
    justification would be punished by a suspended sentence and probation and no
    incarceration. He added that he agreed with the statement because the
    principles of denunciation and deterrence demand incarceration in most cases.
    In his opinion, the circumstances of the appellant and her actions did not
    justify a departure from these established sentencing principles.

(2)

Issues Raised in Sentence Appeal

[24]

The
    appellant seeks leave to appeal her sentence. She submits that the trial judge
    wrongfully concluded rehabilitation was not a factor to be considered in her
    sentencing and in doing so failed to apply the well-accepted principles unique
    to sentencing youthful first-time offenders, such as the appellant.

[25]

The appellant tendered fresh evidence. The fresh evidence relates
    primarily to her further rehabilitative progress while on bail pending appeal.
    The fresh evidence also indicates she suffers from moderate asthma. She
    invites the court to consider the COVID-19 pandemic in Ontario and her
    susceptibility to a negative outcome should she become infected while
    incarcerated.

[26]

The
    crown argues, the trial judge did not err in principle, as he considered the
    rehabilitative prospects of the appellant, and the sentence imposed was fit and
    within the appropriate range, given the circumstances of this case.

[27]

The
    Crown contends case-specific evidence is required to establish there is an
    increased risk of transmission of COVID-19 in all custodial settings. The Crown
    further submits a reduction in the appellants sentence based on the potential
    collateral consequences to her health would be contrary to the principle of
    proportionality in sentencing.

(3)

Discussion of Sentence Appeal

[28]

The
    appellant relies on the trial judges statement, at para. 20 of his sentencing
    reasons, that specific deterrence and rehabilitation are not factors in my
    decision. The Crown relies on the statement, at para. 21 of the reasons, that the
    appellants background and post-offence efforts are mitigating factors and
    warrant a disposition below the mid-range sentences identified by Justice Code in
Tourville
.

[29]

These
    two seemingly inconsistent statements are reconciled on a reading of the sentencing
    reasons as a whole. The trial judge concluded that the established sentencing
    principles required he impose a custodial sentence, but that any custodial
    sentence be mitigated by the appellants rehabilitative prospects, which would,
    then, only determine the appropriate length of the incarceration.

[30]

The fundamental
    sentencing principle that applied in this case is that sentences other than a
    custodial one must be considered in sentencing a youthful first-time offender. The
    trial judge noted the Crowns acknowledgement that the appellant is a first
    offender who, with the help of concerned parents, has made efforts to
    rehabilitate and that specific deterrence is not an issue. This is the only
    reference to the appellant as a first-time offender in the trial judges
    reasons. He did not refer to the appellant as a
youthful
first-time
    offender and did not state her age in his reasons for either sentence or
    verdict. The appellant, who was 23 years and eight months old, and a student at
    the time of the offence, was a youthful first-time offender. In
R. v.
    Beauchamp
, 2015 ONCA 260, 326 C.C.C. (3d) 280, at paras.
    373 and 379, this court applied the principle to a 24-year-old offender.  As in
    that case, the
trial judge erred in principle by failing to advert to
    the established sentencing principle that applies to youthful first-time
    offenders and by placing undue weight on deterrence and denunciation and considering
    rehabilitation only when addressing the length of the custodial sentence to be
    imposed, having already concluded that a custodial sentence was appropriate:
Beauchamp
,
    at paras. 377-379; see also
R. v. Ijam
, 2007 ONCA 597, 87 O.R. (3d)
    81, at paras. 53-57,
per

Sharpe J.A. (concurring). It falls to
    this court to determine the appropriate sentence applying this established
    principle.

[31]

At
    the time of the offence, the appellant was suffering from depression and
    anxiety, and struggling with addictions to cocaine and prescription drugs. She had
    suffered domestic violence at the hands of Mr. Heyes, and the trial judge seemed
    satisfied the complainants were trying to protect her from Mr. Heyes. The trial
    judge found the most likely explanation for the appellants overreaction on
    the night of the incident was her cocaine use earlier that evening. However, he
    also noted evidence she had distanced herself from bad company and drugs
    since the incident.

[32]

After
    her arrest, the appellant completed residential and nonresidential
    rehabilitation programs. At the time of sentencing she had not used cocaine in
    almost two years and was working in the familys business, a gas station.

[33]

The
    fresh evidence, which I would admit, indicates she has continued her efforts to
    rehabilitate herself. On an individual basis, she continues to see the licenced
    therapist with whom she worked at the residential rehabilitation centre through
    videoconferencing. The therapist writes that the appellant has truly
    transformed her life, that she is addressing her anxiety, depression,
    addiction and trauma head on and is using her relapse prevention skills daily.
    The therapist opines that imprisonment would jeopardize [her] recovery and
    her mental health [and] sobriety would be put in danger. In December 2019 the
    appellant obtained employment with Juice Plus and has been promoted three
    times. She now has four team members working below her. She had been and
    continues to work at the familys gas station. The fresh evidence also includes
    a letter from her parents. It indicates she has been living with them since the
    sentencing and they have seen the improvement in her emotional and physical
    health. The sentencing report states that the appellants mother thinks she got
    mixed up with the wrong crowd when she went away to university.

[34]

In
    assessing the appellants moral blameworthiness, I note the verdict rested on the
    third element of s. 34(1) of the
Criminal Code
: whether the
    appellants conduct was reasonable in the circumstances. The trial judge did
    not accept the Crowns submission on the first question: whether the appellant
    believed on reasonable grounds that force was being used against Mr. Heyes. The
    trial judge also found that there was no dispute about the second question;
    the appellant had attacked for the purpose of defending Mr. Heyes.

[35]

The
    appellants subjective, though mistaken, belief that she was acting in defence
    of one man who had suffered, as the trial judge described, bruising,
    concussion, and fractured bones at the hands of three others diminishes her
    moral blameworthiness.

[36]

The
    trial judge described the altercation as a consent fight and used as a guide
    the range of sentences set out in
Tourville
for consent fights.
The fight started when Mr. Heyes approached Mr. Kazbekov
    aggressively, and so Mr. Kazbekov took him down. There was no evidence that
    the combatants in this case agreed to fight and, in any event, the person who
    was being sentenced was not part of a fight to which she consented. A more
    appropriate guide than sentences imposed for aggravated assaults by combatants
    in consent fights, is the range of sentences imposed in cases in which the
    offender acted in defence of another person.

[37]

As
    an example, in
R. v. Bainbridge
, 2016 ONSC 2119, the offender poured
    hot oil over the victim who was pummeling her son hard, with closed fist
    punches.  A jury convicted the offender of aggravated assault. The sentencing
    judge found the offender acted in defence of her son, but her act was
    unreasonable because it was excessive in relation to the harm her son faced.
    The sentencing judge imposed an intermittent sentence of 90 days followed by
    two years probation. The sentencing judge reasoned the offenders subjective
    belief her sons life was in danger put her case in a range of sentence below the
    mid-range sentences imposed in the consent fight cases discussed in
Tourville
.

[38]

The
    appellants efforts to intervene in the fight before drawing her knife and her
    subjective belief in the danger to Mr. Heyes life place this case at the
    bottom end of the range of sentences discussed in
Tourville
, at
    para. 27. The bottom end of the
Tourville
range includes a suspended
    sentence and probation.

[39]

The
    trial judge recognized the sentence of incarceration would interrupt the
    appellants efforts at rehabilitating herself and expressed his hope the
    sentence would not defeat it. The appropriate sentence is one that will support
    the remarkable progress the appellant has made and continues to make. Society
    will not benefit by sending the appellant, a youthful first-time offender, to
    jail. The need for deterrence and denunciation are achieved by the conviction, a
    suspended sentence and a lengthy period of probation, the DNA order, and the
    ten-year weapons prohibition. In light of this conclusion, I need not address
    the appellants arguments regarding the potential impact of incarceration
    during the COVID-19 pandemic on her health.

E.

Conclusion

[40]

I
    would dismiss the appeal from conviction, grant leave to appeal the sentence, allow
    the appeal on sentence, and vary the sentence to a suspended sentence together
    with the other terms imposed by the trial judge.

Released: RGJ October 23, 2020

R.G. Juriansz
    J.A.

I agree. M.
    Tulloch J.A.

I agree. M.
    Jamal J.A.


