R. v. K.S.S., 2022 MBPC 22

CITATION: R. v. K.S.S., 2022 MBPC 22 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) A. Smith & J. Rebizant ) for the Crown - and - ) ) K.S.S. ) C. McCoy ) for the Accused ) ) Reasons delivered: ) April 27, 2022 Restriction on publication by court order under

section 486.4(1) of the Criminal Code of Canada : Any information that could identify the complainant/witness shall not be published in any document, or broadcast or transmitted in any way. L. Martin, P.J. INTRODUCTION [ 1 ] This is a sentencing decision on an intimate partner aggravated assault. Like all intimate partner violence cases, this decision is multi-layered and complicated.

It involves untreated addictions, cultural undertones, immigration consequences and the potential destruction of a family. [ 2 ] On November 12, 2021, K.S.S. (K.S.S.) was found guilty of committing an aggravated assault against his wife K.K. by stabbing her in the stomach and the leg multiple times on May 31, 2020. As K.S.S. was on an undertaking at the time for charges that have since been stayed, he was also convicted of breaching that undertaking three times by having contact with K.K., attending her home and consuming drugs (See R. v. K.S.S., 2021 MBPC 55 ).

At the sentencing hearing, K.S.S. pleaded guilty to a subsequent breach of his release order by being out past his curfew on February 3, 2021. He was found in his surety’s home renovating it as a means of repaying the surety’s kindness. [ 3 ] The Crown submits that denunciation and deterrence are primary sentencing objectives and recommends a seven-year sentence for the aggravated assault, a six-month concurrent sentence for the May 31, 2020 breaches, and a fine for the February 3, 2021 breach.

Defence submits that the Court should impose a sentence which places more weight on rehabilitation and which would allow K.S.S. a right of appeal of a potential deportation order. He recommends a custodial sentence under six months followed by supervised probation. BACKGROUND & CONTEXT [ 4 ] It is important to provide some background and context to better understand the circumstances of the offence and the offender. [ 5 ] K.S.S. and K.K. were united through an arranged marriage in 2009. They have two young children under the age of 10.

K.S.S. and his wife are permanent residents of Canada, having immigrated from India in 2014. They are Sikh and endorse the belief that husband and wife are equal and deserve love, dignity and respect. K.K. views it as her duty to keep her family together and not refuse K.S.S. food or access to the family home. She also sees it as her duty to assist him in seeking help for his drug addiction to methamphetamine that he developed in about 2018. However, K.K. believes that K.S.S. also has a duty to her and to the family and that when he became addicted to methamphetamine, he was breaching that duty.

As such, although she provided him food and access to the family home even though he was under condition to not attend as a result of criminal allegations she had previously made against him, she would hold K.S.S. accountable for his behaviour when under the influence of drugs, making him leave the family home or calling the police to breach him. [ 6 ] K.S.S. has engaged in drug use for 20 years, starting when he was a young man in India. His drug use started with opium, transitioning to heroin, and then in about 2018, methamphetamine. K.S.S.’s addiction to methamphetamine became problematic.

He was sober for approximately one year in 2019 after he was incarcerated for allegations of assault against K.K. By March 2020 however, his drug addiction became worse. K.S.S. and K.K. tried to get K.S.S. medical help for his addictions. Medical reports filed with the Court at the sentencing hearing indicate that K.S.S. was in the methadone program in 2020 but that it was not successful for him and he stopped in March 2020. Evidence at the trial indicates that tensions over K.S.S.’s drug use and resulting behaviour continued to build between K.K. and K.S.S..

Police were called several times and on March 18, 2020 K.S.S. was arrested for assaulting K.K. and uttering

threats to cause her bodily harm.

K.K. ultimately took the position that she fabricated the allegations in an attempt to force K.S.S. into sobriety and the charges were ultimately stayed. [ 7 ] Evidence submitted at the sentencing hearing suggests that in addition to K.S.S.’s drug addiction, that there were other issues at play in K.S.S. and K.K.’s marriage which included K.S.S.’s feelings of mistrust of his wife, frustration over K.K.’s seeming lack of communication with him and stress over the presence of K.K.’s mother who had been living with them since 2016. [ 8 ] It is in this context that K.S.S. stabbed his wife on May 31, 2020.

He had come to the family home for supper high on methamphetamine. While K.K.’s mother and two children were in the living room, K.S.S. and K.K. went into the kitchen where the two argued over his behaviour and drug use. K.K. told K.S.S. he needed to leave and prepared food for him to take. Without saying anything, K.S.S. grabbed a butcher knife from the counter and stabbed K.K. Three stab wounds, approximately two to three centimetres in length were to her abdomen, and two apparently superficial wounds were to her legs.

Many people were witness to the aftermath of the stabbing, including K.K.’s mother and two children. The eldest child, still under the age of ten at the time, called 911 to report the incident. The call is heartbreaking; it is clear that he believed his father had murdered their mother. [ 9 ] K.K. required two surgeries to repair her abdominal wounds as the surgeons missed a tear to the anterior portion of her stomach during the first operation.

The doctor who performed the first surgery estimated that the wounds were approximately three centimetres in depth but clarified that because the abdomen moves back and forth he could not be sure. He was clear that the wounds were such that they penetrated the abdominal cavity. K.K. required several months of rehabilitation but has made a full recovery except for some scarring to her abdomen. [ 10 ] K.K. did not provide a victim impact statement. Rather, she hired a lawyer to convey her wishes to the Court. Those wishes are for a reunified family.

She has forgiven K.S.S. and does not want him to be sentenced to any further time or to a sentence which would see him deported. No victim impact statement or reports were provided with respect to the two children. K.K. did advise the Court that her children miss their father and that they have seen him twice through supervised visits with Child and Family Services. CIRCUMSTANCES OF THE OFFENDER [ 11 ] At the time of the offence, K.S.S. was 39 years old. He had no prior record but was pending on related charges (since stayed).

His upbringing was unremarkable but faith-based insofar as he was forbidden from interacting with females prior to marriage. In contravention of these rules, he fell in love with a woman from his home town in India. That woman was murdered by her parents for disobeying the faith-based rules. [ 12 ] K.S.S. has lived an industrious life. Several letters of support were provided on his behalf. He is described as a hard worker and as kind and respectful to others. He acknowledges his prior dependence on illicit drugs and his use of them as a coping mechanism. K.S.S. has had periods of abstinence.

As noted previously, he has previously sought out rehabilitative assistance through the methadone program and more recently, the Rapid Access to Addictions Medicine (RAAM) Clinic in April 2021, and subsequently, the Harbourview Clinic in July 2021 where he has been seen regularly by a general practioner further to a referral from the RAAM Clinic. Regular drug testing since April 2021 has confirmed his abstinence. He has also undergone counselling which started while in custody on remand status and continued while in the community.

His treating physician is of the opinion that K.S.S. is engaged in his mental health recovery and motivated towards his sobriety. [ 13 ] K.S.S. spent over six months in custody on remand status before securing release on December 3, 2020. While in custody, he contracted COVID. His incarceration was difficult because of this as well as language issues; though he can communicate in English, it is at a very basic level. [ 14 ] While on release since December 3, 2020, K.S.S. has not incurred any breaches except for the curfew breach on February 3, 2021.

Importantly, there have been no breaches or further reoffending or allegations with respect to K.K. [ 15 ] A pre-sentence report (PSR) was prepared to provide some background information on K.S.S. and assess his risk to reoffend. I have some concerns with this assessment as it appears that some of the information used to support it may have been incorrect.

The PSR writer assessed K.S.S. as a medium risk to reoffend with concerns about potential supervision problems in the community, commenting that a community based sentence “is unlikely to be successful unless sufficiently restrictive in order to permit for an immediate response to noncompliance.” No reason is provided for this comment but the PSR writer opined that K.S.S. had little to no supports in the community which she found was a main risk factor. This opinion has been contradicted by the pro-social support K.S.S. has received throughout the legal proceedings, including employment and housing.

Other factors that were seen to potentially affect risk were communication problems and lack of anger management skills. These risk factors are being addressed through counselling.

The other concerns are with respect to some undertones suggestive of cultural stereotyping, such as a reference to “deep-rooted male patriarchal roles and long-standing cultural norms that propagate the view of women as subordinates throughout their lifespan.” It is unclear where the PSR writer obtained this information as there is no evidence before the Court that K.S.S. embraces any of the ideas outlined in the PSR or that cultural beliefs were behind the offending. [ 16 ] K.S.S. has expressed remorse for his actions. He claims that his actions were solely related to his drug addiction.

He has distanced himself from anyone who takes drugs and has worked hard on his rehabilitation. He too wants to be reunited with his family. THE LAW [ 17 ] Sections 718 and following of the Criminal Code (the Code ) set out the principles and objectives of sentencing. Fundamentally, a sentence needs to be proportionate, meaning that it must reflect the gravity of the offence and the degree of responsibility of the offender and take into consideration aggravating and mitigating circumstances. Pursuant to

section 718.2 of the Code , offences of intimate partner violence are statutorily aggravating. [ 18 ] Historically, the law viewed intimate partner violence as a private matter between a man and his wife. As social awareness grew as to the propensity of the violence, the resultant harm on the family, individually and collectively, and the cost to society, the

law’s expression of condemnation changed. As noted in R. v. Woods, 2008 SKCA 40 at para 34: Courts across Canada have long recognized the significance of the problems of domestic violence and spousal abuse. For example, in R.v. Lavallee, (SCC), [1990] 1 S.C.R. 852 (S.C.C.), Wilson J., for the majority of the Supreme Court of Canada, said thisat p. 872: The gravity, indeed, the tragedy of domestic violence can hardly be overstated. Greater media attention to this phenomenon in recentyears has revealed both its prevalence and its horrific impact on women from all walks of life.

The sentencing goals of deterrence and denunciation naturally play an important role in establishing appropriate societal values andattitudes in relation to this kind of crime. [19] The law no longer sees intimate partner violence as a private matter but rather as

an act of violence worthy of society’scondemnation and protection. (See R. v. Inwood, (ON CA), [1989] O.J. No. 428; R. v. Brown, 1992 ABCA 132) Forthis reason, the wishes of the victim are seen rarely, if ever, as dispositive of the outcome of the sentencing proceedings.

As noted inBrown para 26: [T]he plea of the wife that her husband be returned to her and that she not be further victimized by being deprived of his income shouldnot readily be permitted to prevail over the general sentencing policy that envisages imprisonment of the man as not only an instrument ofthe deterrence of other men, but also as an instrument of breaking the cycle of violence in that man’s family even at the risk of therelationship coming to and end during the enforced separation. [20] Although paternalistic in tone, the underlying rationale and principles of intimate violence offences hold true today.

As with alloffences however, the range of sentence varies depending on the circumstances: “suspended or conditional sentences, generally forassaults that lead to minor injuries, to lengthy incarceration terms in the case of an aggravated assault.” (Clayton C. Ruby et al.,Sentencing, 10th ed. (Toronto: LexisNexis, 2020) para 23.323) However, even when the offending is an aggravated assault, the samevariation in the range of sentence exists depending on the circumstances of the offence. As noted by the Manitoba Court of Appeal in R.v.

Kravchenko, 2020 MBCA 30 at para 51, “[a]ggravated assault cases, like situations of manslaughter, are challenging for a sentencingjudge, perhaps more so.” [21] Although patterns of sentence have developed in aggravated assaults involving intimate partner violence, there is currently noset range of sentence in Manitoba.

Rather, the Court of Appeal in Kravchenko reiterated that sentencing is fact-specific and a sentencingcourt must take into consideration the moral culpability of the offender and the consequences of the assault, cautious not to treat anaccused as having committed an attempted murder: [53] First, like a manslaughter, an aggravated assault has a spectrum of moral culpability as to whether the assault is near accident ornear murder.

The task of a sentencing judge is to “determine the extent to which the harm was foreseeable, the risk or likelihood that theoffender’s conduct would give rise to the harm, as well as the offender’s state of mind or state of awareness” (R v Nickel, 2012 ABCA158 at para 35). Often, the nature of the violence used and the offender’s state of mind will be telling in this assessment. [54] Second, the concepts of wounding, maiming, disfiguring or endangering life cover a wide variety, and different durations, ofharm, unlike manslaughter where the consequence of that offence is clear—death.

The consequences of the assault are central tothe section 268(1) offence. As Binnie J explained in R v Williams, 2003 SCC 41, “The ‘aggravation’ in aggravated assault thus comesfrom the consequences” (at para 45). Therefore, aggravated assault sentences must take into consideration the nature and degree of theconsequences to the victim, both proximate to the occurrence of the offence and in the long term.

In making assessments ofconsequential harm, sentencing judges should be careful before making too much of dark analogies comparing and contrasting the harmsuffered by victims in other cases (see R v Kanthasamy, 2007 ONCA 90 at para 5). Sentencing must always remain an individualisedprocess. [55] Third, a sentencing judge cannot treat an accused as having committed an attempted murder, even if the facts support that is whatoccurred, as that would be contrary to the rule that an offender cannot be sentenced for a crime which he or she has not been convicted of(see Suter at para 35; and Giesbrecht at para 177).

Attempted murder requires proof of a specific intent to kill; nothing less will suffice(see The Queen v Ancio, (SCC), [1984] 1 SCR 225 at 249). The maximum sentence for attempted murder is lifeimprisonment (see

section 239 of the Code) which reflects the increased gravity of having an intention to kill another and taking action toachieve that objective. [22] Mindful of these comments, the Court has focused on an examination of case law with a similar fact pattern to this case – animpulsive stabbing after a verbal dispute. Although counsel provided other case law with different fact patterns, they are not reproduced

here as it would serve little purpose other than to illustrate the diversity of aggravated assault scenarios. To be clear, the Court does notview this fact scenario as akin to a random, unprovoked attack on a stranger which attracts a sentence in the range of four to eight years(see for example Kravchenko, stabbing of a child at church; R. v. Khan, 1991 CarswellOnt 900 (CA), stabbing of a subway passenger inthe face; R. v. Canney, 1995 CarswellNB 395 (CA), random firing of a gun at a student on campus; R. v. Kanthasamy, 2007 ONCA 90,random machete attack on a high school student; R. v.

Beardy, 2014 MBCA 23, random stabbing of a patron at a gas station; R. v.Cummings, 2015 ONSC 3162, random knife attack on a subway, cutting the neck of a passenger). Neither is it akin to a planned attack(R. v. Hogg, 2004 MBCA 114) or a barroom brawl (R. v. Besaw, 2004 MBCA 196). [23] This offence is also not a case of longstanding endemic intimate partner violence. Though the Crown submitted that K.K.’sbehaviour displayed the hallmarks of intimate partner violence, I disagree.

Both K.K. and her mother testified to only having trouble withK.S.S. when he began taking methampthetamine in 2018 and the criminal allegations are consistent with this. Further, though K.K. wasnot a willing participant in the proceedings, as noted throughout this decision, there are several issues at play which could also explainher reticence. The same can be said with respect to her decision to allow K.S.S. into the family home when he was pending on relatedcharges.

Though such decisions can be and often are reflective of the cycle of intimate partner violence, in this particular case, I acceptK.K.’s evidence about her rationale which was based in her belief system. [24] Two cases which are in line with the fact pattern before this Court are R. v. Linklater, 2015 MBCA 79 and R. v. King, (ON CA), [2004] O.J. No 4884 (ONCA). In Linklater, while bound by a recognizance to abstain from alcohol, theintoxicated accused got into an argument with his girlfriend.

After the girlfriend slapped him in the face, grabbed his glasses and threwthem to the ground, the accused went to the kitchen, retrieved a knife and stabbed his girlfriend in the chest. He then fled the scene. Thegirlfriend required surgery which left her with a lengthy scar. She had a difficult recovery and suffered lingering physical and emotionaleffects. The accused presented with Gladue factors and significant rehabilitative efforts since the offending. He had a dated but lengthyand related record.

The Court of Appeal upheld the sentence of two years incarceration followed by one year of probation. [25] In King, the Ontario Court of Appeal upheld an 18-month custodial sentence for the aggravated assault committed by theaccused against his intimate partner. While intoxicated, the accused stabbed the victim 51 times in the legs after she attempted to endtheir relationship. The attack was serious, persistent and impulsive and occurred in the victim’s home. The accused had an unfortunatepast and a dated but related record. He pleaded guilty to the offence and expressed remorse.

The Ontario Court of Appeal held that thesentence fell within the range of sentences for similar offences and offenders. ANALYSIS [26] This has been a very difficult case. It has taken over one year to reach this point in the proceedings. The strain and turmoil K.K.has gone through since the May 31, 2020 offence has been apparent to the Court. K.K. was not a willing participant in these proceedings.A witness warrant needed to be issued.

She did however testify and convey her frustration with her husband’s drug addiction and itsimpact on their family – dire financial consequences to a business he was trying to build and a recent home purchase and the slowdissolution of their family. K.K. wants her family reunified. To try to save their home from being repossessed by the banks, she has takenin renters. She has now lived apart from her husband for two years.

It is a situation which she finds deplorable. [27] I mention K.K.’s journey and wishes, not as a means to factor it into the sentence, but rather to demonstrate her strength as anindividual and to assist in evaluating the context of the offending. K.K.’s impression is that their marital troubles and K.S.S.’s offendingare situational as a result of his drug use.

While the Court accepts that, it is also clear that unbeknownst to K.K., other factors were atplay, including K.S.S.’s jealousy over his fears K.K. was being emotionally unfaithful to him, his stress over her mother’s cohabitationwith them, and his displeasure over her seeming lack of communication with him. [28] There are several aggravating circumstances related to the commission of this offence: • it was committed against his wife, in the family home, while he was pending on related charges; • while the other occupants of the house (K.K.’s mother, a tenant and the two children) did not witness the aggravatedassault, they witnessed the very traumatic aftermath.

K.S.S.’s own young son called 911, believing that his father had murdered hismother; • a knife was used; • the impact to K.K. and her children was significant. Though K.K. has only been left with scarring, the breach of trust to herwas substantial.

Though the children have told their mother that they miss their father and have only seen him twice through supervisedvisits with Child and Family Services, such a traumatic incident is likely to have had an incredible emotional impact on them. [29] There are also several mitigating circumstances: • his lack of prior record; • his expression of remorse; • the rehabilitative efforts he has undertaken; • he has been bound by an absolute curfew for 17 months while on release. [30] There are also several collateral consequences that have impacted and will continue to impact K.S.S. in the future.

First of all,K.S.S. spent time in custody on remand status during the pandemic and contracted COVID. Incarceration was difficult because of thisand because K.S.S. does not speak much English. Further incarceration will pose similar difficulties. Finally, there are the collateralconsequences that will result because of his permanent resident status. Though K.S.S. should have been aware of these consequences,

K.K. has made it abundantly clear that she will uproot the children and follow K.S.S. back to India if he is deported. DECISION [ 31 ] The aggravated assault is serious. Though it was an impulsive, unplanned act, the potential harm from stabbing someone in the abdomen is clearly foreseeable. I do accept that K.S.S. was under the influence of methamphetamine when he committed the offence. The evidence at trial is consistent with this and it establishes that when under the influence of this drug he did not act like himself. Instead, he was paranoid and erratic.

The physical consequences to K.K. were potentially life threatening but she seems to have made a full recovery except for some permanent scarring. [ 32 ] The primary sentencing objectives are general denunciation and deterrence but there are several mitigating factors and collateral consequences, which, while not displacing the primacy of denunciation and deterrence, still need to be considered. [ 33 ] When I consider all of the foregoing, I find that a sentence of three years incarceration is appropriate.

It properly reflects the degree of moral culpability involved and is comparable to similar stabbings in an intimate partner context, but reflects the particular aggravating features of this case and takes into consideration the mitigating circumstances and collateral consequences. K.S.S. has spent 191 days in pre-sentence custody, at enhanced value, 287 days. Noting that pre-sentence time, the sentence on a go-forward basis is 808 days (1095 days – 287 days) or 26 months and 28 days. [ 34 ] This sentence will be accompanied by the following ancillary orders: • A

section 487.04 primary DNA order, to be taken while in custody; • a 20-year

section 109 weapons prohibition. [ 35 ] There will be a one-month concurrent sentence on the breaches from the same day and a one day concurrent sentence for the February 3, 2021 breach. [ 36 ] Costs and surcharges are waived. [ 37 ] The Crown asked the Court to impose a

section 743.21(1) non-communication order with K.K. for the first year he is in custody for counselling to take place. I have declined to make that order as K.S.S. has already began counselling and K.K. has asked to have contact with him. . Original Signed by Judge Martin . L. Martin P.J.