R v Singh, 2013 ABQB 753

Court of Queen’s Bench of Alberta Citation: R v Singh, 2013 ABQB 753 Date: 20131220 Docket: 120944814S1 Registry: Edmonton Between: Her Majesty the Queen Respondent/Crown - and - Gurjit Singh Appellant/Accused Corrected judgment: A corrigendum was issued on February 19, 2014; thecorrections have been made to the text and the corrigendum is appended to thisjudgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice V.O. Ouellette _______________________________________________________ I.

Introduction [1] On June 27th, 2013, Gurjit Singh was found guilty of assault contrary to s. 266 of the Criminal Code, RSC 1985, c C-46 (the“Criminal Code”). At that time the Accused received a suspended sentence and probation. He now appeals the sentence, seeking eitheran absolute or conditional discharge. II. Standard of Review [2] In R v M(CA), (SCC), [1996] 1 SCR 500, the Supreme Court of Canada set out the following test inrelation to reviewing sentences: “Absent an error in principle, failure to consider a relevant factor or an overemphasis of the appropriate factors, a court of appeal should

only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.” (paras. 90-91) [3] I find this is the applicable standard of review in this case. III. Facts [4] Gurjit Singh was charged on August 9, 2012 with assaulting his 14-year-old son by slapping him on the back. The Crownproceeded summarily on the s. 266 charge. [5] The Accused’s defence was that the slap was by way of correction towards his son pursuant to s. 43 of the Criminal Code,and that his use of force was justified as a result.

Following the testimony of the son, the Accused’s ex-wife, his two daughters, twopolice officers and the Accused himself, the sentencing judge rejected the defence of correction and found the Accused guilty ofcommon assault. [6] In reaching this decision, the sentencing judge made the following findings of facts: • the house was quiet because the Accused was in a bad mood; • Ms. Singh and the children were quiet and frightened; • the Accused threw a pan of hot tea towards Ms.

Singh, making a loud noise and spilling tea on the stove top; • the Accused then yelled, screamed and swore at his wife; • the son and one of his daughters entered the kitchen and the Accused began asking them why the windows hadn’t been cleaned; • the Accused kicked over an ottoman and pushed the daughter so that she fell into a sitting position on the couch; • another daughter went to the kitchen, saw the spilled tea on the stove and called 911, as the Accused was very angry and shethought he would hurt someone; • the Accused hit the son on the back with an open hand, leaving a red mark; • when police arrived, the Accused calmed down and sat on the couch; • one of the police officers observed a fresh, pink/red coloured vertical, oval-shaped welt the size of a man’s hand on the son’s backbetween his shoulder blades; • the Accused hit his son on the back when he lost control of his temper and acted out of anger, and that his actions were notcorrective; • the force used was not transitory or trifling in nature; and • the Accused’s action in hitting the complainant was not reasonable in the circumstances. [7] The Crown sought a suspended sentence with an 18 to 24 month probation order.

The Accused asked for an absolutedischarge pursuant to s. 730 of the Criminal Code of Canada. [8] The sentencing judge properly referred to the case of R v BJM (MacFarlane), (1976) 1976 ALTASCAD 6 , 55 AR222 (“MacFarlane”), as the Alberta authority in regard to discharges.

The judge confirmed that two requirements need to be satisfied inorder to grant an absolute or conditional discharge: the order must be in the best interests of the Accused, and it must not be contrary topublic interest. [9] In relation to the first criteria, the sentencing judge agreed with the Crown and found it was in the best interests of theAccused that an absolute or conditional discharge be granted. The Accused was 48 years old with no criminal record.

Further, he was agood provider for his family, as he was employed at Canada Post and continued to support his family even though he was now separatedfrom his wife and not able to see his children. [10] However, the sentencing judge was not satisfied in regard to the second criteria that the discharge was not contrary to thepublic interest. First, the offence was one of violence, being a non-consensual, physical contact.

Second, in considering the prevalence ofthe particular offence in the community, the sentencing judge stated that family violence is frequently before the Courts. [11] The sentencing judge went on the find that the Accused’s act was impulsive, but that it was nevertheless “part of a course ofconduct that the Accused engaged in, which was marked by anger and violence toward his children” (transcript – page 13, lines 5-7). [12] Finally, the sentencing judge found that the facts of this case and the circumstances surrounding the Accused’s assault on hisson should be a matter of public record so that it might have a deterrent effect on “like-minded” others.

The sentencing judge found thatthe assault was a “crime of violence” (transcript – page 13, line 16), with two statutory aggravating circumstances: the son was under 18(s. 718.01 and s. 718.2(a)(iii) of the Criminal Code), and the Accused stood in a position of authority over his son (s. 718.2(a)(iii)). IV. Analysis

[ 13 ] The Alberta Court of Appeal has recently confirmed in R v Zentner , 2012 ABCA 332 , and R v Wright , 2013 ABCA 428 , that MacFarlane still remains the authoritative and binding decision in relation to discharges. [ 14 ] MacFarlane stands for the proposition that an absolute or conditional discharge should not be granted routinely (para 12) and the discretion to do so should be used sparingly (para 13). [ 15 ] A brief review of the facts in MacFarlane is helpful to provide some context. In that case, the Accused was 18 years old, had no criminal record, and was employed as an apprentice heavy-duty mechanic.

He was convicted of possession of stolen auto parts, having purchased them knowing they had been obtained as a result of a break-in. [ 16 ] Starting at paragraph 15, the Court in MacFarlane went on to list six factors which must be considered in every case, noting that other factors may be applicable on the facts: 15 Firstly, there is the nature of the offence. While it is to be borne in mind that the

Section may be used in respect of any offence other than one for which a minimum punishment is prescribed by law or the offence is punishable by imprisonment for 14 years or for life, or by death, one must nevertheless be concerned with the seriousness of the offence, and it would seem appropriate that the more serious the offence, the less frequent would be the use of a Discharge in sentencing.

It would, for instance, be a most exceptional case where a crime involving violence would be dealt with by an order of Discharge. 16 Secondly, one has to consider the prevalence of the particular offence as it may exist in the community from time to time. 17 Thirdly, one must consider whether an Accused stood to make some personal gain at the expense of others, as distinct from some activity which might be in the nature of a prank or in respect of which his motives were other than self-interest. 18 Fourthly, where the offence is relating to property, as here, the value of the property destroyed or stolen must be relevant.

The theft of a ball-point pen would not ordinarily be regarded as seriously as the theft of a colour television set. 19 Fifthly, we think that it is relevant to consider whether the crime was committed as a matter of impulse, and in the face of unexpected opportunity, or whether it was calculated. 20 Sixthly, we think it relevant to consider whether the circumstance that an Accused has committed the offence is something which should be a matter of record so that members of the public may have the opportunity of being aware of the fact that that Accused had committed the offence in question.

Theft from an employer would, in most cases, involving as it does a breach of trust, not warrant a Discharge, as it may be thought that prospective employers should have the means of knowing something about the character of the prospective employee. Even here there may be exceptional circumstances, such as a falling-out, or a civil dispute about money which did not amount to colour of right, but which might result in the offence being in the nature of a technical one. [ 17 ] On the first factor regarding the nature of the offence, the conviction here is for common assault and the Crown proceeded summarily.

The assault occurred by way of open-hand slap to the back of a 14-year-old boy, leaving a red welt. The sentencing judge’s finding that the force of the hit was not transitory, and was therefore permanent, is difficult to reconcile on the facts; although, it is true that the Court found the slap to be a crime of violence, there are different degrees of violence.

This common assault is clearly of a lesser degree. [ 18 ] Further, it is difficult to reconcile the sentencing judge’s finding that this was a non-trivial or trajectory crime of violence towards a family member who was under 18 with her refusal to grant a DNA order or weapons prohibition as requested by the Crown. [ 19 ] In refusing to make a DNA order, the Court stated: “In this case, Ms.

Love, I am not persuaded that a DNA sample is necessary, given that the accused has no prior convictions and given the circumstances that gave rise to this particular offence” (transcript – page 14, lines 26-28). [ 20 ] In response to the Crown’s request for a weapons prohibition because violence was used, the Court stated: “I am not satisfied that given the circumstances of this particular offence that a weapons prohibition is necessary in the -- in the interests of the administration of justice and I decline to make such an order” (transcript – page 15, lines 13-15) [ 21 ] On the second MacFarlane factor, the sentencing judge began by considering the prevalence of this particular crime, common assault, in the community.

She stated that family violence issues are frequently before the courts. It is unclear whether the sentencing judge specifically found that it was prevalent in the community for fathers to slap their teenage sons. Further, it should be noted that the purpose of referencing the prevalence of family violence in the community was to set out a “narrative outline” of the evidence (transcript – page 1, line 37). While MacFarlane refers to the prevalence of the particular offence, the particular offence in this case, being a slap to the back, was not examined.

As a result, the reference to family violence is an overemphasis of this factor. [ 22 ] Both the Crown and the Court agreed that factors 3 and 4 did not apply to the facts of this case. [ 23 ] With respect to the fifth factor, the Court made a finding of fact that the crime was committed as a matter of impulse (i.e. not calculated or pre-meditated). [ 24 ] Lastly, the final MacFarlane factor to consider is whether the circumstances are such that the public should have the opportunity to be made aware of the crime the Accused committed.

This was not a calculated or thought out crime, speaking to an individual’s character and thus attracting a higher degree of moral blameworthiness. Unlike MacFarlane , the Accused’s charges do not relate to a property crime or other offence that persons such as prospective employers would want to be aware of. [ 25 ] As stated earlier, the Court found that the circumstances of this case did not warrant a DNA order, or a weapons prohibition.

It is difficult to understand why on these same facts, the public interest requires a conviction as a matter of record, yet other cautionary or deterrent orders are unnecessary for the administration of justice. [ 26 ] The reasons given by the Court regarding whether the public should be made aware of the Accused’s actions note that the Accused was in a position of authority over his son, and that the assault was on an individual under 18 years old.

It would seem to me that those reasons are relevant to the first factor as discussed earlier, but not with respect to the need of the public to know of the conviction. [ 27 ] In essence, those two aggravating circumstances automatically came into play when the s. 43 defence was rejected, and do not weigh against a conditional or absolute discharge in a consideration of the sixth factor. Ultimately, the level of aggravation must be looked at in light of the facts: this was one impulsive slap, not an ongoing pattern of physical or sexual abuse of young children. [ 28 ] In

summary, I find that only factors 1, 2, 5 and 6 of MacFarlane are relevant to this case. For the reasons stated above, I find that the sentencing judge overemphasized the nature of the offence by focusing on the fact that it was

an act of violence without considering the specific offence in context. That overemphasis is relevant to the consideration given to the first, second and sixth factors. [ 29 ] I also find there was an overemphasis regarding the prevalence of the particular crime in the community. The sentencing judge never found that it was prevalent in the community for parents to assault their children under the guise of correction or discipline. [ 30 ] Finally, the overemphasis of the two aggravating factors to the first and sixth factors, are not the type of circumstances contemplated by MacFarlane .

These factors arise by operation of the Criminal Code . And while they must be factored into all sentencing decisions in which a person under 18 has been the target of a violent offence, or where an Accused holds a position of power over a complainant, they must be examined within the overall context of the offence. Isolating these aggravating factors at the sixth stage of the MacFarlane analysis has the effect of disproportionately weighing them as against the Accused. V. Conclusion [ 31 ] For these reasons, the Accused’s appeal is granted.

Had the sentencing judge not overemphasized the factors one, two and six of MacFarlane , I am satisfied that a conditional discharge would have been granted. Accordingly, Gurjit Singh is granted a conditional discharge pursuant to s. 730 of the Criminal Code of Canada with 18 months’ probation as directed by the sentencing judge. Heard on the 12 th day of December, 2013. Dated at the City of Edmonton, Alberta this 20 th day of December, 2013. V.O. Ouellette J.C.Q.B.A. Appearances: Susan Phillippe Alberta Justice for the Respondent/Crown Barinder S. Pannu Pannu Law Office for the Appellant/Accused

_______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Mr. Justice V.O. Ouellette _______________________________________________________ The filing date on the cover page has been corrected to read 2013 instead of 2012.