R. v. Grewal and Mallhi Date:, 2011 BCPC 205

Citation: R. v. Grewal and Mallhi Date: 20110429 2011 BCPC 0205 File No: 175355-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. AGYAPAL SINGH GREWAL and SHAMINDER MALLHI REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. W. JARDINE Counsel for the Crown: D. Kier, Q.C. (for Federal Crown) Counsel for the Defendants: K. Johal (for Grewal) B. Vaze (for Mallhi) Place of Hearing: Surrey, B.C.

Date of Hearing: Feb. 28, March 1, and 2, 2011 Date of Judgment: April 29, 2011 [ 1 ] THE COURT : These are my reasons at sentence following the proceedings in the matter of Agyapal Singh Grewal and Shaminder Mallhi. These reasons must be read in the light of my findings of fact in R. v. Grewal in my conviction of Mr.

Grewal of the single count as a party to the offence committed on the Mallhi property set out in Exhibit 1, particularly the photographs at page 2, wherein Fisheries Officer Johnston had disclosed the various channel excavation work and riparian destruction found by Fisheries officers during the course of the investigation. FACTS [ 2 ] The relevant facts pertaining to Mr. Grewal's involvement are that he is a friend of Mr. Mallhi. He knew Mr. Mallhi wanted to do drainage work on his farm and that the habitat was protected. He said, and I accept, that he knew that Mr.

Mallhi had been involved in previous Fisheries issues because they discussed it. He warned Mr. Mallhi. He then went ahead and assisted Mr. Mallhi in renting an excavator and he also went ahead and introduced Mr. Mallhi to an operator who had also worked for him, Mr. Douglas Goodbrand. Mr. Goodbrand was engaged by Mr. Mallhi to conduct the work done during the course of the events of October the 25th, 2008. Mr. Grewal was co-operative with the Department of Fisheries and Oceans and the investigators.

He went, he was interviewed, and he admitted openly his involvement. [ 3 ] The facts that are relevant with respect to Mr. Mallhi are that he has been a farmer for some 25 years. He had drainage issues on both properties near 264th and 16th in the Township of Langley in the Province of British Columbia. Essentially those problems were swamp issues created by beaver dams during the course of Howes Creek leading to Bertrand Creek. Mr. Mallhi knew they were protected areas. As he has just stated, he did not attend to the environmental concerns.

Essentially he ignored them, given the crop failures he was experiencing due to the saturation of the farm properties. [ 4 ] Mr. Mallhi directed the work to be done by Mr. Goodbrand not only on his own property, but also in the area adjacent to 16th

Avenue and then subsequently the vegetation damage and riparian damage as you went down the watercourse. His degree of involvement was significant in terms of the commission of the offence to which he has pled guilty. [ 5 ] However, subsequently he has, and I accept he has, indeed, a certain degree of remorse. He has demonstrated that by a relatively early guilty plea, although it was the first day of trial. He has also demonstrated it by the remediation and restoration work already undertaken by him.

He has expressed his remorse and I accept that he feels embarrassed and shamed by these proceedings. [ 6 ] I accept that he accepts that due diligence was not a defence available to him and that as evidenced by Exhibits 1, 2 and 3 in the sentencing, he has already expended $3,439.31, as well as other monies, towards remediation and restoration. He has gone further. He has offered to educate other people in the farming community on the need to comply with the environmental concerns of either the municipality or the Department of Fisheries and Oceans.

THE APPLICABLE LAW [ 7 ] I am satisfied, on the basis of the materials before me, that the applicable law is set out in a case which is binding on me, R. v. Basso, a decision of the Honourable Mr. Justice Halfyard in the Supreme Court of British Columbia, in which he accepts a number of earlier authorities, particularly the analysis by the Honourable Judge Smith in the Yukon, and in R. v. Gibbons, those two cases being R. v. United Keno Hill Mines Ltd.

(1980) CELR 43, a Yukon Territory court case, also referred to by Judge Smith in R. v. Gibbons , May 12, 1998 in Quesnel's registry, 19002. [ 8 ] There are a number of factors to which the court should address itself in dealing with sentencing. Of course those factors, in terms of an environmental case, must also be looked at in light of the purpose and principles of sentencing set out in

Part 23 of the Criminal Code , in particular s. 718 , 718.1 and 718.2 , the most significant of that being that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 9 ] I am also mindful of the fact that a number of the authorities addressed the concern that in sentencing for environmental law cases, the court must pay significant attention to general and specific deterrence as being the paramount principles of sentencing.

Those objectives are significant in my analysis and discussion in this instant case. [ 10 ] I am also mindful of the case referred to not only in the course of Mr. Johal's submissions, but also in Mr. Vaze's submissions, referred to as well by Mr. Kier, that being the decision in R. v. Goodman , a decision of my colleague, Judge Challenger, in Richmond, British Columbia, reported at

(2005) BCJ 2322 . It is also at

(2005) BCPC 482. It is an oral judgment rendered July the 12th of 2005 in a case involving prop wash. [ 11 ] I accept the analytical factors in Goodman as being of some assistance; however, I would distinguish that case on the reasons set out at paragraphs 11, 12 and 13 of the report. Judge Challenger highlighted the fact that there was also a significant body of evidence before her which established the prop wash dredging had been a commonplace and long-accepted practice for maintenance dredging in the sand reach area of the Lower Fraser.

There was no evidence of any prior investigations or prosecutions for prop wash dredging, and even if there had been a permit from the Fraser River Port Authority or the Fraser River Estuary Management Program, that would not necessarily have served as a bar to prosecution.

Those factors distinguish that case as having little value in determining the fit and proper sentence in the case at bar. [ 12 ] Given the analysis set out in Basso , particularly at paragraphs 25, 26 and 27 at page 49 by Justice Halfyard, I am bound to look at the fact that I am dealing with convictions here under s. 35(1), one by way of guilty plea, the second by virtue of a finding of guilt, and that the applicable sentencing provision is that set out in s. 40(1)(

a) of the Fisheries Act. Section 40(1)(

a) reads as follows: Every person who contravenes ss.35(1) is guilty of

a) an offence punishable on

summary conviction and liable, for a first offence, to a fine not exceeding $300,000, and for any subsequent offence, to a fine not exceeding $300,000, or to imprisonment for a term not exceeding six months, or to both. That would inform what we could call the high-water mark of sentencing. We are nowhere near that, given the factors before me. [ 13 ] Given the factors here, I am of the following view with respect to Messrs. Grewal and Mallhi. Mr. Grewal and Mr. Mallhi both knew they were dealing with fish habitat. As to the extent of injury, there was not extensive damage here in terms of fish kill.

We had fish in distress, but the work done required remedial work in order to restore the appropriate habitation not only for the salmonids, but as well for a challenged fish, the Nooksack dace. [ 14 ] There are significant complex issues with respect to the place of this work in that we have jurisdictional factors dealing with the municipality as well as with the Department of Fisheries and Oceans. [ 15 ] As to the extent of criminality, with respect to Mr. Mallhi, I am of the view that there was wilful disregard by him of the statute. [ 16 ] As to Mr.

Grewal, he has a significantly diminished culpability, but he knew better. He was simply helping a friend, in his view. He warned Mr. Mallhi, but he went ahead and committed the actus reus of the offence with knowledge. [ 17 ] As to the extent of attempts to comply; in Mr. Mallhi's case, he took minimal steps, particularly given the warning from Mr. Grewal, which I have found he received. As I said, in terms of Mr. Grewal, despite the warning, he went ahead and assisted his friend. [ 18 ] I accept that both of them are remorseful. [ 19 ] I am not dealing with a corporate offender.

Neither of these men got a profit. In Mr. Grewal's case, he received no money. This was a favour for a friend. [ 20 ] The submissions of counsel have been extensive and as to Mr. Mallhi, I will shorten my reasons by saying that I have received a

Joint Submission from senior counsel. Mr. Kier, Q.C., of the Department of Justice, has been practicing for much longer than I have, and I have been kicking around the courts for over 38 years now. It is a scary proposition, given that I commenced at the Department of Justice on May the 14th, 1973, and Mr. Kier was already an old man. [ 21 ] Mr. Vaze and Mr. Kier have brought a Joint Submission before me for a total penalty of $15,000, time to pay of 18 months, based on a $1,000 fine and based on an order pursuant to s. 79.2(

f) of the Fisheries Act for restoration and remediation in the amount of $14,000. I have considered their submissions in light of the applicable law; in particular, R. v. Brown and Brown , a decision of Justice Cullen in the Supreme Court of the Province of British Columbia, cited by Mr.

Kier (which is a Surrey case from the 19th of October of 2005, Judge Gill) subsequently heard and reasons given in the Supreme Court of the Province of British Columbia on the 17th of November 2008, in which the fine in that case was set at $30,000. [ 22 ] Counsel have said, given the comparative aspects of each of the cases, that the fit penalty is in the amount of $15,000. [ 23 ] I can see no reason not to follow counsel's lead as it pertains to Mr. Mallhi; therefore, there will be a $1,000 fine, there will be a $14,000, 79.2(

f) Order, and he will be given 18 months to pay the fine and the penalty. [ 24 ] As to Mr. Grewal, I received extensive submissions, and again Mr. Johal has very kindly provided written submissions. He highlights, and I accept, as I said in my reasons for judgment as they pertain to Mr. Grewal, that he had a minimal culpability, occasioned in a great part by the fact that he warned Mr. Mallhi. [ 25 ] I will reiterate my conclusions as to the findings of guilt. From the testimony of Mr.

Grewal, as well as the contents of his statement, Exhibit 2 in the trial, I am satisfied beyond a reasonable doubt he had knowledge that Mr. Mallhi was going to excavate in fish habitat. He, for his friend, arranged for an operator, Mr. Goodbrand, and for the rental of the excavator from Hermann Gaudrey. Mr. Grewal knew he was helping his friend. He knew he was intending to excavate. He knew he had earlier been in trouble with Fisheries Canada. He went ahead in spite of his concerns about his friend's activities. I found as well that Mr. Grewal did not know that Mr.

Mallhi was going to excavate off his property or further downstream, and that Mr. Grewal did not instruct Mr. Goodbrand to do everything Mr. Mallhi instructed him to do. [ 26 ] I am therefore satisfied beyond a reasonable doubt that he was a party to the extent of the digging on the Mallhi property on 264th only, and that he had no inkling of the extent to which Mr. Mallhi was prepared to go to drain his property. Mr. Grewal was therefore not wilfully blind to the whole of the excavation undertaken by Mr. Mallhi and Mr.

Goodbrand, and was convicted of only one count relating to the excavation of the drainage ditch at the pump area depicted in Exhibit 1, page 2. [ 27 ] As to the circumstances of Mr. Grewal: Mr. Grewal was born in India. He is 47 years of age. He immigrated to Canada in 1984 and he has a grade 8 level of education. He is married. He is in a stable relationship with his wife. He has one adopted daughter. After arriving in Canada, Mr.

Grewal has worked at a number of jobs, including trucking, farm labour and excavation, and he has opened up his own company, South Slope Enterprises Ltd., which is essentially a sole proprietorship (although he has machines and hires people to operate those machines). He has had some health issues and he is in a position where it is of some concern as to his long-term stability. [ 28 ] Mr. Johal asked me forcibly to impose an absolute discharge with respect to Mr.

Grewal, due to the lack of proportionality of his involvement in this case and due to his current compliance not only with Fisheries, but his working together with Fisheries, as disclosed in the materials at Abbotsford from the Nathan Creek Project. I accept all of those factors as it relates to Mr. Grewal. [ 29 ] The issue is not whether it is in Mr.

Grewal's best interest that there be an absolute discharge, but whether or not, having regard to the purpose and principles of sentencing, that the public interest can be served by the imposition of an absolute discharge in a case involving an environmental step taken with knowledge. I cannot see how this case is in line with R. v. Goodman where the two persons who received discharges were woefully ignorant of any wrongdoing by each of them.

I would distinguish the Goodman case and I do not follow it. [ 30 ] Accordingly, I am not of the view that the public interest can be served by the imposition of a discharge. [ 31 ] That said, Mr. Kier's submission with respect to the culpability and liability and penalty to be imposed on Mr. Mallhi's friend, Mr. Grewal, does not reflect, in my view, a fit and proper attention to the minimization that he undertook. I am of the view the fit and proper fine is $1,000. [ 32 ] In terms of total penalty, there will be a fine of $100 and there will be a $900 order under s. 79.2(

f) for habitat restoration and remediation in the Bertrand Creek area of Langley. [ 33 ] Time to pay, Mr. Johal? [ 34 ] MR. JOHAL: I can canvass that with my client, Your Honour. [ 35 ] THE COURT: Well, then do it. [ 36 ] MR. JOHAL: Six months, Your Honour. [ 37 ] THE COURT: More than reasonable, Mr. Kier? [ 38 ] MR. KIER: Oh, fine, Your Honour. [ 39 ] THE COURT: All right. Let's make it October 31st, 2011. (REASONS FOR SENTENCE CONCLUDED)