R. v. Dhillon Date:, 2013 BCPC 259

Citation: R. v. Dhillon Date: 20130410 2013 BCPC 0259 File No: 186387-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GURJIT SINGH DHILLON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. W. JARDINE Counsel for the Crown: C. McPherson Counsel for the Defendant: M. Stern Place of Hearing: Surrey , B.C. Dates of Hearing: Aug. 23, 24, 27, Nov 19, Dec. 30, 2012; Mar. 27, 2013 Date of Judgment: April 10, 2013

[ 1 ] THE COURT : A conviction was entered November the 30th, 2012, and today was set aside for me to give my reasons at sentence. I. INTRODUCTION [ 2 ] This is a tragic case. This type of case is the most difficult with which a trial judge has to deal. The victim impact evidence from Exhibits 2, 3 and 4 has made me acutely aware of the anguish of the Benning clan as a result of the senseless loss of a beloved, respected elder.

The court has the difficult task of explaining the applicable law and balancing emotion with a reasoned sentence to the family. [ 3 ] The convicted offender, otherwise an ordinary citizen, has, in a brief period of driving and in a matter of moments, engaged in conduct which by its nature has significantly impacted two families, as well as his community. The grief, shame, guilt and remorse of this offender is readily apparent. I will review the facts and the applicable law to try to explain to the Crown, the defence and those present, the balancing nature of my task at this sentencing. II.

LEGISLATION [ 4 ] The applicable provisions of the Criminal Code are s. 249(4) and s. 259(2) (

b) as well as the removal of conditional sentences from offences of this nature in s. 742.1 .

For ease of reference, I will repeat s. 249(4) and 259(2)(b). 249(4): Everyone who commits an offence under subsection (1) and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding 14 years. 259(2)(b): Mandatory Order of Prohibition It should be noted it is a discretionary term which provides in (b): During any period not exceeding ten years plus any period to which the offender is sentenced to imprisonment, if the offender is liable to imprisonment for more than five years but less than life, in respect of that offence. [ 5 ] Since Mr.

Stern, in the cases cited for the defence, provided numerous cases where conditional sentence orders were provided by sentencing judges and the appellate authorities were considering the reviewability of those sentences, I wish to point out that a conditional sentence order is not available in this case. Since the maximum sentence is 14 years, s. 742.1 specifically precludes such a sentence in the case of a matter such as this. [ 6 ] All sentencing is now guided by statute, as well as the applicable jurisprudence.

Parliament has set aside, in s. 718 of the Criminal Code , the purpose and principles of sentencing which instruct and guide trial judges. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect through the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and, (

f) to promote a sense of responsibility in offenders an acknowledgment of the harm done to victims and to the community. [ 7 ] The fundamental principle of sentencing is set out in s. 718.1. We are instructed that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2: A court that imposes a sentence shall also take into consideration the following principles: (

a) A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.

And, without limiting the generality of the foregoing, a number of listed items which are not relevant here are listed as aggravatingcircumstances. (

b) A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. What they are saying is that people in one community committing similar offences should be dealt with in a similar fashion as others inthat community insofar as the cases meet. I am mindful as well in this instance of: (

d) An offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances; and, (

e) That all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for alloffenders with particular attention to the circumstances of Aboriginal offenders. That last phrase has no application in this case. [8] Those are the legislative provisions which guide the balancing task on which I am embarking. III. POSITION OF THE CROWN [9] I have summarized Mr. McPherson's thorough submissions. I am sure I will not do full credit to the totality of his reasonedargument but I will summarize it for the purposes of this sentencing.

The Crown has submitted the fit sentence for this offender on thefacts of this case is a federal sentence in the range of two-and-one-half to three years. In addition, it was submitted that the court shouldmake ancillary orders for a DNA sample, pursuant to s. 487.05(1), a discretionary order as this is not one of the listed offences in thesection, and Mr. McPherson seeks a driving prohibition for a period of ten years. The Crown emphasized denunciation, deterrence andretribution as the paramount principles in the circumstances of this offender having regard to the facts of this case.

He submitted that theaggravating factors raised the moral blameworthiness of Mr. Dhillon and the consequential harm the death of Mr. Benning made this avery serious offence. The Crown emphasized that Mr. Dhillon was driving a fancy, powerful and fast car. [10] The Crown submitted that the court could find that Mr. Dhillon was showing off. In addition, Mr. Dhillon was driving fast,both before and during the loss of control of the vehicle. The manner of driving at 128th Street and 72nd Avenue, in Mr.

McPherson'ssubmission, involved intentional risk-taking which imperilled all of those present in that very busy suburban intersection at rush hour. He argued that the senseless avoidable death of Mr. Benning was the result. He said that Mr. Dhillon chose to accelerate. Mr. Dhillonchose to make an abrupt lane change within the intersection. He argued that Mr. Dhillon's apparent intention was to show off, to havethose present see him as important. That intention was, the Crown said, reckless. It was very dangerous and raised the level of moralblameworthiness of Mr.

Dhillon. [11] As to the consequential harm making this a serious offence, Mr. McPherson argued that the homicide of Mr. Benning, after along and prosperous life, was serious. The actions of Mr. Dhillon left a large, loving family without a much-beloved patriarch. The griefof the family was clearly expressed in the victim impact statements of his son, his daughter and his grandson. [12] The Crown submitted, having regard to the language of the Ontario Court of Appeal in R. v. Ramage, 2010 ONCA 488, [2010] O.J.

No. 2970, the following: The community, quite properly, demands that the courts denounce and deter such reckless and dangerous conduct. Significantincarceration is the remedy that most emphatically achieves those goals. [13] Mr. McPherson also directed the court to the language of Chief Justice Lamer, as he then was, in R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500, paras. 80 and 81, as setting out the applicable principles of retribution and denunciation and thedifferences between them. He also submitted R. v. J.A.W., [2006] B.C.J. No. 1112 (BCCA), Ryan J.A., was applicable to this case.

Hefurther cited the reasons of my colleague, the Honourable Judge Gulbransen in R. v. Bernier, [2010] B.C.J. No. 2328, as a guide for thesentencing herein. IV. POSITION OF MR. DHILLON [14] Mr. Stern presented a forceful and persuasive submission on behalf of Mr. Dhillon. He submitted that the very brief period ofdangerous driving in this case mitigated his client's level of moral blameworthiness. Considering the severe impact of the collision andthe resulting death on the emotional well-being of Mr. Dhillon, Mr.

Stern submitted that the individualized nature of sentencing shouldlead to a far lesser sentence than that sought by the Crown. The defence provided 60 letters of support for Mr. Dhillon. Those lettersconfirm the pre-offence character of his client and the devastating and shattering result wrought by his shame, guilt, grief and remorse. Those letters were also confirmed by the medical reports of Dr. Kuchenmuller, a psychologist, and Dr. Harrad, a psychiatrist, whoconfirmed that Mr. Dhillon is presently depressed and has Post-Traumatic Stress Disorder.

A concern is expressed by those medicalexperts that a lengthy jail sentence may impact his emotional well-being to the extent of him having suicidal ideations and there is aconcern about his feelings of worthlessness arising from these proceedings. [15] Mr. Stern argued that given the lack of a criminal record, the support of a close-knit family, the community support exemplifiedby the letters and the previous good character of his client, that the fit and proper sentence, having regard to all of the circumstances, was

a suspended sentence and a lengthy probation order with perhaps some aspect of community work service, volunteering and charity, topermit the court to bring the matter within s. 718(

f) and promote a sense of responsibility in Mr. Dhillon and an acknowledgment of theharm done to victims and to the community. [16] In the alternative, Mr. Stern argued, if the principle of proportionality and the circumstances of this offender inexorably lead toa jail sentence, then that appropriate sentence, which would be fit, would be less than six months. If the jail sentence is required to meetthe purpose and principles of sentencing, then the other mitigating factors, in Mr. Stern's submission, would bring the case to that levelof incarceration. [17] Mr.

Stern provided, in an extensive casebook, 12 authorities directed at appropriate sentencings for dangerous driving, criminalnegligence driving, impaired driving causing death sentences. He provided R. v. Giles, [2012] B.C.J. No. 1062, R. v. Virk, [1997] B.C.J.No. 340, R. v. Friesen, 2011 BCPC 418 , [2011] B.C.J. No. 2594, R. v. Hollinsky, [1995] CanLII 8929 O.C.A., R. v. Proulx,[2001] S.C.R. 61, R. v. Muthoka, [2011] M.B.C.A. 40, R. v. Powa, (BC CA), [1998] B.C.J. No. 896, B.C.C.A, R. v.Smith, [2002] B.C.P.C. 37, R. v. Song, [2009] B.C.C.A. 470, R. v. Kwasnica, [2006] B.C.S.C. 2037, R. v.

Thuma, [1997] CanLII 2507B.C.C.A., R. v. Bowman, [2008] B.C.C.A. 410 and R. v. Smith, [2012] B.C.J. No. 2720. He also provided the underpinning convictiondecision of the court and a decision from the Supreme Court of Canada dealing with the relevance of immigration issues at sentencing inR. v. Pham, [2013] S.C.C. 15. [18] In respect of the Powa decision in the British Columbia Court of Appeal, Mr. Stern pointed out that the one-year sentenceimposed therein was a sentence much lower than the Crown's submission as to the fit and proper sentence. Mr.

Stern argued that all ofthe cases, including those involving guilty pleas, joint submissions and conditional sentence orders under the previous sentencinglegislation, were relevant and of assistance in the court determining the fit and proper range of sentence and the appropriate principles ofsentencing in the case at bar. At the most, Mr. Stern submitted, the sentence should be six to nine months plus probation plus a lengthydriving prohibition.

If the court then also took into account and considered the collateral consequences of civil liability and the potentialimmigration issue of deportation anticipated by current proposed legislation, the fit sentence, in Mr. Stern's submission, should bereduced to less than six months. There were other aspects to the very thorough submissions of Mr. Stern but I will cover those off whenI deal with the circumstances of the offender and, accordingly, that is the

summary which I have prepared for the purposes of explainingwhat I have taken from the legal aspects and issues raised by him. V. ISSUE [19] The issue here is, what is the fit and proper sentence. VI. FACTS [20] The relevant facts for sentencing are: A. The Admissions 1. The deceased is Pritnam Benning. 2. The deceased was 83 years old at his death. 3. On 17 September, 2009, Gurjit Singh Dhillon was driving a 2003 Corvette, black in colour, owned by his brother, AmarjitDhillon, bearing B.C. licence plate 630 LGJ (a black Corvette). 4.

At approximately 6:00 p.m. on 17 September, 2009, the black Corvette driven by the accused collided with a bus stop bench uponwhich the deceased was sitting, severely injuring the deceased. 5. On 22 September 2009, the deceased died from the injuries that he suffered when he was hit by the black Corvette driven by theaccused. 6. At approximately 1803 hours on 17 September 2009, the accused called 9-1-1. The call lasted approximately for just under fiveminutes. Exhibit 9 in these proceedings is an accurate recording of the 9-1-1 call made by the accused.

The accused is the male voicespeaking in the English language with the female 9-1-1 operator. 7. The photographs contained in the book of photographs, which was marked as Exhibit 5 in these proceedings, were taken by Cst.Hewitson on the evening of 17 September, 2009. The photographs are a true and accurate depiction of the scene, as viewed by Cst.Hewitson. B. Prior to the Collision with Mr. Benning 1. Gurjit Singh Dhillon drove the black Corvette south on 128th Street from 82nd Avenue. 2. At the intersection of 128th and 80th, the black Corvette was in the left lane.

A yellow Corvette was in traffic at the red lightahead of the black Corvette. 3. Both vehicles were heading southbound on 128th Street. The yellow was in front; the black was trailing. Both vehicles weretravelling at approximately 70 to 80 kilometres per hour. At no time were they side-by-side except when the black Corvette passed theyellow Corvette, as they were in the line of the traffic and approaching the intersection at 72nd Avenue. Until 72nd Avenue, they werein a position where the black Corvette was always trailing the yellow. 4. The black Corvette was in the middle lane at 72nd Avenue.

It was behind a blue Honda Accord which was the first car in line atthe stop line. The yellow Corvette was in the curb lane behind and to the right of the black Corvette.

5. The light changed. The blue Honda Accord being driven by Ms. Franzman pulled slowly into the intersection after about a second to a second-and-a-half delay. As she continued through the intersection, the black Corvette followed into the intersection. As they continued, the black Corvette pulled to the right and accelerated very quickly as it changed lanes. In the translated words of Mr. Grewal, I find, “Yes, it speeded all of a sudden.” 6. As the vehicle was accelerating, Mr. Dhillon said out loud, "It is out of control," or words to that effect. It is not clear whether he was communicating to Mr.

Grewal or he was simply commenting on the circumstances of the vehicle that he was driving. 7. After the lane change and acceleration, the black Corvette began to spin as it moved south of the intersection of 128th Street and 72nd Avenue. The black Corvette was moving south but it was also swerving to the east towards the middle lane of travel proceeding southbound on 128th Street. As it swerved, it spun with its rear end going towards the east and the front of the vehicle moving to the west.

The right rear of the black Corvette struck the right front of the blue Honda Accord, which was driving straight south in the middle lane. It struck the Honda Accord as it was moving fast past it with the right rear corner. When I say the rear, we are talking about the rear next to the tail lights on the back of the vehicle, striking the right front corner of the blue Honda Accord and then moving on an angle to the right. 8. The black Corvette was moving faster than the Honda Accord and, as it continued southbound, it swerved to the west. Exhibit 6, which is to scale according to the measurements from Cpl.

Dyson, shows the movement and two tire tracks which have intermittent brakes, those being T1 and T2 in Exhibit 6 at trial. C. The Collision with Mr. Benning 9. The black Corvette continued, hitting the west curb of 128th Street, mounting the sidewalk and striking Mr. Benning and the bench. It then spun, striking a bus stop pole, a tree and a garbage container before stopping on a grassy knoll west of the west sidewalk of 128th Street. D. Timing 10. I find that from start to finish the whole movement took less than ten seconds. 11.

The driving from start to first contact with the Honda Accord was in approximately five seconds of total time. 12. The impugned driving was approximately four seconds within the intersection which informs the manner of driving of Mr. Dhillon. 13. The intersection of 72nd Avenue and 128th Street is a very busy suburban intersection which was experiencing rush hour traffic. 14. The four corners of the intersection are different. The southwest corner is a telephone building behind which is the campus of Kwantlen University.

The northwest corner has a Shell gas station and then residence properties, some multi-family, some single- family, adjacent to the gas station. The southeast corner has a bus stop and a strip mall. The northeast corner, a pedestrian walk-through to residential properties. 15. Both 72nd Avenue and 128th Street have four lanes and turning lanes at the intersection. 16. It should be noted that there were numerous pedestrians on the streets at the corners and the vehicular traffic was very heavy at the time of the collision on 128th Street and the subsequent collision with Mr.

Benning and the bus stop bench on the southwest corner. E. Fault Element 17. As I have just said, as to the time, we are dealing with rush hour. As to the nature of the place, it is a very busy place at rush hour with all types of vehicular traffic, as well as numerous pedestrians present, either attending to bus stops, going to and from the university or high schools or stores or athletic functions which are facilities all within a very short distance of this intersection. At the time of the collision, the condition of the roads was one where they were dry.

This was a clear, sunny day and the road surfaces, which are asphalt, were in good shape. There is no explanation from the road surface as to why a vehicle would go out of control. At the time of conviction, I made the finding that, though the time was very short, likely three to four seconds, this driving in this place at that time constituted a marked departure from the norm expected of a reasonable, prudent driver. This was a Corvette. It was flashy, it was loud, it was very quick. In the heavy traffic present, a rapid acceleration of the nature engaged in by Mr.

Dhillon was obviously dangerous when coupled with the quick lane change. As to the intent of Mr. Dhillon, given Mr. McPherson's submission during the course of the sentencing hearing, I point out that I made findings of fact at the time of conviction as follows. Mr. Dhillon's conduct during the three to four seconds of his rapid acceleration and the sudden lane change was reasonably a marked and substantial departure from the conduct expected of a reasonable driver in his circumstances. His intent, as I have said, was either to get away from the crush of traffic or to leave behind the traffic at the intersection.

I have found he was not racing. I found that he drove his brother's Corvette in that intersection in a dangerous manner without regard for the risk that the manner of driving posed. [ 21 ] Those are the relevant facts for the purposes of my imposition of sentence here today. VI. The Circumstances of the Offender [ 22 ] Mr. Stern submitted that Mr. Dhillon is 28 years of age. He was married January 2009 and he and his wife are expecting their first child in July 2013. Mr. Dhillon has a close-knit family. His mother is in his home. His brother, his sister-in-law and his niece are also in his home. Mr.

Dhillon came to Canada in 1995. He completed high school in 2002. He has worked with his brother at Bright Star Electrical where he started doing manual labour and then moved to doing clerical work and, until recently, was involved in doing job estimates for the enterprise.

[ 23 ] It is apparent that in the past three-and-one-half years and, more significantly, aggravated in the last eight months that the effects of the accident have caused him to stop. The last eight months, his emotional strength has been such that he has been unable to work at all. [ 24 ] In the 60-some letters of support, there are numerous references to him being devastated and shattered by the death of Mr. Benning and then more significantly affected by the charges being laid and responding with even more upset as a result of the conviction November 30th, 2012.

Those letters are confirmed and confirm for the medical experts their opinions which are expressed in the document book provided by Mr. Stern and marked as an exhibit, in particular, the report of Dr. Manfred Kuchenmuller dated March 20th, 2013, and the report of Dr. Jogi Harrad dated January 31st, 2013. [ 25 ] I will, in order to explain the findings of the doctors, refer to their reports and their findings as to Mr. Dhillon. I will start with the psychologist's report, as he conducted clinical tests, in addition to offering an opinion based on information. At page 1, Dr. Kuchenmuller says of Mr.

Dhillon the following: Mr. Dhillon presented as an anxious and depressed young man who found it difficult to talk about the events leading to the accident and the consequent death of 83-year-old Indo-Canadian, Mr. Pritnam Benning. He was often teary during my interviews and struggled to accept that his actions had killed Mr. Benning. As to psychological testing, Dr. Kuchenmuller said: His profile further indicates that he is severely depressed, discouraged and withdrawn and most likely meets the criteria for a major depressive disorder.

He is plagued by thoughts of worthlessness, hopelessness and personal failure. He also has a disturbed sleep pattern, low energy and loss of appetite and weight. The profile indicates that he has some phobia-like behaviours and that he monitors his environment in a vigilant fashion to avoid contact with feared situations. These feared situations are likely associated with the traumatic accident that continues to distress him and produce recurrent episodes of anxiety. He continued: Mr. Dhillon's profile clearly shows that he is experiencing a high level of anxiety and tension.

He is plagued by worry to the degree that his ability to concentrate and attend are significantly compromised. In view of his debilitating psychological and physical complaints, his previous functional self-concept is severely shaken and vacillates between self-confidence and self-doubt and despair with the latter being prominent. He is at risk for self-harm, particularly in an environment where he does not feel support. His profile indicates that his interests and motivation for treatment is typical of individuals being seen in treatment settings.

His responses suggest that he acknowledges his problems and requires help in dealing with these problems. He reports a positive attitude towards the possibility of personal change, the value of therapy and the importance of personal responsibility. As to his findings, he said this on the last page of his report: I consider Mr. Dhillon to be severely traumatized by this accident and unable to function even after two-and-a-half years. He is vulnerable to harming himself and unlikely to recover on his own.

He is particularly vulnerable to being in any new and unsupportive environment where he will feel unsafe and more likely to harm himself. At present, he is only able to maintain himself with the support of his wife, some friends and his medications. All of that is very negative. However, there is a positive from Dr. Kuchenmuller's report. In the last paragraph, he writes this: To this end, Mr. Dhillon has spoken with psychologist, Dr. Michael Foreman, who has worked with trauma patients and is prepared to work with Mr. Dhillon at this time. Mr.

Dhillon has also contacted a care home for seniors in Surrey where he would be able to assist seniors on a voluntary basis. I believe that this type of mandated treatment for nine months to a year will allow Mr. Dhillon to become fully functioning again. As the last sentence of the report appears out of the range of the expertise of Dr. Kuchenmuller, I will not quote it. [ 26 ] Dr. Harrad is a psychiatrist, a Fellow with the Royal College of Physicians and Surgeons of Canada, and he has provided a report as at January the 31st, 2013. With respect to the report from Mr. Dhillon and Mr.

Dhillon's emotional strength, Dr. Harrad said this: When Gurjit heard about his death, he was quite devastated. He was also having vivid dreams about the accident and the crushed legs of the old fellow. In that accident, Gurjit also received injuries to shoulder, knee, neck and back. Mr. Dhillon was feeling very sad and fearful, poor concentration and attention, poor self-esteem, feelings of worthlessness, feelings of guilt. He had passive suicidal thoughts. Mr. Dhillon was crying a lot and sometimes he thinks it is better to be dead.

He also has episodes of panic attacks where his heart rate is increased, shortness of breath, nervous shakiness. He would have one to two panic attacks per week. His impression is articulated at page 2 of his report. He says: Mr. Gurjit Singh Dhillon is a 28-year-old male with history of depression, symptoms of anxiety and Post-Traumatic Stress Disorder after a motor vehicle accident. Mr. Dhillon is very remorseful and is having guilt feelings about the death of a person in the accident.

He suggests in the report that he should be taking some medication and that he should receive some psychotherapy, that he is suffering from a psychiatric illness and asks the court to take into consideration Mr. Dhillon's psychological health because: There could be a risk of worsening of his depression, including having suicidal ideations/attempt in case of severe and prolonged

punishment. [ 27 ] I take it from the 60 letters of support and the confirmation of the devastation and shattering of the strength of Mr. Dhillon and from the doctors' reports that Mr. Dhillon has become depressed to the point where he has "stopped". He has not been able to be productive at work for the last eight months and the conviction on November the 30th of 2012 has exacerbated his condition. From the submissions of counsel and the materials presented, it is likely that he fears jail, that he fears immigration responses and that he fears for his future and the future of his family.

In effect, the submissions on his behalf and the letters of support state that he has stopped living his life since September the 17th, 2009, and remains incapacitated today.

Anyone who heard him on March 27th, 2013, would know that he is genuinely remorseful for his actions on September the 17th, 2009, but he is having trouble facing his responsibility for that which he has done. [ 28 ] One of the most significant aspects is a step taken by the offender in this matter in that prior to the charges being laid, he had a tattoo placed on his arm in the name of the deceased, the date of the incident and the words in quotes, "The day everything changed." I am told that he has instructed counsel that that was for the purposes of not having him forget what he had done because he has not only sympathy but deeply regrets what he has done, that he wants a daily reminder of the harm that he has caused and that he should not be allowed to forget it.

I am told that in the three-and-one-half years since, there have been additional tattoos, plural in nature, and the initials of people who have assisted him in trying to deal with the mental health ramifications have been added. [ 29 ] With respect to the circumstances of this offender, it is trite to say that it takes courage to face one's family, friends and community when faced with a mistake of this magnitude. Mr. Dhillon is a son, a brother, a spouse and soon to be a father. Mr. Dhillon has a permanent reminder on his arm of the consequences of his actions on Mr. Benning.

It is for him to take some positive steps to live his life. If he is truly grieving for Mr. Benning, he needs to honour Mr. Benning's model and think of others and not only the impact on himself. [ 30 ] Mr. Dhillon has been described repeatedly in the letters of support as trustworthy, responsible, genuine, honest, caring and respectful. In fact, within his family, he has the support of others who describe him as being the stable rock of the nuclear household as a young man, one who is bright, cheerful, energetic and industrious.

It is difficult to see him stop, frozen in time in his emotional upset at facing these proceedings. [ 31 ] Mr. Dhillon, the workings of the vehicle did not "cause this accident" despite what several of the support letters have described. The loss of control of this vehicle was the result of your manner of driving. It was the sudden acceleration and abrupt lane change within the intersection that caused you to lose control of that Corvette. The losing of control set in motion the chain of events which caused the catastrophic injuries to Mr. Benning's legs, the trauma that led to his death days later.

It was not a failure of the vehicle; it was a failure of you to take appropriate steps to maintain that vehicle in the course of driving it. You need to come to grips with those stark facts. Wishful thinking will not assist you in moving forward from today. [ 32 ] As to the circumstances of the offender, my concluding remarks to you, sir, are addressed to you. One can only hope that you will, rather than remaining devastated by remorse, guilt and grief that the change this offence has wrought upon you, have the courage to move forward. Those with depression show courage by getting out of bed each day.

As a son, brother and soon-to-be parent, you need to show courage by working to support your extended family. [ 33 ] Courage is required for you to stand up and keep going in the face of this conviction and your role in Mr. Benning's death. You need to take responsibility for the manner of your driving. This you can do if you decide to honour Mr. Benning. His attendance to temple and your voluntary duties at the temple have reflected that you are attempting to model that activity.

You have already started to demonstrate with those actions of attending to temple and your volunteering and your charitable work at temple that you are interested in self-rehabilitation and reformation. When I say that, it was not merely your words on March the 27th that are important but the fact that you have already begun your contrition and penance by volunteering at Sri Gural Ravadas Saba Temple, and that is confirmed in the letters of support. I can only hope that you will continue to model yourself, in the words of the Benning family, by copying Mr.

Benning and becoming someone who is assisting your family. VII. VICTIM IMPACT STATEMENTS [ 34 ] Victim impact statements are always a difficult part of a sentencing. Exhibits 2, 3 and 4 are moving and poignant expressions of the grief of the Benning family. Mr. Benning was loved. He was respected. He was the patriarch, whose wisdom and life experience was relied upon by his family. He is missed terribly by that large and loving family. I want to take a moment to highlight some of the most significant passages of each, of Exhibits 2, 3 and 4.

His son: The hardest part of my father's death is that it did not need to happen. His suffering was avoidable. His legs being amputated should not have been necessary. At 83 years of age, he should have spent his last years surrounded by his children, grandchildren and great- grandchildren, not lying in ICU with half his body missing. We only pray that he was not aware of anything that had happened and that he did not feel any pain. His son misses the counsel of his father. His daughter, Javinder (phonetic), in Exhibit 3, speaks of his providing a balance of love and emotion to the family.

She said: My father used to love talking about the good old days. He would talk about his experiences of his first years in England and how hard he worked to bring his family over from India. His face would light up when he told these stories and he would have a twinkle in his eye. I miss that twinkle. She continued: My dad was always a caring and loving man despite the tough façade he tried to put up. But this changed with the passing of my mom. His behaviour towards me changed and he began to show more affection. It was as if he was trying to soften the loss of my mother.

When he passed away, it felt like I had lost both of my parents. It has left me feeling very lonely.

You miss him but you should look at his legacy which is his family. She continued: The passing of my father has created a vast empty feeling, an unexpected and sudden void that has resulted in me losing so much more than my dad but also my mentor, my greatest teacher and, above all, my hero. The multi-generational of the impact statements is reflected in Exhibit 4. His grandson said this: Every morning, my grandfather would have a pot on the stove and made chai for my parents, my brother and myself. He had no reason to be up that early but he did it regardless. That's the man my grandfather was.

For his entire life, he put his family ahead of himself. [ 35 ] It was to that point that I was speaking, Mr. Dhillon, about your circumstances because at this stage, if you are going to honour Mr. Benning, you need to start moving forward in order to emulate that conduct. VIII. APPLICABLE LAW AND ANALYSIS [ 36 ] I am grateful to counsel for their diligence in preparation of their submissions and the provision of extensive sentencing materials. As may be expected, they presented different positions as to the fit sentence. The Crown submitted a federal sentence of two- and-a-half to three years was appropriate.

Mr. Stern submitted a suspended sentence or a sentence of less than six months followed by probation as fit in the particular circumstances of his client. [ 37 ] In my view, the Crown has overemphasized the principles of deterrence, denunciation and retribution. The defence submissions have overemphasized the individual circumstances of the offender and, in particular, the guilt and remorse which he feels. The task of a trial judge at sentencing is a balancing process. The analysis is informed by the principle of proportionality which I have already quoted from s. 718.1. Those purposes set out, in

section 718 , 718.1 and 718.2, balance, a need that the court considers not only punishment but also restraint in the imposition of incarceration. A review of the jurisprudence relating to dangerous driving causing death cases demonstrates that the circumstances of offences of dangerous driving causing death vary greatly and that the range of appropriate sentences is very broad. It is trite to say that sentencing is an individual process and that a contextual analysis by the court is required.

The authorities outline a number of factors to be considered in determining the moral culpability of an offender in an individual case. The list may include the following: 1. The age of the offender; 2. The length of time of the impugned conduct; 3. The circumstances of the collision; 4. The existence of a criminal record; 5. The degree of recklessness inherent in the manner of driving which gave rise to the offence; 6. The departure from the expected norm of driving reflected by the individual case; 7. The nature of the road; 8. The driving conditions there present; 9.

The amount of traffic (both vehicular and pedestrian) present. Driving after the consumption of alcohol is a particularly aggravating factor in the jurisprudence. [ 38 ] As to proportionality, I am struck by the language in the Biring decision, [2011] B.C.S.C. 734, a decision of Mr. Justice Joyce in Chilliwack. The court said at paragraph 107: However, when I consider the degree of responsibility of the offender or his moral culpability to which the sentence must be proportionate, I find that it is not at the highest end of the spectrum.

The pattern of driving leading up to the critical moments prior to loss of control , while aggressive, was not a lengthy period of reckless driving that exposed other drivers to risks of serious harm over a protracted period. That is not to say that Mr. Biring does not bear a heavy responsibility for his conduct in causing the accident. It was obviously a marked departure from prudent driving as Mr. Biring admitted by pleading guilty.

[ 39 ] On the issue of moral blameworthiness, I instruct myself in accordance with the guidance from R. v. Bhalru ; R. v. Khosa , the companion case in the British Columbia Court of Appeal, [2003] B.C.C.A. 645. Justice Finch at paragraphs 31, 32, 33 and 34 provided guidance to a trial judge at sentencing on how we should instruct ourselves in accordance with determining and assessing moral blameworthiness. Similarly, in R. v. Powa , supra , paragraph 16 , Justice Esson provided similar instruction. In R. v.

Bowman , [2008] B.C.C.A. 410, it was Justice Lowry who, at paragraph 11, instructed trial judges how they should look at moral blameworthiness. In R. v. Thuma in the British Columbia Court of Appeal, it was Justice Braidwood at paragraph 12 of that decision. I do not intend to quote each of those passages. [ 40 ] As to the emphasis on the purpose and objectives of sentencing, I am guided by the remarks of Chief Justice Lamer in R. v. Proulx , [2000] S.C.C. 5, [2001] S.C.R. 61, paras. 129 and 130.

I intend to read both of those passages because Justice Lamer, Chief Justice of Canada, was highlighting how I am to assess the nature of moral blameworthiness and arrive at a conclusion as to fit sentences in cases such as this. In that instance, Madam Justice Keyser of the Manitoba Supreme Court had imposed a sentence of 18 months for multiple offences. The question went to the Manitoba Court of Appeal as to whether that was a fit sentence. The Manitoba Court of Appeal set aside her decision of 18 months' conventional jail and imposed a conditional sentence order.

It went on to the Supreme Court of Canada and, in his reasons, Chief Justice Lamer restored Madam Justice Keyser's decision. At paragraph 129, Justice Lamer said: While Keyser J. seems to have proceeded according to a rigid two-step process, in deviation from the approach I have set out, I am not convinced that an 18-month sentence of incarceration was demonstrably unfit for these offences and this offender. I point out that the offences here were very serious, and that they had resulted in a death and in severe bodily harm.

Moreover, dangerous driving and impaired driving may be offences for which harsh sentences plausibly provide general deterrence. These crimes are often committed by otherwise law-abiding persons, with good employment records and families. Arguably, such persons are the ones most likely to be deterred by the threat of severe penalties. He then cited appellate authorities and continued at paragraph 130 as follows: I hasten to add that these comments should not be taken as a directive that conditional sentences can never be imposed for offences such as dangerous driving or impaired driving.

In fact, were I a trial judge, I might have found that a conditional sentence would have been appropriate in this case. The respondent is still very young, he had no prior record and no convictions since the accident, he seems completely rehabilitated, he wants to go back to school, he has already suffered a lot by causing the death of a friend and was himself in a coma for some time.

To make sure that the objectives of denunciation and general deterrence would have been sufficiently addressed, I might have imposed conditions such as house arrest and a community service order requiring the offender to speak to designated groups about the consequences of dangerous driving, as was the case in Parker . [ 41 ] He cited R. v. Parker , as well as R. v. Hollinsky in the Ontario Court of Appeal. Chief Justice Lamer, in paragraphs 129 and 130, was highlighting the balancing nature of my task here this afternoon.

In fact, he was saying that had he been the trial judge, he might well have considered a conditional sentence order but he took the view that Madam Justice Keyser had not made any error in law. [ 42 ] Moreover, a review of the cases from counsel and my own research has, in the absence of a joint submission, provided a range of sentence from approximately four months to six years for dangerous driving causing death or the similar offences of impaired driving causing death or criminal negligence causing death. The higher sentences appear to be reserved for instances where alcohol consumption was involved.

In this case, the accused had no alcohol or drugs in his system at the time of the accident.

I am mindful of the conditional sentence order implications and the length of a CSO being enhanced as was described by Justice Lamer in Proulx but incarceration had to be considered as a first step in each of those instances by the sentencing judges and, therefore, those cases involving the imposition of a conditional sentence order to permit the offender to serve the sentence in the community are of little instruction in terms of the overall purposes and principles of sentencing and the appropriate balancing process. [ 43 ] I am struck, however, by the language in R. v. Bhalru; R. v.

Khosa , supra , at paragraphs 45 and 46 in Chief Justice Finch's reasons. As to the principle of denunciation, he said: 45. The principle of denunciation is related to general deterrence. Both are considered punitive elements of the sentencing regime, in contrast to the more restorative oriented objectives set out in ss. 718 (d), (

e) and (f). A sentence which achieves the objective of denunciation is one which communicates society's condemnation of that particular offender's conduct. Denunciation has both punitive and exhortative elements. It satisfies a community’s desire and need to condemn certain conduct, and also plays a more positive role in communicating and reinforcing society’s shared set of values as described in the Criminal Code . 46. In my opinion, when determining the weight to be given to the objectives of general deterrence and denunciation, it is important to consider the overall tenor of the sentencing amendments Parliament introduced in 1996. Obviously, listed as they are in ss. 718 (

a) and (

b) as objectives of sentencing, general deterrence and denunciation retain a valid role in the process of sentencing. Equally important, however, is the concerted shift towards a restorative justice approach and call for restraint in the use of incarceration represented in the amendments. 47. The Supreme Court of Canada has recognized that the 1996 sentencing amendments were a watershed event in this respect. The punitive objectives of general deterrence and denunciation should not overwhelm the restorative objectives that are also embodied in the new sentencing regime.

I do not suggest that there will not be cases where the circumstances of the offence and nature of the offender call for a greater emphasis on the objectives of general deterrence and denunciation. Courts have repeatedly recognized that general deterrence and denunciation will be "paramount objectives" in sentencing for impaired or dangerous driving offences. [ 44 ] Balanced against that emphasis in R. v. Bhalru; R. v. Khosa , the trial court must determine a proportionate sentence reflecting the nature of the harm caused by the offender and the degree of moral culpability.

Measured against those paramount principles must be the principle of restraint outlined by Chief Justice Lamer in R. v. M.(C.A.) , supra, at paragraphs 79, 80 and 81 . Retribution in the context

of sentencing does not mean revenge. I quote from Chief Justice Lamer at paragraph 80: Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct.

Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more . Those words direct trial judges to exercise restraint in the imposition of a sentence in the instant case. [ 45 ] I will keep those legal principles in mind as I turn to the balancing process in this case. I am of the view that the aggravating factors in the sentencing of Mr. Dhillon are as follows: 1. Mr. Dhillon was driving fast and speeding on 128th Street prior to his arrival at the intersection at 72nd Avenue. 2. Mr.

Dhillon made a deliberate decision, a choice to accelerate suddenly and change lanes within a busy urban intersection during rush hour when present were many vehicles and pedestrians. This intentional risk-taking, though brief, was reckless and objectively very dangerous. 3. Mr. Dhillon lost control of the black Corvette in the intersection and the consequential harm was the death of Mr. Benning. 4. Parliament has set at the maximum sentence 14 years. I pause to note that the jurisprudence does not provide us with any authority leading to anywhere near that sentence. 5. The driving extract of Mr. Dhillon.

It is significant that with respect to Mr. Dhillon's driving extract, Exhibit 1 at the sentencing, that there are a number of entries which inform his driving and there is one which is post the events giving rise to this offence which is significant for the purposes of determining aggravating factors. Those before involve a 24-hour prohibition many years ago in 2002 and I find it of no weight in assessing the sentence today.

The second is speeding from 2009, February the 15th, which is a speeding against a highway sign in Chilliwack and that is somewhat informative but it is important to note that on September the 20th, 2011, Mr. Dhillon was engaged in further driving of a risk-taking nature by using an electronic device while operating a motor vehicle. [ 46 ] The mitigating factors relating to this sentencing are as follows: 1. Mr. Dhillon immediately attempted to give medical aid to Mr. Benning, phoning 9-1-1 and following instructions to assist him. 2. Mr.

Dhillon immediately identified himself to the authorities as the driver of the motor vehicle while he was on-scene. 3. Mr. Dhillon, in his s. 726 address to the court, made a heartfelt apology. His guilt, shame and remorse are evident. 4. Mr. Dhillon has no criminal record and was of previous good character. The letters of support describe him, as I said, as caring, trustworthy, responsible, respectful and a contributing member of the community. He has already embarked on his own self- rehabilitation. 5. The period of recklessness was very brief.

It was less than eight seconds and more likely approximately four seconds of acceleration within the intersection. He was impatient, intending to get away from the crush of traffic, or to leave behind the heavy traffic at the intersection. He was not racing. 6. He has the considerable support of family and friends. 7. Mr. Dhillon has had his health affected. He has been unable or unwilling to cope with life's normal stresses since the collision and the death of Mr. Benning. He has Post-Traumatic Stress Disorder.

His health has been impacted since his conviction November the 30th, 2012, and the doctors expressed concerns about him. 8. Mr. Dhillon will face civil liability.

9. Mr. Dhillon is a permanent resident in Canada and will face immigration issues and has potential problems if the legislation is changed as is proposed by the federal government in Bill C-43. Cases Cited by Defence [ 47 ] The cases cited, which involve joint submissions, guilty pleas, conditional sentences, I have not found persuasive. The circumstances of this case and this offender requires, in my view, that a deterrent, denunciatory and retributive sentence be imposed.

In my view, a suspended sentence would not suffice to meet the sentencing objectives set out in either the jurisprudence or the provisions of s. 718 . Moreover, I should not allow the sentencing to be overtaken by overemphasizing rehabilitation and reformation nor should there be an overemphasis on s. 718 (

e) or (f). The sentence which I impose must be proportionate to meet all of those objectives and to assess the moral culpability of Mr. Dhillon and the severity of this offence. [ 48 ] What is significant in respect of the cases provided to me is that there is nothing which meets the factual context of this case and this offender. Nor is there anything in any of the cases that give me any assistance or direction which would allow me to, in any way, assuage the grief of the Benning family. The law cannot deal with those emotional issues in a way which will provide for either the Bennings or Mr.

Dhillon's friends, family and supporters, an answer to this case. IX. CONCLUSION [ 49 ] What is the fit and appropriate sentence in this case? In my view, there is no question that I must impose a period of incarceration in this case. The period of incarceration required must reflect the balancing process which I have outlined the foregoing reasons. Mr. Dhillon does not fall into a category of offender who must be isolated from society for the protection of the public. He is unlikely to reoffend. The circumstances of the offence, however, involve a significant degree of moral culpability.

The manner of driving, which I have described in detail above, while brief, was very dangerous. The manner of driving led to loss of control. The chain of events following led to the collision with Mr. Benning and ultimately his death. The consequential harm is, therefore, very serious because it has caused irreparable harm to the Benning family. Mr. Dhillon, himself, has articulated that point very clearly in his apology to the Bennings on March 27th. [ 50 ] I have considered the circumstances of Mr. Dhillon. I am struck by the extent of his grief, shame, guilt and remorse.

I am concerned that he develop some tools and move forward with courage to face what he has done. Having considered all of those circumstances and the individual factors of this offender and the applicable law, I find that the range of sentence to be fit and appropriate in this case is in the range of 12 to 18 months. Exercising the principle of restraint, as I must, and balancing all of the factors outlined above, it is my view that the lower end of the range is appropriate in this case. [ 51 ] Would you stand, please, Mr. Dhillon?

On the facts of this case, sir, I sentence you to a term of imprisonment of one year. There will be a probation order. The probation order will be for a period of two years. The terms of the probation order will be as follows: 1. You will keep the peace and be of good behaviour; 2. You will report within 48 hours of your release and thereafter as and when directed; 3. You will attend to, participate in and complete such counselling as is directed by your probation officer with particular emphasis on matters dealing with your emotional well-being. 4. Pursuant to s. 259(2) (

b) of the Criminal Code , I am directing that you be prohibited from driving a motor vehicle on any street, road, highway or other public place, for a period of five years. [ 52 ] I have reviewed the provisions of s. 487.05(1) and I find that this is a secondary designated offence not listed specifically by Parliament and I decline to order a DNA sample be provided by you. I would not exercise my discretion to have you provide your DNA for the databank. [ 53 ] The victim fine surcharge is not waived. I would provide time to pay until June 30th, 2013. (REASONS FOR SENTENCE)