R. v. Bhatti Date:, 2011 BCPC 231

Citation: R. v. Bhatti Date: 20110722 2011 BCPC 0231 File No: 187851-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. HARDEEP BHATTI ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE de COUTO Counsel for the Crown: G. Baragar Counsel for the Defendant: R. Dhanu Place of Hearing: Port Coquitlam , B.C. Date of Hearing: July 22, 2011 Date of Judgment: July 22, 2011 [ 1 ] THE COURT: Mr.

Bhatti was charged on an Information which the Crown proceeded by way of indictment on March the 19th with the offence of what is commonly referred to as criminal harassment occurring between the dates of March 10th to March 18th, 2011 inclusive. [ 2 ] The circumstances involved in the offence are, as was pointed out by counsel, quite unique.

The accused today pled guilty to the charge. [ 3 ] Without going into full details of the background facts that constituted this charge - and as I mentioned to counsel earlier - those facts were referred to extensively in an earlier bail hearing I conducted with respect to this charge and should be read together with these reasons today to provide that background information. That decision was on May 31st, 2011, although the appearance and the commencement of the bail hearing was earlier in time. I had taken some time to consider the facts in arriving at my decision, which was ultimately a detention order.

As a result, the accused has remained in custody since the time he was arrested which I gather was on March the 19th or thereabouts, of this year. [ 4 ] MR. DHANU: Yes, Your Honour, March 18th, I believe. [ 5 ] THE COURT: In essence, the facts evolve around five telephone calls made over the period specified, but specifically, three on

March the 10th, one on March the 17th and the last on March the 18th. If I recall correctly, some of those - and maybe it was those made on March 10th - the calls came in either very early in the morning prior to the start of the business day or after the end of the business day. There were three calls made in quick succession, one after the other, with a very short time span in between, which was suggestive or indicative of a lack of tolerance or impatience, given the time the calls were made. They were not made during business hours when someone would be available to take the calls.

The accused was unable to wait until the start of business on the following day to get a response before placing another call. [ 6 ] As was pointed out by the Crown, the nature of the calls was disturbing. The contents were disturbing, as was also the accused's demeanour; the demeanour in the sense that in one or more of these calls, the caller - who was the accused - left a message in a very calm normal voice. At other times, there is an escalation of that tone to one of anger, and yet in another one or two of the calls, the tone of the voice was entirely different from that of a normal person.

It became almost babyish-like. As was pointed out by the Crown, there was some sexual innuendo in one or more of these calls, but it was not very specific. It was somewhat vague and left more to the mind, so to speak. [ 7 ] However, the impact of the calls on the recipient is, in my view, what is significant here, and the harassment of her as a result. [ 8 ] It should be noted that these calls were left on the judges' chambers voicemail in Surrey, although they were for a particular judge, the complainant in this case.

The calls were not left directly in her voicemail, but in the general judges' chambers phone voice mailbox, presumably to be redirected to the specific judge in question to whom these calls were addressed. [ 9 ] The background leading to this offence was that the accused appeared before this judge on a number of charges covering a number of days in which the accused was charged with offences involving violence, in fact, quite a fair bit of violence and quite a high degree of violence. The actions of the accused were somewhat unusual in terms of the display of violence and to whom he displayed the violence.

In one or more of those instances it was directed at close family friends, or friends of the family who had been known to the accused for a great many years and with whom he did not have any real issues. [ 10 ] The accused was before this particular judge who heard the matter, dealt with the charges, and ultimately sentenced the accused to a period of incarceration.

I take it that the calls that were made that forms the substance of this charge relate to questions the accused had about how he was dealt with, his view that it was done improperly, or his perception at the time of other ulterior purposes in the mind of the judge, and for that matter, of the investigating agency and of others involved in the file.

As I have said, this matter was dealt with in Prince George. [ 11 ] Since then, this particular judge was transferred to Surrey and clearly the accused was able to follow through in terms of following her whereabouts, because the phone calls that form, again, as I said, the substance of these charges, were made to the Surrey judges' chambers office where this particular judge now sits. [ 12 ] As was pointed out by the Crown, this particular complainant provided a statement to the police in which she clearly expressed great alarm and concern over the nature, contents and manner of the calls.

He quoted from the statement indicating the extent of her concern. This particular judge indicated that, prior to her appointment, she was in practice as a criminal defence lawyer, and over a great many years of practice had only come across three clients of whom she had been afraid.

She indicated that the accused was one of those. [ 13 ] Clearly all these calls had a very forceful and alarming impact on the complainant, acting on her fears and causing her to fear for her safety and the safety of those known to her because, in the course of these phone calls, there was also reference to some aspects of her personal life, such as the fact she has a dog, a husband and the like. [ 14 ] The circumstances are certainly unique, but it is also unique in a significant way because of the impact these calls made with reference to a particular member of the judiciary.

The judiciary is one of the three branches of government protecting the rule of law. Judges have to be able to conduct and exercise their judicial responsibilities in relation to the public, in relation to any issues between the public and government, in relation to all manner of things not only impartially, but free from any kind of intimidation, influence, fear or any kind of suggestion that would interfere with the exercise of impartiality and objectivity.

Calls such as this, it seems to me, while the caller may not have had that purpose in mind, but the effect is there nonetheless, may well be seen to undermine that very structure upon which our society is based and in which that rule of law is not just important, but perhaps can be considered sacrosanct in such a free and democratic society as we enjoy here.

That is what makes this significant. [ 15 ] That, in my view, is certainly an aggravating factor here. [ 16 ] All the cases referred to by both Crown and defence refer to similar-type situations, but far removed from one where the very foundation of democracy is attacked in a way that has the potential of undermining it. Clearly, that cannot be condoned, nor can any kind of conduct that even approaches the potential or the perception of undermining that rule of law.

It cannot be condoned nor accepted in our society because there has to be not just respect by the public, the community and government in the rule of law, but confidence also in the judiciary, and in the function and responsibilities that the judiciary engages in, in exercising that responsibility. [ 17 ] That, and the aggravating nature of this offence must be considered, but that has to also be balanced with the particulars as it relates to this individual.

It seems to me, listening to what was said by counsel today, and what has been put in place for the accused today is very different from when he first appeared before me in the course of the bail hearing. It reflects a significant improvement towards rehabilitation and emphasizes the real possibility here of proper rehabilitation.

I think, in these circumstances, rehabilitation is a principle which is as important as that of general deterrence and denunciation, which relate to the aggravating nature of this offence. [ 18 ] In addition to that, as was pointed out by defence counsel, there are a number of other mitigating factors here, and that is the guilty plea, or I should say the relatively early guilty plea.

In this particular case, by the very nature of who the victim is, it not only saves time but also saves the embarrassment of the victim from testifying, and I think that is a significant matter for consideration in the unique circumstances of this particular case. In addition, as was pointed out by defence, there is a significant savings in time and resources with respect to a trial had one occurred, given what has been told the court.

[ 19 ] There is also the reflection, through this guilty plea in this public forum, of remorse, and that is also seen in what the accused told the court today as to what he had done and his assurance today given to the court that it will never happen again, or words to that effect, which I accept as a reflection of the sincerity of his remorse at this point in time. [ 20 ] I also accept, in terms of the content and how the messages were delivered, that it was not meant maliciously perhaps at the time, but more because of the result of reduced inhibitions and underlying mental issues that needed to be addressed.

Perhaps also, one of the principal matters for some consideration is his misguided or misdirected understanding of how he should address the problem that he perceived to exist at the time. [ 21 ] I bear in mind, too, because it has to be considered here, and that is the time the accused has spent in custody - I am told that it is four months or so. I take that into account, together with his willingness to participate in treatment, going towards effective rehabilitation down the road.

As was pointed out by his counsel, and as I was aware from the appearances in the course of the bail hearing, the accused enjoys positive and significant family support. As was mentioned, his family have been in court each time the accused appeared on these proceedings. [ 22 ] The other factor, too, is the relatively short period of time over which the offence occurred. As mentioned by the defence, it was relatively short, and that it stopped as soon as it was brought to his attention and matters proceeded from there.

It is true, as was pointed out by his counsel, that the calls were made to a general phone number available to the public at the work location of the judge, and not the specific home number. That is a factor for consideration. [ 23 ] As was pointed out too, he was very open in terms of identifying him in each of these calls, giving his name and telephone number where he could be reached. In that sense, as well, it was quite unsophisticated. [ 24 ] I am satisfied, for all the aggravating nature and aspects of this case and the need for deterrence and denunciation, that there has to be a sentence of imprisonment.

Both counsel differ on how that is to be implemented. The Crown suggests that it is appropriate to impose a conditional sentence of the time he specified while Mr. Dhanu, on behalf of his client, suggests that an intermittent sentence is appropriate. [ 25 ] MR. DHANU: No, it is a joint submission, for a conditional sentence order of 12 months. [ 26 ] THE COURT: Joint submission, okay. I guess maybe I was reading one of the cases, one of the cases that you were talking about -- [ 27 ] MR. DHANU: That is the Lankin case. [ 28 ] THE COURT: -- by a brother judge of mine at the time.

But I go back to that it seems to me that for the reason of the aggravating nature of this offence, a jail sentence is necessary to provide the denunciatory aspects and the deterrent aspects of sentencing. [ 29 ] Balanced with that view, however, is the significant potential of rehabilitation in that there is now a willingness on the part of the accused to proceed with it.

It seems to me that that is also a significant factor here because, in my view, if rehabilitation is achieved, then we will be able to have this individual return as a meaningful and contributing member back in our communities in the long term, a positive influence as a result. [ 30 ] I think that in the unique circumstances of this case, it would be appropriate to impose a term of imprisonment for less than two years.

I am also satisfied that with the appropriate measures in place, that the sentence can be served within the community without endangering the safety of the community, and similarly, with the imposition of appropriate terms, it would be consistent with the fundamental purpose and principles of sentencing as set out in s. 718 to 718.2. [ 31 ] As a result, it seems to me appropriate, for those reasons, that a conditional sentence can be imposed here and I propose to do that. I bear in mind, as I said, initially I was thinking of 18 months, but I think the plan mentioned by counsel is perhaps just as good.

I am going to sentence you to 16 months of which four months will be considered time served, and impose a conditional sentence for the time remaining of 12 months. [ 32 ] There will be the mandatory conditions imposed of keeping the peace and being of good behaviour; of appearing before this court when required to do so by this court. [ 33 ] As a means of ensuring the safety of the community is continued to be assured and as a means to ensuring that you are taking this sentence seriously, and as a means to monitor how you are doing on this conditional sentence, I am going to also, with respect to appearing before this court when required to do so by this court, make it a condition that you will arrange with your supervisor of the conditional sentence order to appear before me at around the three-month mark from today with an updated progress report from your supervisor as to how you are doing on the conditional sentence order, and in particular, with respect to what programs have been put in place for you and how you are doing on those programs that you have started. [ 34 ] For those and other conditions, you will report by noon in person on Monday to a supervisor, that is, a probation officer, at 2610 Mary Hill Road, Port Coquitlam, and thereafter when required to do so by your supervisor, but it will be in person. [ 35 ] Where will he be living? [ 36 ] MR.

DHANU: He will be initially living at the Surrey address there, Your Honour. I will see if I can pull the address up. [ 37 ] THE COURT: He will have to then transfer somewhere, I guess. Would that be Surrey? [ 38 ] MR. DHANU: He will be transferred to Surrey and I believe the address is 19361 - 73 Avenue.

[ 39 ] THE COURT: I am just concerned that it will not be an imposition on whoever to make sure that he reports at least once a week in person for the start. [ 40 ] MR. DHANU: For how long was Your Honour proposing? [ 41 ] THE COURT: I do not know. [ 42 ] MR. DHANU: For the first three months, I suppose, until the progress report? [ 43 ] THE COURT: Yes, how is that? That is okay. And thereafter as required, but in person, as I said.

For the first three months, it will be not less than once a week. [ 44 ] You will remain within the province of British Columbia unless written permission to go outside of the province is obtained from your supervisor. You will notify your supervisor on your first reporting with an address where you will be residing and a telephone number where you can be contacted. That is going to become redundant in a moment.

You will notify your supervisor in advance of any change of name or address and promptly notify your supervisor of any change of employment or occupation. [ 45 ] You will reside in a residence only as approved by your probation officer. [ 46 ] With respect to the residence, you will be placed under house arrest, the conditions of which I will specify shortly. For purposes of implementing the house arrest provisions, you will comply with any and all requirements necessary to put the electronic monitory system - that is, the electronic monitoring program - in place at your place of residence.

You will agree to whatever arrangements as well that are necessary to implement that program. Should you not be able to accept the electronic monitoring program, you will arrange to report forthwith to this court in person to be dealt with accordingly. [ 47 ] With respect to the house arrest, are there any issues with respect to the terms that are expected to be carried out? [ 48 ] MR. DHANU: The primary issue is that he is still able to attend to treatment. What we are assuming is that as the treatment goes well, he will eventually be working, and we can address that issue down the road. [ 49 ] THE COURT: Okay.

This is what I am going to do. For the first three months you will remain within your residence, and by residence I mean the living part of your house, your residence, except for purposes of reporting to your supervisor, probation officer or attending court, for attending any counselling or treatment program or for reporting to Forensic Outpatient, FPI, or for any medical emergencies that may arise. With respect to each of those occurrence, you will go directly to your destination and on completing what is required, return directly back to your residence. [ 50 ] In addition to the above, by prearranged

schedule with your supervisor, you will be allowed outside, but within your yard, not more than one hour in the morning and one hour in the afternoon and into the evening for purposes of your health, well-being and exercise. I do not want you to go stir-crazy and I do not want you to give your other family members a problem. [ 51 ] THE ACCUSED: Will I be allowed to go on the balcony if I am in the residence? [ 52 ] THE COURT: Oh, that is a good question. I will talk to counsel about that. [ 53 ] THE ACCUSED: I smoke. [ 54 ] THE COURT: I will talk to counsel about that.

Do not forget this is a prison sentence first and foremost. [ 55 ] THE ACCUSED: Yeah. [ 56 ] THE COURT: I guess in prison they get smoke breaks too. [ 57 ] You will attend at the Outpatient Forensic Psychiatric Clinic as directed by your supervisor and attend such counselling/treatment programs that may be recommended or set up for you, and where you so attend, you will apply yourself diligently to the satisfaction of your treating physician or medical specialist or your supervisor.

Should you refuse to consent to taking such treatment or counselling, you will forthwith advise your supervisor. [ 58 ] You will not contact any judges' chambers in this province by phone, electronic means or attendance.

You will only attend within any courthouse parameters for legitimate business attendances, whether it be court appearances or directed appearances before me and the like. [ 59 ] Such counselling or treatment programs will include, but not be limited to psychiatric, psychological assessments and treatment, anger management, substance abuse. [ 60 ] As well, specifically, you will have no contact, directly or indirectly, with the complainant, nor will you attend within a ten-block radius of her place of residence, if known to you. [ 61 ] You will not have in your possession any weapons as that word is defined in the Criminal Code , including knives, except for the immediate preparation or consumption of food. [ 62 ] You will not have in your possession any firearm, imitation firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance. [ 63 ] You will not have in your possession or consume any alcohol or drugs as listed under the Controlled Drugs and Substances Act for which you do not have a prescription from a duly qualified medical practitioner.

[ 64 ] Any other conditions? [ 65 ] MR.

DHANU: I do not believe so, Your Honour. [ 66 ] THE COURT: In addition to that, upon termination of the conditional sentence order, I am going to place you on probation for a period of three years to keep the peace and be of good behaviour, to continue to report to your probation officer as directed, to continue and ensure that your probation officer maintains a current address and telephone number for you where you may be contacted or monitored from time to time. [ 67 ] You will continue with such treatment or counselling program as you may then be taking or as may be recommended for you by your probation officer, and where you take such counselling or treatment program, you will apply yourself diligently to the satisfaction of your probation officer. [ 68 ] You will continue not to have any alcohol or drugs in your possession, and with respect to drugs, drugs listed under the Controlled Drugs and Substances Act for which you do not have a prescription from a duly qualified medical practitioner. [ 69 ] On the probation order as well, you will not contact any judges' chambers in this province, either by telephone, electronic means or personal attendance. [ 70 ] You will continue not to have any contact with this specific complainant, directly or indirectly, nor will you attend at the Surrey Provincial Courthouse - I am going to include that in the conditional sentence order also - except for necessary court appearances there, if required. [ 71 ] MR.

DHANU: Judge KW is now assigned to the Vancouver courthouse. [ 72 ] THE COURT: Or any other courthouse where the complainant may be sitting. That is both for the conditional sentence order and the probation order. [ 73 ] If I have not said it, that is with respect to both that you are required to keep the peace and be of good behaviour. [ 74 ] MR. BARAGAR: I may have missed this, the ancillary orders which I do not believe -- [ 75 ] THE COURT: I have not done that yet.

I am coming to that, I just wanted to cover all the conditions first. [ 76 ] THE CLERK: Sorry, Your Honour, can I just clarify with the complainant, the no contact, the Information has initials. Did you wish the full name, or just K.W., or just... [ 77 ] THE COURT: I think for the public, probably should be J.W., sealed name is Judge KW. [ 78 ] THE CLERK: But on the actual order, did you want J.W. or...? [ 79 ] MR. BARAGAR: I think for the specific purposes of his actual order, it should have the full name. [ 80 ] THE COURT: Full name, okay. [ 81 ] THE CLERK: And, sorry, that name again was...? [ 82 ] MR.

BARAGAR: KW. [ 83 ] THE CLERK: KW, thank you. [ 84 ] MR. DHANU: Just a couple of issues with the conditions before you move on to the ancillary orders. The joint submission proposal was for a two-year period of probation. [ 85 ] THE COURT: All right, we will make it two years. [ 86 ] MR. DHANU: The other issue -- I have no problems with any of the probation conditions, and no problem with the no drugs, but what Your Honour says, that would be three years without any sip of alcohol. [ 87 ] THE COURT: It is two years. [ 88 ] MR. DHANU: Including the CSO term. [ 89 ] THE COURT: No issue with alcohol? [ 90 ] MR.

DHANU: In the CSO there is no alcohol for that period and in treatment -- [ 91 ] THE COURT: I said but on probation no alcohol, for a total of three years. [ 92 ] MR. DHANU: That is what I am saying. That is a very lengthy period without even a sip of... [ 93 ] MR. BARAGAR: My position would be given specifically what Dr. Lohrasbe said, to be put in place, if -- [ 94 ] THE COURT: I will tell you what. That is what I am going to do right now. [ 95 ] MR. BARAGAR: It can be revisited.

[ 96 ] THE COURT: Then it can be revisited. I have got you coming back in three months. My intent is to have you come back from time to time as required, because I want to make sure that there is a monitoring system in place that is going to be meaningful where this is going to be meaningful, because any time you step off, we are going to be watching. [ 97 ] In addition to that, under the relevant provisions of the Criminal Code , I am going to direct that you provide a DNA sample of bodily fluid for the purposes of the DNA databank. [ 98 ] What was the other one? [ 99 ] MR.

BARAGAR : The s. 109 firearms prohibition. [ 100 ] THE COURT: For ten years, is it? [ 101 ] MR. BARAGAR: It is ten years. [ 102 ] THE COURT: I give you a prohibition under the conditional sentence order with respect to prohibition against firearm, imitation firearm, and the like.

That same prohibition under s. 109 of the Criminal Code will be for ten years from today's date. [ 103 ] THE CLERK: I am sorry, Your Honour, I believe with the DNA, we will be taking that. [ 104 ] THE ACCUSED: Also, I gave my DNA last time. [ 105 ] THE COURT: You did? [ 106 ] THE ACCUSED: Yeah, and about the smoking on the patio? [ 107 ] MR. DHANU: They will look at the records and if he is already on the record, they will not take another sample, Your Honour. [ 108 ] THE COURT: What about that smoking on the patio? [ 109 ] MR.

DHANU: From the defence perspective, I think it is -- it is called cabin fever. [ 110 ] THE COURT: I am going to let it go. I think that will form part of it. Because if you are a smoker and you do not smoke, you are going to get really antsy and then your parents are going to be impacted by that and it is just going to create a bigger problem for your parents, and I do not want them to be suffering because of you. So we will allow that. [ 111 ] MR. DHANU: Thank you. I think it is a healthy, so to speak, compromise. [ 112 ] MR.

BARAGAR: I do not know how healthy it is. [ 113 ] THE COURT: He will be allowed on the balcony for the purposes of smoking, but not longer than periods of 15 minutes. It does not take that long to smoke a cigarette. I do not want you to say, "Okay, I am going out for a smoke," and you just sit out there, take it easy, read a magazine and then light up after he is 20 minutes out there, and then 20 minutes later he decides he is going to wander back inside. That is not the purpose and intent. Fifteen minutes. [ 114 ] Wait a minute. Maybe it should be 15 minutes so many times a day.

I can just see it becoming a frequent trip. [ 115 ] MR. DHANU: The balcony is attached to the residence. I do not think it is a ground floor balcony. [ 116 ] THE COURT: I am just thinking of all kinds of stuff here. He is getting a big break. [ 117 ] MR. DHANU: Personally I think it is healthy to have some air. [ 118 ] THE COURT: Of course it is. It is healthy, sunshine, Vitamin D and all that. [ 119 ] MR. BARAGAR: I am not sure how -- I take issue with it being healthy, the smoking. [ 120 ] MR. DHANU: Not the smoking.

I am saying just being allowed on the balcony. [ 121 ] THE COURT: But that is why I am allowing him one hour each day, because he needs that healthy dose of sunshine to keep his sanity. I am going to leave it with you guys to sort it out. If you abuse it, I will have you come back here and take it away. [ 122 ] THE ACCUSED: Yes, Your Honour. [ 123 ] THE CLERK: Sorry, Your Honour, with respect to the DNA, because Mr.

Bhatti I believe will be released, we need to direct him to the Surrey detachment for -- because this is a Surrey file, I believe. [ 124 ] THE COURT: Is there something about when you are in custody, the sheriffs take it or something like that? [ 125 ] MR. DHANU: Yes, oftentimes the sheriffs will see -- is it available today? They would take him with -- we could have a condition for a report, just as a failsafe, Your Honour. [ 126 ] THE COURT: He is going to report here by noon Monday. Because of that, I am going to direct -- [ 127 ] THE SHERIFF: Excuse me, Your Honour, we can do it here today.

[ 128 ] THE COURT: Okay, do it here. Done. (ORAL REASONS FOR SENTENCE CONCLUDED)