R. v. Gill Date:, 2013 BCPC 245

Citation: R. v. Gill Date: 20130626 2013 BCPC 0245 File No: 190555-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GURJIT SINGH GILL ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: B. Lane Counsel for the Defendant: S.R. Chamberlain, Q.C. Place of Hearing: Surrey , B.C. Date of Hearing: June 26, 2013 Date of Judgment: June 26, 2013 [ 1 ] THE COURT : Gurjit Singh Gill is before the court to be sentenced having entered a plea of guilty on an earlier date to Count 1

on Information 190555-1, that on the 8th of November, 2010, at Surrey, British Columbia, while his ability to operate a motor vehiclewas impaired by alcohol or a drug he operated a motor vehicle and thereby caused bodily harm to Patricia Coates, contrary to s. 255(2) ofthe Criminal Code. This is a serious criminal offence. It carries a maximum sentence of ten years' incarceration on prosecution byIndictment. [2] The Crown is seeking that I impose a jail sentence in the six-to-nine-month range followed by a probation order for a period ofone year and a two-year driving prohibition. Mr.

Chamberlain, on behalf of Mr. Gill, seeks a 90-day jail sentence to be servedintermittently followed by a lengthy probation period and a one-year driving prohibition. In respect to the intermittent sentence, Mr.Chamberlain seeks this on behalf of this offender in order to allow him to continue his employment. With respect to the probation orderand the prohibition periods, similarly, he seeks a sentence which would, in those ways, continue to support ongoing rehabilitation. [3] The circumstances of this offence are that on November 8th of 2010, about ten o'clock in the evening, Mr.

Gill was operatinghis Mustang motor vehicle. He was driving on 120th Street in Surrey; he was travelling northbound. That is a busy street with two lanesof travel in each direction. Apparently he made contact with a vehicle at or about 64th Avenue. He then turned his vehicle around anddrove back in the opposite direction, southbound, but now travelling in the northbound lanes. He was travelling fast, according towitnesses. No specific speed has been determined. The victim, Patricia Coates, was driving northbound on 120th Street. Her daughterwas with her in her vehicle.

At 66th Avenue, she was making a right-hand turn as Mr. Gill's vehicle came in the opposite direction,travelling in the wrong direction in those lanes, and struck her vehicle on the driver's side. Ms. Coates' vehicle was propelled over thecurb and onto the shoulder. [4] The final resting position of that vehicle is depicted in photographs that have been filed with the Crown's book of materials onthis sentencing as an exhibit. Those photographs graphically demonstrate the severity of this collision. Ms. Coates' vehicle sufferedsignificant damage to the driver's side and Mr.

Gill's vehicle was significantly damaged and particularly so on the front where he struckthe Coates' vehicle. [5] After the vehicles came to rest, Ms. Coates was unable to get out of her vehicle. She was held in place as a result of thecollision. She was not able to get herself free. She had to wait in the vehicle for about an hour before emergency services were finallyable to succeed in removing her from the vehicle. Her daughter had been able to get out of the vehicle but only by climbing over hermother in order to accomplish that. In Ms.

Coates' victim impact statement, she notes that her daughter was traumatized greatly by theevent and actually thought her mother was dead, as she got out of the vehicle. [6] Mr. Gill left his vehicle after the collision and began walking away. Two witnesses caught up to him and brought him back. There was an odour of alcohol about him. He failed a roadside screening test. He subsequently provided samples of his breath and thereadings were 180 and 190 milligrams of alcohol in 100 millilitres of blood.

His blood alcohol readings exceeded twice the legal limitand, of course, any amount of alcohol is, to one degree or another, aggravating but a reading at this level is a significant aggravatingcircumstance, in my view. [7] The victim impact statement of Ms. Coates I referred to a moment ago, I referred to her information about the trauma caused toher daughter who was present in the vehicle and, which is something that she continues to be concerned about in respect of her daughter,who has struggled to continue in the learning to drive program because of this accident.

She is so traumatized that she is fearful aboutdriving or learning to drive or continuing that program. [8] Ms. Coates' son was following in a vehicle behind his mother and came upon the scene of this collision. One can only imaginethe trauma that he would have suffered and the anxiety at seeing his mother's vehicle in the condition that it was and her circumstances atthe time. [9] Ms. Coates was taken to the hospital after removal from her vehicle. She spent a number of days, I believe seven days, waitingfor surgery for a broken pelvis, which was one of the injuries she suffered in this collision.

That wait was excruciating for her. Thepelvis was extremely painful and it was extremely painful for her to move or be moved during that lengthy wait for surgery. Eventually,a screw was inserted in her pelvis to assist with her recovery and that has assisted in pain management but she continues to have a verydifficult recovery from this and her other injuries. She has had to undertake regular physiotherapy. She had a significant challenge inreturning to work after five months away from work, as a result of the accident. She has been able to return to work but it has been verydifficult for her.

She has suffered significant emotional challenges as a result of this accident and she has had to struggle to overcomethose. They have affected her relationships. There has been a significant financial impact to her. She describes that in her victim impactstatement. In addition to what I have already referred to, she suffered at least one fractured rib, perhaps more than one, whiplash,lacerations to her spleen and liver and soreness in the knees. It would be trite to say that these are significant injuries which may havelong-term effects for Ms. Coates. [10]

Section 718 through to 718.2 of the Criminal Code establish the principles and purposes of sentencing which guide courts inaddressing appropriate sentences in serious criminal cases such as this. The objectives of sentencing which are relevant in this case, inmy view, are the need to denounce in strong terms conduct such as Mr. Gill's in this case, deterrence generally, and I must consider theextent to which he has been specifically deterred, his rehabilitation and other general restorative principles. I must consider aggravatingand mitigating circumstances and how they should impact on a fit sentence.

I must consider the outcomes in similar cases. I mustconsider the gravity of this offence and the degree of responsibility of this offender. I must be mindful to impose a jail sentence only tothe extent that is required in order to address the sentencing principles and objectives that are relevant here. The particular circumstancesof this offence and this offender must be considered.

Each sentencing consideration is unique to the particular circumstances and in thisway it is understood that the sentencing process set up in this regime in the Criminal Code is not an arbitrary application of a simpleformula but a careful analysis of each and every situation that comes before the court with the benefit of the principles described. [11] R. v. M.(C.A.), (SCC), [1996] 1 SCR 500 is a well-known decision of the Supreme Court of Canada in thisarea. It is frequently referred to in cases like this. Both counsel are well familiar with it.

The particular portions of that decision that Iview as significant are set out in paragraphs 79 through 82, which state the following:

It is this mental state which gives rise to the "moral blameworthiness" which justifies the state in imposing the stigma and punishmentassociated with a criminal sentence. I submit that it is this same element of "moral blameworthiness" which animates the determinationof the appropriate quantum of punishment for a convicted offender as a "just sanction." And this is the Chief Justice of Canada speaking at that time. The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender'sconduct.

In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should bepunished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values arecommunicated.

In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also beimposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the CriminalCode. ...the relative weight and importance of these multiple factors will frequently vary depending on the nature of the crime and thecircumstances of the offender.

In the final analysis, the overarching duty of a sentencing judge is to draw upon all the legitimateprinciples of sentencing to determine a "just and appropriate" sentence which reflects the gravity of the offence committed and the moralblameworthiness of the offender. [12] A decision which has also been referred to here and is referred to frequently in cases like this is the decision of the BritishColumbia Court of Appeal in a case called R. v. Johnson in 1996.

The following comments by Madam Justice Ryan are often quoted incases of this sort and I am going to refer to them here because they continue to be helpful. The principle of deterrence as a goal of sentencing is embedded in our law. The Supreme Court of Canada has said so in C.A.M., theamendments to the Criminal Code specifically refer to it as a sentencing objective. We must assume that deterrent sentences have someeffect. It is futile to ask whether a particular sentence will deter others. That question can never be answered. Deterrence operates in ageneral way.

Those that would break the law must know, and law-abiding citizens must be assured, that law-breakers will receivesentences which reflect the seriousness of their crimes. This will deter some potential offenders, it will not deter others. Drinking-driving causing death or bodily harm offences are senseless crimes because they are so easily avoided and at the same timethey are so easily committed by ordinary citizens. They are unlike any other crimes in the sense that nothing much can be offered tojustify driving drunk.

Crimes of theft may be motivated by poverty, crimes of assault may be motivated by fear, but what excuse can beoffered for driving drunk, except that alcohol allowed the offender to lose all sense of judgment? It is for this reason that communitiesrightfully express outrage when victims are killed or injured as a result of such conduct. It is for this reason that both deterrence anddenunciation are legitimate objectives to pursue for this type of offence. And it is for this reason that deterrence and denunciation oughtto have been considered by the trial judge in this case. (R. v.

Johnson (1996), (BC CA), 112 CCC (3d) 225 (BCCA)) [13] I have reviewed the pre-sentence report, which has been prepared in this case. I have listened to the submissions of Mr.Chamberlain in respect to Mr. Gill and his background and his circumstances and I have reviewed the letters of support that Mr.Chamberlain filed today. I can say that the pre-sentence report is a generally positive report. Mr. Gill is 30 years of age. He completedGrade 12 in India. He is married. His wife is here in court with him and she is employed as a dental assistant. He and she are theparents of a two-year old child.

He lives with members of his extended family in a suite in Surrey. He has no criminal or motor vehiclehistory. There may be one motor vehicle offence on his record which is not relevant in these proceedings. He had a difficult upbringingin India with a history of alcoholism in his family and, in particular, his father, who was a violent man in his home. His parents separatedas a result and his mother continues to live in India with members of his family and his father now lives in California, I believe. [14] Mr. Gill came to Canada in 2009. He is now a permanent resident here.

He began drinking at a younger age and likelyinfluenced by the alcoholism in his family. When I referred to his father, alcoholism in his family extends back beyond his father'sgeneration. By the age of 22, the report indicates, that Mr. Gill was drinking on a daily basis. On arrival in Canada, he worked a varietyof jobs but is now steadily and securely employed as a manager at a Mac's Convenience Store in Burnaby. A letter has been filed amongthe letters presented by the defence from that employer, which confirm Mr. Gill's value to that organization.

He is viewed as adependable, hardworking and loyal employee. [15] Mr. Gill is likely an alcoholic. He did not immediately stop drinking following these events. However, after repeated urgingfrom family and friends, Mr. Chamberlain has described his own involvement in that, Mr. Gill has now been clean and sober and has notconsumed alcohol for a period of nine months. He has stated in that report and to family and friends his determination to continue in thatstate. He has now completed the responsible driver program and the ignition interlock program. He is prepared to undertake any

counselling programs which might be ordered by the court or directed through the probation or correction service. I note he has not taken any particular steps towards counselling in advance of this hearing but he has, as I have indicated, stated his commitment to do so. [ 16 ] He has the support of family and friends. I have, as I indicated, reviewed the letters which confirm that. He expresses regret and remorse for his actions. He has done that here in the courtroom today as well as to the writer of the pre-sentence report.

As I have noted, he has taken steps, although not immediately following the event, but after the urging of people close to him, to address the drinking and that has now resulted in sobriety for the period that I have just indicated. [ 17 ] When I consider all of these factors, I would conclude that Mr. Gill's specific deterrence is well in hand at this stage. He has expressed his distress and struggle with his conduct on this particular night in his words here in this courtroom a few minutes ago. I am told Mr. Gill's job is at risk if he is unable to continue working. Mr.

Chamberlain has also brought to my attention federal legislation now in effect which will result in his deportation if a sentence of six months or more is imposed. He is a permanent resident in Canada and so at risk under this legislation. The superior courts have noted that this is a factor for sentencing courts to consider in assessing appropriate sentences to be imposed. [ 18 ] Both counsel have provided cases supportive of their positions. I will file case lists with the court. I am not going to list all of those cases here and I am not going to review them all.

I have looked at all of them in the time available this afternoon as I prepared these reasons. (See case lists attached to these reasons). [ 19 ] Ms. Lane points out that since amendments to the legislation, which make conditional sentence orders unavailable, there appears to be a trend toward lengthier sentences addressing the need for strong statements of denunciation and deterrence where, as here, there is a high degree of moral blameworthiness arising from drinking, high readings and extreme driving, which has led to serious injury with long-lasting implications. [ 20 ] Mr.

Gill's conduct on this night was such that as terrible as this outcome was for Ms. Coates and her family, he could well have killed her, her daughter or anyone else who was nearby. This was not momentary or fleeting criminal behaviour; it extended over some distance and some period of time. Sentences imposed in cases such as R. v. Matheson , which involved 18 months for dangerous driving causing bodily harm and impaired driving causing bodily harm, in the context of other offences where death ensued, as I said 18 months was imposed, a case called R. v.

Voerman on Vancouver Island in the Provincial Court, an impaired driving causing bodily harm case in which a six-month sentence was recently imposed by Judge Gouge of this court, R. v. Gill in which a nine-month sentence was imposed for a similar offence and a case called R. v. Padularosa in which a six-month sentence was imposed on three counts of impaired driving causing bodily harm in the Provincial Court. All of those cases, in my view, justify the position argued by Ms. Lane for the Crown. [ 21 ] Mr. Chamberlain argues, however, and provides authority supporting a 90-day sentence permitting Mr.

Gill to continue to work if served intermittently. Those cases I have also reviewed. Although perhaps with the exception of one, I believe, involved impaired driving causing bodily harm cases, which pre-date the amendments eliminating conditional sentence orders and so Crown counsel say must now be considered out of line with current sentencing trends, which are in the range she proposes, she says, trending upward and away from a sentence range which might permit an intermittent sentence which the Criminal Code permits only where the sentence of incarceration is up to 90 days.

The law does not preclude, however, an intermittent 90-day sentence in respect to this particular charge or offence. [ 22 ] I must consider whether the circumstances here, aggravated by a high level of moral culpability and demanding of a denunciatory sentence, can contemplate a 90-day intermittent sentence when I consider Mr. Gill's positive personal circumstances. The position of courts in recent times is to emphasize that, as important as rehabilitation and restorative principles are, they cannot overcome the need for strong statements of general deterrence, considering the extreme danger Mr.

Gill and others like him create by drinking and driving, and how easily that can be avoided by choosing not to create the situation by getting behind the wheel. [ 23 ] Here, the proposal by the defence is not that he avoid jail but that his positive progress and past history work to his advantage and allow him to continue to work and support his family. Although perhaps trends are moving to lengthier jail sentences generally, I have concluded that this is one of those cases in which a 90-day sentence served intermittently can address the significant moral culpability of Mr.

Gill and properly balance those principles in issue. [ 24 ] Mr. Gill, if you could stand now, please. I impose a 90-day sentence of imprisonment to be served intermittently. That sentence will be served as follows. You will be taken into custody today and you will serve your first day today.

Thereafter, you will serve the balance of the sentence on weekends, commencing on Fridays and continuing through until Sundays, the time to be discussed with counsel in a moment, and on each consecutive weekend thereafter in a similar form until the entire sentence is served. [ 25 ] You will be bound by a probation order for a period of three years. The conditions are that you keep the peace and be of good behaviour. You must report before four o'clock in the afternoon tomorrow to a probation officer, the address to be provided before your release from custody.

You must report to that probation officer before four o'clock in the afternoon tomorrow, the 27th of June, 2013, and thereafter as directed by the probation officer. You will reside where directed by the probation officer. You must not change that address without the prior written approval of the probation officer.

You will attend, participate in and complete to the satisfaction of the probation officer any assessment, treatment or counselling that may be directed by the probation officer including but not limited to alcohol abuse counselling. [ 26 ] I have determined that it is appropriate that you also complete community work service. I order that you complete 40 hours of community work service before the end of the tenth month of the probation period.

Normally, I would require a shorter period of time but your weekends are going to be occupied for sometime now and that would normally be the period during which community work service might be available to you. [ 27 ] There will be a driving prohibition. I have determined that it is appropriate that there be a driving prohibition lengthier than what Mr. Chamberlain has argued for. In my view, the Crown's position that a two-year driving prohibition is appropriate in my view is the appropriate length. I appreciate that there has been an administrative driving prohibition in effect for a period of time.

In any event, in my view, in order to ensure ongoing security in the community, bearing in mind your recovery process, two years is an appropriate

additional period. If you have a driver's licence with you, in a moment you must present it to the sheriff. You must not drive until you are absolutely sure your privileges are reinstated because the penalties under the Criminal Code are significant. That driving prohibition applies across Canada. [ 28 ] There will be a DNA databank order. I am satisfied that it is appropriate you supply a sample of your DNA to the national databank.

You must do that to an authorized member of Corrections Service during the course of your incarceration or to the Sheriff Service if they choose to take it before you move out of this building today. [ 29 ] The victim fine surcharge will apply. Time to pay on the surcharge, Mr. Chamberlain? [ 30 ] MR. CHAMBERLAIN: Could we have one month to pay that surcharge? [ 31 ] THE COURT: Victim fine surcharge is due and payable on or before the 31st of July 2013. [ 32 ] MR.

CHAMBERLAIN: As far as the commencement of the intermittent sentence after today, I would suggest that it be on the 28th of June. [ 33 ] THE COURT: I meant to say Friday of this week as a starting point but I was not sure what the timing would be in terms of his ability to reach the facility. I would normally make it five o'clock or six o'clock, something like that. [ 34 ] MR. CHAMBERLAIN: That's fine. Five o'clock is fine. [ 35 ] THE COURT: All right. You must report to the assigned correction facility for the intermittent sentence first on the 28th of June of this week, 2013, at 5:00 p.m.

The weekend incarceration will extend until 5:00 p.m. on Sunday, the 30th of June, 2013, and on similar weekends thereafter until the entire sentence is served. (REASONS FOR SENTENCE CONCLUDED) CROWN CASE AUTHORITIES: R. v. Matheson 2011 BCSC 308 R. v. Voerman 2012 BCPC 124 R. v. Gill 2011 BCPC 405 R. v. Padularosa 2005 BCPC 317 DEFENCE CASE AUTHORITIES: R. v. Anderson 2004 BCCA 547 R. v. Biernat 2009 ONCJ 273 R. v. Gomez 2013 MBQB 43 R. v. Markozashvili 2010 ONCA 52 R. v. Riddell 2011 SKQB 378 R. v. Rooplal 2009 ONCJ 613 R. v. Rowan , [2004] O.J. No. 3719