R. v. Maan Date:, 2016 BCPC 428

Citation: R. v. Maan Date: 20160906 2016 BCPC 428 File No: 199746-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. SUKHDEV SINGH MAAN REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.I.S. SUTHERLAND Counsel for the Crown: D. Simpkin Counsel for the Defendant: M. Stern Place of Hearing: Surrey , B.C. Date of Hearing: August 4, 2016 Date of Judgment: September 6, 2016

Introduction [ 1 ] Shortly after 7:00 a.m. on September 18, 2012, Rita Harjanti left her residence to meet a bus to go to work. As she was crossing in the crosswalk on the walk signal for pedestrians at 104 Ave. in Surrey, she was struck by a tractor-trailer being driven by Mr. Maan that ran a red light moments before striking her. She died as a result of her injuries from the accident. [ 2 ] Mr. Maan has pled guilty to dangerous driving causing the death of Ms. Harjanti. He is now before me for sentencing. [ 3 ] Given Mr.

Maan’s moral blameworthiness as applied to the sentencing provisions of the Criminal Code , Crown Counsel argues that Mr. Maan should receive a 4 to 6 month jail sentence and one year driving prohibition. Counsel for Mr. Maan argues that the passing of sentence ought to be suspended, that Mr. Maan receive the driving prohibition suggested by the Crown, and that he be subject to a period of probation. [ 4 ] To determine the appropriate sentence, I will consider the circumstances of the offence and of Mr. Maan, and apply to them the purposes, principles and objectives of sentencing in the Criminal Code .

Factual Overview [ 5 ] At approximately 7:20 a.m., on the morning of September 18, 2012, Rita Harjanti was walking north in a marked crosswalk at a traffic light controlled intersection at 104 Ave. and 148 St. in Surrey, B.C. She had the right of way and was crossing with the pedestrian walk sign for her direction of travel. To get to her destination on the other side of 104 Ave., she had to cross 5 lanes of travel on 104 Ave. When she made it to the second lane from the curb she had left, she was struck by a large tractor trailer travelling east on 104 Ave., driven by Mr.

Maan, that ran the red light for eastbound traffic on 104 Ave. Ms. Harjanti succumbed to her injuries from the accident shortly thereafter. [ 6 ] The speed limit on 104 Ave. is 60 km/h. A police accident reconstruction analyst estimated Mr. Maan to be travelling a minimum of 54-69 km/h just prior to the accident. The electronic control module in the accused’s vehicle indicated his vehicle travelled 37-66-69 km/h in the 100 seconds before the accident, achieving a maximum speed of 66-69 km/h and 64-68 km/h at the moment Ms. Harjanti was struck. I infer from this evidence that Mr.

Maan applied the brakes just before the accident. [ 7 ] Neither Crown nor defence suggests speed was a factor in the accident or that Mr. Maan’s speed was outside of the norm for 104 Ave. [ 8 ] Counsel are in agreement that the main contributing factor to the accident was the lighting condition caused by the position of the sun. The sun was in the east and low in the sky. The intensely bright sunlight was in the direct line of sight of eastbound drivers on 104 Ave. as they approached the intersection where the accident took place.

A reconstruction of the accident performed by the police the next day under similar lighting showed the traffic control light for the intersection would have been obscured by the sunlight as Mr. Maan approached. Indeed, the traffic light had been red for the accused’s direction of travel for approximately 16 seconds prior to striking Ms. Harjanti. [ 9 ] There is no evidence the accused was under the influence of alcohol or drugs, was fatigued, or distracted by a cell phone or something else. The road was in good condition, as was the truck Mr. Maan was driving. [ 10 ] Immediately after the accident, Mr.

Maan got out of his truck and checked the condition of Ms. Harjanti. The police were fortuitously immediately on the scene having witnessed the accident. Mr. Maan was cooperative with them. [ 11 ] Despite the above, Mr. Maan’s driving was criminally dangerous. His moral blameworthiness is measured by how he responded to the risk posed by the lighting conditions. [ 12 ] Mr. Maan knew the stretch of road where the accident took place, having driven it many times before. It was a truck route and Mr. Maan worked just five minutes away.

Even if he could not see the traffic control light, he should have known from other landmarks that he was approaching the intersection and needed to proceed with caution, particularly given he did not know whether he had the right of way. He also would have been well aware that there were residential and commercial premises close by, as well as bus stops. In short, he must have been aware that this was a busy intersection for vehicles and pedestrians. Victim Impact [ 13 ] A recorded Victim Impact Statement of Hardhono Harjanti, Rita Harjanti’s husband, was played in court.

The Harjanti family is devastated by the loss of Ms. Harjanti. Their pain is deep and constant. [ 14 ] Rita Harjanti was 50 years-old at the time of the accident. She was a wife, mother of two children, and a daughter. Her children have lost her care, guidance and companionship. Mr. Harjanti has suffered a similar loss of his wife. They are lonely for her. The children have isolated themselves. [ 15 ] Mr. Harjanti describes a once optimistic future to now be a “life sentence” where nothing will ever be the same. As immigrants to Canada, the Harjanti’s have faced numerous challenges. Mr.

Harjanti points out that his wife died at a time when she, and they as a family, should be enjoying the fruits of their struggles. [ 16 ] The words of Mr. Harjanti make clear the challenges presented to the Harjanti’s who must grieve, come to terms with, and move forward after, the sudden loss of Rita Harjanti, a loved and loving daughter, wife, and mother. [ 17 ] Despite the depth of their loss and severity of their pain, Mr. Harjanti said he holds no personal animosity to Mr. Maan. He

pleads though for drivers to be careful when driving and appreciate the devastation even a momentary lapse of attention can cause. It is his desire to ensure such a tragic accident as the one that took his wife does not happen again. Mr. Maan [ 18 ] Mr. Maan is 63 years of age. He is married with 3 adult children. [ 19 ] He has permanent resident status in Canada, having immigrated in 2001 from India. He graduated with a Master’s of Science degree in India and worked at a high level position for the Indian government in the agricultural sector.

He and his family lived a comfortable existence in India, but decided to move to Canada for a better life for their children. [ 20 ] Mr. Maan’s first language is Punjabi. His English is undeveloped which has constrained his employment opportunities. From 2005 to April 2015 he has worked as a long haul truck driver with a two year gap from April 2013 - April 2015. He has plans to pursue alternative medicine in Canada, having already received accreditation in that field in India. [ 21 ] Mr. Maan has no criminal record. Despite having likely driven more than 2,000,000 kms personally and professionally, Mr.

Maan has one entry on his driving record, that being speeding against a highway sign on April 3, 2009. Letters of support from managers of trucking companies he has worked for confirm that Mr. Maan was a valued employee and responsible driver. He followed the rules of the road and was a mentor to new truck drivers emphasizing safety in his teachings. According to one of his sons, he emphasized the responsibility associated with having driving privileges. In his letter of support, his son wrote: He told me that responsible driving should not be most of the time, it should be every time I sit behind the wheel.

He taught me ethics of driving. He went over the importance of traffic rules and ensured I understood my responsibility to follow these rules. He discussed the maturity level needed to drive safely. It was quite easy for me to understand because I always saw him practice safe driving and follow the rules. [ 22 ] Nineteen character letters were filed with the court. The themes that emerge from those letters are that Mr. Maan is a thoughtful, compassionate, conscientious, intelligent man. Since youth, he has been public service and community oriented.

This is evident through his extensive volunteer endeavors with non-profit, charitable, and human rights and social justice organizations in his community. According to those who know him his dedication to these pursuits is borne out of a basic respect for people, empathy for those who suffer and are in need, and a desire to make the future better for those people, particularly youth. As a result, he is a role model to youth and others. [ 23 ] In

summary, those closest to Mr. Maan describe him as a man of integrity, principle, and high moral values, who respects the law and who has devoted himself to helping others. These letters also show that Mr. Maan has strong support in the community. [ 24 ] In 2008, Mr. Maan sustained injuries in a motor vehicle accident. He missed 7 months of work and developed a Chronic Major Depressive Disorder and anxiety. The accident with Ms. Harjanti has intensified his depression. According to Mr. Maan’s family physician, Mr. Maan constantly thinks about the accident and feels profoundly remorseful.

A psychiatrist he sees confirms Mr. Maan’s deep remorse and torment over causing the death of Rita Harjanti. It is clear from the letters, reports, and Mr. Maan’s own statement to the court, that Mr. Maan is not the same person he was prior to the accident. His grief, shame, and guilt, is obvious. I suspect that any punishment I impose will pale in comparison to the self-imposed punishment he administers himself daily. [ 25 ] As a permanent resident in Canada, he does not have citizenship status.

If he receives a jail sentence above 6 months, he will be inadmissible to Canada, with no right to appeal a deportation order. A jail sentence below 6 months gives him a right to appeal a deportation order. Case law from the B.C. Court of Appeal makes clear that an offender’s immigration consequences are a valid consideration on sentencing. The Position of the Crown [ 26 ] Crown Counsel takes the position that Mr. Maan’s moral culpability is at the low end of the dangerous driving spectrum. He notes that the only aggravating feature is the offence itself.

However, he asserts that the accused being a professional truck driver attuned to the risks of driving, should have had a heightened appreciation of the risk of accident when he failed to approach the intersection with caution. [ 27 ] The Crown argues that the sentencing objectives of specific deterrence and the need to separate offenders from society do not apply here. However, the only way the important sentencing objectives of denunciation, general deterrence and retribution can be achieved is through a jail sentence. Considering all the circumstances, including Mr.

Maan’s immigration situation, that jail sentence should be in the 4-6 month range. The Position of the Defence [ 28 ] The defence agrees with the Crown that despite the tragic consequences, Mr. Maan’s moral culpability is low, and arguably on the line between civil and criminal culpability. Counsel argues that the crime is one of omission in that Mr. Maan failed to respond to the conditions as opposed to him creating dangerous conditions.

The defence does not dispute the objectives of sentencing the Crown says require emphasis, but argues they can be met by suspending the passing of sentence when all the other consequences to Mr. Maan are considered. Analysis General Comments [ 29 ] At the outset, I wish to make some comments about the complexity of the exercise the court must perform in sentencing an offender such as Mr. Maan for dangerous driving causing death.

[30] In a momentary but dangerous lack of judgment by Mr. Maan, the Harjanti family, his own family, those that know them, andtheir community, have been tragically changed. [31] A court must consider the purposes and principles of sentencing in ss. 718-718.2 of the Criminal Code, an offender’s personalcircumstances, and the circumstances of the offence in order to assess an offender’s moral blameworthiness for its commission. Thisassessment will guide the court to arrive at a sentence that is proportionate to the gravity of the offence and the offender’s degree ofresponsibility.

The process is individual to each case and each offender. [32] The purposes and principles of sentencing take into account the needs of the community and the offender. In the end, thesentence must balance these needs, giving weight to some more than others, depending on all the circumstances of the individual case. As stated by Hicks J. in R v.

Friesen, (unreported, December 15, 2011); Surrey Registry (B.C.P.C.), at para 18: Sentences in cases like this usually involves the balancing of concerns the community has for deterrence both general and specific, anddenunciation, which often argue for a custodial sentence, balanced against rehabilitative and restorative principles which usuallyargue for a sentence served in the community but with proper attention to acknowledgment of harm done and acceptance ofresponsibility. [33] From this, it is apparent that sentencing Mr.

Maan is a complex task. [34] The sentence I impose is not intended to replace the loss that has been suffered by the Harjanti family. Indeed, nothing will orcould replace that loss. [35] Further, the law cannot relieve the grief of the Harjanti family or the internal torment of Mr. Maan. The law is simply notequipped to address those emotional consequences in a way that will ease the pain of those who have suffered from this tragic accident.

Sentencing Objectives Requiring Emphasis [36] The overriding sentencing consideration is to contribute to respect for the law and the protection of the community and society. [37] As for a public safety concern over the accused driving, it is worth noting that his driving record is minimal despite thekilometres he has driven. [38] Given Mr. Maan’s background, a sentence addressing specific deterrence and his rehabilitation is not necessary. Nor does hepresent a risk to the public that requires his separation from society. [39] The tragic consequences of Mr.

Maan’s driving requires his sentence to have an element of retribution. The place of theconcept of retribution in sentencing an offender was described by Chief Justice Lamer in R. v. M.(C.A.), (SCC), [1996]1 S.C.R. 500, at para. 80: Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriatepunishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, theconsequential 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 nothingmore. [40] General deterrence and denunciation are other sentencing objectives that are emphasized in most dangerous driving cases. Mr.Maan’s case is no exception. Having said that, consideration must be given to all of the objectives and principles of sentencing includingthe principle of restraint contained in s. 718.2 (

e) and (f). Furthermore, punishment may be inflicted, and general deterrence anddenunciation achieved in ways other than conventional imprisonment: R v. Voong, 2015 BCCA 285, at para. 43. Specific consequencesMr. Maan has already incurred for his offence that have that effect are discussed below. [41] The range of sentence in previous cases of dangerous driving causing death is broad; from suspended sentences to penitentiaryterms. Mitigating Circumstances [42] Mr.

Maan has no criminal record, and a negligible driving record given the kilometres he has driven. [43] He pled guilty to the offence the weekend before his trial was to start. [44] He has lots of support in the community. Aggravating Circumstances [45] Other than the tragic consequences of the accused’s dangerous driving, there are no other aggravating circumstances. Other Factors [46] The accused’s knowledge of the area where the accident took place should have made him aware of the risk of proceeding intothe intersection without caution when he could not see the traffic control light.

He either knew of the terrible risk or ought to haveknown. This was a busy intersection where vehicles and pedestrians could be expected even at 7:20 a.m. He failed to reasonablyrespond to the risk the lighting conditions presented, with catastrophic results. This is the core of his moral blameworthiness. [47] Other than that brief, singular, and discreet act, his driving did not deviate from acceptable standards of driving.

[ 48 ] There was nothing remarkable about Mr. Maan’s driving before the accident except, of course, his lack of caution in the face of uncertainty as to which direction of travel had the right of way. There was no excessive speed or erratic driving nor self-induced created risks such as alcohol or drug consumption or sleep deprivation. There is nothing to suggest that this was anything more than a brief but tragic isolated incident. [ 49 ] In R v. Kwasnica , 2006 BCSC 2037 , a somewhat similar case to the present, Mr. Justice Cullen made the following distinction that I find applies equally to Mr.

Maan’s case: [25] This is not a case like some where there are aggravating circumstances such as excessive speed or drinking or a protracted period of dangerous or aggressive driving. In those cases, the moral culpability of offenders is regarded as at the higher end of the scale because it involves the offender deliberately engaging in behaviour that creates the very risk leading to the offence, whereas in cases such as the present one it is a matter of failing to respond to an existing risk.

On the scale of moral culpability therefore this case, while not at the lowest end, is nearer than those cases involving the deliberate creation of risk through activities such as drinking and driving, street racing or prolonged aggressive driving. The offender's misconduct here, as with Pawa , supra, was essentially contained within a few critical seconds in which he disregarded his duty to avoid a clear risk. [ 50 ] In

summary, where a person does not create a risk, rather they fail to take reasonable steps to avoid a risk, their moral blameworthiness is less. [ 51 ] These are important elements to the consideration of the degree of Mr. Maan’s moral blameworthiness and thus properly calibrating the severity of the denunciatory and general deterrence aspects of the sentence. [ 52 ] Mr. Maan, an otherwise valuable, law abiding member of his community, has been publicly prosecuted and convicted of a serious criminal offence. He is now branded a criminal with an uncertain future as a result.

He will lose his driver’s licence for a period of time which will cut off his ability to work in the industry that he has spent the majority of his working life since arriving in Canada. He will make reparations to the community the Harjanti’s live in by performing worthwhile community work service. These consequences all contribute to achieving general deterrence and denunciation. [ 53 ] Here, the fact that the offence resulted in the death of Rita Harjanti is clearly a dominant factor in assessing the gravity of the offence.

However, the tragic result of this accident to the Harjanti family and their community must be balanced against the accused degree of moral blameworthiness which is low. Conclusion [ 54 ] I have carefully considered the circumstances of Mr. Maan, the offence, and the applicable law. [ 55 ] I do not believe a suspended sentence adequately meets the sentencing objectives at issue. In answer to the obvious question of whether society or Mr. Maan will gain from his incarceration, there is symbolic value to the public of a jail sentence for Mr. Maan’s offence.

In my view, jail is necessary to address general deterrence, denunciation, and retribution while not ignoring the other objectives and principles of sentencing. [ 56 ] As discussed, there are unique and rare circumstances in the case before me that lead me to the conclusion that general deterrence, denunciation, and retribution can be achieved by a 60-day intermittent jail sentence. [ 57 ] There will also be 18 months of probation with conditions that Mr. Maan shall: 1. Keep the peace and be of good behaviour; 2. Appear before the court when required to do so by the court; 3.

Report by 3:00 p.m. on September 7, 2016 to the probation officer in Surrey, B.C., and thereafter as and when directed for the purpose of arranging and monitoring community work service; 4. Notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or probation officer of any change of employment or occupation; 5. Complete 40 hours of community work service under the direction and to the satisfaction of the Community Work Service Officer and the Probation Officer by September 1, 2017. [ 58 ] Pursuant to

section 259 of the Criminal Code , Mr. Maan shall be prohibited from driving a motor vehicle for 1 year. [ 59 ] Pursuant to section 109(1) (

a) of the Criminal Code , Mr. Maan shall be prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, imitation weapon, prohibited device, ammunition, prohibited ammunition, and explosive substance for a period of 10 years. [ 60 ] Mr. Maan shall pay a Victim Fine Surcharge in the amount of $250 by September 30, 2016. The Honourable Judge J.I.S. Sutherland Provincial Court of British Columbia