R. v. Singh, 2024 ABCJ 002

In the Alberta Court of Justice Citation: R. v. Singh, 2024 ABCJ 002 Date:20240104 Docket: 211219142P1 Registry: Calgary Between: His Majesty the King Crown - and - Rajbir Singh Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.5 . By Court Order:

(1) Information that could identify the victim shall not be published, broadcast, or transmitted in any way.

(2) No person shall publish, broadcast, or transmit in any way the contents of the publication ban application or the evidence, information or submissions at the hearing of the application. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Reasons for Sentence of the Honourable Justice A. J. Brown Sentence – Issue and Conclusion [ 1 ] The issue in determining a fit sentence for Mr.

Singh, who committed a brazen yet minor sexual assault in a crowded night club, is the appropriate weighting of collateral immigration consequences. [ 2 ] For the reasons that follow, Mr. Singh is discharged conditionally and placed on probation for three years. Facts, Procedural History and Positions of the Parties [ 3 ] 18-year-old KH went with friends to the Back Alley night club in Calgary. The club’s three bars and dance floor were crowded, the music was loud and strobe lights were flashing.

[4] A couple of hours after arriving at the club, KH was standing at one of the bars, waiting to order a drink, when she felt ahand on her back. Initially, she thought nothing of the touch, believing that one of her friends was behind her. But the hand then travelleddown her back, touching her buttocks and vagina. Wheeling around in shock, she saw the hand was Mr. Singh’s. Before she could sayanything, Mr. Singh again grabbed her vagina. KH blurted, “What are you doing?,” and Mr. Singh walked away.

The assault lasted amatter of seconds, perhaps five. [5] KH turned immediately to her friend Owen and asked if he had seen what had just transpired. He had not, so KH describedthe assault and pointed out the departing Mr. Singh. Owen then went to confront Mr. Singh. KH remained by the bar and watched theconfrontation as well as observing that Mr. Singh had joined a friend who was wearing a red turban. [6] Back Alley staff did not take immediate action but, once KH complained of her discomfort with Mr. Singh still being in theclub, the police were called and Mr.

Singh was arrested in the parking lot, where he was in the company of his friend in the red turbanand two others. [7] As identification of Mr. Singh as the perpetrator of the sexual assault was the sole issue at trial, Defence called no evidence.I found Mr. Singh guilty after concluding that the Crown had met the burden of proving identity beyond a reasonable doubt. [8] A pre-sentence report was prepared for the initial sentencing hearing, which was held on October 12, 2023.

At that hearing,the Crown position was that denunciation and deterrence required a short period, 15 to 45 days, of real jail, followed by 12 months ofprobation. The Defence position was that a conditional sentence (CSO) of 3 months, followed by an 18-month probation order was a fitsentence. [9] The pre-sentence report contained conflicting information about Mr. Singh’s immigration status, that is, whether he was inCanada on a student visa, work visa or visitor permit. Collateral immigration consequences thereby being a relevant issue, the sentencinghearing was adjourned to allow Mr.

Singh to obtain an immigration opinion. [10] An immigration opinion letter was filed as an exhibit at the continued sentencing hearing on December 4, 2023. The essenceof the opinion is as follows: 1. If Mr. Singh is convicted of sexual assault, he will be subject to a removal order and deportation with norights of appeal, including an appeal on humanitarian and compassionate grounds to the Immigration Appeal Division of the Immigrationand Refugee Board. 2.

If he is discharged, he would have an admissibility hearing to determine if a removal order should be made, andhe would have a right of appeal. [11] Therefore, his challenges on the immigration front are far from removed if he is discharged; but he would have a right to ahearing and to an appeal if the result of the hearing were a removal order. [12] In light of the collateral immigration consequences, Defence position on December 4 changed to a conditional discharge and15 months’ probation being the fit and proper sentence. Crown position remained unchanged.

Authorities Considered [13] In reaching my decision, I have considered the following authorities: R v Chugh 2020 ABPC 247; R v MacFarlane 1976ALTASCAD 6 , [1976] AJ No 429; R v Pham 2013 SCC 15; R v Reid 2015 ABCA 334; R v RS 2021 ONSC 2263; R vSaffarpour 2022 ABPC 243; and R v Shrivastava 2019 ABQB 663. Mr. Singh [14] Now 27, Mr. Singh was 25 at the time of his offence. He is a first offender. [15] The author of the pre-sentence report described Mr. Singh as “respectful, courteous and forthcoming.” [16] Mr. Singh was born in India.

His parents, who have been married for over 35 years, and two older siblings all live in Punjab,India. He enjoys a close and supportive relationship with his family. His parents and siblings know that he has been charged but are notinformed of any of the details of his offence. [17] Mr. Singh entered Canada in 2018 on a four-year permit to study at York University in Toronto to obtain a B.A. degree. Hedid not enjoy his studies at York and moved to Calgary to work, with the intention of studying in the future.

After the expiry of his studypermit, he obtained a visitor permit and is currently awaiting a decision on extension of that visitor permit. He intends to apply also for awork permit as he is not allowed to work without either a work or study permit. His long-term goal is to start his own painting company. [18] Mr. Singh had a privileged, supportive upbringing. In Calgary, he lives with two pro-social friends he has known since thethree young men were 14. His friends describe him as “respectful, friendly, and a good person.” [19] Mr.

Singh plans this year to marry his girlfriend, whom he met three years ago through mutual friends. She, too, speaks veryhighly of Mr. Singh. [20] His friends and girlfriend are all aware of Mr. Singh’s offence and all confirm that his behaviour is entirely out of character. Aggravating and Mitigating Factors [21] The aggravating factors of the case are: the brazenness of the assault, in a crowded, public setting; and, the harm suffered byKH (not physical but enduring emotional and psychological harm affecting her daily life and relationships with friends and family). [22] The mitigating factors are: Mr.

Singh’s pro-social support in the community; his offence was very much out of character; andhis drive to be a hard-working, productive member of the community. He has no criminal record.

Collateral Immigration Consequences [ 23 ] It is appropriate to take into account collateral immigration consequences, as long as the sentence imposed remains proportionate to the seriousness of the crime and the degree of responsibility of the offender. ( Pham ) MacFarlane Factors [ 24 ] A discharge may be granted if it is in the offender’s best interest and not against the public interest. [ 25 ] MacFarlane is the time-honoured appellate guidance on assessing the public interest test. [ 26 ] The three relevant MacFarlane factors in determining if the granting of a discharge in this case is against the public interest are: the nature of the offence; whether it was impulsive or pre-meditated; and, whether the conduct was so serious that it ought to be made a matter of public record. [ 27 ] All sexual assault offences are serious and invoke the primary sentencing objectives of denunciation and deterrence.

However, in this case, despite the Crown election to proceed by indictment, the offence sits at the lowest level of seriousness, being of extremely short duration and minimally invasive. It was clearly an impulsive act. And, again, given the low level of seriousness, it does not rise to the level of necessitating a public record.

This is particularly so when the devastating immigration consequences are considered. [ 28 ] Crown Counsel did not provide relevant cases to support the short period of incarceration sought. [ 29 ] Defence Counsel referred to Chugh and the very helpful decision of Justice Stirling in Saffarpour . In Saffarpour , the additional relevant comparator cases of R v JLB , R v Gilmour and R v Pan were reviewed. [ 30 ] Saffarpour is an excellent comparator case when striving for parity in sentencing.

Although Saffarpour pled guilty, was clearly remorseful and had undergone counselling, his offence, also a sexual assault in public on a stranger, was marked by a number of aggravating features absent from Mr. Singh’s, specifically, it was persistent, late at night, at an LRT station on a lone woman, and accompanied by crude comments. He was granted a conditional discharge and placed on probation for 3 years.

Conclusion [ 31 ] Therefore, applying the MacFarlane factors and in consideration of the devastating collateral immigration consequences to recording a conviction, I conclude that the appropriate sentence for Mr. Singh is a conditional discharge with a probation order of maximum duration, 3 years. [ 32 ] Mr. Singh is also subject to the mandatory ancillary orders: a 10-year firearms prohibition; provision of a sample for DNA analysis. [ 33 ] The Crown makes application for a 20-year order to comply with the provisions of the Sex Offender Information Registration Act (SOIRA) .

Formerly mandatory, after recent legislative changes, on Crown application the Court must make the order unless satisfied either that the offender has established that there would be no connection between the making of the order and the purpose of aiding the prevention and investigation of sexual crimes, or that the impact on the offender would be grossly disproportionate to the public interest. [ 34 ] I conclude that Mr. Singh has established a grossly disproportionate impact as compared to the public interest in having him subject to the order.

My conclusion is based on my evaluation of the following factors: Although a sexual offence, it sits at the lowest end of the spectrum of seriousness. The victim was not under 18. Mr. Singh and the victim were strangers to one another and the contact was fleeting. Mr. Singh is a first offender and supported by pro-social friends and family. There has been no re-offending in the more than two years since the offence. As the Crown proceeded by indictment, the duration of the SOIRA would be 20 years. [ 35 ] A 20-year order for a 5-second assault by a first offender satisfies the test of gross disproportionality.

Heard on the 16 th day of February, 2023, the 6 th day of April, 2023, the 12 th day of October, 2023, the 16 th day of November, 2023, and the 4 th day of December, 2023. Dated at the City of Calgary, Alberta this 4 th day of January, 2024.

A. J. Brown A Justice of the Alberta Court of Justice Appearances: R. Marquette, F. Avolio for the Crown P. Bhangu for the Accused