R. v. Uppal, 2019 BCPC 27

Citation: R. v. Uppal 2019 BCPC 27 Date: 20190121 File No: 221416-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JASBINDER SINGH UPPAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K. ARTHUR-LEUNG Counsel for the Crown: R. Sewani Counsel for the Defendant: M. Magaril Place of Hearing: Surrey , B.C. Date of Hearing: January 21, 2019 Date of Judgment: January 21, 2019 [ 1 ] After a lengthy Voir Dire and thereafter putting the evidence of Delta Police Officers Ingram and Gill and the majority of the exhibits into the Trial Proper, I found Mr.

Uppal guilty on Count 1 of this Information, that being, that on or about the 1 st day of December, 2016, at or near Delta, in the Province of British Columbia, while operating a motor vehicle, did fail, without reasonable excuse and in order to evade the peace officer, to stop the vehicle as soon as was reasonable in the circumstances, contrary to

Section 249.1 (1) of the Criminal Code ; and further that on the same date and location and time, Mr. Uppal, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, did have the care or control of a motor vehicle, contrary to Section 253(1) (

b) of the Criminal Code . [ 2 ] Before me for the purposes of sentencing is the Justin Conviction List with three entries, including in 2007 for a failure or

refusal to provide a sample, wherein Mr. Uppal was sentenced to a one year driving prohibition and a fine of $700.00. In addition, thereis a three page Driver’s Abstract with entries from 1986 to 2016, including a dearth of speeding and failure to produce driver’s licence ofinsurance, to which Mr. Uppal addressed the court that he has more than one vehicle and forgets to carry his licence physically on him. There are 15 24-hour prohibition entries. Defence counsel respectfully submits that, in accordance with the decision of the BritishColumbia Provincial Court of British Columbia of Regina v.

Taylor, 2011 BCPC 337 , 2011 BCPC 0337, of the HonourableJudge Smith, namely at paragraph 8 wherein my judicial colleague stated: “I will not make reference to those entries of 24 hour drivingprohibition….”, however, Crown Counsel correctly respectfully submits that this Court is open to take note of the dearth of 24-hourprohibition entries on the Driver’s Abstract of Mr. Uppal and relies upon the British Columbia Court of Appeal decision of Regina v.Jones, 2006 BCCA 286, wherein, then Madam Justice Rowles, at Paragraph 12, noted the 24-hour prohibition entries on the Abstract ofMr.

Jones and stated: “The appellant does have a history of infractions under the Motor Vehicle Act, including driving without insuranceand driving with the wrong class of licence” and thereafter the Court of Appeal reviewed some of those entries including those due to theconsumption of alcohol, thus it is open to this Court to give due consideration to the 15 entries on the Driver’s Abstract of Mr. Uppal, ofwhich 4 were alcohol related. [3] Crown Counsel seeks to convince this Court that there should be a sentence of 60 days of incarceration upon Mr.

Uppal for theimpaired and 60 days thereafter to be served consecutive upon Mr. Uppal for the flight. In addition, Crown seeks a $1,000.00 fine anddraws the attention of the Court to the availability of a driver’s prohibition up to and including 3 years. [4] Defence counsel does not take issue with the sentences to be imposed to be consecutive and seeks a 4 month ConditionalSentence Order for the impaired and a 60 day Conditional Sentence Order on the flight, to be consecutive and thereafter to be followedby a one year Probation Order.

Defence Counsel respectfully submitted that an 18 month driver’s prohibition is appropriate, despiteCrown Counsel not giving formal notice to seek a higher sentence, but drew the attention of the Court that the Court is open to impose upto a 3 year driver’s prohibition. [5] There are few mitigating factors before me. Mr.

Uppal is currently 54 years of age, employed as a realtor, property managerand general contractor, married, residing with his wife, that one of his adult children has Down’s Syndrome and resides with him, that hismother is elderly from the effects of a stroke and while she resides full time in a care home, he takes her for medical appointments as andwhen needed. Mr. Uppal is seen as being the majority of the income earner in the family, however, his wife is employed at Costco. Hisadult sister was diagnosed with cancer over 2 years ago.

He has not committed any new offences while being released on the Promise toAppear, including driving offences. Much of the mitigating factors are family related and while I will acknowledge that they aremitigating, I will also note that Mr. Uppal is married and any impact of these circumstances he also has the engagement of his spouse,his other adult children and his siblings to address what he submits are factors for consideration, and that he does not bear the soleresponsibility for these matters in terms of being a caretaker and income earner. On this day, Mr.

Uppal submitted a letter from hisspouse, from his brother in law, and his brother. There were no outside letters of support from friends or community organizations. [6] The aggravating factors for consideration are such that Mr. Uppal has a criminal record, including an alcohol related offencefor a refusal or failure to blow, however, it was in 2007. His Driver’s Abstract is appalling.

At 54 years of age, having resided inCanada since the age of 2, he has three pages of entries, including a number of entries for speeding, failure to produce a driver’s licenceor insurance, 15 24-hour prohibitions and since 2012, a number of entries for using an electronic device while operating a motor vehicle. Mr. Uppal appears by his own actions to believe that he is above the law. Defence counsel submits that his Driver’s Abstract is differentfrom the Justin Conviction list, and I agree; however, there are laws in place that govern how each and every one of us in the Provinceoperates a motor vehicle and Mr.

Uppal seems, by his own actions, to believe that those laws do not apply to him. That is aggravating. [7] Crown Counsel relies upon the decision of Regina v. Windrum, 2014 BCSC 1909, wherein the British Columbia SupremeCourt noted that sentencing for driving offences in this Province can be vast and varied. Mr. Windrum was driving southbound onHighway 99 at a high rate of speed, Mr. Windrum failed to stop, a spike belt was activated, however, Mr. Windrum swerved to avoid itcausing the police officer to jump out of the way, there was a clear flight from police. Mr.

Windrum, during the search incidental toarrest, was found to have crack cocaine and heroin. He appeared before the Court, however, with no criminal record, he was a drugaddict, and he took a significant number of proactive mitigating steps since the offence to deal with his addition, took responsibility forhis actions and was a volunteer with AA. In the Windrum (supra) decision, the Court carefully reviewed the principles of sentencing andthe availability of a Conditional Sentence Order. [8] Defence Counsel relies upon largely the British Columbia Provincial Court decision of Regina v.

Boehm, 2015 BCPC 381, 2015 BCPC 0381, wherein the Judge imposed a sentence for a guilty plea to operating a motor vehicle while impaired byalcohol or a drug and operating a vehicle in a manner dangerous to the public. The Boehm (supra) matter is distinguishable as it was ajoint submission and a guilty plea. In addition, Defence Counsel relied upon the Ontario decision of Her Majesty the Queen v.

Myke,2010 ONCJ 160, however, it is clearly distinguishable in that it involved a Pre-Sentence Report and what may be referred to as a fullGladue Report upon sentencing, including a historical that his grandparents were residential school survivors, he was a member of theSix Nations of the Grand River Territory, he had a young family, he attended some university, he was actively engaged in his FirstNations community including speaking the language and participating in Long House ceremonies. None of these factors are before mewith Mr. Uppal. [9]

Section 718.2 of the Criminal Code requires that I be mindful of the purposes of sentencing including that there must be theprotection of society and to contribute, along with crime prevention initiatives, respect for the law and the maintenance of a just and safecommunity, by imposing sanctions that take into consideration denunciation for unlawful conduct, deterrence, both specific and general,rehabilitation, to provide reparations for harm done and to promote a sense of responsibility in those offenders and acknowledge the harmdone to the community as a whole.

It is trite to say but no one decision or sentence fits every sentence to be imposed for the sameoffence. Each circumstance of the offence and of the offender he or she is unique and thus, sentencing is a craft that must be donecarefully, balancing the mitigating and aggravating factors, the principles of sentencing and case law. I have done so. [10]

Section 742 of the Criminal Code directs the Court that in certain circumstances a Conditional Sentence Order is available. Asarticulated in Regina v. Proulx, 2000 SCC 5 , [2000] 1 SCR 61, 140 CCC (3d) 449, the Court must consider that the purpose ofa Conditional Sentence Order is to address concurrently both the punitive and rehabilitative objectives. I am satisfied that a Conditional

Sentence Order is available to me with both offences. However, for reasons that I will set out herein, I am not satisfied that it isappropriate for both offences to which I have found Mr. Uppal guilty. [11] I turn to the impaired finding of guilt.

I do not believe that a Conditional Sentence Order is appropriate, given that in 2007 Mr.Uppal was convicted of a failure or refusal to provide a sample and, while I will preface it to acknowledge that there is a significant timegap, the fact is that he has not learned about his inability to control or address his alcohol consumption or at the minimum of doing sowhile operating a motor vehicle. I am troubled that Defence Counsel submits that Mr.

Uppal does not suffer from alcohol addiction,however, orally submitted that he takes steps to ensure that if he does consume alcohol that he does not operate a motor vehicle. Thatfact by that submission indicates to this Court that Mr. Uppal is aware that he has difficulties with alcohol consumption. He has nottaken any counselling on his own volition, including attending AA. He has taken the Responsible Driver’s programme, however, that ismandatory in this Province.

The conviction of impaired requires an emphasis more so on both general and specific deterrence to Mr.Uppal and a message to this community that the aberrant Driver’s Abstract of Mr. Uppal does not give him the liberty to be immune frompenalties to be imposed that address a step up principle. There were two readings, with the lower reading being 140. I concur withCrown Counsel that this Court is at liberty to give consideration to the 24 hour Prohibition entries on the Driver’s Abstract of Mr.

Uppalnot to conclude that he has a history of impaired driving or driving while drunk, but that his very own actions by his own choice andcontrol have caused him to have a history of consuming alcohol and putting himself behind the wheel of a vehicle. It demonstrates apattern, all of which is the full choice of Mr. Uppal. What is often referred to as drinking and driving has a significant impact on everycommunity across Canada, whether it be rural or urban. No community is isolated from the wrath of this offence.

There have been yearsof education through both governments and agencies telling Canadians that it can have deadly consequences to knowingly put that key inthe ignition and operate a motor vehicle while you are impaired. It is irrelevant whether you drive two minutes, two kilometres, orfurther. This was a winding residential area while dark at night. Mr.

Uppal’s physical operation of the vehicle cut off two other vehiclesas noted in the testimony of Officer Ingram, he swerved as observed by Officer Ingram, he was operating his vehicle above the postedspeed limit, and as noted by the testimony of Officer Gill, he was unable to recall even the time of day when taken into custody and wasobserved with his fly down his pants and having physical symptomology. Not only was the choice of Mr. Uppal poor, but by doing so,he put himself at risk, the Officers in response to the dispatch at risk, but the community as a whole.

I am not convinced that aConditional Sentence Order is appropriate, taking into consideration the case law, his criminal record entry for the failure in the past,and his Driver’s Abstract. I am concerned about Mr. Uppal’s disregard for the laws of the road, his disregard for the safety of himselfand others in operating a vehicle while impaired, and his lack of understanding or unwillingness or inability to address his poor pattern ofdriving and perhaps address any and all underlying issues that now result in him not operating a vehicle after having consumed alcohol. Iam mindful of

Section 718 of the Criminal Code and notably of the requirement to promote a sense of responsibility in offenders and anacknowledgement of the harm done to the community as a whole. In the decision of Regina v. Johnson, , the BritishColumbia Court of Appeal specifically noted that both denunciation and general deterrence are to bear heavier consideration and weightfor impaired offences as they relate to many other offences. I concur with the Court in Boehm (supra), at Paragraph 20 which stated: Despite being easily avoidable, impaired driving offences remain all too common and can often have tragic consequences.

It is thusessential that the courts remain vigilant in denouncing such offences and imposing sentences that will both deter the accused and,importantly, others from committing these kinds of offences both now and in future.

Section 742 of the Criminal Code and notably paragraph d) requires the Court to consider if serving the sentence in the community isconsistent with the fundamental purpose and principles of sentencing as set out in

Section 718. [12] I then turn my mind to the conviction for flight from Police. It is here that I believe that it is appropriate to impose aConditional Sentence Order and that I am satisfied that it addresses rehabilitation, denunciation and deterrence. I believe that thepunitive terms and conditions that can be crafted in the Conditional Sentence Order will address both general and specific deterrence. Further, I believe that amends to the community will address rehabilitation, reparation and responsibility by Mr. Uppal for this offence. I am mindful that in accordance with Regina v.

Kopf (1997) (QC CA), 6 CR (5th) 305 (Quebec Court of Appeal) andRegina v. Ploumis (2000), (ON CA), 150 CCC (3d) 424 (Ontario Court of Appeal), that I cannot combine within theconviction a combination of both incarceration and a Conditional Sentence Order, however, will note that both Crown and Defence havechecked and concur that by imposing a consecutive sentence for the two Counts that I can do so and that I will do so. Mr.

Uppal hasspoken to this Court this morning with an apology telling the Court that he has no explanation for his behaviour and thus he will benefitfrom counselling to provide him the insight needed to address his actions that put the Officers and the community at risk, particularlywith his failure to stop and or pull over to the side of the road. This was not a chase at a high rate of speed, however, he acknowledged inCourt this morning that he did see the officer.

He acknowledged that this conviction and his actions weigh heavily on his family,however, he did not address any steps nor take any steps since the offence to provide him insight and education into his actions. This isthe first instance wherein Mr. Uppal has appeared before this Court in relation to his actions and conduct involving the police. He hastold this Court that he does not know why he did what he did. Counselling in the form of a Conditional Sentence Order will best addressand provide Mr. Uppal with the skills needed to address the offence and to move forward within the community. [13] Mr.

Uppal, if you will please stand up: On Count 3, that being that having consumed alcohol in such a quantity that the concentration thereof in your blood exceeded 80milligrams of alcohol in 100 millilitres of blood, and that you did have the care and control of a motor vehicle, I will impose a sentence of21 days of incarceration. This will include an 18 month driving prohibition and a fine in the amount of $1,000.00. That fine is to be paidin full within six months of today’s date.

On Count 1, that being the flight from police, I will impose a 60 day Conditional Sentence Order to be followed by a 9 month ProbationOrder with the following terms and conditions: • On the Conditional Sentence Order, you are to keep the peace and be of good behaviour. • Appear before the Court when required to do so by the Court. • You will report in person to the Conditional Sentence Supervisor within 72 business hours of the commencement of this

Order and thereafter no less than one time per month in person. • You will remain within the jurisdiction of this Court, unless the prior written permission to leave this jurisdiction is obtained by Court Order or your Conditional Sentence Supervisor. • At your first reporting, you will provide your Conditional Sentence Supervisor with your residential address and telephone number and do not change that address without the prior written consent of your Conditional Sentence Supervisor. • For the first 30 days of this Conditional Sentence Order you will be bound 24 hours per day, 7 days per week, not to be outside your place of residence, save and except for the purpose of immediately travelling to and from reporting to your Conditional Sentence Supervisor, save and except for attending any medical emergency for yourself or anyone with whom you reside and if so, you are required to provide to your Conditional Sentence Supervisor written documentation to evidence such medical emergency within 72 business hours of such occurrence, for the purpose of travelling immediately to, attending, and immediately travelling, from all counselling as so directed by your Conditional Sentence Supervisor including but not limited to alcohol abuse counselling. • For the remaining balance of this Conditional Sentence Order, you will be bound by a curfew of not to be outside your place of residence between the hours of 9 p.m. to 6 a.m., seven days a week.

During these curfew hours you may be outside your residence only for the purposes of attending any medical emergencies for yourself or anyone with whom you reside and if so, you are to provide to your Conditional Sentence Supervisor written documentation within 72 hours of such occurrence to evidence such medical emergency and for the purpose of immediately travelling to, attending, and immediately travelling from all counselling as so directed by your Conditional Sentence Supervisor, including but not limited to alcohol abuse counselling. • You are to present yourself to the front door or your residence or telephone forthwith should a peace officer, Conditional Sentence Supervisor or curfew compliance agency attend or telephone your residence to determine compliance with this Order. • You are to enrol, attend and successfully complete to the satisfaction of your Conditional Sentence Supervisor any and all such counselling or treatment as so directed which shall include alcohol abuse counselling and treatment. • Within the first 30 days of this Order, you are to write a letter of apology each to the Delta Police Officers, Ingram and Gill, to the satisfaction of your Conditional Sentence Supervisor. • You are to abstain absolutely from the possession or consumption of alcohol. • You must not reside at any place where any other resident has alcohol in his or her possession or permit any of these items be brought inside your residence. • You must not enter any liquor store, beer and wine store, bar, pub, lounge, nightclub, beer garden or any other business from which minors are prohibited at any time by the terms of a liquor licence.

This is to be followed by a 9 month Probation Order with the following terms and conditions: • Keep the peace and be of good behaviour. • Appear before this Court as and when required to do so. • You are to report in person to your Probation Officer within 72 business hours of this Order in person and thereafter no less than one time per month in person. • You are required to provide your residential address and telephone number to your Probation officer at your first reporting and do not change that address or telephone number without the prior written consent of your Probation Officer or Court Order. • You are to abstain absolutely from the possession and consumption of alcohol. • You must not enter any liquor store, beer and wine store, bar, pub, lounge, nightclub, beer garden or any other business from which minors are prohibited at any time by the terms of a liquor licence. • You must enrol, attend and successfully complete to the satisfaction of your Probation Officer any and all such counselling as directed, including alcohol abuse. • You must complete to the satisfaction of your Probation Officer 80 hours of community work service hours.

These are my Reasons. The Honourable Judge K. Arthur-Leung Provincial Court of British Columbia