R. v. Sharma, 2019 ONCJ 1004

CITATION: R. v. Sharma , 2019 ONCJ 1004 DATE: November 12, 2019 Court File No. 2811-998-19-22354-00 ONTARIO COUR OF JUSTICE HER MAJESTY THE QUEEN v. HEMANT SHARMA R E A S O N S F O R S E N T E N C E BEFORE THE HONOURABLE JUSTICE G. WAKEFIELD, on November 12, 2019, at OSHAWA, Ontario APPEARANCES : K. Alderton Counsel for the Crown B. Scott Counsel for Hemant Sharma TUESDAY, NOVEMBER 12, 2019 THE COURT: Mr. Sharma, please stand up, sir. Anything you want to say before I pass sentence? I'm obliged to ask you, you don't have to, but this is your opportunity. HEMANT SHARMA: No, thanks.

R E A S O N S F O R S E N T E N C E WAKEFIELD, J. (Orally): What I have not been told is whether the children were home or not during the confrontation. If they were, I find that even more upsetting for them to be exposed to both the nature of the argument and the physical aggression that was involved. Also, you have accepted that as part of the dispute, you withheld the ability for Miss Sharma to use the family car to go to work. That's an element of controlling behaviour that really worries me. So I am not as confident as Mr. Scott that you get it. I hope you do.

It's clear that your wife wants you back. It's clear your children want you back. It's clear that you are - I assume, your father is living with the rest of the family from the victim impact statement, he wants you back in the family fold. It is essential that you take full advantage of the PARS program, and not let yourself be overwhelmed by your emotions or sense of entitlement and find more civilized ways of dealing with these sorts of pressures and you got a lot of pressures in your life right now.

The other aspect, I think, is to inquire whether the, the medical condition has created any change in personality or emotions, and I just ask you to fully follow up with the doctors on that as well. It's a joint submission? MR. SCOTT: It is. THE COURT: I'm required by the courts – the appellant courts to give that extra weight. You have come forward at a very early opportunity to take responsibility. There is a conditional discharge granted with 18 months probation.

The terms of probation are that you keep the peace and be of good behaviour, appear before the court when required to do so, notify the court or probation officer in advance of any change in your address and promptly notify the court or probation officer of any change in employment or occupation. You will report, in person, to a probation officer immediately, and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision.

You will not – now, you have just got the one exception, and I appreciate the expectation is for Miss Sharma, that she would prefer to not even wait for the four sessions of PARS, but that's a prerequisite here. However, should things not work out, given the length of the probation, is there any dispute that there should also be the exceptions for Family Court through legal counsel, the usual, sort of, alternative resolution procedures? MR. SCOTT: Yes, Your Honour. MR. ALDERTON: I'm agreeable to all of those terms.

THE COURT: So you will not contact or communicate in any way, directly or indirectly, by any physical, electronic, or other means, with – and I am sorry, the - Miss Sharma's first name again? MR. SCOTT: Manisha, M-A-N.... THE COURT: Manisha Sharma, except pursuant to a Family Court order made after today's date or for the purposes of conducting and defending Family Court proceedings, in the presence of or through legal counsel. With the prior written consent of the above-named person filed in advance, by that person, with the probation intake or assigned probation officer.

This may be cancelled by the person in any manner any time, and in the following words, Madam Clerk, and can only be put into effect after the defendant has completed four sessions of PARS. You are not to be within 100 meters of any place you know the person named above to live, work, go to school, frequent, or any place you know the person to be except for required court appearances, and those will have the same exceptions in the sub-paragraph one. As a term of probation, do not possess any weapons as defined by the Criminal Code . I use the words "including", instead of "for example".

Including, a BB-gun, pellet gun, firearm, imitation firearm, crossbow, prohibited or restricted weapon, ammunition, explosive substance, or anything designed to be used or intended to be used to cause death or injury, or to threaten or to intimidate any person. Just a mechanism to ensure you don't do anything else that has the effect of trying to intimidate either your partner or anybody else. He does not require a grace period for any of those items? MR. SCOTT: No, Your Honour. And do I understand your ruling today, that Mr. Sharma....

THE COURT: My understanding, the Crown said four sessions of PARS first, is.... MR. SCOTT: No, the Crown did not say that. MR. ALDERTON: The Crown did say that. MR. SCOTT: Oh, did they? MR. ALDERTON: That was on the... MR. SCOTT: Okay. MR. ALDERTON: ...sheet that I had from... MR. SCOTT: I didn't...

MR. ALDERTON: ...Mr. [ Indiscernible ]. MR. SCOTT: ...I didn't realize that 'cause that was never indicated to me when I spoke to someone last Thursday, Your Honour. But as a matter of fact.... THE COURT: There was some expectation by both parties that Miss Sharma would be attending the fourth floor to sign her written revocable to me. MR. SCOTT: Yes, that's why she's come to court today. MR. ALDERTON: If I could just have my friend's indulgence to come and review a document brief? ...DISCUSSIONS BETWEEN COUNSEL THE COURT: Let me make a suggestion. MR. SCOTT: Yeah.

THE COURT: Miss Sharma is very clear in the, the victim's rights as to what should happen today. Why don't I hold the matter down and you come back shortly with confirmation that Mr. Sharma has signed up for PARS today, and with that, make the written revocable effective today knowing that he is now obliged to commence at the very next session. Is that something the Crown would like to inquire with whoever is the author of the missive on your computer, and would you like – you or the Crown, perhaps, to chat with Miss Sharma to confirm any concerns as to the risk of violence should the gentleman go home today. MR.

ALDERTON: Perhaps if I could just have a few seconds to speak with Ms. Sharma, we may be, be able to avoid having to hold the matter down at all. MR. SCOTT: Thank you, Mr. Alderton. Just have a seat, sir. ...DISCUSSIONS BETWEEN COUNSEL AND MISS SHARMA MR. ALDERTON: Your Honour, having spoken to Miss Sharma, I would be content that part of the exception not form part of the probation in the circumstances, recognizing in the circumstances that there are substantial public interests, risks associated with not having completed any counselling upfront.

However, I would submit that in the circumstances, the Crown can be content that Miss Sharma will be protected given this matter was reported and she seems confident that she would report any incident in the future. THE COURT: I think there is still one child at home as well, and the father at home, another adult, so, again, that there be witnesses who can contact the police if there's been repetition of domestic violence. MR. ALDERTON: Yes, sir. THE COURT: The other question I had is, it doesn't require a grace period for the weapons on the probation order. I assume that applies to the 110.

The DNA is part of the joint submission? MR. SCOTT: It, it – we – I know that's usually something that the Court imposes, and I did alert Mr. Sharma to the fact that that could be ordered by the Court today, given the circumstances. THE COURT: Right. So just finishing off the probation first, going on to – I have done the weapons probation component.

In terms of counselling, you will attend and actively participate in all assessment counselling or rehabilitative programs directed by the probation officer and complete them to the satisfaction of the probation officer, including but not limited to the domestic violence, which may include partner assault response - PARS program - and I'll add these words in to, perhaps, balance the issues, Madam Clerk, to commence as soon as possible. MR. SCOTT: Thank you, sir. THE COURT: As well, psychiatric psychological issues and any other counselling to assist in rehabilitation.

I am just worried that some of this may, actually, be beyond your control. I am not a doctor but given the advice to me of the – of the tumor, that can have residual effects. I'm asking you to both, follow up with probation and with your specialist in the field, to make sure that they are monitoring, so you don't put yourself in this situation again. You will sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling, or rehabilitative programs as directed. I think that covers all of the terms being sought here.

I did put the hundred meters in with the same exceptions. Any breach of this order

is a new criminal charge, which if convicted puts you at risk of losing the condition of this charge and gaining another criminal conviction and the risk of jail. So don't let yourself react to anything that would be a breach of this probation order. There will be an order that you provide a sample of your DNA. Despite the fact of no prior criminal record but given the circumstances of these offence or this offence, and the minimal physical impact on your personally integrity, I am satisfied it's in the best interest in the administration of justice to make the order, and you will provide a sample of your DNA today. That will occur before noon today. And, as well, pursuant to

section 110 of the Criminal Code , you are now prohibited from possessing any firearm, crossbow, prohibited weapon or restricted weapon, prohibitive device, ammunition, prohibited ammunition, explosive substance, for a period beginning today and ending three years from the date of discharge. Do you understand all those orders? HEMANT SHARMA: Yes. THE COURT: And you understand that the breach of the

section 110 is also a Criminal Code offence and that I am trusting to cooperate with the officers in the taking of your DNA sample. There's just the one Count that he is facing? MR. SCOTT: Yes, Your Honour. THE COURT: This post dates the June victim impact state – victim impact surcharge submissions. MR. SCOTT: This has been a very stressful period. I understand his daughter, who is attending Queens, her name is Yukta, Y-U-K-T- A, she's 18. There has been an extreme drain on family finances, plus the costs incurred with Mr.

Sharma having to reside with a friend, Your Honour, in Scarborough, to obey the bail order, which has been scrupulously adhered to by this gentleman ever since July 22nd. I would ask that the victim surcharge, in these circumstances, be waived. MR. ALDERTON: The Crown has no submissions on the VFS. THE COURT: I am not quite sure why it is I have not yet imposed it for very similar submissions on other matters so far since the inception.

Here, I think it's only a hundred dollars, but it's a hundred dollars that, frankly, I would perceive would penalize the daughter at university more than benefit the coffers of the province. For those reasons, I am, again, waiving victim impact surcharge, but I do not want to get a reputation of never imposing it either. So the pair of you cannot associate right now until Miss Sharma has attended to the probation office to file the necessary documents and you might want to give a heads up to the probation officer 'cause sometimes they won't do it here. They require the victim to attend to the probation office.

MR. SCOTT: Actually, Your Honour, about a week ago I made that very call and was told that they are ready, willing, and able to do that. THE COURT: All right, sir. MR. SCOTT: Thank you. THE COURT: Do we have CAP today. CLERK REGISTRAR: No, we do not. THE COURT: Patience is now the operative word. So don't sit together until everything is signed up. Just wait outside the double doors until the paperwork is ready. You will be directed where to give your DNA sample and then you go to the fourth floor to have your initial meeting with the probation officer. Do you understand all that, sir? HEMANT SHARMA: Yes.

THE COURT: Good luck to you both. I don't want to see you back here again. CLERK REGISTRAR: And, Your Honour, just to confirm, that was a conditional discharge? THE COURT: It was. CLERK REGISTRAR: Thank you. MR. SCOTT: Your Honour, I've not yet spoken to Manisha, but I will now that the case is concluded, and advise her of what will happen on the fourth floor. If she can just wait for me outside in the hall. Thank you.

THE COURT: Thank you. MR. ALDERTON: Thank you. ...WHEREUPON THE MATTER IS CONCLUDED