r v. PURAN SINGH GILL, 2018 QCCQ 9417

R. c. Gill 2018 QCCQ 9417 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL Criminal and Penal Division No: 500-01-128134-159 DATE: December 20 th 2018 ______________________________________________________________________ IN THE PRESENCE OF THE HONOURABLE PIERRE DUPRAS, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

PURAN SINGH GILL Accused ______________________________________________________________________ JUDGMENT ON SENTENCE ______________________________________________________________________ Introduction [ 1 ] On July the 12 th 2018, the Court found the offender guilty of the second count of the information in this file and ordered a conditional stay of proceeding on the first count.

It is important to state, at this early stage, that the offender has been detained now since the 2 nd of November 2018 as the Crown successfully applied for a cancellation of the recognizance on which he was released in this file, following the laying of new charges relating to driving offences in Laval. Evidence [ 2 ] The sentencing hearing took place on December 10, 2018, at that time the Crown produced the criminal record of M. Gill and a notice under

section 727 of the Criminal Code [1] . The Defence presented 3 witnesses including the accused and produced 2 documents relating to alcohol treatment programs [2] . [ 3 ] Aside from the offender, 2 of his children took the stand, Perwinder Gill and Gurpreet Gill. [ 4 ] The substance of their testimony illustrated the difficulties generated by the offender’s incarceration. They put forward that they were having a hard time trying to figure out what to do about their father’s business.

So much so that Perwinder Gill had to leave a job in Toronto and Gurpreet Gill could not register for the next semester at an adult educational school. It was said that together with their mother they were suffocating. [ 5 ] The offender testified explaining that he had 6 companies that were active supplying manpower not only in the farm industry but also in the hotel business.

He added that if a driving prohibition were to be imposed in his sentence, he would hire a driver that he identified as being present in the courtroom. [ 6 ] Questioned by his attorney on the possibility of following a therapy for his alcohol problem he said that if the judge ordered it, he would follow it. He also said that he thought it would be a good thing because drinking was a problem for him. [ 7 ] Regardless of the good intentions that he expressed before the Court, M.

Gill seemed to know very little or anything about the therapy that was discussed except that a lady, that phoned him while he was detained, was to find a therapy for him in downtown Montreal, he knew nothing else did he say. [ 8 ] The evidence for the Defence was completed by an admission about steps taken principally with 2 institutions providing therapies for alcohol problems, the “Centre Chabad lifeline” and the Clinique Nouveau Départ. The representatives of these 2 institutions are ready, was it admitted, to evaluated M. Gill to see if they will accept him in their programs.

Documents to describe these institutions were also produced [3] . Analysis [ 9 ] The accused has 11 priors related to impaired driving offences. Moreover, the Crown submits that he has 5 pending cases for alcohol-related matters either driving offences (or care and control offences) or breach of conditions relating to alcohol. [ 10 ] Of course, he has not been convicted of these offences but the decision of Aprile c. R . [4] , of our Court of Appeal authorises a

limited use of these pending cases for the purpose of showing the offender’s background and character as they may be relevant to the sentencing objectives [5] . [ 11 ] The accused never sought aid for the drinking problem he acknowledges having. His recent attempts to gain access to the institutions mentioned above are, at the most, embryonic and the motivation he expressed appeared superficial. [ 12 ] The position of the attorney for the Crown is that a severe sentence should be imposed on M.

Gill and she suggests a jail term of 2 years less a day together with a probation order including a follow-up and a driving prohibition for a period of 10 years. Of course, she acknowledges that preventative detention should be subtracted from the proposition. [ 13 ] For the Defense, M. Coupal submits that the minimum sentence of 120 days in our circumstances [6] should be reduced by the amount of days served in preventative custody. This subtraction would allow the offender to benefit from a 90 days sentence that could be served intermittently.

He adds that the probation order could include a mandatory treatment for M. Gill’s problem with alcohol. [ 14 ] In support of his proposition, he argues that the accident, in our circumstances, was minor, that M.

Gill is in his sixties and that there was hiatus between the lasts offences for which he was convicted and the present conviction. [ 15 ] The parties submitted a certain number of decisions to the Court in order to support their positions [7] . [ 16 ] Some cases deserve our attention as their circumstances offer some resemblance to certain aspects of our file. [ 17 ] In Rosa [8] , a 79 year old man plead guilty to driving with a BAC above the limit. He had 6 prior relating to impaired driving and there was a 10 year gap since his last conviction.

The sentencing judge favoured the principles of deterrence, denunciation and exemplarity. In a case where the offender had never been incarcerated and where there were 45 meetings with Alcoholics Anonymous to his credit, he was sentenced to 20 months in jail and prohibited from driving for a period of 10 years [9] . [ 18 ] In Gauthier [10] , the offender was, at first, given a 5 month sentence together with a 5 year prohibition and it was his 8 th conviction for drinking and driving related offences. The Crown appealed and the Court of Appeal modified the sentence to 24 months and a prohibition of 10 years [11] .

At paragraph 15, the Court said that recent decisions from the Court itself confirm that the objective of deterrence should carry severe sentences. [ 19 ] The case of Bélanger [12] , the offender plead guilty to charges of driving during a prohibition, breaches of conditions and impaired driving. It was his 10 th conviction in the matter as he showed a BAC of 262 milligrams. His last sentence, which was recent, was a year in jail. He had undertaken a therapy to solve his alcohol problem.

The Court imposed a sentence of 2 years with a probation including a follow up and a prohibition order of 10 years. [ 20 ] In Lyna [13] while confirming a 23 months sentence for an 8 th offence in circumstances where there also was a 10 year gap since the last offence, the Court of Appeal indicated that in some circumstance an important leap in the sentences for a repeat offender is justified. [ 21 ] The Defence submitted the cases of Cummings and Fleisher [14] . [ 22 ] In Fleischer , a 120 days sentence was confirmed by the Court of Appeal for an offender who had 14 priors before pleading guilty to 1 count of driving while disqualified, 2 counts of impaired driving, 2 counts of refusal and one breach of probation.

The offender was 61 years old and undertook a remarkable rehabilitation program: [16] During the same period, the Respondent enrolled in a rehabilitation program at the North York General Hospital. It was the first time that the Respondent had entered an addiction treatment program.

On March 16, 2011, he commenced the Abstinent-Based Program, described in one exhibit as, “a ten week outpatient group program for individuals who have chosen to remain abstinent from alcohol and all other mood altering substances. […] [18] In the interim, the Respondent successfully completed his rehabilitation program and began to attend a weekly After Care Addiction Group. […] [23] In the interim, the Respondent began to attend the Addiction Outreach Program, described as “an outreach outpatient intensive treatment program that addresses the physical, emotional, and spiritual aspects of addictions and related problems”. [24] Respondent also began to take a series of steps to become involved as a volunteer in the community in programs aimed at preventing and deterring others from drinking and driving.

These steps included speaking at schools about the dangers of drinking and driving; establishing a service to provide shelter and alternate means of transport to individuals in downtown Montreal and Toronto to dissuade them from driving while inebriated; participating in a research program at the University of Montreal examining the connection between criminality and alcoholism; sponsoring the therapy of alcoholics unable to afford to pay for treatment. […] [28] The sentencing judge found that Respondent was rehabilitated and thus concluded that a federal sentence of incarceration would be inappropriate and could even have a negative impact on the rehabilitation efforts of other offenders. [ 23 ] The Court can only conclude that M.

Gill is not at all in the same situation.

[ 24 ] The Defence also referred to the case of Cummings [15] whose sentence of 120 days together with a prohibition order of 10 years was recently confirmed by the Superior Court for an offender who had 6 priors. It is to be noted that the Court decided that the range of sentence spanning from 1 to 4 years did not apply here because the proceedings were taken by way of

summary conviction and that the maximum sentence was thus 18 months. [ 25 ] The Court noted the collateral consequences of M. Gill’s detention on his family and his business as they speak to his personal circumstances in general.

In some cases, the effect of these consequences mean that a particular sentence would have a more significant impact on the offender than on other offenders. [ 26 ] Having heard the evidence presented by the witnesses, the Court comes to the conclusion that the collateral consequences depicted failed to reveal that a sentence in line with the applicable case law in such matters, would have a more significant impact on M. Gill than on other offenders in the same situation [16] . [ 27 ] This being said and having in mind the fundamental principle enunciated at

section 718.1 of the Code that is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender and the other principles enunciated at

section 718.2, particularly the parity principle found at paragraph 718.2 b), establishing that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances, the Court will impose the following sentence on M. Gill: • Acknowledging that he has served what amounts to 49 days in preventative custody, the Court will impose a sentence of 18 months of incarceration as of today; • Of course, were it not for this subtraction the sentence would otherwise have been 19 months and 19 days.

This calculation is required by section 719 (3.3) of the Code ; • The offender will also be submitted to a probation order for a period of 2 years; • The conditions of the order are to keep the peace and be of good behaviour, appear before the Court when required to do so, notify the Court or the probation officer in advance of any change of name or address, and promptly notify them of any change of employment or occupation; • Further, once released from jail, the offender will have to report to a probation officer within 2 working days and thereafter when required by him or her and in the manner directed by him or her; • The offender will have to follow the recommendations of the probation officer specially concerning his alcohol problem; • The offender will also abstain from the consumption of alcohol; • The Court also makes an order prohibiting the offender from operating a motor vehicle on any street, road, highway or other public place for a period of 10 years. __________________________________ PIERRE DUPRAS, J.C.Q.

Me Anik Archambault Crown attorney Me Louis Nicholas Coupal-Schmidt Defense attorney Date of hearing: December 10 th 2018