R. v. Haer Date:, 2011 BCPC 396

Citation: R. v. Haer Date: 20110401 2011 BCPC 0396 File No: 72317-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GURWINDER SINGH HAER REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. R. GARDNER Counsel for the Crown: C. Lawlor Counsel for the Defendant: D. Silverman Place of Hearing: Abbotsford, B.C. Date of Hearing: April 1, 2011 Date of Judgment: April 1, 2011 [ 1 ] THE COURT : The accused has pled guilty to one count of dangerous driving causing bodily harm. There were two victims. The circumstances have been laid out carefully by the Crown. [ 2 ] In

summary, he was operating a motor vehicle just before three o'clock in the afternoon. The CP police were engaged in a crossing enforcement of the railway. They attempted to stop his vehicle. His vehicle initially was going to pull over but then the driver, that being the accused, obviously had a change of heart and accelerated away from the police vehicle that had its emergency equipment on. He headed along Highway 11 towards Mission, and he was passing on the shoulder where he had no business driving, and disobeyed a red light and struck the vehicle with the two victims inside of it.

He struck it in the rear panel and both vehicles, understandably, spun out of control. [ 3 ] The victim's injuries have been set out in the pre-sentence report. I am hopeful they will make a long-term recovery, but their injuries certainly caused them a lot of pain, discomfort and inconvenience. [ 4 ] The Crown has asked the court to consider an 18-month jail sentence and a two-year driving prohibition. They point to certain higher court authorities that denounce this type of driving where the public is placed at risk and where the consequences can often be fatal.

Against that I have a number of higher court cases that have entertained submissions by defence counsel for a conditional sentence order. [ 5 ] In considering what an appropriate sentence is, I find myself in agreement with the reasons of The Honourable Judge MacKay, then sitting in the Provincial Court in Chilliwack, in the R. v. Peters case. In that case the driving was more egregious than it is here and the injuries suffered by the victims were more serious.

He took a number of factors into consideration in deciding whether or not the principles of justice can be properly addressed by the imposition of a conditional sentence. [ 6 ] I also have to consider the accused's personal circumstances. First of all, he is 22 years of age. He has a grade 12 education and has attended some post-secondary courses. He has pled guilty to the offence. He has an abysmal driving record but he has no criminal record. He is also gainfully employed on a fulltime basis and a period of incarceration would no doubt result in the loss of his employment.

[ 7 ] It is difficult to put a positive spin on the numerous infractions on his driving record, other than to say that he has never driven while prohibited, or he has no convictions for that, and I also have the written assurances of his parents that they will make sure that he does not drive. One other factor I consider is that there was no indication of any alcohol or drugs consumed by the accused prior to the collision. I do not call it an accident, sir; when you drive in a fashion like this it is not an accident when there is a collision. An accident is an unforeseen circumstance.

When you blow a red light in a traffic intersection such as this, a collision is close to being inevitable. [ 8 ] Taking all of the circumstances into consideration, the submissions of counsel, the case law that I have been referred to, the pre- sentence report, and the injuries suffered by the victims and their long-term prognosis, I have concluded that an appropriate sentence in these circumstances would be 18 months, and I will allow him to serve that sentence in the community so it will be a conditional sentence order. [ 9 ] There will be a number of terms attached to that, sir.

They are you shall keep the peace and be of good behaviour, you shall appear before the court when required to do so by the court. [ 10 ] You shall report in person to a conditional sentence supervisor no later than noon, Monday, April the 4 th , here in Abbotsford, and you shall thereafter report as and when directed by your supervisor and in the manner directed by your supervisor. [ 11 ] I will use Judge Skilnick's suggested wording except one change only, he says you shall remain within the jurisdiction, I will say that more clearly, you shall remain within the Province of British Columbia unless written permission to go outside this jurisdiction is obtained from the court or the supervisor. [ 12 ] You shall notify the court or your supervisor in advance of any change of name or address and promptly notify the court or the supervisor of any change of employment or occupation. [ 13 ] You shall inform your supervisor of your present residential address and phone number and not change that address or phone number without the prior written consent of your supervisor. [ 14 ] You shall obey a curfew by being inside of your residence between the hours of 6:00 p.m. and 5:00 a.m. each day except, and I am going to allow exceptions, sir, to continue your employment, except for the written permission of your supervisor to be outside of your residence during the hours specified, in which case you are to carry a copy of such written permission on your person and present it to any peace officer who requests to see it.

Such permission is to be given only for compelling personal family or employment reasons. [ 15 ] Excuse me, I need to take a look at the technical suitability report. [ 16 ] MR. SILVERMAN: He is found suitable, if that's -- [ 17 ] THE COURT: Yes, I was just looking for the wording.

The condition is to be electronically monitored, and let me add these words to that: You shall comply with all regulations and conditions of the electronic monitoring program. [ 18 ] You shall present yourself at the door of your residence when requested to do so by any peace officer, staff member of the Corrections branch of the Ministry of the Solicitor General, or your conditional sentence supervisor for the purpose of determining your compliance with the electronic monitoring program. [ 19 ] You shall not possess or consume any alcohol or non-prescribed drugs. [ 20 ] You shall perform and complete, at the discretion and to the satisfaction of your supervisor, 50 hours of community service work which shall be completed no later than December 31st of 2011. [ 21 ] You shall apologize to the victims in writing, as directed by your supervisor and to the satisfaction of your supervisor. [ 22 ] Sir, the Crown asked me to prohibit you for two years.

I certainly understand their position, but given I have chosen not to incarcerate you I am going to protect the public in this fashion: You shall not operate a motor vehicle anywhere in Canada for a period of three years, pursuant to s. 259 of the Criminal Code of Canada. Is it 259 or 254? I'm sorry. [ 23 ] MS. LAWLOR: 259. [ 24 ] MR. SILVERMAN: 259. [ 25 ] THE COURT: Yes, thank you. There will be a similar prohibition under s. 98 of the Motor Vehicle Act of British Columbia, sir; you shall not operate a motor vehicle on any highway in the Province of British Columbia for a period of three years.

Those two prohibitions run concurrently. [ 26 ] This was out of Abbotsford or Mission, I'm sorry? [ 27 ] MR. SILVERMAN: Right between. [ 28 ] MS. LAWLOR: Right between, Your Honour. Almost in the middle. [ 29 ] THE COURT: It appears, though, that the Abbotsford Police became involved, so I am going to direct that a DNA sample be provided. Is there any reason that he can't do that next Wednesday morning? [ 30 ] MR. SILVERMAN: He is a Mission resident, so I don't know if you want to send him over to the RCMP. [ 31 ] THE COURT: No, I want it to be in Abbotsford. This is the investigating police force.

[ 32 ] MR. SILVERMAN: All right. So, no, Wednesday of next week, I think it's between 9:00 and 10:00 a.m. [ 33 ] MS. LAWLOR: That's right. [ 34 ] MR. SILVERMAN: Yeah. Okay. [ 35 ] THE COURT: I am directing you provide a DNA sample for inclusion into the National DNA Databank, and you are to attend the Abbotsford Police Department between the hours of 9:00 a.m. and 10:00 a.m. on Wednesday April the -- [ 36 ] MR. SILVERMAN: 6th. [ 37 ] THE COURT: -- 6th, thank you, for that purpose. [ 38 ] Were there any other conditions the Crown might be seeking? [ 39 ] MS.

LAWLOR: No, I think that should cover it, Your Honour. [ 40 ] THE COURT: All right, thank you. Sir, there are a couple of things that I want to remind you. Could I have you stand, please? You were very close to being incarcerated on this matter, given the seriousness of this collision. For the reasons I have set out, particularly because you are gainfully employed and your relative youth, I have given you an opportunity to serve that sentence in the community. It is a fairly strict curfew, sir; it is meant to be strict, it is meant to be inconvenient.

It is a lot better, in my view, for you to continue to work and not have to go to jail. [ 41 ] I am not very sympathetic to breaches of my orders; some people say I am not the least bit sympathetic, but in any event, don't even think about driving a vehicle while you are under prohibition, and don't even think of having a drink. If some of your friends say, "The judge won't mind if you have one or two beer," that's really useless advice. This judge will mind.

And also, I have often heard, "Well, I was only a few minutes late coming back from my curfew." Well, what that shows to me when people don't obey their curfews they are not taking the conditions of the order seriously. As I said, I am not sympathetic to breaches, and given the injuries that are suffered by this victim, I am not going to be very sympathetic to an application for me to relax a curfew prior to you serving all of your sentence, sir. Understood? Thank you. [ 42 ] MS.

LAWLOR: The Crown will stay, Your Honour, Counts 2 and 4. [ 43 ] THE COURT: Thank you, counsel, for your assistance. (REASONS FOR SENTENCE CONCLUDED)