R. v. Gidhay, 2014 ONCJ 465

Information No. 14-804 13-1321 Citation: R. v. Gidhay , 2014 ONCJ 465 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. RESHAN GIDHAY R E A S O N S F O R S E N T E N C E BEFORE THE HONOURABLE JUSTICE B.E. PUGSLEY on August 25, 2014 at ORANGEVILLE, Ontario INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION FOR 30 DAYS PURSUANT TO THE ORDER OF JUSTICE B.E. PUGSLEY OF THE ONTARIO COURT OF JUSTICE DATED AUGUST 25, 2014 APPEARANCES : P. McDermott Counsel for the Crown M. Mirosolin Counsel for Reshem Gidhay

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i) Table of Contents ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION FOR 30 DAYS PURSUANT TO THE ORDER OF JUSTICE B.E. PUGSLEY OF THE ONTARIO COURT OF JUSTICE DATED AUGUST 25, 2014 Reasons for Sentence . . . . . . . . . . . . . . . . . Page 1

Transcript Ordered: August 25, 2014 Transcript Completed: August 28, 2014 Ordering Party Notified: September 5, 2014 MONDAY, AUGUST 25, 2014 Pugsley, J (Orally): R E A S O N S F O R S E N T E N C E Resham Gidhay is before me today for sentencing on a charge of manslaughter. Exhibit 1 on this hearing sets out the agreed facts that had been placed before me jointly by counsel here. Counsel also make a joint recommendation for a total sentence of imprisonment in the range of 8 to 10 years, less credit for pre-plea custody. That time in custody is just a few days short of one year.

The agreed facts set out in detail the background of the death of Mr. Herminder Bhandal. Mr. Bhandal had the grave misfortune to fall deeply into the drug sub-culture in his community. Mr. Gidhay himself was a heroin addict and also was engaged in that drug sub- culture. With other subsequent co-accused, their illicit drug community appears to have revolved in orbit around a man called Narankar Dhillon. Mr. Dhillon and Mr. Gidhay were associated for some two or three years before August of last year. Mr. Dhillon spoke repeatedly to Mr. Gidhay about the deceased, Mr. Bhandal. Mr. Dhillon believed that Mr.

Bhandal had stolen substantial money from him and had cost him a loss of even a greater amount of property. Mr. Dhillon told Mr. Gidhay that Mr. Bhandal knew almost everything about Mr. Dhillon’s illegal drug business. Obviously, this made Mr. Bhandal a threat to Mr. Dhillon. He also told the defendant that he and another now co-accused party had abducted and tortured Mr. Bhandal on a previous occasion in an unsuccessful attempt to have Mr. Bhandal return Mr. Dhillon’s stolen money and property. This is the context leading to the events of Mr. Bhandal’s death. Mr. Dhillon asked Mr.

Gidhay to try and secure the return of Mr. Dhillon’s stolen property. Mr. Dhillon wanted Mr. Gidhay to help him by arranging for Mr. Bhandal to be abducted and beaten and delivered into the hands of Mr. Dhillon. In exchange, Mr. Dhillon indicated that he would look after Mr. Gidhay. At first reluctant, Mr. Gidhay then agreed to help. Two plans documented in Exhibit 1 were hatched to abduct Mr. Bhandal and discipline him. Neither were able to be completed, however a third plan was then substituted. Mr. Gidhay and some of his co-accused knew when Mr. Bhandal was going to return to an apartment.

Some were in the open there and some hid in a bedroom. Mr. Bhandal came, and when he went to leave to pick up his wife, the defendant and four other men attacked and confined Mr. Bhandal. Mr. Gidhay repeatedly slapped and punched the victim as a co- accused hit him with a stick. Another man taped the victim’s mouth shut and others tied him up. Mr. Dhillon was notified and instructed the men to take the victim to Mr. Dhillon’s garage. Mr. Gidhay and the other men transported the victim to the garage, still tied and gagged, and took turns watching over him there. No one tried to help Mr.

Bhandal in any way, nor call for medical help. Mr. Gidhay went to Mr. Dhillon and told him where Mr. Bhandal was, and was given $500 by Mr. Dhillon. When he returned, he found that the victim was still tied up and gagged, but still took no steps to secure help for Mr. Bhandal. He consumed some drugs and fell asleep. He was later awoken and was told that Mr. Bhandal had apparently died. He viewed the victim and saw that this was clearly true. The co-accused of Mr. Gidhay rented a U-Haul truck and drove it to the garage. The victim’s lifeless body was placed in the truck. Someone retrieved Mr.

Bhandal’s motor vehicle, and Mr. Gidhay and other co-accused drove together to a rural area near Barrie, Ontario. There they placed Mr. Bhandal’s body inside his vehicle, doused the vehicle with gasoline and set the car on fire. Mr. Gidhay admitted to aiding in the setting of this fire. Passersby had seen Mr. Gidhay and the others at the scene before the fire, and then came

upon the fire shortly after the defendant and his cohorts left. The fire department came and extinguished the fire, and a criminal investigation commenced. Mr. Bhandal had early spoken to his family about who might mean him harm, and a few days after the death of Mr. Bhandal, Mr. Gidhay was arrested, along with other co-accused. Mr. Dhillon was arrested later in the fall, after Mr. Gidhay’s second formal statement to the police elaborated on the role of Mr. Dhillon. In May of 2014, Mr. Gidhay provided a detailed six-hour statement. Mr. Gidhay and six others were charged with first-degree murder.

Two informations were sworn. Mr. Gidhay, Mr. Dhillon and two others were charged on one information, and the three other co-accused on a second information. Two preliminary hearings have been scheduled. The first involving Mr. Dhillon and Mr. Gidhay is to commence in mid-October of this year. The second is scheduled for February of 2015. I have pre-tried and case managed both informations in this court since last fall. Subsequent to Mr. Gidhay’s May 6 th , 2014 formal statement, it became clear that Mr. Gidhay, his counsel, and the Crown Attorney were contemplating a resolution of Mr. Gidhay’s charge.

The plea and hearing today are the culmination of a journey towards that resolution that started well before May of this year. In other words, as both counsel submitted, Mr. Gidhay indicated early on his desire to take responsibility for the offence that he has now been found to have committed. This is to his credit. Counsel present to me a joint recommendation as to an appropriate range of sentence. Although originally charged with first-degree murder, Mr. Gidhay is being sentenced today on his conviction for manslaughter, entered after his election and plea of guilt today.

Very experienced counsel submit that a sentence of between 8 years and 10 years in the penitentiary is appropriate on these facts and with regard to this defendant. Mr. McDermott, for the Crown, submits that a sentence on the high end of that range is appropriate. Mr. Mirosolin, for the defendant, advocates for a sentence on the lower end of the range. Counsel agree that I should credit Mr. Gidhay with time served before plea on a one to one-and-a-half times basis, as contemplated by the Supreme Court of Canada decision in Summers .

Thoughtful and heartrending victim impact statements describe to me the effect on his family of Mr. Bhandal’s death. The Crown highlights the many aggravating features of the events leading to Mr. Bhandal’s death. While recognizing those aspects of sentencing, the defendant submits that Mr. Gidhay has shown true remorse in his plea today. He has made a written apology to Mr. Bhandal’s family. The purpose and principles of sentencing are set out in the Criminal Code of Canada at

Section 718 and following. A primary consideration in sentencing of someone for the unlawful death of another human being is the need, in this case, to denounce Mr. Gidhay’s outrageous conduct and to deter, in the strongest of terms, Mr. Gidhay and others from engaging in such conduct in the future. A lengthy period of incarceration is, therefore, required here. Counsel have provided several helpful cases which underline and reinforce the submission that a range of sentence for manslaughter for this offender on these facts is properly between 8 and 10 years on a plea of guilt.

Counsel have fairly submitted the aggravating and mitigating features of Mr. Gidhay’s sentencing today. Experienced counsel have recommended jointly a range of sentence. Such a joint recommendation is not, of course, binding upon a sentencing judge, but represents a very persuasive element in sentencing. No sentencing judge will ever be privy to all of the background facts leading up to the decision to resolve a case and present a joint submission. Manslaughter is punishable by up to a life sentence in prison.

Case law suggests, however, that the recommended range of sentence here is appropriate, and has been held to be so in appellate cases engaging similar facts. I agree that on these facts, and in particular noting that Mr. Gidhay has early on taken responsibility for his criminal act, the suggested range of sentence of 8 to 10 years is appropriate. Where, then, does Mr. Gidhay, the offender, on these facts, fit within that range of sentence? The aggravating features here are many. Mr. Gidhay knew that Mr. Dhillon believed that Mr. Bhandal had stolen money and property from Mr. Dhillon and had not returned it.

He knew that Mr. Dhillon, from repeated comments, did not like this. He knew that Mr. Dhillon, Mr. Bhandal and himself were engaged in a drug sub-culture with certain rules. He knew that Mr. Bhandal and a subsequent co-accused had both been abducted and beaten and tortured by Mr. Dhillon in the past. Mr. Gidhay was asked by Mr. Dhillon to assist with a second abduction of Mr. Bhandal and to do further violence to the victim. Mr. Dhillon’s role as the kingpin to Mr. Gidhay and his co-accused is obvious, in that while they performed the confining and the beating of Mr. Bhandal, Mr.

Dhillon was not present but was reported to, first by phone and later in

person. Clearly, the confinement and the fatal assault on Mr. Bhandal engaged acts of extreme violence in aid of the criminal acts of Mr. Dhillon’s drug group. As the Crown submitted, Mr. Bhandal had broken the rules of the drug sub-culture and was to be punished according to those brutal rules. In executing the direction of Mr. Dhillon, Mr. Gidhay took on a leading role actively participating in the confinement and the beating of a helpless Mr. Bhandal. Five men attacked one victim, stifled his screams by gagging him, and tying him into immobility. It was a cowardly and vicious attack on a helpless human being.

Having participated in the beating of the victim, but not yet actually having killed Mr. Bhandal, Mr. Gidhay and his co-accused allowed the injured victim to lie, gravely injured but alive, albeit confined and gagged, without any medical treatment until he died from his injuries and confinement. In other words, even after the beating, Mr. Bhandal was still alive and, therefore, presumably capable of being medically treated and perhaps healed. Instead, the defendant and his cohorts let him lie on the floor of Mr. Dhillon’s garage until he died. Having determined that Mr. Bhandal was deceased, Mr.

Gidhay and others then acted to do further indignity to Mr. Bhandal’s human remains by placing his body into his car, dousing the car with gasoline and setting it alight in a rural area to try and cover up their illegal act. These factors favour the highest end of the range of sentence here. Are the factors in mitigation sufficient to move the sentence towards the lower end of this appropriate range? Mr. Gidhay, as has been said, from an early stage demonstrated some degree of co-operation with the police. That co-operation increased and led to Mr.

Dhillon’s arrest in the fall of 2013 and, at his own request, continued until May of this year when Mr. Gidhay, for the first time, told the full story of the last hours of Mr. Bhandal’s life, including his own role. He has pled guilty and will be sentenced to a serious penitentiary term. I am told that Mr. Gidhay is not a Canadian citizen and may well be deported after serving his sentence. He helped deprive Mr. Bhandal’s wife and young children of their beloved father, and now may well, in a different way, lose contact with his own wife and children. The pain of Mr. Bhandal’s family here is clear and sharp.

The ripples from Mr. Gidhay’s violent and cowardly act will spread from last year and today and affect many family and children forever. Mr. Gidhay’s role here must be condemned in the strongest way and he, obviously, must be separated from Canadian society. Mr. Gidhay has a prior conviction for drug possession. The events that bring him here stem as well from the drug sub-culture, referenced by his record and by a former employer who noted what he was like before he became an addict. Mr. Gidhay has shown obvious remorse and has co-operated with the police from a relatively early stage.

He has pled guilty and has taken responsibility for his profoundly criminal acts. These are to his credit, but those acts include the active ambush of a defenseless man, the active and leading use of physical violence in collaboration with four others upon that defenseless man, the wanton disregard for the life of a severely injured man in his care, the wholly disrespectful attempt to dispose of Mr. Bhandal’s earthly remains, and to cap off his actions, he was paid in money and perhaps drugs for what he had done.

Only a sentence at the highest end of the appropriate range of sentence here is capable of denouncing Mr. Gidhay’s illegal acts and deterring him and others from visiting drug sub-culture punishment and revenge on those offending the punitive rules of that community. The appropriate sentence here, therefore, is 10 years in the penitentiary. From that time, I deduct one-and-a-half years of pre-plea custody. Recognizing that 18-month timeframe, the sentence is therefore a total of 8 years and 6 months in the penitentiary.

An order is made that the defendant provide a sample of his DNA to be added to the National DNA Databank. Pursuant to

Section 106 of the Criminal Code , Mr. Gidhay is prohibited from possessing any firearm, ammunition or explosive device for life.

Soon after the defendant was arrested in August of 2013, a ban on publication was made in connection with his original murder charge. He has now been sentenced such that that ban, as it relates to Mr. Gidhay, will now be over if not extended. The Crown seeks an order that the facts of Mr. Gidhay’s plea be the subject of a continued temporary ban on publication pending an opportunity for Mr. Gidhay’s co-accused and the press to address whether such a ban ought to be continued and, if so, under what terms and for how long. There is an obvious fear that should the detailed facts of Mr.

Gidhay’s plea become widely known, it could affect the legal rights of his co-accused. As such, it is important that, if desired, counsel for those co-accused and the press be permitted to consider and address such a continued publication ban. Not surprisingly, no one is now today here in court to make such a submission, since Mr. Gidhay’s plea was brought forward today quietly to protect Mr. Gidhay’s person. I have jurisdiction to make such a temporary order, in my view, as part of my ability to properly manage my court and the court proceedings at common law.

Accordingly, I will make the order sought by the Crown contained at Appendix A of the Crown’s application a follows: There will be a temporary prohibition on the publication and the exhibits filed today will be sealed. The relief requested will be for 30 days or until such time as this court can hear submissions from related accused and any other interested party as to whether such an order should be continued, on what terms, if any. The scheduling of such a hearing shall be addressed further tomorrow in courtroom 101 at 9:30 a.m. in my duty court when Mr.

Dhillon and two other co-accused, and their counsel, will be present for the purpose of certain events. THE COURT: Mr. McDermott, I take it, as it affects Mr. Gidhay only, the murder charge is withdrawn? MR. MCDERMOTT: Yes, I’d ask that his name on the first-degree murder count be withdrawn. THE COURT: Anything else, counsel, that I haven’t dealt with? MR. MCDERMOTT: No, Your Honour. MR. MIROSOLIN: I don’t believe so, thank you very much, Your Honour. THE COURT: All right, thanks very much for your patience, and that’s the sentence of the court.

F O R M 2 Certificate of Transcript Evidence Act, Subsection 5(2) I, Nancy Byers, certify that this document is a true and accurate transcription of the recording of Regina v. Reshem Gidhay, in the Ontario Court of Justice held at Court House, 10 Louisa Street, Orangeville, Ontario taken from Recording No. 0611-102-20140825- 092449, which has been certified in Form 1. September 5, 2014 Nancy J. Byers (Date) (Signature of authorized persons)