2014 MBPC 55, 2014 MBPC 55

Cite: 2014 MBPC 55 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Jennifer Mann, ) for the Crown - and – ) ) Parmpreet Dhindsa, Defendant ) ) Daniel Gunn, for the Accused ) ) ) Sentencing Judgment delivered: October 23, 2014 ) R.L. POLLACK P.J. [ 1 ] Parmpreet Dhindsa, a taxi driver, has pleaded guilty to the

summary conviction offence of sexual assault of a passenger in his taxi. Before discussing the applicable sentencing principles I will review the essential facts, beginning with the antecedents of the offender. [ 2 ] Mr. Dhindsa had been driving a Winnipeg taxi for about three years. He emigrated from India in 2006 and, when he committed the sexual assault on January 1, 2013, he was an applicant for permanent resident status; this was granted in December. Mr. Dhindsa is a devout Sikh with a strong belief in the propriety of arranged marriage and abstinence from sexual relations until marriage.

I am informed that, on the date of the offence, he had never had a sexual encounter with a woman. [ 3 ] In the early morning hours of New Year’s Day he was driving by a bus stop in west Winnipeg when he saw the victim, an intoxicated eighteen-year-old female. While it is unclear who initiated the conversation, it is clear that Mr. Dhindsa offered the victim a ride and she responded by telling him that she had no money. He told her that he would drive her home regardless and she seated herself in the front passenger seat. [ 4 ] The driver did not take her home.

He drove north from Portage Avenue to an industrial area and, while doing so, kept reaching for and touching her breast and crotch area over her clothing. She protested the whole time. Although inebriated, the victim was not without resourcefulness and she used her phone to video record part of what took place while pretending to access messages.

The taxi was equipped with a video camera and, between the two devices, the investigation made it clear that the sexual touching was an assault, the victim was protesting and she was certainly inebriated. [ 5 ] After thirteen minutes the victim was able to leave the taxi and make her way to a friend’s place. At the urging of that friend she contacted police and provided the number of the taxi. I am told that she was in no condition to be interviewed – it was shortly after 4:00 a.m. – and police decided to speak with her later.

They arrested the driver at 5:44 a.m. at work and obtained the video from the taxi. [ 6 ] Police also had the video from the victim’s phone. The prosecutor pointed out that part of the sound track indicates that she was saying “No”, “Stop” and “Don’t touch me”. It includes the driver asking her whether she wanted “to have fun”. Defence counsel focused on the words spoken by his client. Stressing the fact that Mr. Dhindsa was without any sexual experience, counsel gave the

interpretation of “Don’t you want to have fun?” as being sincere and perhaps somewhat puzzled rather than lecherous words spoken by a predator. [ 7 ] The pre-sentence evidence consists of a comprehensive assessment by Dr. Lawrence Ellerby of Forensic Psychological Services in Winnipeg, two character reference letters which appear to be recommendations for employment and two letters from family members; one was written by the offender’s brother who sat through the proceedings. Forensic Psychological Services is a resource used for expert opinion by both the prosecution and defence bar. Dr.

Ellerby’s report is characteristically thorough and extremely helpful in understanding how a person like Mr. Dhindsa, never before having offended, could have acted out as he did. [ 8 ] The forensic report assumes that the incident is isolated and there is no indication to the contrary. To the extent that a psychologist can do so, Dr. Ellerby corroborated a number of representations made by the defence concerning the sexual naiveté of this offender, his immense loyalty to his family and respect for his religion.

The psychologist pointed out that his parents, who live in India, were visiting Winnipeg when their son was arrested for this offence. Since then, I am informed, both have taken ill and Mr. Dhindsa feels that his actions are responsible for this. [ 9 ] As for the offence itself, a theme of the report is that this offender tended to minimize his criminal offending and did not really

see the need for a substantial rehabilitative effort. That said, I am aware of his subsequent decision to take counselling from one of theother psychologists in the clinic. In considering this report I take cognizance that, until he sat down with Dr. Ellerby, Mr.

Dhindsa wasan undiagnosed and untreated offender whose offence carries the strongest of stigmas. [10] In that latter regard, I am drawn to this portion of the assessment: In exploring the motivation for his behaviour, we discussed his thoughts about the difference between Canadian versus Indian womenwith him noting that Indian women are properly dressed, don’t show their body, do not drink or smoke and have sex after marriagewhereas Canadian women are open minded, talk about anything, drink, smoke, easily develop relationships with men and are open tosex.

There are two distinct conceptualizations that could be considered in this case. If this is a single and isolated incident, it may be that thisis a situation when Mr.

Dhindsa distorted his perceptions of his passenger as a woman (e.g., a Canadian woman, believing her to be anAboriginal woman, an intoxicated woman), her interest in him (e.g., based on his claim of her statements to him or his misinterpretationof things she may have said, the physical contact between the two when she fell over to his side of the vehicle, his perceptions about thesexual openness of Canadian women) and the circumstances and opportunity that presented itself (e.g., her state of intoxication, it beingNew Year’s and him wanting to celebrate).

It may also be the case that given the anonymity of the situation (it occurring late at night,isolated in the vehicle with a stranger and a non-East Indian female) he may have rationalized that this sexual contact did not count asgoing against his cultural and religious beliefs. Defence counsel was more blunt when commenting on those observations; he suggested that the kind of repression practiced by hisclient just had a limit. [11] Sentencing jurisprudence acknowledges that there are risks in operating a taxi. That is why even the least violent robbery of adriver will usually result in a jail sentence.

And the public has high expectations of taxi drivers. Their vehicles are seen as safetypreservers, perhaps by a passenger being navigated through unfamiliar territory or an anxious parent not wanting a child to be alone onthe street late at night. And then there is the publicly promoted use of taxis by those who are too intoxicated to get themselves home insafety. That was the victim’s situation in the offender’s taxi.

That said, there were irregularities: the victim made it clear that she wasnot a fare-paying passenger, this was accepted by the driver and she chose to occupy the seat beside the driver and not one behind him. [12] Even if she was a hitchhiker, however, the victim was entitled to feel safe in Mr. Dhindsa’s automobile. Crown counsel hasreferred me to the discussion by Cozens C.J. in R. v. Torres, 2013 YKTC 5 concerning whether a taxi driver occupies a position of trustwhen taking on a passenger. In my opinion, the facts of this case do not require

section 810.2 of the Criminal Code for amplification. The taxi driver came on the scene as a rescuer but, once he lulled his vulnerable victim into what she thought was a place of safety, heassaulted her and violated her sexual integrity. [13] The victim declined to provide a Victim Impact Statement; she told the Crown Attorney that, while she wants to know what mysentence is, she just wants to get on with her life. That is a statement of victim impact. And it does not prevent me from inferring howfrightening that taxi ride must have been for a young woman whose ability to look after herself was impaired.

She did the only thing thatshe could do and that was to make a recording of what was going on. She could not possibly have been sure whether she, an eighteen-year-old Aboriginal woman, would alight from the taxi unharmed. Or become part of a scary statistic. [14] This is a case with mitigating factors. A significant one is the offender’s guilty plea. I am told that, taking into accountsystemic issues, the plea was a timely one and that the victim did not have to be concerned about an upcoming date for her testimony. Mr. Dhindsa has not previously been in conflict with the criminal law.

He was able to sponsor his brother to enable him to come toCanada and he was in the midst of helping him bring his bride here from India. He is a common carrier taxi driver with an unblemishedrecord. He is part of a worship community. Although Dr. Ellerby made the observation that initially Mr. Dhindsa did not seem toappreciate the need for treatment, he has embarked upon counselling at his own expense to follow through with Dr. Ellerby’srecommendation. [15] Dr. Ellerby’s assessment is that this offender presents a low risk to offend again.

This psychologist sees him as someoneimpacted by the charging process and that collateral effects are in themselves a significant deterrent. Examples he pointed out are theloss of a taxi license (he now works at night delivering pizza), concerns about causing his parents’ ill health, the shame brought on hisfamily as well as his breach of a serious religious prohibition. [16] There is another collateral impact that has been pleaded and requires judicial consideration. The prosecution submission is thatI should sentence Mr. Dhindsa to a term of imprisonment of only five months.

My immediate reaction was that, given the vulnerabilityof the victim and society’s high expectation of safety in a taxi, five months would be an unusually low sentence. The importance of thatpleading only became clear when I heard from the defence. [17] As a permanent resident and not a citizen, Mr. Dhindsa is subject to the Immigration and Refugee Protection Act, S.C. 2001, c.27. If I was to impose a term of imprisonment of more than six months, regardless of whether it was subject to conditional sentencing,then Mr. Dhindsa would be inadmissible to Canada pursuant to clause 36(1)(

a) of the Act. Therefore, the defence say, even a conditionalsentence order of more than six months would be tantamount to a deportation order. Taking into account the offender’s naïve view ofwhat took place, his antecedents and willingness to rehabilitate himself, they submit that a conditional sentence of ninety days followedby probation would satisfy sentencing principles. [18] The relevance of an offender’s immigration status to sentencing was recently considered by the Supreme Court of Canada. In R.v.

Pham, 2013 SCC 15 , [2013] 1 S.C.R. 739, the Court varied a two-year sentence to two years less one day based uponcollateral immigration consequences of a sentence of two years or more. Writing for the panel, Wagner J. stated (in para. 14) that: a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that thesentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of the responsibility of the offender.

He emphasized the point with reference (at paragraph 17) to this statement by Moldaver J.A. (as he then was) in R. v. Badhwar, 2011ONCA 266, that: immigration consequences cannot take a sentence out of the appropriate range. [19] I doubted that a sentence as low as that recommended by the prosecution, let alone a conditional sentence, could sufficientlydenounce the sexual assault and be a deterrent to others and that was a good reason to reserve my decision. [20] Defence counsel had reminded me of the majority decision of the Court of Appeal in R. v. Hupe, [1988] M.J.

No. 549 (C.A.), acase decided before there was a conditional sentencing regime. A teacher was tried and found guilty of sexually assaulting a youthstudent in gym class. The trial judge suspended sentence for two years and ordered two hundred hours of community service. TheCrown was denied leave to appeal and, writing for Huband J.A. and himself, O’Sullivan J.A. stated: We think the accused had to be severely punished for the breach of trust as well as the incidents themselves. We do not think, however,that we should fix a minimum sentence in cases of this kind.

The learned judge took into account the disgrace which the accused hassuffered, not only in the small community in which he lives, but also professionally. The incidents were serious but unpremeditated andfar from being the worst kind of assault. They involved touching and fondling. [21] The use of conditional sentencing to deter and denounce was first encouraged by Lamer C.J. in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 and that encouragement is still felt. As Sandhu P.J. observed in R. v. Kozun, [2007] M.J.

No. 55: 94 General and individual deterrence and denunciation do not take a back seat in matters involving a conditional sentence ofimprisonment. It is another factor to be recognized within the confines of the demonstrable deterrence and denunciation that theManitoba Court of Appeal has repeatedly and consistently determined can be met by a conditional sentence of imprisonment. That was a child pornography case in which the offender, like Mr.

Dhindsa, had embarked upon a plan of rehabilitation. [22] No one would suggest that this offender ought to be sentenced to a penitentiary term and therefore conditional sentencing is anavailable alternative to prison. Mr. Dhindsa qualifies as a candidate for a conditional sentence in view of the mitigating factors alreadydiscussed and the psychological assessment that he presents a low risk to offend in the future.

But he seeks a sentence of less than sixmonths. [23] This offender has no criminal record and, if one can subject a sexual assault to a scale of violation, perhaps it can be said that hissexual assault was one of less severity. Therefore a sentence of less than six months would not necessarily be disproportionate. Clearlysuch a sentence would not resolve the deportation issue because there is jurisdiction to review the offender’s status in another forum. Despite the range ending at a somewhat higher sentence, the sentence recommended by the prosecution is not outside the range for anoffender like Mr.

Dhindsa. [24] It is my conclusion that a jail sentence of five months can be made proportional to the gravity of the offence, the antecedents ofthe offender and the collateral impact of a longer sentence on deportation. Not unlike the teacher in 1988, when conditional sentenceswere unheard of, Mr. Dhindsa has fallen from grace in his family, at work and in his worship community. He is quite capable of beingproductive and he can apply some of that productivity to a restorative measure. [25] Mr. Dhindsa is sentenced to a term of five months.

That sentence will be served in the community subject to a series ofconditions that I will state momentarily. That sentence will be followed by probation for a period of two years. That probation orderwill not come into effect until the entire five-month sentence has been served as there is no opportunity for parole. [26] These are the conditions of Mr. Dhindsa’s jail sentence to be served in the community: 1. Keep the peace and be of good behaviour. Obey all laws and all Court orders that apply to you. 2. Appear before the Court at any time the Court requires you to do so. 3.

Within two working days, report to your sentence supervisor. Report thereafter however and whenever reporting is required by yoursupervisor. 4. Remain in Winnipeg, Manitoba unless you have written permission from the Court or your supervisor to leave. 5. If you intend to change your name, your address, your occupation or your employment, notify the Court or your sentence supervisorin advance of the change. 6. Do not attempt to contact the victim by any means, directly or indirectly, and remain 200 metres away from wherever she may live,work, attend school or worship. 7.

Participate actively in counselling, assessments, education and/or treatment in a program for sexual offending that is approved of byyour supervisor. 8. Provide particulars of your present psychological counselling to your supervisor and complete your present course of counselling. Ifyour present course of counselling becomes unavailable, enroll in, attend and complete any assessment, programming or counselling asinstructed by your supervisor. 9. Perform 40 hours of community service without remuneration or compensation of any kind at a rate of at least 5 hours per monthuntil completed. 10.

Take all necessary steps to maintain or seek employment and inform your supervisor of your

schedule of work hours at

least one week in advance. 11. Do not have or consume alcoholic beverages. 12. Do not enter premises licensed to sell alcohol unless you are employed there or are having a meal in a restaurant during work hours. 13. Do not have or consume any drugs unless they are prescribed by a physician with your name on the container. 14. Do not have any offensive weapons and do not convert anything into an offensive weapon. 15. Subject to certain exceptions, you will be under an absolute curfew to remain at your residence.

You must answer the door or the telephone when the curfew checks are conducted by your supervisor or a peace officer.

The exceptions to this absolute curfew will be (1) carrying out the terms of this sentence as directed by your supervisor; (2) commuting directly to and attending at employment and commuting directly home from employment; (3) on Sunday afternoon, commuting directly to and attending at worship services and commuting directly home from worship services (4) one 4-hour period per week, assigned in writing by your supervisor, to attend to shopping and household errands, medical or dental appointments; (5) special permission granted in writing by your supervisor; (6) medical emergencies involving you or an immediate family member, provided that you notify your supervisor within 24 hours of the emergency. [ 27 ] These are the conditions of Mr.

Dhindsa’s probation order: 1. Report to your probation officer when and where you are directed. 2. Do not attempt to contact the victim by any means, directly or indirectly, and remain 200 metres away from wherever she may live, work, attend school or worship. 3. Enroll in, attend and complete any assessment, programming or counselling as instructed by your probation officer. 4.

In addition to any community service already performed, perform 80 hours of community service without remuneration or compensation of any kind at a rate of at least 6 hours per month until completed. [ 28 ] You are required to take all necessary steps to report within seven days to a Sex Offender Registration Information Act registration centre and thereafter remain in compliance with that Act for a period of 10 years. [ 29 ] At your first meeting with your supervisor you must contact the Winnipeg Police Service and make arrangements to provide a sample of your DNA suitable for entry in the National Data Bank. [ 30 ] There will be a victim surcharge of $50.00 and costs of $2.00 payable on or before January 31, 2015. “Original signed by” R.L.

POLLACK P.J.