R. v. Sandhu, 2021 ONCJ 534

CITATION: R. v. Sandhu , 2021 ONCJ 534 DATE: September 17, 2021 Information # 1211-998-20-3713-02 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. AZAD SANDHU REASONS BEFORE THE HONOURABLE MR. JUSTICE LATIMER on September 17, 2021, at BURLINGTON, Ontario APPEARANCES : Ms. S. Wollaston Counsel for the Crown Mr. D. Bayliss Counsel for Azad Sandhu FRIDAY SEPTEMBER 17, 2021 R E A S O N S LATIMER, J: (Orally) Azad Sandhu is an 18-year-old first offender who, on the evidence adduced before me on this sentence hearing, became enmeshed in a motor vehicle theft scheme.

He would accompany another male on trips to the dealerships, where the other male would interact with staff and seek a test drive. This male and Mr. Sandhu would leave for the test drive and never return. On one occasion, Mr. Sandhu personally rented a car that was never ultimately returned.

Following a judicial pretrial, he has plead guilty to two-counts of theft of a motor vehicle and one-count of possession of property obtained by a crime. It falls to me to determine an appropriate sentence. In these reasons, I propose to address the nature of the offences themselves, then the evidence in relation to Mr. Sandhu as a person, before turning to a legal analysis.

The key questions to be answered, in my view, are whether a custodial sentence is required and, if it’s not, what non-custodial sentence best balances public safety and the other operative principles of sentencing in the context of this youthful first offender. The Criminal Code instructs judges in the proper approach to a criminal sentencing.

Section 718.1 directs that the fundamental principle in sentencing is to impose a sanction that is proportionate to the gravity of the offence committed and the degree of responsibility the person who committed it. This means that for the sentence I impose to be appropriate must be tailored to Mr. Sandhu’s circumstances and the circumstances of the offences he has committed. Regarding the offences, they are clearly serious for the following reasons: 1 .

While I have no victim impact statement, or indication of the extent of the financial loss suffered or whether the victims were compensated, partially or fully, by insurance, I do accept that this conduct would have had a meaningful financial impact on the victim dealerships. Many of the cars taken were luxury motor vehicles. 2 . Mr. Sandhu was part of an overall plan to steal these vehicles. That is evident from the fact that he and Mr. Singh, the person who drove the vehicles, were dropped off by an unknown party at the dealership who shadowed their vehicle upon leaving. I find, however, that Mr.

Sandhu was a lesser or bit-player in this scheme, as evidenced by the fact that on most occasions he was not the person interacting with dealership staff, that was Mr. Singh. Mr. Sandhu would accompany him, take the test-drives as a passenger. His liability in these circumstances is as a party. However, on one occasion - the incident with the rental car - he was the prime mover in the theft. On the other occasions, to borrow the expression used by the officer who conducted Mr. Sandhu’s post-arrest statement, he was “along for the ride”. 3 . It is aggravating that false identification was involved and that Mr.

Sandhu had his own fake identification in his pocket. I accept, however, on the evidence adduced, that Mr. Sandhu was compelled or pressured while intoxicated to participate in the creation of this false identification, and that he was only provided it for the purpose of conducting criminal conduct. Once that was complete, the identity document was taken back from him. 4 . I accept that Mr. Sandhu, who was struggling with an alcohol-abuse problem in the fall of 2020, was intoxicated during the dealership thefts.

While that fact does not diminish the seriousness of the crime, it does diminish his moral culpability to a degree. 5 . I note, as Mr. Morrow did in submissions, the fact that this pattern of offending occurred over three months. This was not a one-off situation. Regarding Mr. Sandhu, the offender, I have received a considerable amount of helpful material. He is a very young adult, who is 18- years, 1-month old when he committed these offences. Having seen him in court via the Zoom platform, I note for the record that he looks very young. I would have estimated his age, had I not known, at 16-years.

He has no prior criminal or youth court record, nor has he ever been charged with a criminal offence. I note the following additional details about his background and about him as a person:

1. Dr. Monia Kalia completed a helpful psychological assessment of Mr. Sandhu. He presented as a polite young man who has struggledwith certain cognitive deficits and learning difficulties during his youth. These deficits contributed to academic difficulties during hisschool years. Dr. Kalia described him as an “emotionally immature young man who has a high need for approval and lacks self-confidence”. I note that this comes from page-22 of the report, and I would continue on that page down the paragraph: He tends to disengage from significant others and is vulnerable to being manipulated by antisocial peers.

In the absence of strong pro-social ties, he appears to have gravitated to a group of antisocial peers and failed to conform to social norms with respect to lawfulbehaviour. His defiant and rule breaking behaviour emanates from his learning difficulties and impulsivity related to the ADHD ratherthan any ingrained antisocial orientation or values. I accept Dr. Kalia’s findings in the perspective of Mr. Sandhu. Overall, I am prepared to accept on this evidentiary record that some element of, for a lack of a better word, peer pressure contributed toMr. Sandhu’s offending in this case. I note that Mr.

Singh, his co-accused, was a number of years older. 2. Dr. Kalia’s report describes Mr. Sandhu as remorseful for his conduct and amenable to rehabilitative steps to address his underlyingissues. On paragraph 22 of the report, pardon me, page 22 of the report Dr. Kalia writes: Mr. Sandhu takes responsibility for his behaviour and is ashamed of breaking the law. He has solid support from his parents and isparticularly close to his brother. He is connected well with his counsellor and has been actively participating in sessions. He ismotivated to complete his diploma and get a job in the field of construction.

He is complying with the ADHD medication and isabstaining from drug and alcohol use. He has not violated any of his bail conditions. His counselor’s letter is equally as positive. On page 2: The counsel sessions proceeded smoothly with a healthy rapport being developed fairly quickly. Mr. Sandhu takes full responsibility forhis behaviour that led to his involvement with the criminal justice system. He has been engaging well during the counselling process. Hehas shown good understanding regarding his faulty thinking and understands the impact of his behaviour on others.

He regrets hisdecision making and feels ashamed that his parents had to suffer for his choices. 3. He has a supportive family unit. I will now move to the legal analysis. The Criminal Code instructs that the goal of any criminal sentence is to protect society, contribute to respect for the law, and helpmaintain a just, peaceful, and safe society (see s. 718). Sentencing judges attempt to achieve this goal by imposing just sanctions that address one or more of the traditional sentencingprinciples that are also contained in the Code.

These include denunciation, general and specific deterrence, rehabilitation, makingreparations to victims of crime, and promoting a sense of responsibility in offenders and acknowledgment of the harm they have causedthe community and specific victims in our community (see 718(a)-(f)). Mr. Sandhu’s status as a youthful first-offender deserves careful attention. In R. v. Priest (1996), (ON CA), 110 CCC(3d) 289 (Ont. C.A.), a case involving another youthful offender one sentenced to jail for a break and enter, Justice Rosenberg, writingfor the court stated as follows in allowing Mr. Priest’s appeal:

The primary objectives in sentencing a first offender are individual deterrence and rehabilitation. Except for very serious offences and offences involving violence, this court has held that these objectives are not only paramount but best achieved by either a suspended sentence and probation or a very short term of imprisonment followed by a term of probation. I apply this direction to Mr. Sandhu’s circumstances. These offences while serious, are non-violent and are not caught by the exception described above in Priest .

I accept that my focus, in this case should be on specific deterrence and rehabilitation primarily. The Supreme Court of Canada described specific deterrence as referring to: ... the goal of preventing an offender from committing another criminal offence. When considered broadly, there can be considerable overlap between specific deterrence and other goals of sentencing. Indeed, rehabilitation and reintegration of the offender in society may be the best way to ensure the young person does not re-offend. ( R. v.

BWP in 2006 SCC 27 , at para. 39 ) In the text “Sentencing: Principles and Practice” (Edmond Publishing)the authors note this passage and write as follows: These comments were made in the context of application of the YCJA. However, the comments are also applicable to many adult offenders, particularly younger adults, first time offenders, or offenders for whom the prospect of successful rehabilitation is real. (Parenthetically, I note that Mr.

Sandhu falls into all three of those categories.) Courts that have considered the practicality of accomplishing specific deterrence have recognized that to effectively craft a sentence that teaches the offender the lessons necessary to prevent future crimes, the sentencing court must consider the unique qualities of the offender such as his record and his attitude, his motivation, and reformation and his rehabilitation. With this backdrop, I can advise I do not believe specific deterrence is a pressing concern in this case going forward. I accept that Mr.

Sandhu is remorseful for his conduct and that his participation in counselling has brought him face-to-face with the wrongness of his actions. I do not believe that I must impose a jail sentence in this case to reinforce that message and prevent future offending. I accept that Mr. Sandhu, as he continues to address his criminogenic variables of alcohol abuse and low self-worth is unlikely to reoffend. The Crown’s sentence recommendation in this case was one of eight to twelve months custody.

Respectfully, in my view that submission far misses the mark as it seems to exclusively focus on the seriousness of the offence and ignores the multiple mitigating features present in this case. While I have not been provided any authorities from the Crown to justify their position, I am certainly prepared to accept that the multiple car thefts committed here could very well justify a custodial sentence at or near the length suggested in a particular case. That case, however, does not involve Mr.

Sandhu’s level of conduct, nor does it involve his status as a first offender and the application of the Priest principle. Having determined that jail is not required, my focus turns to rehabilitation and what non-custodial sentence best permits Mr. Sandhu to continue his positive rehabilitative steps while at the same time protecting the public. I note as well that beyond Mr. Sandhu and his family, the public is also well served and protected by his successful rehabilitation and reintegration into society as a contributing member.

Mr. Bayliss, on Mr. Sandhu’s behalf, seeks a conditional discharge, stressing that while at first blush this may seem to be an exceptional sentence, a conditional discharge is the only available sanction that permits Mr. Sandhu to payback society and continue his rehabilitation while, at the same time, not derailing his future by burdening him with a criminal record that will limit his job prospects for a lengthy period of time. The focus of Mr. Bayliss’ submissions were on the fact that, in modern times, the impact of a criminal record far exceeds what it once did.

The combination of greater access to information and more restrictive access to pardons, or record suspensions, saddles offenders with a burden they very well may not be able to overcome, causing a potential regression back into criminality. As part of his submission, Mr. Bayliss pointed to public comments made by the Minister of Public Safety very recently, in June 2021, as part of a legislative attempt by the Federal government of the day to reduce the amount of time offenders have to wait to receive a pardon.

While the Crown objected to the introduction of these comments, I am satisfied I can consider them on this hearing. The admissibility standard is trustworthy and credible evidence. These are statements made in public to the Canadian press by a government minister. They are a reliable record of the perspective of the Federal government. While the Bill itself has died because of the current election, his perspective is relevant to my consideration of whether a conditional discharge is in Mr. Sandhu’s interest and not contrary to the public interest. Mr.

Blair stated in that article: There’s a real and lasting stigma attached to those records. If you can’t get a job, if you can’t get into decent housing, if you can’t get into the appropriate educational institution, your opportunity to reintegrate fully into society and to become a fully contributing member is being significantly restricted. [This] has a very negative effect on public safety. Later in the

article he continued: Leaving pardons further from reach has a disparate impact on racialized and Indigenous communities, which are disproportionality impacted by criminal records. That inaccessibility makes up part of the “systemic and structural racial discrimination that exists within the criminal justice system.” Mr. Sandhu is a racialized Canadian. I accept - the government does - that structural racial discrimination exists in the justice system, and that I should bear that in mind when I am determining the appropriate sentence in a case involving a racialized offender. I do so here.

Were I to impose a suspended sentence, Mr. Sandhu would have to wait five years until he could apply for a pardon. Were I to impose a discharge, the fact of the finding of guilt would still be accessible, but for a lesser period of time connected with the length of probation that I would attach to the discharge. There is a legitimate public interest in permitting a rehabilitated Mr. Sandhu the ability to meaningfully enter into the job market in his early twenties. Further guidance on this point is found in a case called Chu v. Canada 2017 BCSC 630 , a decision of the BC Supreme Court.

In that case, the Court had occasion to consider the practical impact of the imposition of a criminal record. Justice MacNaughton reviewed a number of authorities, including one from Ontario, in paragraph 176 and 177 and stated: Recently in Ontario, in R. v. Novielli at para. 19, the Ontario Court of Justice took into account as a factor in considering the appropriateness of a discharge the amendments increased the restrictions on pardon availability. ... when considering the suitability of discharges in 2015, judges might appropriately tweak their analysis from some of the categories of the past.

I say this for two reasons. The first is that information in 2015 is not what it was in 1960 or 1970 or 1980. Computerization and

information-sharing now mean that records of a person's criminal history, as well as many lesser contacts with law enforcement, arelikely to be immeasurably more widely available than ever before, whether to the public on the internet or to foreign agencies by meansof post-"9/11" data-sharing agreements, at the same time that the availability of a "pardon" has been constrained. The difference betweena conviction and a discharge is now more acute than it has been in the past.

The other consideration is that, sometimes for legitimatereasons and sometimes simply because it is possible, it seems to be much more common for employers and voluntary organizations toinsist upon records checks. The potential for a criminal conviction to affect a much broader group of defendants is thus very real. These, and other like cases, demonstrate that in deciding whether to grant a discharge, or otherwise in sentencing, judges often frametheir task as deciding whether to impose a criminal record.

They take into account the hardship of having a criminal record whendeciding the appropriate sentence in the circumstances of a particular offender and of the offence. They also consider and apply thesentencing goals of denunciation and deterrence. I accept that a criminal record is a hardship that, in many cases, can imperil a successful rehabilitative attempt on the part of an offender.

I take judicial notice of the fact that it is harder to find work - meaningful work - with a criminal record and I accept, for the reasonsstated by my colleague in the Novielli decision, that the hardships associated with a criminal record have increased as our world hasbecome more digital. (See as well the case R. v. Dicesare [2018] BCJ No. 7067, at para.78) I apply these considerations to the test for granting a conditional discharge. Section 730(1) of the Criminal Code sets out the statutorytest a court must apply in deciding whether to grant a conditional discharge. The test is two-fold.

I have to be satisfied that it is in thebest interest of Mr. Sandhu and I have to be satisfied that it is not contrary to the public interest that Mr. Sandhu receive a discharge. I ammindful of the guidelines that are set out by the Ontario Court of Appeal in a case R. v. Sanchez-Pino (1973), (ON CA),11 CCC (2d) 53. I am quickly satisfied that a discharge is in Mr. Sandhu’s best interest. A more difficult assessment is whether it is not contrary to thepublic interest. I note that is a different question than asking whether it is in the public interest. Mr.

Sandhu does not have to satisfy methat a discharge is in the public interest, just that it is not contrary to that interest. This is a difficult question in the context of this case. I accept that whatever the precise range of sentence is for this case and these facts a conditional discharge is surely at the bottom of thatrange. The objective seriousness of these offences and their repetition are factors that pull against the imposition of a discharge, even incircumstances of Mr. Sandhu’s lesser liability as a party.

However, his age, positive future work prospects, and positive rehabilitativepotential are all factors that support the imposition of a discharge. I also keep in mind the principal difference between a suspended sentence and a conditional discharge is that, of course, one is aconviction and, the other is a finding of guilt. Both are followed by probation. Both allow for criminal penalties if that probation is notfollowed.

A suspended sentence has the additional option of a suspension revocation hearing, a proceeding so uncommon that I havenever heard of one occurring in almost 17 years of practice and sitting as a Judge. I am satisfied that a process exists to penalize Mr.Sandhu for non-compliance with my sentence, if such non-compliance occurs, which at this moment I don’t believe is very likely,without imposing a criminal conviction. Finally, I note the value of Mr. Sandhu’s guilty plea. First, I accept it’s an expression of remorse.

I accept he is genuinely remorseful.Second, it has relieved the state of the burden of proving his guilt in court; I note that had this matter proceeded to trial, Mr. Sandhu,because of one of the charges, would have had the option of both a preliminary inquiry and a trial in the Superior Court of Justice, had hewished one. Considerable court resources would have been consumed for this proceeding. His plea has rendered that unnecessary.

Third,this plea is additionally mitigating because it occurs during the pandemic at a point in time where the system is struggling to process astaggering number of cases presently in our backlog. As proof, I offer the statements of the Chief Justice of the Ontario Court of Justice earlier this week, during the Opening of the Courts,where she publicly stated that in the past year 60,000 criminal cases have been added to the backlog. As a judge who sits in these courtsevery day, I can attest that the dockets are full, and the court’s burden severe. In the face of that reality, Mr.

Sandhu’s guilty plea, in a case like this, is deserving of additional mitigation. In conclusion, and upon reflection, I have come to the conclusion that a conditional discharge combined with a probationary period thatinvolves community service, ongoing counselling, and an elevated victim fine surcharge sufficiently responds to Mr. Sandhu’s conduct

but does not imperil his future as a contributing member of our community. I appreciate to some degree this may be an exceptional sentence. I am satisfied, however, that in the circumstances it is a fit sentence in the present pandemic-influenced context. I adopt Justice Pomerance’s perspective from R. v. Hearns 2020 ONSC 2365 , at para. 15 : Clearly, the pandemic does not do away with the well-established statutory and common law principles. However, the pandemic may impact on the application of those principles. It may soften the requirement of parity with precedent. Disposition I grant Mr.

Sandhu a conditional discharge on the three counts he has plead to. I will impose 30 months of probation with the following terms: you will report within 3 business days to a probation officer thereafter as required. There will be a telephone number in the order that will assist in the first reporting, thereafter it is at the discretion of the probation officer. You will not have any contact, communication, or association with Mr. Singh and if there is anyone else the Crown wishes to add on here I will hear from them in a moment. You will perform 75 hours community service at a rate and

schedule to be set by your probation officer to be completed within the first 28 months of the order. I appreciate community service is not as accessible as it previously was and that is part of the reason why this probation order is 2-and-a-half years. You will attend and actively participate in all counseling or programming as directed by probation and sign any releases they need you to sign that allows them to monitor your attendance and completion of the programming.

I am going to leave it open for probation to speak with you about what you have done, and what you are doing, and make a determination with you about what is appropriate. At the end of the day Mr. Sandhu, what they direct you to do, you have to give your best effort to, okay? AZAD SANDHU: Okay. The Court: Mr. Bayliss, I touched upon this during submissions, in my view an elevated victim fine surcharge beyond $300 dollars would be appropriate to try and address many of the things I am trying to address here.

I had the number of $1000 dollars in mind with 1 year to pay but I have not asked precise submissions on that quantum; do you have a view on that sir? You’re on mute. Mr. BAYLISS: Sorry about that. Yes, thank you Your Honour. I haven’t had the opportunity to discuss that specific amount with Mr. Sandhu and his family however, having dealt with the family and understanding their circumstances, I believe it is something that they could manage over a period of time and in the event that there was an issue, I assume there is an application we can bring.

I am not certain about that, when we are doing a victim surcharge, but I anticipate that they can handle that, as I say if it was fixed over the period of a year or something like that. The Court: It is an important component of this overall sentence because it helps me balance a number of things. I am going to provide a year to pay, and while it does not have to be paid all at once. Mr. Sandhu, it does have to be paid. If you reach the end of a year and the entire amount has not been paid, you can apply for an extension, just like with a fine and I would consider that.

I don’t believe that there are any ancillary orders asked, Ms. Wollaston, I stand to be corrected about that. MS. WOLLASTON: I don’t believe the Crown is seeking any ancillary orders. THE COURT: Are there any terms of probation you wish to modify or amplify Ms. Wollaston? MS. WOLLASTON: I do note that there was a third co-accused, perhaps the third co-accused can be added to the no contact, unless there are reasons for not doing so that I’m not aware of, Yassine Jenkal. THE COURT: Is that on the information? CLERK REGISTRAR: Your Honour, I’m taking a look right now. THE COURT: Is there any issue with that, Mr.

Bayliss? MR. BAYLISS: No, he’s not on that information but he is someone … CLERK REGISTRAR: No, Your Honour. MR. BAYLISS: He is someone whose name appears throughout the disclosure. THE COURT: Could you spell that for us Ms. Wollaston. MS. WOLLASTON: Yes, the first name is Yassine, Y-A-S-S-I-N-E and last name is Jenkal, J-E-N-K-A-L. THE COURT: There will be no contact with that individual as well. AZAD SIDHU: Okay, Your Honour. MS. WOLLASTON: No further submissions on any other terms, I did hear Your Honour mention community service, but I didn’t hear

an amount of hours. Did Your Honour specify? THE COURT: 75. MS. WOLLASTON: Thank you. THE COURT: Mr. Bayliss. MR. BAYLISS: No, I was just going to say it was 75 hours. THE COURT: Mr. Sandhu, this was a difficult decision for me. I know I went on at length, but I felt the need to explain this decision making process as best I could. You should consider this as a real opportunity, I hope you take advantage of it. AZAD SANDHU: Yeah, a hundred percent, I do, Your Honour. THE COURT: Mr. Bayliss, thank you for your assistance in this case. MR. BAYLISS: Thank you for your (indecipherable) THE COURT: Ms. Wollaston. MS.

WOLLASTON: If there are remaining counts against Mr. Sandhu, marked as withdrawn please. CLERK REGISTRAR: Thank you. THE COURT: Madame Clerk, what information do you need? CLERK REGISTRAR: Your Honour, may I please have the email address of Mr. Bayliss, if he can just, I will put my email address on screen, and if he can just email it to me please, I’ll be greatly appreciated. MR. BAYLISS: I’m not hearing everything Madame Clerk is saying but I do know she wanted my email address so that is david@baylisslaw.ca . CLERK REGISTRAR: Okay, thank you very much sir. Your Honour, the lead count on this?

THE COURT: Possession property obtained by crime. CLERK REGISTRAR: Thank you, Your Honour. THE COURT: Mr. Sandhu that completes your proceeding, you are free to disconnect, you’re free to go. We are going to send the material to Mr. Bayliss, and he can get it to you. CLERK REGISTRAR: Yes, Your Honour. THE COURT: And as I said, you’ll have three days to report to the probation officer. AZAD SANDHU: Okay, thank you so much Your Honour. THE COURT: You’re welcome. MR. BAYLISS: Thank you, Your Honour.

A D J O U R N E D Form 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2)) Evidence Act I, Linda Azuma, Authorized Court Transcriptionist , (Name of Authorized Person) certify that this document is a true and accurate transcript of the recording of Regina v. Sandhu in the Ontario Court of Justice (Name of Case) (Name of Court) held at 2021 Plains Road East, Burlington, Ontario (Court Address) taken from Recording 1213_11_20210917_094029__6_LATIMESC.dcr , which has been certified in Form 1. September 26, 2021 Linda Azuma (Date) (Signature of Authorized Person(s))