R. v. Cheema, 2022 ONCJ 632

ONTARIO COURT OF JUSTICE CITATION: R. v. Cheema , 2022 ONCJ 632 DATE: 2022 08 18 COURT FILE No.: Brampton 3111 998 19 3006 BETWEEN: HER MAJESTY THE QUEEN — AND — NAVRAJ CHEEMA Before Justice G.P. Renwick Heard on 18 August 2022 Reasons for Judgment released on 18 August 2022 C. Vanden Broek................................................................................. counsel for the Crown R. Pillay............................................................ counsel for the Defendant Navraj Cheema REASONS FOR SENTENCE RENWICK J.: INTRODUCTION [ 1 ] The Offender held a judicial pre-trial before me.

Eventually he pleaded guilty to three counts: aggravated assault, and two counts of driving dangerously causing bodily harm. The prosecutor proceeded by

summary conviction on the latter two counts. Other charges were withdrawn. For several reasons, this case is a tragedy that did not have to happen. [ 2 ] On 26 October 2019, approximately 10 weeks after the Offender’s 18 th birthday, he ran down three teenaged boys, with his family SUV. Some 17 minutes earlier, these three boys were believed to have been associated to four other boys who had accosted, assaulted, and robbed the Offender of his cell phone, mere blocks away at a local mall in Brampton.

That confrontation apparently took place in front of mall security, who stood by while the Offender and his 14-year-old cousin were overpowered and beaten. Apparently, the 14-year-old had some injuries to his head, which were later treated at a hospital. [ 3 ] The Offender left the mall with his cousin. They drove around. Within minutes, and before his passions had cooled, the Offender saw the three victims on a sidewalk and he aimed his vehicle at them, he mounted the curb, and he struck all three. In an instant, the Offender risked the lives of three young people, his cousin, and himself.

The three boys were badly injured. They have recovered, but one may have life-long consequences because of the injury he suffered to his brain. POSITIONS OF THE PARTIES

[ 4 ] The prosecutor seeks the maximum reformatory sentence, the maximum period of probation, and a 5-year driving prohibition. Given that the Offender has spent a short period of time in pre-trial custody before his release on bail (two days), this sentence equates to a penitentiary sentence. [ 5 ] The Offender seeks an intermittent sentence for the aggravated assault and a conditional sentence for 20 months, concurrent, for the two driving offences.

The Offender agrees that a five-year driving prohibition is warranted, but in light of the bail order, by which he has already been prohibited from driving for 34 months, he seeks credit to reduce any further prohibition order. [ 6 ] Neither party addressed any other ancillary Order. FINDINGS [ 7 ] The complainants did not file victim impact statements, though this was offered to them by the prosecutor. [ 8 ] The Offender is truly remorseful for his crimes and the devastating consequences of his conduct. [ 9 ] The three complainants have recovered from their injuries.

There are questions about possible long-term effects suffered by I.H. as a result of his brain injury. Aggravating and Mitigating Features of the Offences [ 10 ] The following are aggravating features of the offences: i. I.H. suffered a brain bleed and was induced into a coma in order to recover from his injuries: see s. 718.2(iii.1); ii. After hitting the three complainants with his vehicle, the Offender punched one of them before leaving the scene; iii. The Offender did not call an ambulance for his victims.

Instead, he fled the scene (possibly to avoid culpability); iv. 17 minutes had elapsed after the Offender and his cousin had been beaten and robbed before he ran down the complainants; and v. The Offender’s driving was a conscious and deliberate decision involving the use of his family vehicle as a weapon for revenge. [ 11 ] The mitigating features are: i. The Offender pleaded guilty. This is significant because the parties agree that there were triable issues respecting the identity of the perpetrator; ii. The Offender has shown that he is truly remorseful.

The Offender even apologized to his victims during his allocution; iii. The Offender has continued his education and completed his course of study as an aviation technician. Also, the Offender wishes to pursue further educational endeavours;

iv. The Offender is gainfully employed; v. The Offender has taken anger management counselling and successfully completed it; vi. The Offender is well-regarded by his friends, his family, and our community; and vii. These are first offences for this Offender. He has never had any involvement with the justice system. DISCUSSION [12] Some believe that determining an appropriate sentence is more art than science.

Support for this view may be found in R. v.Lacasse, where the Supreme court held that: The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematicalcalculation. It involves a variety of factors that are difficult to define with precision.[1] [13] The fundamental purpose of sentencing as expressed in

section 718 of the Criminal Code is to contribute to respect for the law,the maintenance of a just, peaceful and safe society by imposing appropriate sanctions that have one or more of the objectives ofdenunciation, deterring the offender and other persons from committing offences, separating offenders from society, where necessary,assisting in rehabilitating offenders, providing reparation for harm done to victims or to the community, and promoting a sense ofresponsibility in offenders and acknowledgment of the harm done to victims and to the community. [14] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and thedegree of responsibility of the offender.

The punishment should fit the crime. There is no single fit sentence for any particular offence.The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances ofthe offender: see R. v. Hamilton and Mason, (ON CA), [2004] O.J.

No. 3252 (C.A.) at para. 102. [15] In Hamilton and Mason, Doherty J.A. of the Ontario Court of Appeal stated that: The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed byParliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm tothe community occasioned by the offence… The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of theoffence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase ordecrease the offender's personal responsibility for the crime: see Hamilton, supra, at paras. 90-91. [16]

Section 718.1 of the Code ensures that proportionality is the fundamental principle of sentencing. However, proportionality is notthe sole principle to be considered. A sentence should be similar to sentences imposed on similar offenders for similar offencescommitted in similar circumstances: see s. 718.2(

b) of the Code. [17] I note that as a sentencing sanction, imprisonment is always to be used as a last resort.

It should be used sparingly, when it isrequired, and the sentence must aim to denounce the offender’s conduct and deter him or other like-minded offenders from similaroffences, without crushing his potential for rehabilitation. [18] In this case, it is recognized that the youth of the Offender, his prior exemplary character, and his remorse mitigate toward asentence that includes rehabilitation as a primary goal alongside denunciation and deterrence. [19] This case is an example of the intersection of tragedy and consequences.

A meaningful sentence in this case must account for theserious nature of the offences, the rehabilitative potential of the youthful Offender, and the suffering caused by the Offender’s conduct. [20] The court does not condone revenge as an appropriate strategy in response to victimization. The Offender was not justified in anymeasure to use his vehicle to harm his perceived aggressors. This sentence must reflect our community’s abhorrence of the use ofviolence as a response to violence.

DETERMINING AN APPROPRIATE SENTENCE [21] Several Ontario courts have already considered what, if any, effect the global pandemic should have in fixing a fair sentence: R.v. Dakin, [2020] O.J. No. 1749 (C.J.) per C. Applegate J.; R. v. Hearns, 2020 ONSC 2365 , [2020] O.J. No. 1648 (S.C.J.) perR. Pomerance J.; R. v. O.K., [2020] O.J. No. 1600 (C.J.) per L.C. Pringle J.; R. v. Kandhai, 2020 ONSC 1611 , [2020] O.J. No.1254 (S.C.J.) per D.E. Harris J.; R. v. Laurin, [2020] O.J. No. 1266 (C.J.) per K. Crosbie J.; R. v. McConnell, [2020] O.J. No. 1514(C.J.) per R.F. Kwolek J.; R. v. McGrath, [2020] O.J.

No. 1630 (C.J.) per D. Berg J.; and R. v. Wilson, [2020] O.J. No. 1515 (C.J.) perR.F. Kwolek J. [22] Obviously, a balance must be struck between the potential risk to the community of releasing offenders who pose a safety threat,and for whom custody is generally appropriate, and the risk of spreading this potentially lethal virus by ordering people into confineswhich undermine all public health interventions to maintain social distance and reduce the spread of infection.

[ 23 ] Neither party adduced any evidence of known COVID-19 cases in provincial reformatories or any evidence respecting the Defendant’s overall health or risk of infection. [ 24 ] In this case, it is not suggested that the Offender poses any on-going risk to community safety. All indications suggest the contrary. He is someone who appears to have already begun his rehabilitation. [ 25 ] I am satisfied that the only appropriate sentence for these offences is one incorporating imprisonment.

It is the bluntest of sentencing tools, but it responds the best to crimes of violence and the need for denunciation in the clearest of terms. Were it not for the youth and prior unblemished character of the Offender, a reformatory sentence at the upper limit would be entirely justified. [ 26 ] In light of the mitigating features of this Offender and these offences, I am persuaded that a short, sharp period of incarceration is appropriate, followed by a lengthy period of supervision in the community.

THE SENTENCE IMPOSED [ 27 ] For the aggravated assault, the Offender is sentenced to 90 days, to be served intermittently, from 7:00 pm on Fridays until 6:00 am on Mondays, commencing 19 August 2022.

This will permit the Offender to continue to work and remain productive in our community. [ 28 ] The Offender will be taken into custody today for processing and then he will be released. [ 29 ] On Friday evenings, starting tomorrow, he will attend at the jail in a fit and sober condition and not in possession of any intoxicating substances or any substances that are not prescribed by a licensed medical practitioner, until the 90 days is completed. [ 30 ] For the driving offences, consecutive to the 90-day jail sentence, the Offender is sentenced to 22 months imprisonment (concurrent on each), to be served conditionally, in the community upon the following terms: 1.

Keep the peace and be of good behaviour; 2. Appear before the court when required; 3. Report to a Conditional Sentence Supervisor (by calling 905-456-6887 between 9:00 am and 5:00 pm, Monday through Friday) within two business days following the completion of your intermittent jail sentence, and thereafter as required, and not less than once per month for the first six months of the 22-month Conditional Sentence Order; 4. Remain in Ontario unless prior written permission to go outside the jurisdiction is obtained from the court or the Conditional Sentence Supervisor; 5.

Notify the court or the Conditional Sentence Supervisor in advance of any change of name, address, and promptly notify the court or the Conditional Sentence Supervisor of any change of employment or occupation; 6.

For the first 12 months of this Order the Offender will observe a condition of house arrest, to be in his residence at all times unless authorized in writing by his Conditional Sentence Supervisor, which authorization he must carry with him at all times when outside of his residence and which must be provided to any police officer seeking his identification, while outside of his residence for the following purposes: i. Travelling to, from, and while at his place of employment; ii. Travelling to, from, and while attending medical appointments for himself;

iii. Seeking emergency medical treatment for himself; iv. Travelling to, from, and while attending a place of worship, on a day designated by the Conditional Sentence Supervisor; not to exceed once per week; and v. For any other purpose approved in writing by the Conditional Sentence Supervisor, which permission shall not be unreasonably withheld; 7. When outside of the residence for any reason, the Offender is not to possess any amount of Canadian or American currency beyond a reasonable amount to travel from and return to his residence; 8.

The Offender is prohibited from having any direct or indirect contact with I.H., E.H., or W.C. (the named complainants); 9. The Offender must not attend at or within 100m of any place where the complainants are known to live, work, attend school, worship, or any other place the Offender knows or finds any of the complainants to be; 10. The Offender is prohibited from possessing any weapon as defined by the Criminal Code ; 11.

The Offender will complete any releases of information in favour of his Conditional Sentence Supervisor to permit the monitoring of his attendance at any training, education, employment, medical appointments, or any other authorized or emergency absence from his residence; and 12.

For the final 10 months of the Conditional Sentence Order, the Offender will observe a curfew to be in his residence from 9:00 p.m. until 6:00 a.m., unless for any medical emergency for himself, or as authorized in writing by his Conditional Sentence Supervisor, which authorization he must carry with him at all times when outside of his residence and which must be provided to any police officer seeking his identification. [ 31 ] These terms give significance to the fact that the Offender is serving a jail sentence in the community for the next 22 months.

Possessing currency is a luxury and a liberty the Offender will only be permitted to observe in the amount that is reasonable for the mode of transportation to leave the house for the purposes permitted by this Order, or approved by his Conditional Sentence Supervisor, and to return. [ 32 ] That means, the Offender will not possess extra cash in an amount that exceeds a reasonable amount for his mode of travel at any given time while outside of his residence.

This is to make it obvious to the Offender and our community that this is a prison sentence which is authorized to be served in the community. [ 33 ] The Conditional Sentence is to be followed by 8 months of probation (concurrent on all offences), the terms of which are: 1. Keep the peace and be of good behaviour; 2. Appear before the court when required; 3.

Report to a Probation Officer within 5 business days of the completion of the Conditional Sentence Order (by calling 905-456-6887 between 9:00 am and 5:00 pm, Monday through Friday), and thereafter as required, and not less than once per month for the first six months of this Order; 4. Remain in Ontario unless prior written permission to go outside the jurisdiction is obtained from the court or the Probation Officer; 5. Notify the court or the Probation Officer in advance of any change of name, address, and promptly notify the court or the Probation Officer of any change of employment or occupation;

6. The Offender is prohibited from having any direct or indirect contact with the named complainants; 7. The Offender must not attend at or within 100m of any place where the complainants are known to live, work, attend school, worship, or any other place the Offender knows or finds any of the complainants to be; 8. The Offender is prohibited from possessing any weapon as defined by the Criminal Code ; 9. The Offender must attend any counselling directed by his Probation Officer for anger management; and 10.

The Offender must complete any releases of information in favour of his Probation Officer to monitor his attendance, participation in and completion of any counselling, or other training, education, or employment. Ancillary Orders [ 34 ] Aggravated assault is a primary designated offence pursuant to s. 487.04 of the Criminal Code , making an Order for the Offender’s deoxyribonucleic acid (“DNA”) mandatory.

The Offender is ordered to provide a suitable sample of his DNA to the Peel Regional Police today, or on a day arranged in advance by calling 905-453-2121 extension 4840, which must occur no later than 5:00 pm on 30 September 2022. The sample is to be provided in circumstances that are hygienic and that respect the privacy and health of the Offender. Reasonable force may be used by the officer taking the DNA sample if it is necessary in the circumstances. [ 35 ] Pursuant to s. 109(1)

a) of the Code, the Offender is prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substances for 10 years. [ 36 ] Pursuant to s. 320.24(5)b), the Offender is prohibited from operating a motor vehicle anywhere in Canada for five years plus his sentences of imprisonment. Released: 18 August 2022 Justice G. Paul Renwick