R. v. Biln Date:, 1999 BCCA 369

Citation: R. v. Biln Date: 19990615 1999 BCCA 369 Docket: VI03192 Registry: Victoria COURT OF APPEAL FOR BRITISH COLUMBIA BETWEEN: REGINA RESPONDENT AND: KASHMIR SINGH BILN APPELLANT Before: The Honourable Chief Justice McEachern The Honourable Mr. Justice Hollinrake The Honourable Mr. Justice Mackenzie J.M. Peter Firestone Counsel for the Appellant R.C.C. Peck, Q.C.

Counsel for the Respondent Place and Date of Hearing: Vancouver, British Columbia May 25, 1999 Place and Date of Judgment: Vancouver, British Columbia June 15, 1999 Written Reasons by: The Honourable Chief Justice McEachern Concurred in by: The Honourable Mr. Justice Hollinrake The Honourable Mr. Justice Mackenzie Reasons for Judgment of the Honourable Chief Justice McEachern: [ 1 ] This is a sentence appeal brought by the accused, whose appeal against conviction for aggravated assault and possession of a weapon (a crowbar) for a purpose dangerous to public peace was dismissed by this court on May 6, 1999.

He was sentenced to imprisonment for a period of three years. [ 2 ] The accused is now 50 years of age. He came to Canada in the early 1970s and has since become a Canadian citizen. He worked in the sawmills on Vancouver Island for a number of years until he was injured in an automobile accident. He is married and lives with his wife and three grown boys, all of whom participate in a family bottle exchange business. [ 3 ] Prior to his conviction for these two offences, the accused had no record for criminal activity either in Canada or in his birth country of India.

He was on bail until his conviction appeal was dismissed. [ 4 ] The assault alleged against the accused occurred near the end of a fairly large wedding party. The learned trial judge described the facts as follows. [12] More specifically, the evidence disclosed that sometime between 7:00 p.m. and 8:30 p.m. in the evening that you invited Mr. Gadhri

to come outside the building with you. There is no question that this was just a social invitation. As you were leaving the building, you accidentally knocked a child who was on the steps, down the steps. There is no dispute that you were severely intoxicated at this particular point in the evening. As a consequence of knocking this child down the steps, the father of the child approached you. He then either pushed you, causing you to fall off these steps, which was approximately a four-foot drop, or alternatively, he punched you, and, as a consequence of that, you fell the four-foot drop.

The evidence was clear, however, that as a result of either being pushed or punched by the father of this child, you fell to the ground, which was four feet below the position you were in prior to being pushed or struck. At this time, you then rose from where you had fallen and were about to mount the steps, apparently to attack the person that had either pushed or punched you. [13] The father of the groom, Mr. Badyal, then attempted to restrain you. You apparently pushed him aside. It was at this point that Mr. Gadhri intervened. He also attempted to restrain you. As you continued to resist this restraint, Mr.

Gadhri was assisted by others, who also endeavoured to restrain you to prevent you from assaulting the person that had pushed or punched you. [14] It was at this point that a decision was made that you should leave the party. The evidence disclosed that this suggestion was made by your wife and others at the party. It fell to Mr. Gadhri and to the older brother of the groom to take you to a vehicle and then to take you home. There was no dispute that just as they were putting you in the vehicle that you again began to resist and that you were restrained by Mr. Gadhri. [15] Mr.

Gadhri’s evidence was that he did not hit you, but rather that he restrained you, that you calmed down, and that then you agreed to go in the vehicle. [ 5 ] In another crucial paragraph of her Reasons for Judgment the trial judge said this: [8] With respect to the circumstances of this case, I have concluded that the jury must have found that on the 25 th of August, 1996, at approximately 12:00 a.m., just as the engagement party of your wife’s cousin Nav Badyal was drawing to a close, you switched off the light that illuminated the hall; that you approached Ajmer Gadhri from behind as he was crouched down, involved in a conversation with another person, namely the father of the groom; that you struck Mr.

Gadhri twice in the back of the head with a crowbar; that as he lay bleeding profusely on the floor, you fled from the building; and that you were prevented from leaving the area by other guests who followed you out of the building. [ 6 ] One of the grounds of appeal argued by Mr. Firestone was that the trial judge did not give sufficient weight to the fact that the accused was intoxicated at the time of this assault. The trial judge said this: [24] Your counsel also submitted that I should consider as a mitigating factor the fact that you were intoxicated.

However, in reviewing the evidence, it did not appear to me that at the time the assault took place that you were particularly intoxicated. There is no question that earlier in the evening you were significantly intoxicated. That fact was reported by a number of people.

However, this assault took place anywhere from three and a half to five hours after those observations were made. [ 7 ] In my view there is ample evidence to support the finding of the trial judge in this respect and I do not think she erred in this respect. [ 8 ] The learned trial judge found, correctly in my view, that this was indeed a serious assault. Not only did the accused have possession of a crowbar which indicates some planning or deliberateness, he also turned out the lights so that he might attack his victim with less fear of detection.

Most seriously, he struck his victim two blows from behind which have left the victim with serious, permanent injuries. The trial judge correctly regarded the foregoing as aggravating circumstances. [ 9 ] The trial judge then went on, however, to consider mitigating circumstances. She referred to the age of the accused, the fact that he has been married for 23 years, that he has three sons, and that he has contributed to his community by participating in various community activities.

Last, of course, he does not have a criminal record. [ 10 ] The trial judge also referred to the fact that the accused operates a family business which would be seriously jeopardized by an extended period of incarceration, to the detriment to both the accused and his family. The trial judge also concluded that the accused had shown remorse for his foolish criminal behaviour, and we received a letter from the accused in which he makes what appears to be a genuine expression of regret and apology.

It appears that what the accused did on this occasion was very much out of character for him. [ 11 ] The trial judge referred to R. v. Rasanen (1997), 1997 CanLII 3368 (BC CA) , 92 B.C.A.C. 74, where a sentence of six years was

imposed for a more serious assault, but she recognized that there were differences between the two cases which called for a reduction from the sentence imposed in that case. In the result, the trial judge, relying in part on the principles of deterrence, imposed a global sentence of three years. The warrant of committal shows that this sentence was imposed on each count in the indictment and that such sentences are to be served concurrently. [ 12 ] Mr. Firestone’s principle submission is that this was a proper case for a conditional sentence.

He gets to that position by arguing, first, that as a first offender a sentence of two years less one day would have been a fit sentence and, second, that the circumstances of the accused, particularly his age, family situation and lack of criminal record made him a suitable candidate for a conditional sentence. [ 13 ] Mr. Firestone also relies very strongly on the judgment of the Supreme Court of Canada in R. v. Gladue , 1999 CanLII 679 (SCC) , [1999] S.C.J. No. 19.

In that case the Court dismissed an appeal from a three year sentence for manslaughter imposed upon an aboriginal woman with a substantial criminal record. In the course of giving reasons for judgment, Cory and Iacobucci JJ., writing for the Court, discussed the sentencing amendments which came into force in 1996 as the new

Part XXIII of the Criminal Code . The following two paragraphs of their Reasons for Judgement are particularly significant: 39. With respect for the contrary view, we do not interpret s. 718.2(

e) as expressing only a restatement of existing law, either with respect to the general principle of restraint in the use of prison or with respect to the specific direction regarding aboriginal offenders. One cannot interpret the words of s. 718.2(

e) simply by looking to past cases to see if they contain similar statements of principle. The enactment of the new

Part XXIII was a watershed, marking the first codification and significant reform of sentencing principles in the history of Canadian criminal law. Each of the provisions of

Part XXIII, including s. 718.2(e), must be interpreted in its total context, taking into account its surrounding provisions. 40. It is true that there is ample jurisprudence supporting the principle that prison should be used as a sanction of last resort. It is equally true, though, that the sentencing amendments which came into force in 1996 as the new

Part XXIII have changed the range of available penal sanctions in a significant way. The availability of the conditional sentence of imprisonment, in particular, alters the sentencing landscape in a manner which gives an entirely new meaning to the principle that imprisonment should be resorted to only where no other sentencing option is reasonable in the circumstances. The creation of the conditional sentence suggests, on its face, a desire to lessen the use of incarceration. The general principle expressed in s. 718.2(

e) must be construed and applied in this light. [ 14 ] This language of the Supreme Court of Canada provides the clearest possible direction that, having due regard for the other principles of sentencing, judges must make every reasonable effort to avoid imposing custodial sentences except as a sentence of last resort, to interfere with liberty as little as possible, and to take advantage of alternatives to imprisonment wherever it is reasonable to do so. [ 15 ] The trouble with the foregoing, of course, is that other Parliamentary statements about sentencing, such as those described in s. 718, often seem to stand in the way of the kind of sentences described in s. 718.2(

d) and (e). [ 16 ] In this case, for example, I have already mentioned the two parts to Mr. Firestone’s submission. The first question is whether the sentence of three years imposed in this case was a fit sentence. The Supreme Court of Canada in other cases, including Gladue , have directed us to interfere as little as possible with trial sentences. In this case, the trial judge did not mention this new sentencing landscape although, in fairness, it must be noted that her decision pre-dated Gladue but came well after the enactment of ss. 718 and 718.2.

It must be assumed that she took such provisions into consideration. [ 17 ] Sentencing is indeed an art rather than a science. What a sentencing judge must do is balance the various principles and decide which ones govern a particular case.

In this case, it is clear that the degree of violence in the circumstances was the predominant consideration that led the trial judge to the conclusion she reached. [ 18 ] Having regard to the range of sentences for aggravated assaults with serious consequences, and the consideration given by the trial judge to aggravating and mitigating factors, I cannot say that the sentence of three years in this case was not a fit sentence notwithstanding the personal circumstances of the accused, particularly that he has no previous convictions. [ 19 ] The next question is whether the new sentencing regime requires a reduction in this “fit” sentence so that a conditional sentence might be imposed.

This requires a reconciliation between the various purposes and principles of sentencing set out in s. 718 (which include denunciation, deterrence and rehabilitation) and the requirement for proportionality set out in s. 718.1, on the one hand, and the further sentencing principles set out in s. 718.2, on the other hand, which as already stated, include a requirement that there should be the least possible deprivation of liberty, and that all available sanctions other than imprisonment should be considered. [ 20 ] The imposition of a conditional sentence in this case, possibly with a period of probation, which could only be accomplished by reducing the sentence to two years less one day, would most assuredly satisfy the requirements of the new sentencing regime.

If this were a case where a conditional sentence could be imposed, I would be inclined to reduce the sentence to two years less one day, possibly with a further period of probation, even though other sentencing considerations, as already mentioned, make three years a fit sentence in this case. [ 21 ] In my view, however, this is not a case where it would be proper to impose a conditional sentence.

My reasons are, as already stated, that the new sentencing regime still requires “proportionate” weight be given to denunciation, deterrence and other principles of sentencing, and that s. 742.1, which provides for conditional sentences, requires the judge to “be satisfied that serving the sentence in the community would not endanger the safety of the community, and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.” [ 22 ] The offence in this case was committed at a wedding that was, in effect, a community celebration. Violence on such happy

occasions is much to be denounced and deplored. The granting of a conditional sentence, particularly for a planned and vicious attack from behind upon an unsuspecting friend, deserves and indeed requires a term of imprisonment for at least the purpose of demonstrating to others that violence at such functions cannot be tolerated. [ 23 ] Thus, if a conditional sentence would be a suitable disposition in this case, I would be inclined to find that a sentence of two years less one day could be a fit sentence in order to satisfy the requirements of s. 718.2.

However, I see no juridical reason to do that in this case when a conditional sentence is not a viable option and three years as fixed by the trial judge, as well as two years are both fit sentences. [ 24 ] What this means, in my view, is that there is indeed a range of fit sentences for most offences. In this case the global range, apart from the personal circumstances of the offender, is probably from two years (less one day) to six years depending in part upon the degree of violence used in the commission of the offence, although it could be more than that in some extreme cases.

Under the new regime, sentencing judges must still consider whether a case within the range is one where a conditional sentence will be appropriate. If so, then in most cases, the sentence should be reduced to two years less one day so that a conditional sentence could be imposed.

If the case is not one where a conditional sentence may be imposed, then this court should not usually interfere if the sentence imposed is within the appropriate range. [ 25 ] In this respect, however, it must be remembered that there will usually be several ranges for any particular offence, depending upon the degree of violence, the relationship between the offender and the victim, if any, the personal circumstances of the offender and other aggravating or mitigating circumstances. [ 26 ] It follows that, notwithstanding s. 718.2(

d) and (e), sentences need not always be the minimum in any range of fit sentences. All cases charging the same offence are not the same, and a sentence in a fairly serious case for a specific offence could well be more severe than other sentences for the same offence. In other words, I do not believe the sentence in all cases for the same offence must be the same or nearly the same as the sentence in the least serious case of that offence.

What is required is that the sentencing judge endeavour to give effect to all the principles specified in the Code , giving such explanations as may be appropriate, but recognizing that differences in the circumstances of individual cases of the same offence will often categorize the case within a discrete range for the offence. [ 27 ] The rub comes, as in this case, when the range of fit sentences for an offence extends above and below the maximum of two years less one day.

When that happens, it seems to me that the sentence should be reduced wherever possible so that a conditional sentence may be imposed in all proper cases. “Wherever possible” means a sentence that results from a balancing of all relevant purposes and principles of sentencing although in such case the sentencing judge will inevitably conclude that some of these matters must be given more weight than others. [ 28 ] In this case, I would reduce the sentence to two years less one day, and to impose a further term of probation if I thought this was an appropriate case for a conditional sentence.

As already mentioned, it is the severity of the violence in the circumstances that makes a sentence of three years a fit sentence in this case. [ 29 ] Thus, my attempt to rationalize these difficult principles leads me to conclude that the sentence imposed by the trial judge was a fit sentence within the range of sentences for the degree of violence shown, that this is not a case for a conditional sentence for the reasons I have given, and that we should therefore not interfere with the judge’s sentence. [ 30 ] While I would give leave to appeal, I would dismiss the appeal for the above reasons. ______________________________________ The Honourable Chief Justice McEachern I AGREE: _____________________________________ The Honourable Mr.

Justice Hollinrake

I AGREE: _____________________________________ The Honourable Mr. Justice Mackenzie