R v Gill, 2023 ABKB 639

Court of King’s Bench of Alberta Citation: R v Gill, 2023 ABKB 639 Date: 20231114 Docket: 200308294Q101 Registry: Calgary Between: His Majesty the King Crown - and - Bipinjot Gill Accused _______________________________________________________ Oral Reasons for Sentence of the Honourable Justice J.C. Price _______________________________________________________ I. Introduction [ 1 ] These are my oral reasons for decision in the sentencing of Bipinjot Gill. I may publish these oral reasons. If I do, I will not make any substantial changes to them.

If a transcript of these reasons is requested, I reserve the right to edit the transcript for non- substantive errors including correcting spelling, punctuation and grammar and adding citations and headings. [ 2 ] On April 13, 2023, I convicted Bipinjot Gill of two counts of Dangerous Driving Causing Death and one count of Dangerous Driving Causing Bodily Harm pursuant to 320.13(2) and 320.13(3) of the Criminal Code . Tragically, Belqees Begum and Uzma Afzal were killed instantly, and Muhammed Afzal sustained serious injuries. [ 3 ] The issue in this hearing is the appropriate sentence for Mr. Gill. II. Facts A.

Circumstances of the Offence [ 4 ] Mr. Gill did not testify at the trial. Many of the facts were admitted through an Agreed Statement of Facts. At the commencement of trial, initially Mr. Gill pled guilty to the offences subject to my finding on whether he was not criminally responsible due to mental disorder. However, after the Crown interjected, the plea was changed to not guilty on all counts.

[ 5 ] Briefly the facts surrounding the circumstances of the offences are as follows. [ 6 ] Mr. Gill was driving a 2012 Black Hyundai Accent (the “Hyundai”). The Hyundai struck a 2009 Blue Toyota Corolla (the “Toyota”) at the intersection of 128 Ave & Metis Trail NE (the “Collision”) at approximately 00:26 AM on May 18, 2019, causing the death of Belqees Begum and Uzma Afzal and causing bodily harm to Muhammad Afzal. [ 7 ] Traffic control devices at the scene of the Collision were operational. There was no issue with street lighting. Weather and road conditions were not factors in the Collision. Mr.

Gill was driving the Hyundai on Metis Trail at a speed of 152 km/hr five seconds prior to the Collision and at a speed of 140 km/hr at the time of the Collision. The posted speed limit for Metis Trail is 70 km/hr. Mr. Gill applied the brakes 0.5 seconds before the Collision. Speed was a factor, but intoxicating substances did not factor in this Collision. [ 8 ] The eyewitnesses to the Collision were consistent in their evidence that the Toyota had a flashing green light and had the right of way. The Hyundai driven by Mr. Gill did not have the right of way. The light he had was red.

He did not stop. [ 9 ] After the Collision Mr. Gill stayed on the scene. Mr. Gill declined being transported to hospital for precautionary measures and was treated at the scene by Emergency Medical Services (EMS) and released to the custody of the Calgary Police Service (CPS). Mr. Gill was later released by CPS the same day and took a cab home. I found Mr. Gill to be cooperative throughout his interactions with EMS and CPS. [ 10 ] The Crown established beyond a reasonable doubt that Mr. Gill drove the Hyundai in a manner dangerous to the public. It was just after midnight. It had been raining.

Traffic volume was light. While travelling northbound on Metis Trail, Mr. Gill was driving at up to speeds of 152 km/h, and at the time of the collision was driving 140 km/h. Mr. Gill did not apply brakes to his vehicle, until 0.5 seconds before the Collision. [ 11 ] I found that Mr. Gill was not suffering from a mental health condition, or mental disorder or disease of the mind at the time of the Collision. I further found that Mr. Gill knew that it was wrong but drove at the high speed he did anyway with reckless disregard that his actions could lead to a horrific accident. B.

Circumstances of the Offender [ 12 ] A presentence report (PSR) was prepared and has been made an exhibit. I will not repeat verbatim what was stated in the PSR. However, I find the following salient facts to be representative of Mr. Gill’s circumstances. [ 13 ] Mr. Gill was born in Chandigarh, India to Kulwinderjit and Baljinder Gill on January 8, 1998. At the time of the incident, he was 21 years old. Mr. Gill is currently 25 years old. [ 14 ] Mr. Gill has one sibling, a brother, who is currently 16 years of age, in grade 11 and was living in India with an aunt up until recently.

At the sentencing hearing I learned that Mr. Gill’s parents have applied to have their younger son move to Canada because his grandfather whom he was living with in India passed away in August. Today, Mr. Gill told me that his brother has since arrived in Canada and is now living with him. They live together with their mother and father in Calgary, Alberta. [ 15 ] After Mr. Gill graduated from high school in India, he applied for and was granted a study permit on August 12, 2016, from Immigration Canada. When he moved to Calgary to study, he was 18 years of age.

He lived with his uncle at first, then with a girlfriend and after they broke-up, he moved back in with his uncle. [ 16 ] Mr. Gill obtained a diploma from Bow Valley College in Calgary with a specialty in General Business on June 22, 2018. At the time that he graduated from Bow Valley College he was 20 years old. Mr. Gill reported to the author of the PSR that he has future educational goals of obtaining his Bachelor of Business Administration. [ 17 ] When Mr. Gill came to Canada to study, he also worked. He worked from October 2016 to 2018 as a cashier for Petro-Canada in Chestermere.

From March 2019 to August 2019, he worked as a door-to-door canvasser for Alberta Blue Cross, and as a food courier for SkipTheDishes. He returned to India in October 2019 to address concerns with his mental health. While in India he worked for a brief time at an Apple computer store. When he returned to Canada from India in August 2020, he started working for Amazon as a warehouse associate and worked there from November 2020 to February 2021. Subsequently, Mr. Gill delivered for Pizza 73, Door Dash, and SkipTheDishes. Presently Mr.

Gill is unemployed and has no income as his work permit expired in November 2021. [ 18 ] Currently, Mr. Gill lives with his mother and father who came to Canada to help him. Both of his parents are employed. They cover all the expenses for the family. [ 19 ] Mr. Gill is not married, does not have any children and is currently not in a relationship. In Mr. Gill’s free time he plays video games, stretches, and scrolls through snapchat and occasionally attends a Sikh temple in Calgary with his mother. [ 20 ] In August 2021, Mr. Gill had a short stay in hospital due to substance abuse. Mr.

Gill was again admitted to hospital on October 12, 2021, under a Form 8. Mr. Gill has been diagnosed since the incident with Schizophrenia. Cannabis and Methamphetamine are believed to be contributing factors to Mr. Gill’s Schizophrenia. It was because of Mr. Gill’s declining health that his parents were granted emergency visas to come to Canada. They arrived in Calgary around December 2021. Upon their arrival, Mr. Gill was and remained in hospital until March 2, 2022. [ 21 ] I was informed at the sentencing hearing that Mr.

Gill’s parents currently are in Canada on work visas and intend to apply for permanent resident status as soon as they are able. [ 22 ] Other circumstances of Mr. Gill that was reported by the author of the PSR include that Mr. Gill was treated by Tricia Green (Social Worker), Lisa Miller (Registered Nurse) and Dr. David Tano (Psychiatrist) after he was released from the hospital on March 2,

2022. Ms. Green relayed to the author of the PSR that Mr. Gill attended weekly appointments and followed through with all treatment recommendations, adding that his mother was instrumental in the process. [ 23 ] Mr. Gill has since February 2023 been treated by Doug Moberg, a registered nurse with Forensic Assessment Outpatient Services. Mr. Gill was meeting with Mr. Moberg weekly but since April 2023 less frequently. Mr. Gill also meets with a Dr. Syliva Basiriha on a monthly basis. He has been prescribed clozapine, atropine and bisoprolol. It was relayed by Mr. Moberg that because Mr.

Gill does not have Alberta Health Care, pharmaceutical companies have sponsored Mr. Gill for most of his medications for “compassionate reasons”. Mr. Moberg also reported that Mr. Gill sometime after April 2023 “started to display bizarre immature behaviors, started to act out, increased his use of intoxicating substances and started voicing that he was suicidal. [ 24 ] It was reported that Mr. Gill has been admitted into hospital in 2023 on the following dates: (

a) February 16, 2023, due to an opioid overdose; (

b) June 24, 2023, due to an attempt to put his hand in the deep fryer at his mother’s place of employment; and (

c) July 26, 2023, due to a fentanyl overdose. [ 25 ] With respect to his admission into hospital on June 24, 2023, Mr. Gill told the author of the PSR that he attempted suicide because he was “done with his anxiety”. He stayed and was treated in hospital for 2 weeks. He explained to the author of the PSR that “it was a selfish move as it would terribly affect his loved ones.” It was reported that his mother recalled him saying that he “ruined his life” and he has “no reason to live”. Following his last attempt at suicide in July, Mr. Gill’s medication has increased. [ 26 ] It was relayed by Mr.

Gill’s mother that when he is under the influence of Cannabis Mr. Gill “gets out of control, experiences “extreme anger” and “becomes physically abusive with his father”. [ 27 ] Mr. Gill started re-attending the Northeast Addiction and Mental Health Centre for Holistic Recovery (NAM) on July 26, 2023, just 2-hours before attending the hospital due to a fentanyl overdose. It was noted by the author of the PSR that Mr. Gill has been encouraged to apply for treatment at the Sunrise Treatment Lodge. [ 28 ] The author of the PSR opined that Mr.

Gill has several familial and professional supports in place; however, lacks the motivation to follow through with recommended treatment programs and sound advice. However, I find that he is able to follow through with recommended treatment programs as it was reported that between March 2, 2022, to April 2023, he was following the treatment program and advice. It was only after April 2023 that he had a relapse. Also, it was relayed to me by counsel for Mr. Gill at the sentencing hearing, that since August, Mr.

Gill has been following his treatment plan and he is not homeless which was a concern raised by the author of the PSR. [ 29 ] Mr. Gill explained to me that he is still living with his parents in the family home and that the landlord has permitted them to stay where they are for compassionate reasons. [ 30 ] Mr. Gill told the writer of the report that he takes full responsibility for his behaviour in the current offences. He indicated that he is remorseful and ashamed of his actions, however, did say “it was an accident”, and it “happened for a reason, God must have a plan for him”. Mr.

Gill believes that the justice system is fair, and he has been treated respectfully. [ 31 ] Lastly, the author of the PSR was not aware of any criminal record despite her query of the Justice Online Information Network (JOIN) which did not reveal any prior convictions in Alberta. However, as raised by the Crown at the sentencing hearing, Mr. Gill since the date of the incident (May 18, 2019) has been convicted for two related offences. He was convicted on June 8, 2022, for dangerous driving pursuant to s. 320.13(1) of the Code and for flight from a peace officer pursuant to s. 320.17 of the Code .

The occurrence date for these convictions took place on August 14, 2019. It is not disputed that Mr. Gill did not have a criminal record prior to May 18, 2019. C. Impact on the Victims and/or Community [ 32 ] An inquiry was made by me of the Crown pursuant to s. 722(2) of the Code if reasonable steps were taken to provide any victim with the opportunity to prepare a victim impact statement. I was informed that there was no victim impact statement(s). [ 33 ] Asif Ashfaq the husband of the deceased victim Usman Afzal was driving the vehicle that was struck by Mr. Gill. Mr. Ashfaq testified at the trial.

The night of the Collision, Mr. Ashfaq lost his wife and his mother-in-law, Belqees Begum. Mr. Ashfaq was not injured but his father-in-law, Muhammad Afzal, suffered bodily injury. Mr. Ashfaq testified that his father-in-law died a couple of years later from Covid-19. [ 34 ] Although no victim impact statement was submitted by Mr. Ashfaq for the purposes of sentencing, it is clear from his testimony that the emotional impact on him from the Collision was traumatic and severe. III. Parties’ Positions [ 35 ] The Crown submits that a fit sentence for Mr.

Gill is a global sentence in the range of 4 to 6 years of imprisonment, followed by a 10-year driving prohibition. The Crown also seeks the following ancillary orders: (

a) A victim surcharge of $200; and (

b) An order pursuant to s. 487.051(3) of Code in Form 5.04 for taking of samples from Mr. Gill for the DNA databank.

[ 36 ] The Defence submits that Mr. Gill should receive a conditional sentence and is otherwise agreeable to the driving prohibition order and ancillary orders proposed by the Crown. [ 37 ] I will provide a brief overview of the relevant sentencing principles. I will then consider the gravity of the offence, degree of blameworthiness, and the aggravating, mitigating and collateral factors applicable to the circumstances of this case. I will also review the cases supplied by the Crown and the Defence that were provided to assist me in ensuring sentencing parity. IV.

Sentencing Principles [ 38 ] The guiding principles of sentencing are set out in s. 718 of the Criminal Code . These statutory provisions provide a comprehensive outline of the factors that I must consider in sentencing. The objectives outlined in s. 718 are as follows: 718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 39 ] It is a fundamental principle of sentencing that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1 of the Code . [ 40 ] In imposing a sentence, I am to consider the following principles all of which are set out in s. 718.2 of the Code and include: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender […]; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 41 ] Although I have the discretion to render a sentence that takes into consideration the type of offence and the circumstances of the offender, my discretion is limited by the case law and the Code . The case law limits my discretion by setting down general ranges of sentences for particular offences.

The Code limits my discretion by prescribing maximums and/or minimums for punishment. [ 42 ] In this case, Mr. Gill has been convicted of 2 counts of dangerous driving causing death and one count of dangerous driving causing bodily harm. The Crown proceeded by way of indictment. In the result, pursuant to s. 320.20 of the Code , the maximum punishment for dangerous driving causing bodily harm is 14 years imprisonment. The minimum punishment for dangerous driving causing bodily harm is: (

a) for a first offence, a fine of $1,000, (

b) for a second offence, imprisonment for a term of 30 days, and (

c) for each subsequent offence, imprisonment for a term of 120 days. [ 43 ] For the convictions of dangerous driving causing death which is an indictable offence, pursuant to s. 320.21of the Code , the maximum punishment is life in prison. The minimum sentences include: (

a) for a first offence, a fine of $1,000; (

b) for a second offence, imprisonment for a term of 30 days; and (

c) for each subsequent offence, imprisonment for a term of 120 days. [ 44 ] The Code specifies the following as aggravating factors in cases involving dangerous driving causing death: Aggravating circumstances for sentencing purposes

320.22 A court imposing a sentence for an offence under any of sections 320.13 to 320.18 shall consider, in addition to any otheraggravating circumstances, the following: (

a) the commission of the offence resulted in bodily harm to, or the death of, more than one person; (

b) the offender was operating a motor vehicle in a race with at least one other motor vehicle or in a contest of speed, on a street,road or highway or in another public place; (

c) a person under the age of 16 years was a passenger in the conveyance operated by the offender; (

d) the offender was being remunerated for operating the conveyance; (

e) the offender’s blood alcohol concentration at the time of committing the offence was equal to or exceeded 120 mg of alcoholin 100 mL of blood; (

f) the offender was operating a large motor vehicle; and (

g) the offender was not permitted, under a federal or provincial Act, to operate the conveyance. [45]

Section 320.22(

a) is the only specified aggravating factor that applies to Mr. Gill. [46] There is no starting point for sentencing in cases involving dangerous driving causing injury or death. This is because thenature and circumstance of the offence and offender in cases involving these types of offences vary greatly.

The range of appropriatesentences for these types of cases are very broad: R v Mbachu, 2016 ABCA 270 at para 19. [47] Even if there was a general range, I am permitted to impose a sentence outside the range set by the case law provided that thesentence I impose accords with the applicable sentencing principles and objectives, and providing that I do not override the legislativeintent and reduce a sentence below a statutorily mandated minimum: R v Nasogaluak, 2010 SCC 6 , [2010] 1 SCR 206. [48] Furthermore, I am mindful of the principle that a first sentence of imprisonment, especially for a first offender, should be asshort as possible and tailored to an offender’s individual circumstances, rather than imposed solely for the purpose of general deterrence:R v Hayman (1999), (ON CA), 135 CCC (3d) 338 (ONCA.).

V. Analysis A. Gravity of the Offence/Degree of Responsibility [49] In R v Arcand, 2010 ABCA 363, the Court of Appeal stated that there are two components to assessing the gravity of theoffence: (

a) The harm or likely harm to the victim; and (

b) The harm or likely harm to society and society’s values. [50] The more serious the crime and its consequences, and the greater degree of responsibility of the offender, the heavier thesentence: R v. AM, 2023 ABKB 563, citing R v Lacasse, 2015 SCC 64, at para 12. In R v Sharma, 2022 SCC 39, the Supreme Courtemphasized that the gravity or seriousness of the offence is not to be focused on an offender’s circumstances: at para 108. The personalcircumstances of an offender do not serve to the make the offence any less serious.

The assessment of gravity is focused on the“normative wrongfulness of the conduct and the harm posed or caused by the conduct” R v Friesen at paras 75-76. [51] Dangerous driving causing death is widely recognized as an offence of considerable gravity. In 2018, the maximum sentencefor Dangerous Driving Causing Death was increased from 14 years of imprisonment to life. The Supreme Court has noted in Friesen that“to respect Parliament’s decision to increase maximum sentences courts should generally impose higher sentences than the sentencesimposed in cases that preceded the increases in maximum sentences”.

This was also stated in Sharma at paras 4 and 105 that maximumsentences are a reflection of its seriousness. [52] The subjective gravity of the offence requires an assessment of the circumstances of the offence and its commission.

This willinclude a review of the age of the offender, the duration of dangerous driving, the degree of recklessness in the driving and the degree itdeviates from the norm, the nature of the roadway and the existence or absence of a criminal record: R v Morgan, 2020 BCSC 1397. [53] The severity of the sentence depends not only on the seriousness of the crime but also the offender’s degree of responsibility:Lacasse at para 12. B. Denunciation and Deterrence [54] The objectives of denunciation and deterrence are often of primary importance in dangerous driving cases.

In R v Proulx,2000 SCC 5, the court noted that dangerous driving and impaired driving may be offences for which harsh sentences provide generaldeterrence as these crimes are often committed by otherwise law-abiding citizens: at para 129. However, denunciation and deterrence arenot the sole objectives, an additional objective of rehabilitation informs on a determination of a just sentence in this matter. C. Aggravating and Mitigating Factors

[ 55 ] In arriving at an appropriate sentence, I must consider the aggravating and mitigating factors relating to the offence and to the offender.

Section 718.2(

a) of the Code requires me to ensure that a sentence is “increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender”. [ 56 ] The Defence adopted the aggravating and mitigating factors identified by the Crown. The aggravating and mitigating factors identified by the Crown are as follows: Aggravating: (

a) Related criminal convictions after the offence date: Mr. Gill has related criminal convictions for two driving offences, including dangerous driving. (

b) Excessive speed: Mr. Gill’s speed of twice the posted speed limit – shortly before the collision, he was travelling at 152 km/hr. in a 70 km/hr. zone. (

c) Place of driving: Mr. Gill drove at high speed within city limits, on a major road with controlled intersections. Mitigating: (

a) Age: Mr. Gill was 21 years old at the time of the offence. [ 57 ] I agree with the above aggravating factors, although I do have further comments to make on the post-criminal offences. With respect to the classification of the related criminal convictions as aggravating, there is conflicting case law. Some courts treat post offence related criminal convictions as aggravating and other jurisprudence state that these charges can be considered in determining the objective of rehabilitation.

For example, in R v Stephenson , 2014 ONSC 7182 , the court stated at para 45: Criminal offences committed subsequent to the convictions before the court cannot be regarded as aggravating factors on sentencing. However, subsequent criminal charges can be considered in determining the appropriate weight to give the objective of rehabilitation.

It stands to reason that effective rehabilitation requires an acceptance by the offender of responsibility for his crimes and an understanding of the harm done. [ 58 ] The Crown relied on R v Martin , 2013 ABQB 174 where the offender was convicted of dangerous driving causing death. While on release for the subject offence, the offender was convicted of a number of driving offences, as well as driving over .08 and driving while prohibited.

The Court found this to be aggravating and illustrated a lack of understanding into the seriousness of his conduct. [ 59 ] An additional aggravating factor that I shall also consider is the fact that the commission of the offence by Mr. Gill on May 18, 2019, resulted in bodily harm to, or the death of, more than one person. Pursuant to s. 320.22(

a) of the Code , this is an aggravating factor that must also be considered. In this case, two deaths resulted from the commission of the offence by Mr. Gill. [ 60 ] There are several mitigating circumstances. As noted above, Mr. Gill is a young person with no previous criminal record. An additional mitigating factor that was not identified by the parties that I consider in this case is Mr. Gill’s remorse. An offender’s genuine expression of remorse can be a significant mitigating factor in sentencing. Remorse can be demonstrated through actions or words.

Remorse is a mitigating factor; however, lack of remorse does not necessarily translate to an aggravating factor: R v Shrivastava, 2019 ABQB 663 at para 47 . [ 61 ] In this case, I find that Mr. Gill is so remorseful that he has attempted suicide multiple times. I find that this after the fact conduct and his addiction to drugs that developed after the incident is evidence that Mr. Gill is remorseful and feels shame and self- hatred about what he did that caused the deaths of Belqees Begum and Uzma Afzal and caused bodily harm to Muhammad Afzal. D.

Collateral Consequences [ 62 ] Defence counsel has advised that Mr. Gill is currently residing in Canada on a student visa, accordingly, should I impose a jail sentence of six months or more, Mr. Gill could be deported from Canada without right of review or appeal. [ 63 ] The concept of collateral consequences and their impact on sentencing flows from the application of the principles of individualization and parity: R v Sandhu, 2022 ABQB 332 at para 48 . A collateral consequence is any consequence that arises from the commission of an offence, the conviction or the sentence that impacts the offender.

They are not necessarily aggravating nor mitigating factors but rather relate to the personal circumstances of the offender. The key question to ask is whether the effect of the consequence means that a particular sentence will have more of a significant impact on the offender because of his circumstances: Sandhu at para 150. [ 64 ] I acknowledge that disproportionate sentences cannot be imposed to avoid collateral immigration consequences: R v Pham , 2013 SCC 15 at paras 11-16 ; R v BM, 2023 ONCA 224 at para 33 .

The relevance of collateral consequences flows from the application of individualization and parity and may also flow from the sentencing objectives of assisting in rehabilitating offenders: Pham at para 11 . The sentence that is ultimately imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Pham at para 14 . Justice Mah, in R v Singh , 2021 ABQB 966 , articulated the process in three steps, at para 21: First, determine a fit and proper sentence, irrespective of immigration consequences.

Second, consider whether to exercise discretion to take collateral immigration consequences into account; and Third, ensure that the sentence ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.

[65] The collateral consequence of deportation was an issue raised in the matter of Mbachu, which is a case involving a convictionfor dangerous driving causing death. In that case, the Court of Appeal upheld the sentence imposed of two-year-less-a-day ofimprisonment. The Court of Appeal stated: …[T]he trial judge was aware of the immigration consequences for the appellant of imposing a term of imprisonment of greater than sixmonths.

But given what we have said above about the fitness of the two-year-less-a-day sentence imposed, to drastically reduce that fitsentence to less than six months in order to ameliorate the immigration consequences of the sentence would have been inappropriate. [66] I am aware that Mr. Gill faces the possibility of deportation. I will consider whether to exercise my discretion to take thiscollateral consequence into account.

Whether I exercise that discretion or not, I will ensure that the sentence I ultimately impose on Mr.Gill is proportionate to the gravity of the offences committed and the degree of his responsibility. E. Mental Health Issues [67] When an accused has mental health problems a court can consider a mental factor as a mitigating factor (R v Penttila, 2020BCCA). As the sentencing judge I must determine on the whole of the evidence and to what extent Mr. Gill’s mental illness contributedto the commission of the offence and whether it reduces his moral blameworthiness.

In assessing the situation in the present case, as Ipreviously found, there is no link between Mr. Gill’s mental illness and the commission of the offence. In other words, although Mr. Gillhas since been diagnosed with schizophrenia, anxiety, stress and depression there is no evidence of a causal link between him havingdriven dangerously on the day of the incident and his mental health. [68] Although, there is no causal link between the offence and Mr.

Gill’s mental health, an otherwise disproportionate sentence bythe impact it would have on an offender by reason of a mental illness must be considered: R v Fuller, 2017 ABCA 361 at para 7, thecourt cited R v Belacourt, 2010 ABCA 319 at paras 6-9: The effect of a mental disorder on sentencing is helpfully summarized in C.C.

Ruby, Sentencing (6th ed.) (Markham: Butterworths,2004) at paras. 5.246 and 5.256: It is, therefore, clear that a sentence can be reduced on psychiatric grounds in two instances: (1) when the mental illness contributed to orcaused the commission of the offence; or (2) when the effect of imprisonment or any other penalty would be disproportionately severebecause of the offender's mental illness. ... General deterrence should be given very little, if any, weight in a case where an offender is suffering from a mental disorder becausesuch an offender is not an appropriate medium for making an example to others.

This principle has been applied in cases like R. v. Newby (1991), 1991 ABCA 307 , 84 Alta. L.R. (2d) 127, 120 A.R. 68 (C.A.)and R. v. Fraser, 2007 SKCA 113, 302 Sask.R. 210 at paras. 32-5. [69] The information before the court in Dr. Ajeh’s report that was exhibited at the trial and the PSR that was exhibited at thesentencing indicates that Mr. Gill has been suffering from some significant mental health issues since the accident. Since the offences,Mr. Gill has had several stays in hospital and has seen numerous health care providers, including psychiatrist Dr. Tano.

After hisadmission to hospital on October 12, 2021, under a Form 8, he has since been diagnosed with schizophrenia. His social worker, Ms.Green relayed that Mr. Gill had attended weekly appointments and followed through on treatment recommendations. Mr. Gill continuesto see Mr. Mobert, a registered nurse and he meets with Dr. Basiriha on a monthly basis. His mental health has clearly declined furthersince his conviction in April 2023. He has attempted to self-harm himself on one occasion and has attempted suicide twice. F. Parity of Sentences [70]

Section 718.2 of the Code provides that a sentence should be similar to sentences imposed on similar offenders for similaroffences committed in similar circumstances. This principle is referred to as the parity principle and it requires the Court to justifydisparities between sanctions for comparable offences: R v Ipeelee, 2021 SCC 13. Case law indicates that there is a significant range ofsentences for dangerous driving causing death. The Crown has proposed a global sentence of four to six years’ jail, followed by a ten-year driving prohibition.

In support of the range, the Crown provided me with six cases to assist me in determining a fit sentence for Mr.Gill. [71] The Crown relied on R v Grenke, 2012 ABQB 198 as a comparator case. Mr. Grenke received a four-and-a-half-year sentencefor one count of dangerous driving causing death and one count of dangerous driving causing bodily harm. This case involved one death.Although the trial judge acquitted Mr. Grenke of charges of impaired driving, he was satisfied that liquor consumption “lowered Mr.Grenke’s inhibitions and fueled his desire to drive [his] high-performance vehicle in a dangerous way”. Mr.

Grenke did not plead guilty;he was 36 at the time of sentencing. The court was considerably influenced by positive presentence and forensic psychiatry reports. [72] The offender in R v Martin, 2013 ABQB 174 was 56 years old at the time of the sentencing. Mr. Martin was sentenced to fourand a half years and a ten-year driving prohibition for dangerous driving causing death. The driving pattern of Mr. Martin prior to thecollision involved excessive speed. He had a criminal record primarily consisting of impaired driving charges and failures to providebreath samples.

He also had a lengthy traffic record, including seven speeding related convictions and two careless driving convictions.Mr. Martin was sentenced to four- and one-half years in a federal penitentiary for dangerous driving causing death and a ten-year drivingprohibition. [73] In R v Nottebrock, 2014 ABQB 662, Ms. Nottebrock, struck another motor vehicle in an intersection after failing to stop at ared light. She was intoxicated and speeding (135 km per hour in an 80 km per hour zone) at the time of the accident. Ms. Nottebrock’spassenger was killed in the collision, as was the driver of the other motor vehicle. Ms.

Nottebrock was convicted of two counts ofcriminal negligence causing death and two counts of impaired driving causing death. At the time of sentencing, she was 28 years old.

She was sentenced to four and a half years imprisonment and a five-year driving prohibition. [ 74 ] In R v Regier , 2011 ONCA 557 , the ONCA dismissed Mr. Regier’s appeal of his sentence of six years imprisonment and a ten-year driving prohibition, for two counts of dangerous driving causing death and one count of dangerous driving causing bodily harm. The appellant collided with an oncoming vehicle while attempting to pass a vehicle on the highway. As a result of the “sideswipe collision”, the oncoming vehicle was redirected into the trailing vehicle which resulted in a head-on collision.

Two young men were killed, and the driver of the oncoming vehicle suffered serious injuries. The offender was 50 years old. His driving record disclosed 25 highway traffic convictions over 28 years, including two subsequent charges for careless driving and improper lane change. [ 75 ] Mr.

Theriault, received a sentence of five and a half years after pleading guilty to dangerous driving causing death, dangerous driving causing serious bodily injury, leaving the scene of an accident that caused death, and leaving the scene of an accident that caused serious bodily injury: In R v Theriault, 2021 NWTSC, the circumstances of the offence included impairment and excessive speed. The accident resulted in a roll over which killed one of the passengers and left another with serious injuries. Mr. Theriault walked away from the accident and fled the scene. Mr. Theriault was a 45-year-old Indigenous man.

He had a lengthy history of substance abuse that occasionally resulted in him being before the courts. He had approximately 34 prior convictions, including one prior conviction of dangerous driving causing bodily harm for a “very similar” high speed roll-over accident. The circumstances of the offender included a related criminal record and an active driving prohibition but also a guilty plea and Gladue factors. [ 76 ] In the more recent decision of R v Benjumea , 2022 ABQB 44 , Mr. Benjumea was sentenced to seven-and-a-half years’ incarceration for three counts of dangerous driving causing death.

He was also sentenced to an additional 18-month imprisonment for leaving the scene of the accident. Mr. Benjumeau was 25 at the time of the collision. There was some evidence that Mr. Benjumea was drinking on the night of the accident, but the court did not find that he was impaired. The sentencing judge found that the fact that Mr. Benjumea was nine months into a 12-month driving prohibition was a “serious aggravating factor”. The judge also found that it was somewhat aggravating that Mr. Benjumea chose to drive in the face of other alternatives.

The court did not find it more than secondarily aggravating that he left the scene of the collision as he was sentenced separately for this offence. The sentencing judge noted that he agreed with the Crown’ submissions that the increased maximum punishments for dangerous driving signals the higher objective gravity of criminal driving causing death. [ 77 ] With respect to the foregoing cases cited by the Crown, as the Crown stated in its brief: “no case has precisely the same facts as are before the court”. I agree. I find the cases supplied by the Crown to be significantly different and are distinguishable.

Four of the cases, the Crown supplied involved cases where alcohol or drugs were consumed by the accused. In five of the cases, the accused had a criminal record. In Benjumeau , the accused was nine months into a 12-month driving prohibition. In most of the cases, the accused was not youthful, or not as youthful as Mr. Gill. To be more precise, none of the cases cited by the Crown were similar to the circumstances of Mr. Gill. In the case before me, Mr. Gill was 21 at the time of the incident; no intoxicants were involved, Mr. Gill did not leave the scene, Mr. Gill cooperated at the scene, Mr.

Gill had no prior record, Mr. Gill is facing deportation if I impose a term of imprisonment of more than six months, and Mr. Gill’s mental health since the incident has seriously declined. [ 78 ] For the purposes of assisting me with determining a fit sentence the Defence provided me with a number of cases which I summarize as follows. [ 79 ] In R v Fox, 2001 ABCA 64 , the offender received a two-year sentence for two counts of dangerous driving causing death. A driver jumped a guardrail, entered a campground where the driver’s vehicle hit two trailers, killing two occupants and injuring a third.

The driver then fled. The offender was Indigenous, had been drinking during the previous day and was fatigued at the time of the incident, did not have a license, and was on probation for arson. [ 80 ] Conditional sentences of two years less a day and a five-year driving prohibition were given in R v Bhalru, R v Khosa, 2003 BCCA 645 . The offenders were involved in a street race that ended in the death of a pedestrian. Mr. Khosa was 18 years old at the time of the offence and Mr. Bhalru was 21 years old. Mr. Bhalru was stopped for speeding while he was awaiting trial. The Court of Appeal upheld the sentence.

The Court agreed that the moral culpability of both offenders was attenuated by their youth, by having no prior criminal record nor driving offences and their expressions of remorse. [ 81 ] A conditional sentence was given in R v Biring, 2011 BCSC 734 . The offender was driving a large trailer of a transport tractor trailer unit, which crossed over the grass median of the highway into the west bound lane and collided with a pick-up truck. The driver and a passenger of the pick-up truck were killed. The court found that Mr. Biring’s degree of responsibility was not at the highest end of the spectrum.

The pattern of driving leading up to the critical moment was aggressive but not reckless. He pled guilty to the offences. He was truly remorseful. He was also facing civil consequences. The court found that a conditional sentence of two years less a day could meet the principles of sentencing. [ 82 ] Among the earliest of the case authorities provided is R v Hindes , 2000 ABCA 197 . The court of appeal substituted a sentence of 6-month imprisonment to be followed by a 12-month conditional sentence for two counts of dangerous driving causing bodily harm.

I find this case of limited assistance as it did not involve dangerous driving causing death. [ 83 ] I have identified a few additional sentencing decisions that I consider relevant that I summarize as follows. [ 84 ] A conditional sentence was given in R v Sand , 2002 ABCA 263 . This case was considered in Martin , that was cited by the Crown. In Sand , the accused pleaded guilty to two counts of dangerous driving causing death and one count of dangerous driving causing bodily harm. Prior to the collision, Mr.

Sand was observed swerving to avoid a head-on collision with oncoming traffic while passing vehicles in his lane and repeatedly straying over the centre line in attempts to pass other vehicles. On one of these attempts, he collided with an oncoming vehicle, killing the two young passengers, injuring their brother, the driver. His own wife and children were also injured. He had one prior conviction for impaired driving and was on bail at the time of the dangerous driving offences, having been charged with driving over .08. He was subsequently convicted of that offence.

He was genuinely remorseful and had strong family support and a good work record. The trial judge imposed a conditional sentence of two years less a day which was upheld by the Court of Appeal.

[ 85 ] An offender was given a conditional sentence of two years less one day, followed by one year of probation for dangerous driving causing death and dangerous driving causing bodily harm in R v Carr, 2008 ABQB 228 . The offences were in relation to a single vehicle rollover. Two of the passengers were injured, and one of the passengers was killed. The posted speed limit was 70 km per hour, and the vehicle was travelling at least 100 km per hour before the rollover. Mr. Carr, who was 20 years old at the time of the accident, had no criminal record but did have convictions for speeding and careless driving.

This was an exceptional case as Mr. Carr was the best friend of the deceased and the deceased’s family did not want to see the accused incarcerated. Justice Foster was satisfied that denunciation, general deterrence, specific deterrence, and promoting a sense of responsibility in the offender could be best addressed through the combination of punitive and rehabilitative measures that could be achieved through a conditional sentence and probation, involving conditions for mandatory counseling and alcohol prohibitions. [ 86 ] In R v Penner, 2009 ABQB 535 , Mr.

Penner was found guilty of one count of dangerous driving causing death pursuant to s. 249(4) of the Code . Mr. Penner lost control of his vehicle while speeding on a highway at over 140 km per hour. The passenger, whom Mr. Penner was in a relationship with, was killed. Mr. Penner was 23 years old at the time of the offence and had no criminal record. There was also no evidence that he had any driving record. He was clearly remorseful, but the pre-sentencing report noted that he may not have taken full responsibility for his actions.

According to the victim impact statements, the mother of the deceased also felt that Mr. Penner had not expressed remorse to the victim’s family. Justice Moen concluded that a conditional sentence was likely the most effective sentence in Mr. Penner’s circumstances because “the statutory pre-requisites pursuant to s. 742 have been met”. [ 87 ] In R v Sandhu, 2021 BCPC 240 , the judge sentenced an 18-year-old offender to 18 months in prison for dangerous driving causing death. One passenger died and two others suffered traumatic brain injuries.

The judge took into account four previous speeding tickets, impact on the victims and overloading the vehicle. Mitigating factors included the guilty plea, no criminal record and the accused’s youth. [ 88 ] A 15-month custodial sentence was given out in R v Al-Derzi, 2022 ONCJ 127 , when the accused was on a hands-free cell phone and drove through a red light colliding with a motor bike. The offender had a positive presentence report and excellent prospects for rehabilitation.

The aggravating factor was he was a professional driver and should have known better. [ 89 ] Lastly, in R v Mbachu , 2016 ABCA 270 , a sentence of two-years less-a-day was upheld by the Court of Appeal for dangerous driving causing death. In that case the accused, a 25-year-old Nigerian citizen who was in Canada on a student visa and who had only a learner’s permit to drive, ran a stop sign at an intersection killing the driver of the other vehicle that had the right of way. There were no obstructions restricting his visibility, the accused did not brake or veer prior to the collision. Alcohol was not a factor.

The accused in that case had four traffic tickets for driving without being accompanied by a fully-licensed driver and on the day of the fatality was also driving without the required supervision. The accused’s immigration status was a collateral consequence that was considered in his sentence. [ 90 ] In my view, the cases decided prior to Parliament’s 2018 changes to the maximum penalties are of some assistance, albeit of lesser assistance than those cases that post-date 2018. It is clear that there is a wide range of sentences, from conditional sentences to 7.5 years’ incarceration.

Such a wide range provides little assistance and is a reminder that each case is an individualized process which requires a careful analysis of the unique circumstances of each case. G. Conditional Sentences [ 91 ] Mr. Gill proposes a conditional sentence. The imposition of a conditional sentence under s. 742.1 of the Criminal Code means it is a “sentence of imprisonment” served in the community without incarceration. In Proulx , CJ Lamer, as he then was summarized the criteria set out in s. 742.1 of the Criminal Code : (

a) The offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (

b) The court must impose a term of imprisonment of less than two years; (

c) The safety of the community would not be endangered by the offender serving the sentence in the community; (

d) A conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss 718 to 718.2. [ 92 ] It is acknowledged that there have been cases of dangerous driving causing death where conditional sentences have been imposed so as to permit an offender to serve his or her sentences in the community. In such cases, depending upon the particular exceptional or unusual circumstances, it may be found that the elements of deterrence and denunciation could be met with a conditional sentence. VI.

Sentencing Decision [ 93 ] Having carefully reviewed the aggravating and mitigating factors presented by the Crown and the Defence, the case law and other relevant sentencing principles and considerations including having heard Mr. Gill tell me what he wanted to say today, I turn to my analysis of the appropriate sentence. As discussed above a fit sentence must reflect the gravity of the office, while considering the circumstances in which the offence is committed and the moral blameworthiness of the offender.

The range of what might constitute an appropriate sentence can be taken from other cases with similar offences for similar offences committed in similar circumstances. [ 94 ] As I noted above, the gravity of this offence is serious. Two lives were lost. Ms. Begum and her daughter, Ms. Afzal died at the scene of the collision. Mr. Afzal suffered serious injuries. The subjective gravity of the offence requires an assessment of the circumstances of the offence and its commission. The high rate of speed elevates the moral blameworthiness of Mr. Gill. Five seconds

prior to the collision the offender was driving at a speed of 152 km per hour in a 70 km per hour zone. It was raining, it was dark, but visibility was good. Despite what Mr. Gill said today, he did not testify at the trial and there was no evidence at the trial that the highway was not in good condition. [ 95 ] A fit sentence in this case must consider the paramountcy of the sentencing objectives of denunciation and deterrence. While there are numerous accidents across the nation, some are a result of unfortunate or momentary neglect.

Some accidents fall at the higher end of moral blameworthiness are those that involve intentional risk taking. This type of dangerous driving represents a marked departure from the standards of a reasonable driver. I find that excessive speed that Mr. Gill was driving at represents a marked departure from the standards of a reasonable driver. [ 96 ] I do not need to review the aggravating and mitigating circumstances again. But I will emphasize again that Mr. Gill was a youthful offender with no criminal record. He was only 21 years old at the time of the incident. I consider Mr.

Gill’s youth, his remorse and his lack of criminal record, prior to this offence. I also consider his declined mental health. In my view, his youth and strong support of his family reflect an increased hope of rehabilitation. The PSR report notes that he has several familial supports and professional supports in place. The PSR writer noted that his lack of motivation and substance abuse, his impulsive aggression and behavioural outbursts are concerning.

However, the PSR writer also noted that he would benefit from attending a long-term residential treatment center. [ 97 ] The criminal record obtained post offence, must also be taken into account, while I noted that it may not be an aggravating factor it affects my consideration of Mr. Gill’s prospect of rehabilitation. I see that Mr. Gill’s post offence conduct began after the conviction, so clearly tied to his mental health.

I am of the view, that in spite of the post offence conduct he has a strong potential for rehabilitation. [ 98 ] While collateral consequences are not a mitigating factor, I have taken into consideration that a sentence of imprisonment of more than 6 months will likely result in the strong possibility of Mr. Gill’s deportation. I note that this would leave Mr.

Gill without the support of his immediate family (mother, father, and brother) who have all since relocated to Canada to be with him. [ 99 ] I have considered the serious nature of these offences, having regard to the relevant factors, including the personal circumstances of the offender, in determining an appropriately crafted sentence that is consistent with the fundamental purposes and principles of sentencing. I am satisfied in the circumstances here that a conditional sentence would be consistent with the principles of sentencing set out in the Code . [ 100 ] Mr.

Gill please stand. [ 101 ] First, I would like to extend my deepest sympathies to Mr. Asif Ashfaq who lost both his wife and mother-in-law in this tragic collision. His father-in-law who has since passed away, lost his daughter and wife in the collision. The grief, emotional trauma and impact on these family members cannot be underestimated. [ 102 ] Mr. Gill is a relatively youthful first-time offender who suffers from serious mental illness and substance abuse. In my view, a fit sentence in this case is a global conditional sentence of 2 years less a day, and 1 year of probation. [ 103 ] Mr.

Gill, you will serve your conditional sentence in the community under house arrest living with your mother and father. You will only be permitted to leave your home to attend work, school, church, medical appointments and treatment for your mental health and addictions. You are also required to do 300 hours of community service. The details of your community service can be arranged and worked through with your probation officer. I will coordinate the remaining and detailed terms with counsel later on the record. [ 104 ] The probation order shall include the compulsory conditions as set out in s 732.1(2)(a)(

b) and (

c) as well as the following optional conditions set out under s 732.1(3): (

a) report to a probation officer (

i) within two working days from this order, and (ii) thereafter, when required by the probation officer and in the manner directed by the probation officer; (

b) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the probation officer; (

c) abstain from the consumption of drugs except in accordance with a medical prescription, alcohol or of any other intoxicating substance; and (

d) if you agree, and subject to the program director’s acceptance of you, participate actively in a treatment program approved by the province. [ 105 ] This sentence in my view appropriately reflects the primary importance of the objectives of denunciation and deterrence, with emphasis in your case of rehabilitation. [ 106 ] At the request of the Crown, and the Defence submitting that it takes no position, I make the following ancillary orders: (

a) payment of a victim surcharge in the amount of $200; (

b) an Order requiring Mr. Gill to provide a sample of his DNA for inclusion in the DNA data bank pursuant to

section 487.051(3) and Form 5.04 of the Criminal Code ; and (

c) an Order prohibiting Mr. Gill from driving for 10 years. To be clear, this driving prohibition Order is to last for the entire

period Mr. Gill’s conditional sentence and probation, plus the 10 years. [ 107 ] I warn you Mr. Gill, if you fail to meet these conditions you will be sent to prison for the remainder of the term. [ 108 ] You may sit down Mr. Gill. [ 109 ] Counsel, is there anything else to be addressed? Sentencing Submissions heard on the 27 th day of October 2023. Dated at the City of Calgary, Alberta this 14 th day of November 2023. J.C. Price J.C.K.B.A. Appearances: Rebecca Ross and Peter MacKenzie, KC for the Crown Iretiolu Shittu for the Bipinjot Gill