R. v. Sandhu, 2022 MBKB 224

Date: 20221207 Docket: CR 20-01-37878 (Winnipeg Centre) Indexed as: R. v. Sandhu Cited as: 2022 MBKB 224 COURT OF KING'S BENCH OF MANITOBA B E T W E E N: HIS MAJESTY THE KING, respondent, - and - ) Melissa A. Hazelton ) Charles P.R. Murray ) for the Crown ) ) Matthew T. Gould ) Zachary B. Kinahan CHANDBIR SINGH SANDHU, (accused) applicant. ) for the (accused) applicant ) ) Judgment delivered: ) December 7, 2022 TURNER J. I. INTRODUCTION [ 1 ] On May 30, 2018, Mr.

Sandhu pled guilty to operating a motor vehicle with a blood alcohol concentration in excess of 80 mg in 100 mL of blood ("driving over 80") in Provincial Court. He received the mandatory minimum sentence of a $1,000 fine. Because he is a foreign national, Mr. Sandhu will be deported given that he has a criminal record. He submits that he should have received a conditional discharge because that would not result in a criminal record. However, given that the offence of driving over 80 has a mandatory minimum sentence, a discharge is not available. [ 2 ] Mr.

Sandhu brings a constitutional challenge to the mandatory minimum sentence pursuant to sections 7 and 12 of the Canadian Charter of Rights and Freedoms . He says that the mandatory minimum sentence is grossly disproportionate in his circumstances, and therefore is in violation of sections 7 and 12 of the Charter , because it requires the Court to impose a criminal record. [ 3 ] Mr. Sandhu also argues that amendments to The Highway Traffic Act , C.C.S.M. c.

H60 (" HTA "), that now allow a peace officer to issue an immediate administrative penalty (a roadside driving prohibition) significantly impact the proportionality of the mandatory minimum sentence. He says that because of the amendments, it is now possible that his conduct would not have resulted in a criminal charge. [ 4 ] The Crown replies that the mandatory minimum sentence is not grossly disproportionate, even in light of the immigration consequences to Mr. Sandhu.

It says that a conditional discharge is simply not an appropriate sentence on a charge relating to impaired driving. [ 5 ] The Crown further argues that Mr. Sandhu's constitutional challenge should not be directed toward the Criminal Code of Canada . Rather, it should be directed toward the provisions of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (" IRPA "), that require the deportation of a foreign national who is convicted of a criminal offence. II. BACKGROUND

[ 6 ] Shortly after 10 p.m. on April 15, 2017, police observed a motor vehicle travelling on Portage Avenue, in Winnipeg. Mr. Sandhu was the driver. Police observed Mr. Sandhu's vehicle travelling below the speed limit and swerving between lanes, and then accelerating rapidly to approximately 100 km/h (in a 60 km/h zone). As officers tried to pull him over, the vehicle hit the curb before ultimately coming to a stop. [ 7 ] Police observed that Mr.

Sandhu's eyes were bloodshot and glassy, there was a strong odour of liquor on his breath, his speech was slurred, and he was slow to respond to commands. [ 8 ] Officers had reasonable grounds to believe that Mr. Sandhu's ability to operate a vehicle was impaired by alcohol, and he was arrested. Mr. Sandhu stated, "I'm sorry, I don't know the rules here in Canada. I didn't know about drinking and driving." [ 9 ] Officers demanded that Mr. Sandhu provide a sample of his breath. Mr. Sandhu provided two breath samples, both with a blood alcohol concentration of 150 mg in 100 mL of blood. [ 10 ] Prior to Mr.

Sandhu's guilty plea on May 30, 2018, counsel advised the Provincial Court judge that Mr. Sandhu was seeking permanent resident status in Canada and that a key issue on the application would be whether he had been convicted of a criminal offence. Counsel agreed, and the Court accepted, that the sentencing would be delayed until 2019 to facilitate the advancement of the application. [ 11 ] The sentencing was adjourned six times over the following twenty months. On January 24, 2020, counsel for Mr. Sandhu sought a further adjournment in order to argue a constitutional challenge to the mandatory minimum sentence.

The adjournment was denied. Mr. Sandhu was sentenced to the mandatory minimum sentence of a $1,000 fine. [ 12 ] Mr. Sandhu filed an appeal to this Court on the ground that the last adjournment request should have been granted. The appeal was allowed (see 2021 MBQB 22 ) and, as a result, this matter proceeded before me as a new sentencing, which included the constitutional challenge. III. EVIDENCE AT THE NEW HEARING [ 13 ] Mr. Sandhu was born and raised in India. He came to Winnipeg in 2014 as a student. He attended the University of Winnipeg and obtained a post-degree diploma in network security.

Following his graduation, he obtained work authorization in Canada to work as a temporary foreign worker. He was hired as a night dispatcher with 4Tracks Ltd., a transportation company, and continues to work there today. [ 14 ] While living in India, Mr. Sandhu never drank alcohol. Between his arrival in Canada and April 14, 2017, Mr. Sandhu testified that he would have had one beer at social events. He had no experience with hard liquor. [ 15 ] On April 15, 2017, Mr. Sandhu attended a house party with a friend. He arrived at about 7 p.m. Someone at the party offered him a whiskey and, at first, Mr.

Sandhu declined. A little while later, he was again offered a whiskey. He testified that he accepted because he felt pressured to do so. When the first whiskey was finished, he accepted a second one. He said that he started to feel sick to his stomach, but thought that it was something he ate. He accepted a third whiskey, drank a little, and left about half of the drink on the table. [ 16 ] Mr. Sandhu left the party between 9:15 and 9:30 p.m. He testified that he felt sick, but did not think he was impaired by alcohol. He agreed that his arrest unfolded as set out above. [ 17 ] Mr.

Sandhu agreed that when he arrived in Canada, he was given information about Canadian laws. He knew that driving while impaired was illegal and confirmed that it is also illegal in India. He was aware that he could be deported from Canada if he was convicted of a criminal offence. Mr. Sandhu's Immigration Situation [ 18 ] In January 2017, Mr. Sandhu applied to Immigration, Refugees and Citizenship Canada for permanent residence in Canada, with his wife as a dependant. At the time of his arrest, his permanent residence application was still pending. [ 19 ] After Mr.

Sandhu's sentencing in Provincial Court, he was deemed to be inadmissible to Canada because of criminality and an order for his deportation was issued. [1] [ 20 ] Mr. Kenneth Zaifman, who represents Mr. Sandhu and his wife in their immigration proceedings, explained that Mr. Sandhu's wife, as a dependant, will be deported with Mr. Sandhu. She has since commenced her own permanent residence application; however, if Mr. Sandhu remains inadmissible, she will not be able to obtain permanent residence in Canada. [2] IV.

THE ISSUES [ 21 ] The parties agree that I should approach the issues as follows: Issue 1 : What is a fit and appropriate sentence for Mr. Sandhu on this offence if there was no mandatory minimum sentence? In answering this first question, I must consider the principles of sentencing, the circumstances of the offence, and Mr. Sandhu's circumstances, including the collateral immigration consequences. If the fit and appropriate sentence is at or above the mandatory minimum sentence, no constitutional analysis is necessary. Issue 2 :

If the fit and appropriate sentence in all the circumstances is below the mandatory minimum sentence, a constitutional analysis regardingsection 12 of the Charter is required. On this question, the burden is on Mr. Sandhu to demonstrate that the mandatory minimumsentence is grossly disproportionate to the sentence warranted in Mr. Sandhu's circumstances or in the circumstances of a reasonablehypothetical offender. Issue 3: Mr. Sandhu also argues that the mandatory minimum sentence violates

section 7 of the Charter. The onus is on him to establish that themandatory minimum sentence for the offence of driving over 80 deprives him of his right to life, liberty and security of the person andthat the deprivation is contrary to the principles of fundamental justice. Issue 4: The Crown submits that if I find the mandatory minimum sentence is unconstitutional, it does not seek to justify the violation undersection 1 of the Charter. V. ANALYSIS A.

Issue 1: Fit and Appropriate Sentence [22] Even if a conditional discharge were available, I conclude that it is not within the appropriate sentencing range for the offence ofdriving over 80. A $1,000 fine is the appropriate sentence, having regard to sentencing principles, the circumstances of the offence, andMr. Sandhu's circumstances. [23] An abundance of previous case law from across Canada has emphasized that impaired driving, including driving over 80, is anextremely serious offence that contributes to death and serious injury all over this country. In R. v.

Bernshaw, [1995] 1 S.C.R. 254, (SCC), Cory J. wrote: [16] Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbersalone, it has a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting inhospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country. [24] Parliament has continually increased penalties for impaired driving offences over time. If Mr.

Sandhu had been charged after themost recent amendments to the Criminal Code, in 2018, he would be subject to a mandatory minimum sentence of a $1,500 fine. Seesection 320.19(3)(a). [25] Although Mr. Sandhu was charged before the 2018 amendments, the declaration that is now included in

section 320.12 of theCriminal Code was just as true at the time he was charged: Recognition and declaration 320.12 It is recognized and declared that (

a) operating a conveyance is a privilege that is subject to certain limits in the interests of public safety that include licensing, theobservance of rules and sobriety; (

b) the protection of society is well served by deterring persons from operating conveyances dangerously or while their ability to operatethem is impaired by alcohol or a drug, because that conduct poses a threat to the life, health and safety of Canadians; [emphasis added] [26] Mr. Sandhu had been fortunate to not injure or kill anyone on April 15, 2017. Not only was he driving at almost double the legalalcohol limit, but he was also swerving and driving at 100 km/h on Portage Avenue, a busy thoroughfare, at approximately 10 p.m. on aSaturday night. [27] Although perhaps not an experienced drinker, Mr.

Sandhu voluntarily chose to drink and then chose to drive. Despite hiscomments to the police upon his arrest, he was well aware that driving while impaired by alcohol was a criminal offence and was awarethat a criminal conviction could result in his deportation from Canada. Collateral Immigration Consequences [28] The collateral immigration consequences for Mr. Sandhu are a relevant factor for consideration in sentencing. See R. v. Arganda(J.R.), 2011 MBCA 54 at para. 29; R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739 at para. 13.

However, the focus on sentencing mustbe on the fundamental principle of proportionality. The sentence has to be fit, having regard to the particular crime and the particularoffender.

In Pham, the Supreme Court of Canada stated: [15] The flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoidcollateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament's will. [16] These consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation. Moreover, it must not lead to a separate sentencing scheme with a de facto if not a de jure special range of sentencing options wheredeportation is a risk.

[29] A conditional discharge would be an unfit sentence. It would be an artificial sentence to circumvent Parliament's will and wouldoveremphasize the collateral immigration consequences. It would be inconsistent with the sentencing principles set out in the CriminalCode and would be contrary to the public interest. Conclusion on Issue 1: Fit and Appropriate Sentence [30] For a conditional discharge to be imposed, it must be in the best interests of the accused and not be contrary to the publicinterest. A conditional discharge would certainly be in Mr. Sandhu's interest.

However, for all the reasons set out above, it would not bein the public interest on an offence of driving over 80. [31] The fit and appropriate sentence is a $1,000 fine. [32] If I am incorrect regarding the fit and appropriate sentence for Mr. Sandhu, I will consider the Charter arguments advanced. B. Issue 2:

Section 12 of the Charter [33]

Section 12 of the Charter prohibits cruel and unusual punishment. The onus is on Mr. Sandhu to establish that the mandatoryminimum sentence for the offence of driving over 80, and therefore the unavailability of the conditional discharge, is in breach of hissection 12 Charter right. [34] In order for a sentence to be cruel and unusual, Mr. Sandhu must show that it is grossly disproportionate to the punishment that isappropriate, having regard to the nature of the offence and the circumstances of the offender.

The sentence must be "so excessive as tooutrage standards of decency" to the point that Canadians must find the punishment "abhorrent or intolerable". See R. v. Nur, 2015 SCC15, [2015] 1 S.C.R. 773 at para. 170; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130 at para. 87. [35] The Supreme Court of Canada has confirmed that a finding of a breach of

section 12 of the Charter would be a rare and uniqueoccasion and that the test is very properly stringent and demanding. See Steele v. Mountain Institution, (SCC), [1990]2 S.C.R. 1385 at 1417. [36] Having found that the mandatory minimum $1,000 fine is the fit and appropriate sentence for the offence, for the reasons set outabove I conclude that it is not grossly disproportionate in Mr. Sandhu's particular circumstances. See Nur at para. 46.

The Reasonable Hypothetical [37] I must go on to consider whether there are reasonably foreseeable situations where the mandatory minimum sentence would begrossly disproportionate. See Nur at para. 65. [38] In his materials, Mr. Sandhu offers just one potential hypothetical: if an offender had the characteristics and background of Mr.Sandhu but was driving a sick or injured family member to the hospital. [39] I cannot conclude that the mandatory minimum sentence would be grossly disproportionate in those circumstances.

Althoughperhaps that hypothetical person's motivation for driving while their blood alcohol level was over the legal limit is a factor to consider onsentencing, they would still present the same concerns and dangers on the road. Other options such as a taxi, ambulance, or another,sober driver would surely be available. A fine would still be a fit and appropriate sentence, while a conditional discharge would still becontrary to the public interest. [40] I contrast Mr. Sandhu's suggested reasonable hypothetical with what the Supreme Court of Canada has accepted to be reasonablehypotheticals when considering

section 12 of the Charter: R. v. Nur - Mr. Nur and Mr. Charles were convicted of possessing loaded prohibited firearms, which required mandatory minimumsentences of three and five years (depending on whether it was a first or subsequent offence). - While the Court held that the mandatory minimum sentences were appropriate for Mr. Nur and Mr. Charles, there werereasonably foreseeable cases in which the sentences would be grossly disproportionate. - The

section of the Criminal Code that required the mandatory minimum sentences applied to a wide variety of potential conduct. It could create a grossly disproportionate sentence for the licensed and responsible gun owner who stored his unloaded firearm safelywith ammunition nearby, but made a mistake as to where it could be stored. Given the minimal blameworthiness of that potentialoffender and the absence of any harm or real risk of harm from the conduct, a three-year sentence would be grossly disproportionate. R. v. Lloyd - Mr. Lloyd was convicted of possession of

Schedule I drugs for the purpose of trafficking. Because he had a recent priorconviction for a similar offence, he was subject to a mandatory minimum sentence of one year of imprisonment. - While the Court found that the one year sentence was fit and appropriate for Mr.

Lloyd, they held that it could be grosslydisproportionate in reasonably foreseeable cases. - The mandatory minimum sentence would apply to the addict who is charged for sharing a small amount of drugs with a friend orspouse, and finds herself sentenced to a year in prison because of a single conviction for sharing marihuana in a social occasion nineyears earlier. The Court held that most Canadians would be shocked to find that such a person in those circumstances could besentenced to one year in prison.

- Another reasonable hypothetical is an addict convicted of trafficking who has a prior conviction for trafficking. In both cases, hewas trafficking to support his own addiction. Between conviction and the sentencing on the second offence, he attended rehabilitationand conquered his addiction. Under the mandatory minimum sentence, the sentencing judge would have no choice but to send him toprison for at least one year. The Court held that would be grossly disproportionate in the circumstances. [41] I conclude that Mr.

Sandhu has not presented a reasonably foreseeable situation, and I cannot envisage one where the mandatoryminimum sentence would be grossly disproportionate. Conclusion on Issue 2:

Section 12 of the Charter [42] The mandatory minimum sentence does not force me to impose a sentence that is grossly disproportionate. The mandatoryminimum sentence of a $1,000 fine is fit and appropriate. Mr. Sandhu has not demonstrated a breach of his

section 12 Charter right. C. Issue 3:

Section 7 of the Charter [43] To engage

section 7 of the Charter, Mr. Sandhu must establish that the mandatory minimum sentence for the offence of drivingover 80 deprives him of his right to life, liberty and security of the person and that the deprivation is contrary to the principles offundamental justice. See Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 at para. 47. [44] Laws that are arbitrary or overbroad will be contrary to the principles of fundamental justice under

section 7 of the Charter. SeeCanada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101 at paras. 96–97. [45] The Supreme Court of Canada has specifically stated that the principle of proportionality in sentencing is not a principle offundamental justice under

section 7 of the Charter.

Section 7 of the Charter cannot give rise to a constitutional remedy against apunishment that does not infringe

section 12. See Lloyd at paras. 40–47; R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74, [2003] 3S.C.R. 571 at para. 160. [46] Deportation can engage an individual's

section 7 Charter right to life, liberty and security of the person when there is asubstantial likelihood an individual would be tortured in the country to which they are deported. See Suresh v. Canada (Minister ofCitizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3. That is not the situation Mr. Sandhu is facing in India. [47] I cannot conclude that the mandatory minimum sentence for the offence of driving over 80 is arbitrary. It is logically connectedto Parliament's objective to deter individuals from driving while impaired. Conclusion on Issue 3:

Section 7 of the Charter [48] I cannot conclude that the mandatory minimum sentence is overbroad. For a law to be overbroad, it must go too far and interferewith conduct that bears no connection to its objective. See R. v. Heywood, (SCC), [1994] 3 S.C.R. 761. Thepunishment provisions regarding impaired driving target and capture exactly the conduct Parliament intended. [49] Mr. Sandhu has not established a breach of his

section 7 Charter rights. VI. THE IMMIGRATION AND REFUGEE PROTECTION ACT [50] Without commenting on the veracity of any other potential constitutional challenge, I agree with the Crown that Mr. Sandhu'scomplaint regarding his deportation should not be directed toward the provisions of the Criminal Code. [51] If it is unconstitutional that a foreign national and his family are automatically deported for any criminal conviction, regardlessof the particular circumstances of the offence and the offender, then the constitutional challenge should be directed toward the relevantprovisions of the IRPA. VII.

THE HIGHWAY TRAFFIC AMENDMENT ACT (IMMEDIATE ROADSIDE PROHIBITIONS) [52] Although not necessary given my findings above, I will address Mr. Sandhu's argument regarding the relatively new provisionsof the HTA allowing administrative penalties in certain circumstances.[3] [53] As of December 16, 2019, peace officers in Manitoba are allowed to impose immediate roadside prohibitions on drivers based onblood alcohol content. Essentially, officers can use their discretion to impose a roadside prohibition rather than lay a criminal charge. [54] The availability of a roadside prohibition is limited.

An officer can only proceed by way of a roadside prohibition, instead of acriminal investigation, when they have made a demand for a breath sample into an approved screening device (an ASD), pursuant tosection 320.27 of the Criminal Code.[4] An ASD demand pursuant to

section 320.27 of the Criminal Code is made based on thestandard of reasonable grounds to suspect a person has alcohol in their body. [55] An officer cannot proceed by way of a roadside prohibition if they make a demand for a breath sample pursuant to section320.28 of the Criminal Code, based on the standard of reasonable grounds to believe a person's ability to operate a vehicle is impaired byalcohol. [56] Officers had reasonable grounds to believe that Mr. Sandhu was driving while impaired by alcohol, as evidenced by the fact thatthey immediately arrested Mr.

Sandhu for impaired driving rather than making an ASD demand. Even if the immediate roadsideprohibition was an available option to officers in April 2017, it would not have applied to Mr. Sandhu given that officers had reasonablegrounds to believe he was impaired.

VIII. CONCLUSION [ 57 ] The mandatory minimum sentence does not violate

section 7 or

section 12 of the Charter . [ 58 ] A conditional discharge is not in the public interest and therefore is not an appropriate sentence in the circumstances of Mr. Sandhu's offence. Mr. Sandhu is sentenced to a mandatory minimum of a $1,000 fine and a one year driving prohibition. ____________________________ J.