Court File and Parties

Date: 2020-04-30

Court File No.: Middlesex 19327P

Ontario Court of Justice

Between:

Regina

— and —

Gurdeep Dhaliwal

Before: Justice of the Peace HW L. Phillipps

Heard on: February 7, 2020

Reasons for Judgment released: March 10, 2020

Decision on Sentencing and Reasons released: April 30, 2020

Counsel

For the Crown at trial: T. Waugh

For the Crown on sentencing: W. Phillips-Osei

For the defendant Gurdeep Dhaliwal: J. Burness

JUSTICE OF THE PEACE PHILLIPPS:

Introduction

[1] Following the conviction of Mr. Gurdeep Dhaliwal I invited written submissions from the parties on sentencing. I have received and reviewed the submissions from both the Crown, Ms. Phillips-Osei, and agent for the defendant, Ms. Burness.

[2] A state of emergency exists in Ontario due to the international pandemic. Provincial Offences Courts are closed. In order to provide the parties with a timely decision I am providing my order and reasons for sentencing in writing. Agent for the defendant has previously arranged to communicate with her client through a non-court appointed interpreter. If those arrangements are not suitable for the purposes of communicating this decision on sentencing, I direct that the Agent contact the Provincial Offences Trial Co-ordinator to arrange for the decision to be read to the defendant by a court appointed interpreter.

[3] On March 10, 2020, Mr. Dhaliwal was convicted of the offence of stunt driving. The Court delivered a written decision and reasons. I will not reproduce them here as they are known to and available to the parties.

Statutory Framework

[4] Section 172(2) of the Highway Traffic Act sets out:

Every person who contravenes subsection (1) is guilty of an offence and on conviction is liable to a fine of not less than $2,000 and not more than $10,000 or to imprisonment for a term of not more than six months, or to both, and in addition his or her driver's licence may be suspended,

(a) on a first conviction under this section, for not more than two years; or

(b) on a subsequent conviction under this section, for not more than 10 years

Positions of the Parties

[5] The Crown states that they would have sought a period of imprisonment of 30 days in jail and a licence suspension of 30 days, except for the current pandemic. Their position in the alternative is for a fine between $8,000 and $10,000 and a 6-month driver's licence suspension.

[6] Agent for the defendant seeks the minimum fine of $2,000.

Crown's "Position of Trust" Argument

[7] The Crown submits that the Court should consider that Mr. Dhaliwal held a "position of trust" with Verdi Trucking Company, his employer, thus leaving the corporation vulnerable to vicarious liability. It is further submitted that the company's reputation is built predominantly on driver performance.

[8] In support of the Crown's position, I am referred to R. v. Oliver, [2000] O.J. No. 5989, and R. v. Vuletic, [2015] O.J. No. 1280, both involving criminal acts committed for a financial benefit (theft over $5000.00 and importing cocaine for the purpose of trafficking). The Crown argues that due to the consequences of the 7-day impoundment of the tractor, that Mr. Dhaliwal violated the trust of Verdi Trucking Company.

[9] I reject this argument. First, the civil standard suggested by the argument is not applicable to the sentencing decision that this Court is required to make. Secondly, Mr. Dhaliwal's employer, Mr. Verdi, testified at trial. He had viewed the video and saw nothing wrong with the driving of the defendant. And although the Court found him to not be a credible witness, he testified that he didn't even recall who was driving that day when the police stopped the truck. It is difficult to equate the company's representative's position to one of an entity whose trust has been breached or one that if the actions constituted a breach cared about it.

Sentencing Principles

Parity and Proportionality

[10] The principle of parity requires that similar sentences be imposed on similar offenders for similar offences in similar circumstances: R. v. C.A.M. (1996), 105 C.C.C. (3d) 327 (S.C.C.).

[11] The parity principle does not require that the sentences given to persons who commit the same crime be the same; the parity principle requires that the differences be understandable: R. v. Choquette, 2010 ONCA 327, [2010] O.J. No. 1851 (Ont. C.A.).

[12] It could also be called the consistency or uniformity principle, and is in direct conflict with the proportionality principle, which focuses on the specific circumstances of the individual offence and offender. The task of the sentencing justice is to balance these two principles in determining an appropriate sentence for a specific offender.

[13] Since this conviction is the first of its kind, there is little guidance available. The Criminal Code convictions referred to me by the Crown can be distinguished from the circumstances before this court.

Deterrence and Regulatory Standards

[14] I refer to R. v. Ford Motor Company of Canada Limited (1979), 49 C.C.C. (2d) 1 (Ont. C.A.), per MacKinnon A.C.J.O at p. 26; Nadin-Davis, Sentencing in Canada, p. 368 and cases therein cited:

". . . Above all, the amount of the fine will be determined by the need to enforce regulatory standards by deterrence: "

[15] A fine should not equate to a mere licence for illegal activity.

Mitigating and Aggravating Factors

[16] Mitigating factors lead to a lower penalty, while aggravating factors lead to a higher penalty. Both are facts about the defendant or the circumstances of the offence that, when considered in light of the goals and objectives of sentencing, necessitate an increased or decreased sentence.

[17] Aggravating factors are factors which justify an increase in the penalty which would otherwise be imposed.

[18] The offence took place on one of the busiest highways in North America with various other motor vehicles and their occupants in close proximity. The offence was not a momentary one. It was preceded by driving the commercial motor vehicle at a distance which was prohibited by law. This reflects a rather deliberate aspect to the commission of this offence.

[19] I also can take into account the class of the driver's licence. Having a class 'A' driver's licence is a privilege and with privilege comes responsibility. This privilege allows Mr. Dhaliwal to drive very large commercial motor vehicles, a privilege that is not enjoyed by most other drivers. It is incumbent upon drivers to respect the privilege that they have been granted by the provincial licensing authority.

[20] I take into account that Mr. Dhaliwal has a conviction for failing to maintain or carry a logbook. While this is a conviction related to the operation of a commercial motor vehicle, it is not specifically related to a manner of driving. Otherwise his record is good, especially given the number of hours one would anticipate that he is on the road given his occupation.

[21] And while not necessarily a mitigating factor, it should be taken into account that Mr. Dhaliwal did not have the benefit of knowing what the legal outcome of such driving might be given that this case is unique and the first of its kind.

Specific and General Deterrence

[22] It is essential that a fit sentence reflect the need to deter Mr. Dhaliwal from driving in this manner in the future. It is also important to generally deter other drivers, especially those operating commercial motor vehicles. Given that this appears to be the first conviction of its kind, others that may face a similar conviction in the future should know that our courts will not tolerate such driving and that conviction will carry harsh penalties.

Proportionality

[23] The sentence imposed must bear some relationship to the offence; it must be a "fit" sentence proportionate to the seriousness of the offence.

[24] The principle of proportionality has been further expressed as requiring that "the quantum of sentence imposed should be broadly commensurate with the gravity of the offence committed and the moral blameworthiness of the offender": R. v. C.A.M. (1996), 105 C.C.C. (3d) 327 (S.C.C.).

[25] "Appropriateness of a sentence will depend on the particular circumstances of the offence, the offender, and the community": R. v. Gladue (1999), 133 C.C.C. (3d) 385 (S.C.C.).

[26] The factors that a court must consider when imposing sentence, assist in fashioning a proportionate sentence. I take into consideration extent of potential harm, which could have been significant given the nature of the roadway and the other users of the road. The maximum penalty proscribed is $10,000 and a two-year licence suspension. I am also considering the nature and purpose of the statute and that there was no actual harm in this case.

[27] This is not a mens rea offence.

Personal Circumstances and Economic Impact

[28] At the time of the submissions the economic impact of the COVID-19 pandemic was not fully realized. In fact, even at the time of this decision, it is safe to say that the economic impact is still to be determined but it will be tremendous. It is also reasonable that every sector of the economy will be impacted.

[29] I take into account that Mr. Dhaliwal is 29 years old. He is married and his wife is more than 6 months pregnant with their first child. He came to Canada in 2016 after being sponsored by his sister. He then sponsored his parents in 2017 who now live with Mr. Dhaliwal and his wife in a basement apartment in Brampton. His parents found employment at minimum wage jobs, his wife has never been employed in Canada.

[30] In considering a suspension of Mr. Dhaliwal's driver's licence I must also consider that it is a suspension of his livelihood. If he was a driver who's record showed convictions for offences reflecting unsafe driving such as speeding, driving with a handheld communication device or careless driving, a lengthy period of suspension might be warranted. That is not the case here.

[31] In declining to impose a suspension, I note that the Court must also consider that during this provincial emergency, truck drivers serve an essential function and a suspension of the defendant's driving privileges at this time is harmful to society.

[32] Defence submits that Mr. Dhaliwal's take-home pay is $4,100 a month and that the imposition of a fine of $8,000 or $10,000 when coupled with the victim fine surcharge would equate to between 20% and 25% of his annual income.

Sentencing Decision

[33] It is essential in arriving at a fit sentence that all of these considerations be weighed and that the sentence achieve the purposes of the legislation while not being unduly onerous on the accused.

[34] In this case the appropriate sentence is a fine of $2,500.00. Given the current closure of courts a period of 240 days will be granted to pay, starting from the date of this order. I anticipate that payments may still be made electronically if that is suitable to the defendant.

[35] I direct the Clerk of the Court to endorse the information to reflect the sentence and time to pay as set out in this order.

Released: April 30, 2020

Signed: "Justice of the Peace L. PHILLIPPS"