Court Information

Court File No.: Halton 19-3129

Date: November 10, 2020

Ontario Court of Justice

Parties

Between:

Her Majesty the Queen

— and —

Devan Singh Dhindsa

Before: Justice D.A. Harris

Heard on: August 20, 2020 and October 5, 2020

Reasons for Sentence released on: November 10, 2020

Counsel

For the Crown: Kelli Frew & Jim Coppolino

For the Defendant: James Smith

Decision

D.A. HARRIS J.:

Introduction

[1] Devan Singh Dhindsa pled guilty to assault causing bodily harm to Jeffrey King. The offence occurred on August 22, 2019 in Oakville. Crown counsel elected to proceed summarily.

[2] Mr. Dhindsa is before me today to be sentenced.

[3] Crown counsel suggested that I should sentence Mr. Dhindsa to imprisonment for three to six months, followed by probation. He also requested:

(1) a restitution order,

(2) an order pursuant to s 743.21,

(3) a weapons prohibition, and

(4) a DNA order.

[4] Counsel for Mr. Dhindsa suggested that I suspend sentence and impose a probation order.

[5] He agreed that the ancillary orders would be appropriate.

[6] Both counsel agreed that a conditional sentence of imprisonment was within the range of appropriate sentence here.

[7] I find that the appropriate sentence is a conditional sentence of imprisonment for three months, followed by probation for three years. I will also be ordering restitution and the taking of DNA and making a weapons prohibition.

[8] My reasons for this are set out under the following headings:

(1) The law regarding conditional sentences of imprisonment,

(2) The fundamental purpose and principles of sentencing,

(3) The facts underlying the offence,

(4) The impact on the victim,

(5) The background of Mr. Dhindsa, and

(6) Analysis.

Conditional Sentence of Imprisonment

[9] The conditional sentence came into being when section 742.1 of the Criminal Code was proclaimed in 1996.

[10] The Supreme Court of Canada subsequently stated in R. v. Proulx that "Parliament clearly mandated that certain offenders who used to go to prison should now serve their sentence in the community."

[11] The Supreme Court of Canada stated further that an offender who meets the criteria of section 742.1 will serve a sentence under strict surveillance in the community instead of going to prison. His liberty will be constrained by conditions to be attached to the sentence. In case of breach of conditions, the offender will be brought back before a judge who may order him to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence.

[12] Section 742.1 lists five criteria that a court must consider before deciding to impose a conditional sentence. These are:

1. the offender must be convicted of an offence that is not specifically excluded by the legislation;

2. the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;

3. the court must impose a term of imprisonment of less than two years;

4. the safety of the community must not be endangered by the offender serving the sentence in the community; and

5. a conditional sentence must be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[13] The first four criteria are prerequisites to any conditional sentence. These prerequisites answer the question of whether or not a conditional sentence is possible in the circumstances. Once they are met, the next question is whether a conditional sentence is appropriate. That decision turns upon a consideration of the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[14] In Mr. Dhindsa's case, the first four prerequisite criteria have been satisfied.

[15] Assault causing bodily harm is not excluded pursuant to section 742.1 when Crown counsel elects to proceed summarily.

[16] It is not punishable by a minimum term of imprisonment.

[17] I am satisfied that I should impose a sentence of imprisonment for less than two years. Crown counsel clearly agrees with this since he asked for me to imprison Mr. Dhindsa for three to six months.

[18] Finally, I find that Mr. Dhindsa serving his sentence in the community, subject to appropriate conditions, would not endanger the safety of the community. He had no prior criminal record. He has not been in any further trouble since being charged. To the contrary, he has complied with rather strict bail terms. I am satisfied that, with the appropriate safeguards in place, there is no danger that he would return to crime following the imposition of a conditional sentence.

[19] That then leaves the question of whether a conditional sentence is appropriate in all of the circumstances of this case. In making this decision, I must consider the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.

Fundamental Purpose and Principles of Sentencing

[20] The fundamental purpose of sentencing as expressed in section 718 is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[21] The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.

[22] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.

[23] Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.

[24] He went on to state that:

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.

[25] He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.

[26] Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.

[27] The offence had a significant impact on the victim JK, considering his age and other personal circumstances, including his health and financial situation. Section 718.2 (a)(iii.1) of the Criminal Code provides that this too is an aggravating circumstance, and that the sentence should reflect that.

[28] I must also consider section 718.2(d) which provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".

[29] I must also consider section 718.2(e) which provides that "... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders."

[30] The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen and said that section 718.2 (e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.

[31] The Supreme Court also stated that section 718 requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation. Now a sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. As a general matter restorative justice involves some form of restitution and reintegration into the community. A conditional sentence is much more effective than jail in achieving these restorative justice goals.

[32] I also note that the Supreme Court of Canada expressly said in R. v. Proulx, supra that a conditional sentence is "a punitive sanction capable of achieving the objectives of denunciation and deterrence" although it is not as effective as a sentence of real imprisonment.

[33] I also note that:

there need not be any equivalence between the duration of the conditional sentence and the jail term that would otherwise have been imposed. The sole requirement is that the duration and conditions of a conditional sentence make for a just and appropriate sentence.

[34] I can therefore impose a conditional sentence that is longer in duration than the jail term that I might otherwise have imposed.

[35] The maximum sentence for assault causing bodily harm is imprisonment for 18 months when the Crown elects to proceed summarily.

[36] I must also take into account the effect that Covid 19 is having on our community at large and in the corrections system in particular.

[37] I adopt the reasons expressed by Justice Pomerance of the Superior Court of Justice in R. v. Hearns, and I too

…take judicial notice of the fact that: we are experiencing a worldwide pandemic; that control of the pandemic requires that individuals practice social distancing; that social distancing is very difficult to maintain in custodial settings; that inmates are consequently at a greater risk of infection; and that the risk of COVID-19 in prison settings translates into an increased risk for the community at large.

[38] I also adopt the following comments made by her in that decision:

Impact of the Pandemic on Sentencing Principles

15 How does all of this impact the fitness of sentence? Clearly, the pandemic does not do away with the well-established statutory and common law principles. However, the pandemic may impact on the application of those principles. It may soften the requirement of parity with precedent. The current circumstances are without precedent. Until recently, courts were not concerned with the potential spread of a deadly pathogen in custodial institutions.

16 COVID-19 also affects our conception of the fitness of sentence. Fitness is similar to proportionality, but not co-extensive with it. Proportionality dictates that the sentence should be no more than is necessary to reflect the gravity of the crime and the moral blameworthiness of the offender. Fitness looks at a broader host of factors. A sentence may be fit even if it is not perfectly proportionate. Fitness looks, not only at the length of a sentence, but the conditions under which it is served. As a result of the current health crisis, jails have become harsher environments, either because of the risk of infection or, because of restrictive lock down conditions aimed at preventing infection. Punishment is increased, not only by the physical risk of contracting the virus, but by the psychological effects of being in a high-risk environment with little ability to control exposure.

17 Consideration of these circumstances might justify a departure from the usual range of sentence, such as that contemplated in R. v. Lacasse, 2015 SCC 64, para. 58:

There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case. [Emphasis added.]

18 The "specific circumstances of each case" would, in today's environment, include the ramifications of the current health crisis.

[39] I also adopt the comments made by Justice D.E. Harris of the Superior Court of Justice in R. v. Vigon-Campuzano:

52 Lastly, the original sentencing recommendations of counsel were made before the blight of the global COVID pandemic. The fact is, there is now extra hardship in serving a jail sentence both physically and psychologically. This reality, at the outset of what may well be the "second wave," must be taken into account. That is only logical. After all, if additional hardship is properly used in determining pre-trial custody credit under R. v. Duncan 2016 ONCA 754, it must also be factored into the crafting of a prospective sentence. Hardship over and above the general burden of serving a jail sentence has always been a proper consideration: see R. v. Kandhai, 2020 ONSC 1611 at para. 7; R. v. Hearns, 2020 ONSC 2365 at paras. 20, 23-24. It will be apparent, therefore, that I disagree with the Crown's position that COVID is irrelevant.

53 I believe a proportionate sentence can be formulated responding to both the gravity of the offences and the moral responsibility of Mr. Vigon-Campuzano while exercising some restraint in the use of incarceration as a sentencing tool.

The Offence

[40] The following is a summary of the agreed statement of facts that was filed as an exhibit in this case.

[41] On August 22, 2019 at approximately 5:30 pm, JK was operating a black Acura vehicle on the QEW off-ramp at Trafalgar Road, in the Town of Oakville where he became engaged in a heated verbal exchange with another driver. The other driver was a minor and the younger brother of Mr. Dhindsa. He was operating the family's black sedan and believed that JK was driving erratically.

[42] Following the verbal exchange, the brother followed JK to a Swiss Chalet restaurant where JK was employed as a delivery driver. He was attempting to obtain the license plate from JK's vehicle.

[43] At approximately 5:35 pm, JK saw him in the Swiss Chalet parking lot, and approached and engaged in a further verbal exchange with the brother. The brother left shortly thereafter.

[44] At approximately 5:42 pm, he returned. He was now a passenger in a black Cayenne vehicle. JK became involved in a further verbal exchange with the brother before the black Cayenne drove off.

[45] At approximately 5:54 pm, the Dhindsa family's black sedan entered into the rear parking lot of the neighbouring McDonalds, located at 227 Cross Avenue, in the Town of Oakville.

[46] Mr. Dhindsa exited the black sedan and walked across the Swiss Chalet parking lot to speak to JK. Mr. Dhindsa was alone. He had a small kitchen knife in his pocket.

[47] JK and Mr. Dhindsa got involved in a heated verbal exchange, in which each party was verbally hostile to the other. During the mutual exchange, JK bent down to try to get something out of his vehicle when Mr. Dhindsa stabbed JK once in the centre right of his back with the small kitchen knife. The blade of the knife broke from the handle and resulted in a 2cm wide laceration. Mr. Dhindsa then left immediately.

[48] JK was transported to Hamilton General Hospital where he underwent treatment to have the blade of the small knife removed. He remained at the hospital for three days to recover. He suffered some damaged muscle tissue. The medical disclosure reveals no permanent damage resulting from the incident.

[49] The action of Mr. Dhindsa was an assault which caused bodily harm to JK. There was no other touching by either party.

[50] On August 29, 2019, Mr. Dhindsa was arrested and charged with possession of a weapon for dangerous purpose, aggravated assault, and assault with a weapon. He was released on bail on August 30, 2019.

[51] He was 19 years old and had no prior criminal record.

Victim Impact

[52] I was provided with a lengthy Victim Impact Statement. The following is a short summary of what I found to be the most important statements contained in that document.

[53] JK already suffered from bipolar disorder. It was "bad enough before" but his "symptoms have increased severely" because of this attack.

[54] He is not as outgoing or as social as before. He has become more angry.

[55] He has nightmares, reliving the attack.

[56] Dark parking lots make him nervous, especially the one at his work where the attack occurred. Movement in his peripheral vision "gives me sudden jolts".

[57] He fears that Mr. Dhindsa might be near and that he might attack again.

[58] He constantly wishes that "I could go back to the way it was before the attack".

[59] He missed numerous days from work losing income of between $70 and $160 per day.

Background of Mr. Dhindsa

[60] I received a Pre-Sentence Report and a defence brief containing a number of reports and references and news articles. These provided me with the following information.

[61] Mr. Dhindsa is now 20 years old.

[62] He is one of three children. His father is a chartered accountant and his mother is a homemaker. A 22-year-old brother is in his fifth year studying business at a university. An 18-year-old brother is in his first year at university. Mr. Dhindsa shares a good relationship with his parents and also with his brothers.

[63] He also shares a good relationship with his extended family members and the families enjoy regular get togethers.

[64] His childhood was "great" and "lots of fun". He was well provided for by his parents. They were supportive of him, provided him with opportunities and paid for his involvement in extra-curricular activities. His family travelled a lot and enjoyed vacations to numerous Caribbean destinations. His parents had friends who also had three sons and they enjoyed many of the vacations together. The families still share a close relationship and the eldest of the three boys also attends university with Mr. Dhindsa.

[65] His parents both speak very highly of their son. Like every other person interviewed for the Pre-sentence Report (including his family doctor and a school guidance counsellor), they believed the offence to be out of character for their son.

[66] Sports have been a big part of Mr. Dhindsa's life. He played soccer from the age of four years until grade five. He began playing house league basketball in grade two. He played rep basketball from grades five through to grade eight and was on the national basketball travel team from grades five through to grade seven. He began playing rep football in grade four and continued to do so until grade 12. He played for the Burlington Stampeders and was on a travel team. When he ultimately had to make a decision as to which sport he would focus on he chose football.

[67] He attended a private elementary school in Oakville from pre-school through to and including grade eight. He enjoyed his years there and shared a very good relationship with his teachers and peers. He was a member of the school's baseball, football and basketball teams.

[68] He was diagnosed with ADHD (Attention Deficit Hyperactivity Disorder) when he was in elementary school. He tried to take the medication prescribed for this but he did not like the way that it made him feel and he stopped taking it.

[69] He attended a private secondary school in Oakville for grades nine and ten and played basketball on the school team. He was on the football team at the Catholic secondary school that was in his catchment area as the school that he was attending did not have a football team. He transferred to the Catholic secondary school in his grade 11 year as he was informed that the private school would no longer allow him to play football elsewhere. He completed grades 11, 12 and a victory lap year at the Catholic secondary school as he was not ready to attend post-secondary school studies after his completion of grade12.

[70] He had a very good relationship with his teachers and peers at both schools and has maintained contact with some of them to the present.

[71] At the age of 16 years, Mr. Dhindsa was stabbed in his left hand. This resulted in permanent nerve damage in his index finger. He underwent hand therapy and lost a year with respect to playing football.

[72] He was offered an athletic scholarship to Queens University in Kingston. He arrived for training camp in August 2018 and began his studies but dropped out on September 18, 2020 and returned home. Two weeks prior to leaving for university he was driving his car and following his friend who was riding a motorcycle. The friend crashed into a tree and later succumbed to his injuries at hospital. Mr. Dhindsa saw the significant trauma to this friend's body before EMS arrived. He thought that he was ready to put this behind him and go to school but ultimately, he could not deal with what had happened.

[73] He is currently attending the University of Toronto. He is an offensive lineman on the varsity football team but is not currently in receipt of an athletic scholarship. His classes are on-line; however, he attends football practice four to five days per week and also attends at the gym that has been designated for use by the football team.

[74] He had intended to commence his university studies in Toronto in the fall of 2019 but he was involved in a car accident in April of 2019 where he sustained a concussion. As a result, he was unable to play football or to attend school.

[75] He has worked at a number of jobs. When he was 15 years of age, he worked at a car wash. He secured a "buggy boy" position at a grocery store when he was 16.

[76] He has been employed by a sports training facility for approximately one and a half years. He explained that he trains football players at the facility, that he recommenced his employ at the beginning of August 2020 and that he is paid cash.

[77] Prior to the COVID 19 lockdown he was employed by a Commercial Real Estate company for a few months and that his duties included putting up signs.

[78] He has never been married. He does not have any children. He is not currently involved in a relationship. He became involved in a relationship when he returned home from university in 2018 but his girlfriend turned out to be one of the negative people in his life. His parents did not like her and saw her as a negative influence on him from the beginning of the relationship. He ended the relationship with her approximately six months ago.

[79] He consumes alcohol on occasion but not to excess. He was using marijuana since grade 12 but ceased this approximately three months ago.

[80] He is currently residing in Toronto in a condominium that his family owns while he is attending university. His primary residence is his familial home in Oakville.

[81] He does not have a mental health diagnosis and is not currently prescribed any type of medication. He has been seeing a psychologist for general counselling and support for approximately one and a half years. He meets with his counsellor on a weekly basis for one-hour sessions and his father covers the cost. Prior to this he met with another counsellor for approximately two months, but they did not connect as Mr. Dhindsa was not really open to attending at counselling at that time.

[82] He appears to share a good rapport with his current counsellor. The Pre-sentence Report writer recommended that Mr. Dhindsa should continue with these sessions and suggests that he would also likely benefit from anger management counselling with a focus on developing good problem solving and coping skills. He should also attend for grief counselling in order to address any unresolved issues involving the passing of his friend.

Analysis

[83] Doherty J.A. aptly described my task here when he began the judgment in R. v. Hamilton, supra by stating:

The imposition of a fit sentence can be as difficult a task as any faced by a trial judge.

[84] Sentencing is not an exact science. The determination of the sentence that is just and appropriate in a given case is "a highly individualized exercise that goes beyond a purely mathematical calculation."

[85] I must craft a sentence that is proportionate to the gravity of the offence committed and the degree of responsibility of Mr. Dhindsa and yet, at the same time, one that is responsive to his unique circumstances.

[86] I must consider both the aggravating factors and the mitigating factors when determining the appropriate sentence here.

[87] The aggravating factors may be found in the offence itself.

[88] This all started with an incident of road rage between JK and Mr. Dhindsa's younger brother. Mr. Dhindsa was not even there.

[89] He chose to take up the argument on behalf of his brother and went looking for JK. He was clearly expecting a confrontation.

[90] Despite his size advantage, and I note that Mr. Dhindsa is a large and strong young man, he took a knife with him. I have no doubt that he was clearly prepared to use that knife. That conclusion flows from the fact that he did in fact use it on JK.

[91] When JK had turned his back to him, Mr. Dhindsa stabbed him in the back with that knife.

[92] The impact on the victim was extremely serious. I need not repeat my earlier comments in this regard. I will note that the potential was there for even more significant injury or even death.

[93] On the other hand, there are many mitigating factors in this case.

[94] Mr. Dhindsa pled guilty. I take this to be both an acceptance of responsibility and an expression of remorse.

[95] This feeling of remorse has been consistent throughout these proceedings.

[96] He had no prior criminal record. Everyone who knows him seems to believe that what he did here was very much out of character for him.

[97] He has complied with the terms of his release since being charged.

[98] He had suffered from significant trauma in his life prior to this offence. This includes the death of his friend and the injuries Mr. Dhindsa suffered when he was stabbed and when he was in his own car accident. This is not in itself a mitigating factor. What is mitigating is that Mr. Dhindsa came to realize that he needed to face his inner issues and he has done so. He has participated in a significant number of counselling sessions and has committed to continuing with these.

[99] He has begun his studies at university and resumed his quest to play football at the highest level possible.

[100] He has the support of his extended family and of friends. This speaks well to his prospects of rehabilitation.

[101] Taking everything into account, I am satisfied that denunciation and deterrence are the most important sentencing objectives in this case.

[102] However, the Supreme Court of Canada expressly said in R. v. Proulx, supra that a conditional sentence is "a punitive sanction capable of achieving the objectives of denunciation and deterrence"

[103] In R. v. Wismayer, supra, Rosenberg J.A. said that there is no rule that a conditional sentence is "never or even rarely available" in cases such as this.

[104] In addition, I must not ignore the principle of rehabilitation.

[105] I must also consider the principle of restorative justice. Mr. Dhindsa has agreed with Crown counsel's suggestion that Mr. Dhindsa pay $500 in restitution to JK to cover some of JK's financial losses. I too agree with this idea, although I will have more to say about the amount to be paid shortly.

[106] Counsel for Mr. Dhindsa provided me with three cases in which sentence was suspended and the offender was placed on probation for a serious assault. The facts of these offences and the circumstances of the offenders varied in each case. I am satisfied that they establish that there are serious assault cases in which a suspended sentence might be appropriate. I am however of the view that the case before me is not one of these cases.

[107] As I see it, the only question before me is whether I should send Mr. Dhindsa to jail or impose a conditional sentence.

[108] In deciding that issue, I note that I was satisfied that imprisonment for a period at the low end of the range suggested by Crown counsel, that is three months, would have been an appropriate sentence had I chosen to send Mr. Dhindsa to jail.

[109] He spent two days in pre-sentence custody before being released on bail. In light of R. v. Summers, he is entitled to enhanced credit under section 719(3.1) of the Criminal Code to reflect the lost eligibility for remission or parole.

[110] I would have permitted Mr. Dhindsa to serve the remaining time intermittently so that he could continue with his studies at university.

[111] I understand however that in the current Covid climate, the jails are simply placing people sentenced to intermittent jail terms in temporary absence programs. In other words, Mr. Dhindsa would not serve any time in an actual jail.

[112] Alternatively, I could impose a longer conditional sentence of imprisonment. I am satisfied that a nine-month conditional sentence would have addressed the need for denunciation and general and specific deterrence here. It would also allow Mr. Dhindsa to rehabilitate himself and to at least make a start towards restorative justice.

[113] I am satisfied that such a conditional sentence of imprisonment would be consistent with the fundamental purpose and principles of sentence.

[114] I note however that Mr. Dhindsa was on bail subject to a Recognizance for almost 10 months.

[115] The most relevant term of that recognizance required that he remain in his residence at all times except when in the presence of his mother or his father or an adult approved of by his mother in writing, dated and signed.

[116] In addition, he was not to contact or communicate with JK.

[117] He voluntarily arranged for extensive counselling during that time.

[118] His Recognizance was varied on consent on July 2, 2020 to allow him to reside on his own in a condominium in Toronto while he attends university.

[119] I am satisfied that I should give him credit for the time spent subject to the bail conditions described above. The house arrest, the requirement that he not contact with JK, and the active participation in meaningful counselling would have been the core elements of any conditional sentence.

[120] In R. v. Downes, the Ontario Court of Appeal stated, amongst other things, that:

• Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor.

• As such, the trial judge must consider the time spent on bail under house arrest in determining the length of sentence.

• The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply.

• The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender's liberty; the ability of the offender to carry on normal relationships, employment and activity.

[121] That was in the context of reducing the time to be served in jail. I believe however that in this case, it is appropriate for me to apply the above principles and reduce the length of the conditional sentence of imprisonment that I would impose. More specifically I am satisfied that I should reduce that conditional sentence by six months. Further, I am satisfied that Mr. Dhindsa has been subject to house arrest for sufficient time already and I will not be including a home confinement term for the remaining time.

[122] With respect to the issue of restitution, the Victim Impact Statement makes it clear that JK lost out on well over $1500 in wages alone and that this loss was significant for him. The information before me also makes it clear that Mr. Dhindsa has the means to reimburse JK in that amount. I am therefore satisfied that it is appropriate for me to order restitution in that amount rather than the $500 which was proposed by counsel.

[123] With respect to the length of the probation order, I have decided on three years so as to provide JK with assurances for as long as possible that Mr. Dhindsa will stay away from him. Mr. Dhindsa should not need to report to his probation officer however once he has dealt with restitution and counselling. I am also satisfied that the counselling need only be required for the first year of this order.

Sentence

[124] For all of the above reasons, I sentence Mr. Dhindsa time served, being two days pre-sentence custody credited as three days, and then to a conditional sentence of imprisonment for three months, to be served in the community. That will be followed by probation for three years.

[125] The terms of the conditional sentences of imprisonment will require that Mr. Dhindsa:

1. keep the peace and be of good behaviour;

2. appear before the court when required to do so by the court;

3. report to a supervisor within two working days and thereafter report when required by the supervisor and in the manner directed by the supervisor;

4. notify the supervisor in advance of any change of name or address, and promptly notify the supervisor of any change of employment or occupation;

5. remain within the Province of Ontario unless written permission to go outside the Province is obtained from the court or the supervisor;

6. cooperate with his supervisor. He must sign any releases necessary to permit the supervisor to monitor his compliance and he must provide proof of compliance with any condition of this order to his supervisor on request;

7. live at an address approved of by the supervisor and not change that address without obtaining the consent of the supervisor in advance;

8. not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with Jeffrey King, except for making restitution;

9. not be within 20 metres of any place where he knows him to live, work, go to school, frequent, or any place he knows him to be;

10. attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by the supervisor, and complete them to the satisfaction of the supervisor for anger management, or problem solving and coping skills, or grief counselling or any other program directed by his supervisor;

11. make reasonable efforts to seek and maintain suitable work or attend school;

12. make restitution of $500 to Jeffrey King to be paid on or before January 10, 2021. All restitution payments are to be made by cash or certified cheque or money order payable to the Minister of Finance through any criminal court office for payment to the victim / aggrieved party.

[126] The terms of the probation will require that Mr. Dhindsa:

1. keep the peace and be of good behaviour;

2. appear before the court when required to do so by the court;

3. notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation;

4. report to a probation officer within two working days of completing his conditional sentence of imprisonment and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in his supervision;

5. his reporting requirement ends when he has satisfied his probation officer that he has paid restitution in full and that he has completed all of his counselling;

6. cooperate with his probation officer. He must sign any releases necessary to permit the probation officer to monitor his compliance and he must provide proof of compliance with any condition of this order to his probation officer on request;

7. not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with Jeffrey King, except for making restitution;

8. not be within 20 metres of any place where he knows him to live, work, go to school, frequent, or any place he knows him to be;

9. for the first year of this order, attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by the probation officer, and complete them to the satisfaction of the probation officer for anger management, or problem solving and coping skills, or grief counselling or any other program directed by the probation officer;

10. make reasonable efforts to seek and maintain suitable work or attend school;

11. make restitution of $1,000 to Jeffrey King to be made in installments of not less than $500 on or before July 10, 2021 and $500 on or before January 10, 2022. All restitution payments are to be made by cash or certified cheque or money order payable to the Minister of Finance through any criminal court office for payment to the victim / aggrieved party.

[127] It should be noted that the $500 restitution in the conditional sentence order and the $1,000 restitution in the probation order are to be treated separately from each other. My intention is to require Mr. Dhindsa to pay restitution totalling $1,500 over the next 15 months.

[128] I am also making the following orders.

[129] Assault causing bodily harm is a primary designated offence, and I am satisfied that it is appropriate for me to make an order pursuant to s. 487.051 of the Criminal Code, authorizing the taking from Mr. Dhindsa of any number of samples of one or more bodily substances, including blood, that are reasonably required for the purpose of forensic DNA analysis.

[130] Pursuant to section 110 of the Criminal Code, he is prohibited from owning, possessing or carrying any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for five years.

Released: November 10, 2020

Signed: Justice D.A. Harris