Citation: R. v. Gill, 2015 ONSC 6184
Court File No. CRIMJ(P) 192/14
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
JAGWINDER SINGH GILL
REASONS FOR SENTENCE
BEFORE THE HONOURABLE JUSTICE F. DAWSON
on June 26, 2015, at BRAMPTON, Ontario
APPEARANCES:
E. Norman,
Counsel for the Crown
H. Saini,
Counsel for Jagwinder Singh Gill
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
Exam. Cr- Re-
WITNESS: in-Ch. exam. exam.
REASONS FOR SENTENCE Page 1
E X H I B I T S
EXHIBIT NUMBER ENTERED ON PAGE
Transcript Ordered: .................... August 26, 2015
Transcript reassigned: ........... October 2, 2015
Draft Transcript Completed: ............ October 4, 2015
Approved for Release by Justice: ....... October 5, 2015
Transcript Completed: .................. October 10, 2015
Ordering Party Notified: ............... October 14, 2015
FRIDAY, JUNE 26, 2015
Citation: R. v. Gill, 2015 ONSC 6184
R E A S O N S F O R S E N T E N C E
DAWSON, J.: (Orally)
On May 4th, 2015 I found Jagwinder Gill guilty of attempting to murder his former wife, Kiranpreet Gill. The offence took place on June 10th, 2013. I also found Mr. Gill guilty of two counts of simple assault on his former wife and one count of assault with a weapon on his daughter, Harjit Gill, that all occurred on February 12th, 2013. In addition I made findings of guilt in relation to a number of counts alleging that Mr. Gill had violated the terms of his recognizance of bail on the February charges.
On February 12th, 2013 Mr. Gill assaulted his daughter, Harjit by throwing a shoe or a slipper at her. The shoe was particularized to be a weapon in the indictment. The shoe struck a glancing blow and caused no injury to Harjit. This is a relatively minor offence.
As a result of throwing the shoe at Harjit the accused and his former wife got into an argument. That escalated to the point where I found the accused slapped Kiranpreet and bit her, just breaking the skin.
As a result of the incident just described the accused was arrested and charged. He was released on a recognizance with non-association and non-communication conditions with both his wife and daughter. Within about two weeks he began to violate those conditions on a regular basis. It became routine for the accused to attend at the apartment where Kiranpreet and Harjit resided. It appears that the main purpose of the attendances was to visit his daughter. However, he would remain in the apartment after Kiranpreet came home from work. Kiranpreet did not advise the police or take any steps to enforce the terms of the accused’s recognizance.
On June 10th, 2013 the accused attended at Kiranpreet’s apartment for the purpose of retrieving some of his belongings. He brought his nephews with him to assist. After leaving with those belongings the accused returned on his own claiming that he was returning a sweater that belonged to Kiranpreet and that there were further belongings of his located in Kiranpreet’s bedroom. When Harjit went to take a shower and Kiranpreet went into her bedroom to check for the accused’s belongings, the accused went to the kitchen and obtained a large chef’s knife. He then went into the bedroom and viciously attacked Kiranpreet by stabbing her in the left breast and chest area and in her abdomen. The wounds were deep and life threatening. The accused also tried to strangle Kiranpreet.
The attack was interrupted by Harjit who ran naked into the bedroom from the shower. Harjit was 13 years old at the time. She managed to push her father off her mother and towards the bedroom door.
At that point Kiranpreet’s mother, Baljit, entered the apartment and the bedroom. She was able to lock the bedroom door. The accused had left the first knife in the bedroom. He then went and obtained a second knife from the kitchen and returned and pounded on the bedroom door. He then fled the scene covered in blood.
Kiranpreet received severe life threatening injuries, including a collapsed lung. She had a deep wound to her abdomen and lost a great deal of blood as a result of internal bleeding. She was transferred from a local hospital to a trauma centre where she underwent almost immediate surgery that was required to save her life.
I believe Kiranpreet was hospitalized for approximately 10 days. According to her victim impact statement she was unable to work for almost one year. Previously Kiranpreet had worked hard at two jobs in order to support her daughter and to be able to sponsor her mother as an immigrant from India. As a result of her inability to work and to care for Harjit, her daughter had to go and live with the accused’s relatives. Her mother had to return to India. Kiranpreet was forced to impose on a friend because she was unable to take care of herself.
Kiranpreet’s victim impact statement indicates that she is afraid of the dark and afraid to be alone. She sometimes screams at work if someone approaches her from behind. She has fears that someone may be hiding in her apartment waiting to attack her.
In addition, Kiranpreet still experiences pain from her wounds. This is exacerbated by lifting at work and at home. She has been left with considerable scarring on her torso and her breast and in other locations. She fears for her safety and that the accused will come after her and kill her after he is released from prison.
Harjit was only 13 years old at the time she witnessed these events. She was 15 when she testified. As indicated in my reasons for judgment and in the pre-sentence report, Harjit is close to her father as well as to her mother. She was caught in the middle of a horrible situation. Between February and June her father had been speaking to her about wanting to get back together with her mother. The accused used Harjit as a go between. Kiranpreet was not interested in resuming the relationship.
Between late April and June 10th, 2013 the accused told his daughter that he was thinking of killing her mother because he had discovered Kiranpreet was involved with another man. The accused told Harjit he might shoot or stab her mother. Harjit did not take her father’s threats seriously.
A short time after her father stabbed her mother Harjit attempted suicide. She has declined to provide a victim impact statement although it is apparent she has been seriously impacted by these events.
Baljit Kaur witnessed the attack and thought her daughter was being murdered before her eyes. She is now worried about her daughter’s current and future health. She has nightmares about what occurred. She has been required to leave Canada.
The Positions of the Parties
The Crown seeks a sentence of 15 years for the attempted murder, less pre-trial custody credited on a one to one basis. Crown counsel recognizes that this is towards the top of the range of sentence but submits it is justified in this case. She urges me to make a finding that the attempt on Kiranpreet’s life was planned and deliberate.
No specific sentence is suggested for the assaults on February 12th, 2013. A sentence of 6 months consecutive is sought in relation to the breach of recognizance charges. Crown counsel concedes that two of the breach charges, counts 2 and 3, should be stayed pursuant to R. v. Kienapple, 1974 CanLII 14 (SCC), [1974] S.C.J. No. 76, [1975] 1 S.C.R. 729 because all of the alleged breaches fit within count 7 of the indictment.
Crown counsel further submits that one of the two counts of simple assault against Kiranpreet on February 12th, 2013 should be similarly stayed and that both the bite and the slap should be dealt with under the other remaining assault count.
Counsel for the accused submits that an appropriate range of sentence on the attempted murder count is 8 to 10 years. No specific sentence is suggested in relation to the other charges. Defence counsel submits that credit for pre-trial custody should be at the enhanced ratio of 1.5 days credit for each day of pre-sentence detention. Counsel adopts the Crown’s position with respect to Kienapple.
In conclusion, defence counsel suggests a total sentence for all offences of 9 years prior to credit for pre-trial custody.
The Credit for Pre-trial Custody
The accused has been in custody since he was arrested on the attempted murder charge on June 10th, 2013. Consequently, as of the date of sentencing he has been in detention for 2 years and 16 days.
Crown counsel submits that by virtue of the operation of section 719(3.1) of the Criminal Code the accused is ineligible for enhanced credit on the basis that the accused had his bail on the February 2013 charges cancelled pursuant to section 524(8) of the Criminal Code following his arrest on the attempted murder and breach of bail charges.
Crown counsel acknowledges that in R. v. Safarzadeh-Marthali, 2014 ONCA 627, the Court of Appeal found part of section 719(3.1) unconstitutional. Crown counsel correctly points out, however, that the court’s finding was limited to circumstances in which section 719(3.1) had its effect through section 515(9) of the Criminal Code. See paragraph 124 of Safarzadeh-Marthali.
Crown counsel also acknowledges that in R. v. Dinardo, 2015 ONSC 1804, my colleague Wein J. found the balance of section 719(3.1) to be unconstitutional. Wein J. did so primarily, but not exclusively, on the basis of a logical extension of the principles discussed and applied in Safarzadeh-Marthali. However, Crown counsel submits that the decision of Wein J. is not binding on me and urges me to take a different path.
The issues raised in these cases are complex. The matter was not fully or thoroughly argued before me. Consequently, I do not propose to deal with the issue in detail. I have, however, carefully reviewed both judgments. I find Justice Wein’s reasoning in Dinardo to be comprehensive and persuasive. In the circumstances I am not prepared to distinguish or depart from Dinardo. Applying Dinardo, I conclude section 719(3.1) poses no impediment to granting enhanced credit to the accused for pre-trial custody should I otherwise determine that to be warranted.
In regards to enhanced credit, I note that the accused is essentially a first offender. His only record is one conviction for simple assault in 1991 for which he received a suspended sentence and probation for one year. I have no information that this dated prior assault conviction related to a domestic matter.
I have no evidence of any kind to support a conclusion that it is likely the accused would have lost remission or not become eligible for parole if he had been serving a sentence. Nor do I have any evidence that the accused has unreasonably prolonged these proceedings. Applying R. v. Summers, 2014 SCC 26, I conclude Mr. Gill should receive credit for pre-trial and pre-sentence custody at a 1.5 to 1 ratio.
The Circumstances of the Accused
The presentence report is the main source of the information I have about the accused. Mr. Gill did not testify at trial or on the sentencing hearing. In her trial testimony Kiranpreet Gill provided some evidence about the nature and background of her relationship with the accused. Harjit’s evidence also provides some insight into her father’s state of mind in the months leading up to the attempted murder.
Jagwinder Gill was born in the Punjab area of India on October 15th, 1965. He is 49 years of age. He had a good relationship with his parents and no problems are reported with his upbringing. His mother and siblings now live in the Brampton area. The family came to Canada in 1986. His father subsequently passed away.
Mr. Gill believes he married Kiranpreet in 1997. This was an arranged marriage which took place in India. Thereafter, Kiranpreet was sponsored to come to Canada. Harjit, their only child, was born on February 5th, 2000. The pre-sentence report confirms a close relationship between Harjit and her father.
Based on the trial evidence the couple divorced but continued to live together. Kiranpreet remarried another man in another arranged marriage in India. At trial it was alleged that this was a fraudulent marriage for immigration purposes.
Difficulties in the marriage developed after Harjit was born. Kiranpreet testified that the accused seldom worked and that they argued. She also alleged that on occasion the accused would beat her. That has not been established beyond a reasonable doubt and Crown counsel does not suggest that it should be treated as an aggravating factor.
According to the pre-sentence report, in 2012 the accused began to suspect that Kiranpreet was having an affair. This was based on her change in behaviour. According to the accused, he confronted Kiranpreet and she admitted to infidelity. Harjit testified at trial that her father spoke to her about how he became aware that another man was visiting her mother at their apartment.
The pre-sentence reporter states that the accused admitted to daily opium use which ended approximately six years ago. Alcohol use is not considered to be an issue. However, the accused is described as having an anger issue when not taking prescribed medication.
The accused has only a grade four education and states that he is functionally illiterate. The accused is described as having a “sporadic” employment history. He has worked as a truck driver. No information is provided about his future plans. He does have the continuing support of his brother. He claims that he wants no further contact with Kiranpreet but wants to maintain a relationship with his daughter.
The pre-sentence reporter emphasizes that the accused has expressed no remorse. He acknowledged that his actions were due to “built up anger and rage towards Kiranpreet”. He indicated that he is not aware of the injuries she sustained and that he has no interest in knowing. According to the pre-sentence report the accused “appeared to minimize his participation and highlight the infidelity within his marriage as a reason to fuel his rage”.
Additional Findings of Fact
In my reasons for judgment I relied, in part, on the evidence of the accused’s past threats as evidence supporting a finding of specific intent to kill. Based on the evidence it is clear to me that the accused had thought about killing Kiranpreet. However, just as one can think about suicide without planning it, one can think about murder without planning it.
While thinking about stabbing Kiranpreet to death is a form of premeditation, I am not prepared to find on the evidence before me that there was planning and deliberation as those terms are used in the case of first degree murder. I observe that the accused did not bring a weapon to the apartment. Although he was breaching his bail, there was a purpose associated with both of his visits to Kiranpreet’s apartment that day. Harjit gave some evidence tending to confirm that on his second attendance the accused was returning a sweater belonging to Kiranpreet that may have been taken accidentally when his belongings were removed from the apartment on his first attendance.
On the other hand, there is no evidence of any particular argument or dispute between the accused and Kiranpreet on June 10th, 2013 that is likely to have triggered the accused’s sudden rage. I infer that it was likely the finality associated with the removal of his belongings that contributed to the release of built up feelings of anger that led to the stabbing.
Analysis
The fundamental principle of sentencing, as set out in section 718.1 of the Criminal Code, is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Here the offence is very grave. By definition, attempted murder requires a specific intent to kill. Short of accomplishing the intentional killing of another, attempted murder is one of the most serious and violent offences known to our criminal law.
It also appears from the evidence that the accused is fully responsible for the commission of the offence. He was not under the influence of alcohol, drugs or mental illness and there was no immediately provoking conduct by anyone else.
Section 718.2 of the Criminal Code requires that I take into account any aggravating or mitigating factors to either increase or decrease the sentence to be imposed. In this case the accused abused his spouse during the commission of the offence. This is a serious breach of trust. Both spousal abuse and breach of trust are aggravating factors recognized within section 718.2 of the Criminal Code.
I also observe that the assaults on Kiranpreet on February 12th, 2013 constitute a history of domestic violence. In addition, while not a direct aggravating factor in relation to the attempted murder count, the assault on Harjit was an assault on a person under the age of 18 years. This is an aggravating factor in relation to sentencing on that offence and it provides further context for the sentencing on the attempted murder.
The attempted murder also occurred while the accused was violating bail conditions designed to protect his former wife.
I also take note of the fact that the assaults on Kiranpreet on February 12th, 2013 and the attempted murder by stabbing on June 10th, 2013, took place in the presence of Harjit, who was only 13 years of age at the time. This is likely to have a profoundly damaging impact on Harjit for many years to come.
Turning to mitigating factors I find that there really are none. There has been no indication of remorse. The accused is obviously not entitled to the considerable reduction of sentence that usually applies when there is a plea of guilty.
I do note, however, that the accused has essentially no criminal record. While he does not exhibit any sympathy for his former wife, he has indicated that he wants nothing further to do with her. There is no evidence of any continuing obsession with his former wife that I have been made aware of. In these circumstances there is at least some prospect for rehabilitation that I acknowledge and take into account.
That said, the principles of sentencing that must be emphasized in a case such as this are general and specific deterrence and denunciation. Ontario Court of Appeal cases which make this clear include R. v. Edwards (1996), 1996 CanLII 1522 (ON CA), 105 C.C.C. (3d) 21; R. v. Denkers (1994), 1994 CanLII 2660 (ON CA), 69 O.A.C. 391; R. v. Spurway, 1996 CanLII 701 (ON CA), [1996] O.J. No. 3160; R. v. Valle-Quinter0 (2002), 2002 CanLII 45123 (ON CA), 169 C.C.C. (3d) 140; and R. v. Tan, 2008 ONCA 574. These cases, and several others that I have reviewed, establish a range of sentence for attempted murder in circumstances with some similarity to those I am dealing with, of between eight to 15 years. See also the cases referred to at footnote 2 in R. v. Boucher, 2004 CanLII 17719 (ON CA), [2004] O.J. No. 2689. As noted in Tan, at paragraph 36, in some very serious cases life sentences have been upheld for attempted murder.
In this case the injuries resulting from the accused’s repeated stabbing of his former wife with a very large knife fall towards the more serious end of the spectrum. On the other hand, I am not persuaded it was planned in advance, although the accused had thought about it. The accused’s lack of remorse is concerning but there are no positive indications of an ongoing intent with respect to his former wife, despite her understandable fears.
Having regard to all of the factors and principles I have referred to, I conclude that, before credit for pre-trial custody, a sentence of 10 years and 6 months is an appropriate sentence for the attempted murder. I intend to impose additional consecutive sentences on some of the other counts. Therefore, the totality principle has had some modifying effect on my determination of a fit sentence on count 1, the attempted murder.
I propose to next deal with count 7. That count encompasses various breaches of the accused’s recognizance of bail occurring over a 41 day period ending on June 10th, 2013. I see this offence as serious given that the accused was violating bail conditions designed to protect the victim of his earlier assaultive conduct. It seems to me that a sentence of 6 months consecutive to the sentence on count 1, as requested by the Crown, is entirely reasonable in these circumstances. I impose that sentence on count 7. Despite the lack of a prior record for bail violations a deterrent sentence is required by the totality of the circumstances.
While findings of guilt were made on counts 2 and 3 they will be stayed pursuant to the Kienapple principle because the criminal delicts to which they apply are covered in count 7.
On count 4, which relates to throwing a shoe at Harjit, the sentence will be 1 day consecutive to the sentences on counts 1 and 7.
Counsel submits that one of counts 5 or 6 should be stayed and a sentence imposed on the other of those counts on the basis of the two assaultive acts of slapping and biting. I do not agree with this submission. While the Crown could have proceeded on one charge encompassing both acts that is not how the trial proceeded. In addition, this is not a situation where the same act of the accused undergirds each of the charges. There were distinct acts of slapping and biting, although they occurred during the course of an ongoing altercation. In these circumstances the factual nexus requirement of Kienapple is not satisfied. Nonetheless, concurrent sentences are appropriate on these two counts.
I impose a sentence of 30 days on each of counts 5 and 6. These sentences will be concurrent to each other but consecutive to the sentences imposed on counts 1, 4 and 7.
The total sentence imposed, subject to reduction for pre-trial custody, is 11 years and 31 days.
Credit for pre-trial custody at the rate of one and a half days for each day of pre-trial custody comes to 3 years and 24 days. I will deduct that from the sentence of 10 years and 6 months I would have otherwise imposed on count 1. Consequently, after slight rounding, the sentence on count 1 will be 7 years 5 months and 6 days. The sentences on the other counts remain as indicated.
In addition, there will be a firearms and weapons prohibition order pursuant to section 109 of the Criminal Code for life.
The accused is also ordered to provide a sample of his DNA for inclusion in the convicted offender’s databank.
Pursuant to section 743.21 of the Criminal Code the accused is ordered to refrain from communicating with Kiranpreet Kaur, formerly Kiranpreet Kaur Gill, directly or indirectly, while serving his sentence.
So far I have endorsed the indictment as follows: “As I was ready to impose sentence I had this case brought forward to today’s date. For oral reasons given in open court the accused is sentenced as follows: After deduction for pre-trial of 2 years and 16 days for which credit of 3 years and 24 days is given, count 1: 7 years and 5 months and 6 days; count 7: 6 months consecutive to the sentence on count 1; count 4: 1 day consecutive to the sentences on counts 1 and 7; count 2: stayed, Kienapple; count 3: stayed, Kienapple; count 5 and count 6: 30 days on each count concurrent to each other but consecutive to the sentences on counts 1, 4 and 7.”
There will be a firearms and weapons prohibition order for life. The accused will provide a sample of his DNA for the convicted offenders’ databank. Pursuant to section 743.21 of the Criminal Code the accused is ordered to refrain from communicating directly or indirectly with Kiranpreet Kaur, formerly Kiranpreet Kaur Gill while serving his sentence.
MR. SAINI: Your Honour, just to repeat for me, for my notes, the remaining amount on the attempt murder please?
THE COURT: Yes, so the sentence I have actually imposed after deducting credit is, so count 1: 7 years and 5 months and 6 days.
MR. SAINI: Thank you.
THE COURT: Okay, and then 6 months consecutive for count 7; one day consecutive, count 4; 30 and 30 on 5 and 6 concurrent to each other but consecutive to 1, 4 and 7.
...WHEREUPON THIS MATTER WAS CONCLUDED.
FORM 2
Certificate of Transcript
Evidence Act, Subsection 5(2)
I, Sherry McHady, certify that this document is a true and accurate transcription of the recording of R. v. Jagwinder Singh Gill, in the Superior Court of Justice, held at 7755 Hurontario Street, Brampton, Ontario, taken from Recording No. 3199_404_20150626_090751__30_DAWSONF, which has been certified in Form 1 by D. Matush.
October 13, 2015 Sherry Jane McHady
(Date) (Signature of authorized person)
This certification does not apply to the Reasons for Sentence since they were judicially edited.