IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         At the conclusion of trial on September 3, 2020 I convicted Taranvir Singh Dhaliwal of the offence of sexual assault, contrary to s. 271 of the Criminal Code. In setting out my reasons for convicting Mr. Dhaliwal, I summarized the evidence that was presented at trial, but I must do so again now to a limited extent, to focus upon those aspects of the matter that are particularly relevant to sentencing.

[2]         The complainant, A.C., had just passed her sixteenth birthday when she went out with three girlfriends one night in late August 2017. While visiting another friends’ residence that night, A.C. consumed a small amount of the drug MDMA. That is a street drug which contains the stimulant methamphetamine, but it may also contain various other components. The exact amount that A.C. consumed was not in evidence before me, nor was the composition of the specific drug which she ingested.

[3]         A.C. experienced a negative reaction to the drug. She described its effect as causing her to become “anxious, emotional, and upset”. She could not stop crying and she had trouble breathing at times.

[4]         In view of her condition, A.C. returned to the home of a friend whom she identified in evidence by the name “B.”, where she had begun the evening. She watched television for some time there, but her condition did not significantly improve. She was oriented and coherent, but her emotions were “out of control”. She decided that it would be best if she just went home.

[5]         A.C.’s own home was a considerable distance away from her friend’s residence, perhaps a forty-five minutes’ walk. A.C. considered that it was much too far and too unsafe for her to walk that distance in the middle of the night, especially given her emotional state. She decided to call or text various friends, to see if she could get a ride home.

[6]         Eventually, A.C. was directed to contact the accused as a possible source for a ride home. She had met him once or twice previously at casual social gatherings. She recalled that Mr. Dhaliwal had been mildly flirtatious with her at one or another of those gatherings, but she was not concerned. She thought he was a polite and well-mannered fellow, perhaps a couple of years older than herself.

[7]         Mr. Dhaliwal responded to A.C.’s text message and agreed to give her a ride home, even though it was by now somewhere around three o’clock in the morning. Mr. Dhaliwal testified that she was quite insistent, repeating that she needed a ride as she had had a very bad night.

[8]         In due course, Mr. Dhaliwal arrived at the residence where A.C. was located. She came outside to his vehicle and he could see that she was in considerable distress. She seemed “a bit hysterical”, to quote his evidence, and she was crying loudly. Her distress was such that he gave her a quick hug before she got in the car, told her that she would be okay now, and that he would get her home.

[9]         Mr. Dhaliwal drove in the direction of A.C.’s home for perhaps five to ten minutes. Not much was said between him and his passenger during that time. She continued to cry, although she did settle somewhat as they drove.

[10]      Mr. Dhaliwal then turned into a deserted parking lot. I found as a fact that he did so in order to engage the complainant in sexual activity, and for no other reason. He told her that she would have to suck his penis or he would leave her there in the parking lot.

[11]      The complainant calculated that if she left Mr. Dhaliwal’s vehicle at that point she would still have a fifteen to twenty minute walk to her destination. Nonetheless, she began to gather her belongings and reached for the door handle.

[12]      Mr. Dhaliwal responded by saying that in fact getting out was not an option for A.C. He grabbed her collar and told her that if she left “it would not be in this condition”. She tried to get out again, but he locked the door beside her. She voiced her objections to his behaviour, but he assured her that the act of fellatio would be over quickly and that she need only place the tip of his penis in her mouth.

[13]      Mr. Dhaliwal then grabbed A.C.’s hair and forced her head down upon his penis. He opened his pants and his penis was erect. She attempted to keep her mouth closed but he pulled her lips apart. The forced act of fellatio lasted for five to six minutes before he ejaculated into her mouth.

[14]      Mr. Dhaliwal then told A.C. to get out his vehicle. He called her a bitch, told her that he only wanted the oral sex and that she was wasting his time. She pleaded with him to take her home, however, and he relented. He dropped her off a short distance away from the home, and she walked from there.

[15]      The next day there was an exchange of text messages between the complainant and her assailant. The exchange began with Mr. Dhaliwal apparently saying he would see the complainant again that day or the next day. The complainant responded, however, by saying, essentially, that she never wanted to see him again. Mr. Dhaliwal answered with these words:

[16]      The complainant testified that she took the term “LMAO” to mean: “Laughing my ass off”, and she was not challenged on that interpretation. I accept that that is what Mr. Dhaliwal said to her, in coded form, in the text.

[17]      That is a brief summary of the facts as I found them.

[18]      It is well-established that in determining an appropriate disposition, a sentencing judge should consider the general seriousness of the offence, the particular circumstances under which the offence was committed in the case at bar, and the circumstances of the offender. That form of analysis must be carried out against the backdrop of both the general and the specific sentencing provisions that are set out for in s. 718 to 718.2 of the Criminal Code. The overriding principle, of course, is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1

[19]      There can be no doubt that the offence of sexual assault is serious indeed, especially when prosecuted by indictment, as in this case.

[20]      The clearest way to determine the relative seriousness of any offence is to have regard to the penalty provided by the Criminal Code in the event of conviction. The relevant provision here is s. 271. That section does not provide for a minimum penalty but provides that the maximum is a ten-year period of imprisonment.

[21]      It is not difficult to understand why the offence of sexual assault is treated so seriously. It is explained succinctly in the case of R. v. M.S., 2017 ONSC 4807, at paras. 13 and 14:

[22]      The Supreme Court of Canada has recently made similar observations, in much more extended fashion, in the case of R. v. Friesen, 2020 SCC 9. The Friesen case is primarily focused upon the effects of sexual abuse upon children, but it should be noted that the court in that case refers to “children” as persons under the age of eighteen years: footnote to para. 1. I have reviewed the court’s comments carefully, but I only find it necessary to cite one passage for present purposes. At para. 77, the court said this:

[23]      The court in Friesen confirms, in the most emphatic way, that sexual misbehaviour toward others, and particularly toward persons under the age of eighteen years, involves serious moral blameworthiness. And the court is firm in its admonition to sentencing judges to proceed with that principle firmly in mind, particularly taking into account that Parliament’s action over the last generation in repeatedly increasing the penalties for such offences is reflective of growing public concern on the issue.

[24]      My sentencing considerations must next focus upon the precise circumstances under which the offence occurred in the present case, taking into account both aggravating and mitigating factors for sentencing purposes.

[25]      Probably the most striking feature of the present case is the reprehensible manner in which Mr. Dhaliwal seized upon the obvious vulnerability of the complainant. The initial text exchanges in the early morning hours enabled him to determine right away that A.C. was in distress and needed help. He confirmed that to be true when he picked her up at her friend’s residence. He assured her that he was a true Good Samaritan even as she got into his car. Yet within just a few minutes he was forcing her to engage in a sexual act over her obvious objections. He did so only after he had placed her in the impossible position of being locked in his vehicle in the dead of night, far away from her intended destination.

[26]      I do not view this as a true “breach of trust” situation, at least not in the same way as that phrase is used in the case law. Although there are obvious similarities, this case is distinguishable on the “breach of trust” issue arising in those cases in which taxi drivers have been convicted of sexually misbehaving toward their passengers: See, for example: R. v. Dale, [1998] BCJ No. 235 (S.C.); R. v. Aulakh, 2010 BCSC 1194, R. v. Malik, 2012 BCSC 502; R. v. Singh, 2012 BCSC 466; and R. v. Gill, 2015 BCSC 1907.

[27]      In the Dale case, at para. 16, Stromberg-Stein, J. commented on the breach of trust aspect of her sentencing decision in the following way:

[28]      No doubt the complainant here trusted Mr. Dhaliwal to get her safely from one location to another. She expressed that expectation specifically in her discussion with her friend “B.” before she got into Mr. Dhaliwal’s vehicle. And obviously Mr. Dhaliwal grossly breached that trust when he sexually assaulted her en route. The line of taxi driver cases exemplified by the Dale case, however, emphasizes the very public nature of the trust that is bestowed upon those who transport others from place to place in the community for a fee, governed by regulations and codes of conduct. Members of the public are encouraged to use regulated taxi services, precisely because they are entitled to feel safe in the hands of those who operate vehicles licensed for that purpose. If a taxi driver breaches the rules governing his or her behaviour by engaging in sexual misconduct there is a gross infringement of the public trust or sense of well-being, one which must be appropriately addressed in the criminal sentencing process.

[29]      The element of public trust is much less obvious, perhaps even non-existent, in a situation where a car driver picks up a hitchhiker and subsequently commits a sexual offence upon that person. Again, it would no doubt be true in most cases that the hitchhiker trusts the driver to convey him or her to his intended destination, but it is not exactly the same sort of trust that cries out for denunciation so as to accord with obvious public expectations, as in the taxi cases.

[30]      I do not view the situation of the complainant in the present case as precisely equivalent to either the hitchhiker or the passenger in the taxi cab. In fact, it is somewhere in between those two examples. The complainant was not a random passenger of Mr. Dhaliwal’s. She had at least some reason to trust him, based upon their previous acquaintance, and that made her all the more vulnerable: R. v. Cartwright, 2019 BCSC 820, at para. 79. He reinforced her sense of security by his own words and actions when she entered his vehicle. He then breached that trust in the most serious manner. In my view that breach is best categorized, however, as involving a person taking grossly unfair and opportunistic advantage of the trust reposed in him by a vulnerable teenager, rather than as a breach of public trust.

[31]      The young age of the complainant is also an aggravated feature of this case. That is, in part, because her youth speaks directly to her vulnerability. It is also because of the intensified effects which young victims of sexual abuse can be expected to experience as explained in detail between paras. 73 and 90 in the Friesen case, which I have already mentioned.

[32]      I do not have a formal victim impact statement from the complainant in this case. In her testimony, she did say that her head was a bit sore where her hair had been pulled out, but that she had suffered no other physical injury. Counsel are agreed, however, that I can fairly infer that she suffered emotional trauma to some extent as a result of the incident. There is, of course, no way of knowing the extent to which she may be emotionally affected in the future.

[33]      There are certain statutory provisions which are relevant when a victim of crime is a young person. I note that s. 271 of the Criminal Code that if the victim of the sexual assault is under the age of sixteen years at the time of the offence, the maximum penalty is increased to fourteen years. Fortunately for Mr. Dhaliwal, the victim here does not fall into that category, though she is only just outside it.

[34]      There are other Criminal Code sentencing provisions, however, that do directly require me to factor the young age of the complainant into my sentencing decision. Section 718.2(a)(ii.1) provides that a sentencing judge is required to consider that the offence involved the abuse of a person under the age of eighteen years is a generally aggravating feature for sentencing purposes. Section 718.01 drives the point home even further by providing that a judge must give primary consideration to the objectives of denunciation and deterrence, in priority to considerations based upon the rehabilitation of the accused, in any case where the offence involves the abuse of a person under the age of eighteen years.

[35]      It is also an aggravating feature of this case that when Mr. Dhaliwal committed the offence upon A.C., he did so in a violent and extreme fashion. He effectively imprisoned the complainant, threatened her and grabbed her collar and her hair in forcing her to perform the sex act upon him.

[36]      Mr. Dhaliwal’s behaviour demonstrated alarming disrespect for another human being. That is perhaps obvious by the act itself, but it is also shown by his comment immediately afterward when he referred to her in degrading terms and threatened to leave her in the parking lot. The contents of his text message the next day were likewise intended to cast her down and to humiliate her in a serious way.

[37]      I would imagine that the aggravating features of this case for sentencing purposes will be obvious from the summary above. I would summarize those factors in this way:

[38]      There is not a lot that I can discern in the fact pattern that might be considered mitigating from a sentencing point of view. It is fair to point out that Mr. Dhaliwal did not use any weapons. It is also fair to note that there is no evidence of premeditation. I have no idea when he fixed upon the intent to engage in sexual acts with the complainant, other than to say that the idea was planted in his head by the time he turned into the parking lot, just moments before the event occurred.

[39]      Mr. Dhaliwal was twenty years of age at the time of the offence. He was thus about four years older than the complainant and is now twenty-four years old.

[40]      Mr. Dhaliwal grew up in relatively unremarkable circumstances. He has two sisters and the family background is stable. While he was quite young he was subjected to some racial prejudice because he wore a turban, but that seems to have stopped when he was in his teens, particularly after he and his family moved to Victoria and he ceased wearing a turban.

[41]      Mr. Dhaliwal did not initially complete his high school education, but he did so through the Independent Learning Centre when he was about nineteen. He has had a limited and sporadic employment history since then, but has now returned to Kwantlen Polytechnic University in the lower mainland in hopes of becoming an accountant.

[42]      During the course of sentencing submissions before me there was a good deal of discussion regarding Mr. Dhaliwal’s mental health. That is indeed an aspect of the matter that deserves serious consideration.

[43]      After his conviction in this case, Mr. Dhaliwal asked that a psychiatric or psychological assessment be conducted, and that was done. Consequently, I have the benefit of a lengthy and detailed report from Dr. Dugbartey, whose work is well known in this court.

[44]      Dr. Dugbartey reports that for some time there has been an element of psychosis in Mr. Dhaliwal’s mental condition. He has a history of auditory hallucinations when he hears largely benign male voices commenting on his activities. He is also reported to have a history of thinking that others can read his mind.

[45]      Based on the psychologist’s report and the accompanying pre-sentence report that is also before me, it appears that Mr. Dhaliwal’s general mental health began to deteriorate in or about 2015. The deterioration seems to have been associated with or at least exacerbated by his heavy use of marijuana.

[46]      As his mental health deteriorated, Mr. Dhaliwal found himself in repeated trouble with the justice system. He was released on bail terms on the matter that is before me in January 2018 and almost immediately became involved in an incident in which he uttered a criminal threat to a person who had agreed to buy a phone from him and then reneged. He was ultimately convicted of that offence and placed on twelve months’ probation. In September 2019 he was convicted of driving while prohibited, following a period in which he acquired a multitude of traffic violation tickets and incurred a huge debt to the insurer. Also in September 2019 he was convicted of breaching his probation order and his bail release order, on the basis that he repeatedly failed to report to his supervisors as required. Prior to the convictions in 2018 and 2019 he had no criminal history of any sort.

[47]      Mr. Dhaliwal’s mental health issues appear to have come to a head in the spring of 2019. At that time he was engaged in a bizarre episode, or perhaps series of episodes, in which he threatened his father with a knife, broke some windows and spread gasoline around the family home, threatening it to burn it down, all because his father apparently refused to loan him some money.

[48]      The matters involving Mr. Dhaliwal, Sr. and the family home apparently did not become the subject of prosecution but, not surprisingly, the family were concerned by the escalating aggression and unpredictability of Mr. Dhaliwal’s behaviour. In June 2019 members of the family arranged for him to be involuntarily admitted to hospital under the Mental Health Act, and there he remained for two months. He was diagnosed as schizophrenic, and it was noted that his behaviour had indeed been exacerbated by excessive marijuana use. He was also a cocaine user, but it is not clear if the use of that drug is also implicated in his declining mental health.

[49]      Mr. Dhaliwal was released from hospital care on leave on August 30, 2019 but he is still subject to mental health certification. His behaviour is monitored in the community by health professionals and he can be returned to a secure setting at any time until November 19, 2020 if he becomes a danger to himself or the community. He now functions well on bail supervision.

[50]      After his release from hospital, Mr. Dhaliwal spent some months in the lower mainland, living with relatives and apparently attending school. He returned to Victoria in the spring of 2020, although he was still having difficulties. Dr. Dugbartey’s report refers to a consultation report written by Dr. Jason Bondar on May 11, 2020 which reads as follows:

[51]      Mr. Dhaliwal states that he has now ceased his use of marijuana entirely, on the advice of his treating psychiatrist, Dr. Coupland. That doctor confirmed to the author of the pre-sentence report that he has been attending all appointments and that his psychotic symptoms appear to have subsided altogether since he stopped consuming marijuana. The author of the pre-sentence report writes as follows:

[52]      There is nothing remarkable about Mr. Dhaliwal’s sexual history. He describes himself as heterosexual and refers to his first sexual experience occurring when he was nineteen years old and his sexual partner was seventeen. In September 2020 the author of the pre-sentence report noted that at that point he had been involved in a relationship with his present girlfriend for about two months. He describes that relationship to the probation officer in positive terms, but concedes that he has not told his girlfriend of the present court proceedings.

[53]      In his report, Dr. Dugbartey notes the progress which Mr. Dhaliwal has made in the past year in dealing with his mental health challenges, but still maintains that he represents a “moderate” risk to re-offend in the next year or two. The doctor writes:

[54]      In addition to the information about Mr. Dhaliwal’s mental health, I should add that I have received two letters of reference, which describe Mr. Dhaliwal’s positive attributes in the community. While I do take those letters into consideration, I note that neither of the authors expresses any awareness of the nature of the proceedings which Mr. Dhaliwal is facing in this court.

[55]      I also note that I heard from Mr. Dhaliwal’s sister in person during the sentencing proceeding. She expressed her concerns about her brother’s mental state and her hope that his progress could be allowed to continue in the community.

[56]      Finally, I heard briefly from Mr. Dhaliwal himself, in response to the reluctant inquiry which I made pursuant to s. 726 of the Criminal Code as to whether he wished to say anything before I imposed sentence. Contrary to all that has gone on before, Mr. Dhaliwal maintained that he was now empathetic toward the complainant and was remorseful. He hoped that I would not send him to jail. Given the manner in which he expressed himself, so clearly linking his statement of remorse with his hope for a favourable disposition, I can give no weight whatever to his statement.

[57]      To summarize, there are plainly some factors in Mr. Dhaliwal’s personal circumstances that mitigate in his favour on sentence. Those factors are:

[58]      I must comment yet further on the last point, dealing with Mr. Dhaliwal’s mental health, to focus on precisely how it affects the sentencing process here. That is an issue which was central to the submissions of both counsel before me.

[59]      Whilst recognizing that the nature of the offence is such that the court is bound by statute to give priority to the sentencing principles of denunciation and deterrence, defence counsel submits that this is a case in which the circumstances of the accused, and his mental health issues in particular, require the court to also give serious weight to the issue of rehabilitation.

[60]      Counsel submits that there are many cases in which sentencing judges have found it possible to grant suspended sentences to persons convicted of serious sexual offences, notwithstanding the primacy of the principles of denunciation and deterrence. In particular, counsel has referred me to the following cases:

[61]      Counsel quite rightly acknowledges that each of the above cases involves a fact pattern that bears no resemblance to the fact pattern before me. He emphasizes that he presents these cases to the court not for their facts, but as illustrations of the general principle which he advances; namely, that in appropriate cases the mental health or other mental disabilities of the accused can lead to community based disposition, rather than incarceration. I do not doubt that proposition for a moment, although I would only note in passing the caveat that the Friesen case, to which I have already referred, requires sentencing judges to now exercise extreme caution about following precedents that pre-date the latest Criminal Code amendments that took place in 2015.

[62]      In the K.S. case, at para. 51, the sentencing judge referred to the decision of the Alberta Court of Appeal in R. v. Belcourt, 2010 ABCA 319, which in turn quoted from the text Ruby on Sentencing (Butterworths, 6th edition, 2004) to this effect:

[63]      I will apply to the present case the two categories which Professor Ruby has identified.

[64]      The first category refers to a situation in which mental illness contributed to or caused to commission of the offence. In the present case, that is an extremely difficult proposition to address. During the course of the trial itself, there was no mention of Mr. Dhaliwal suffering from any sort of mental illness, either in the past or the present. Mr. Dhaliwal himself testified and although I rejected his testimony on the basis that it was not credible, I said this in my Reasons for Judgment:

[65]      There was thus no evidentiary framework laid at trial to suggest that mental illness played any part in the events that were the subject of the charge. Not only was Mr. Dhaliwal silent on the subject; the complainant’s testimony revealed nothing that would suggest that her assailant’s behaviour resulted from mental illness.

[66]      The materials presented on sentencing, however, allow for greater insight into the accused’s mental state. I have already acknowledged that the material appears to show that behaviour which led to Mr. Dhaliwal being convicted of various offences in 2018 and 2019 was likely connected to his mental health challenges. That conclusion appears to follow from the comments which counsel made concerning Mr. Dhaliwal’s general behaviour in that period of time and his behaviour in connection with the threatening charge specifically. His descent into criminal wrongdoing does indeed seem to coincide temporally with the deterioration of his mental health. I would be surprised if the two were unconnected, especially bearing in mind the comment attributed (in the pre-sentence report) to Dr. Coupland, to the effect that Mr. Dhaliwal’s aggressive tendencies are a result of his psychosis.

[67]      In the end result on this point, then, I would conclude that it is likely that Mr. Dhaliwal’s deteriorating mental health in 2017 likely played some part in his aggressive sexual misbehaviour on the night that the present offence occurred. It is difficult to determine the exact nature of the connection, however, because of the manner in which the accused presented his defence at trial. In any case, it is clear to me that Mr. Dhaliwal’s advancing mental health challenges were not near as significant or blatant a contributing factor in his wrongdoing as in any of the cases which defence counsel now presents on his behalf.

[68]      Still dealing with the first branch of Professor Ruby’s analysis of the effect of mental illness on the sentencing process, defence counsel makes the related, and rather more subtle argument that his client’s inability to demonstrate remorse may itself be connected to his mental illness.

[69]      There are, I think, two answers to that submission.

[70]      First, I would not expect remorse from an accused who denies that the incident happened. Unless there is an admission of responsibility for the event there can be no remorse, and I would not expect it.

[71]      Second, the absence of remorse is not an aggravating feature on sentencing in any event. It means only that the accused may be less amenable to rehabilitative treatment or counseling in the future, and that is a factor for me to consider. It remains a factor for me to consider, whether or not it arises from mental illness.

[72]      I turn then to the second branch of Professor Ruby’s analysis, relating to the question of whether mental illness affects a convicted person’s ability to cope with the terms of sentence, and their ability to cope with a prison sentence in particular.

[73]      I do accept that Mr. Dhaliwal has made progress with his illness and that it would be regrettable to interrupt that progress by incarcerating him. At the same time, though, I have to assume that the authorities are capable of accommodating his needs. Mr. Dhaliwal’s mental health needs are nowhere near as desperate as those which appear in the various cases which have been submitted on his behalf. And I also have to bear in mind that, as always, the sentencing process involves a balancing of interests and principles.

[74]      I do indeed take into account Mr. Dhaliwal’s mental health issues and I find that to some extent they mitigate the sentence which I would otherwise impose. I also take into account those other positive features about his personal circumstances which I listed above,

[75]      At the same time, though, when considering the fundamental proportionality of a sentence I am required to take into account the seriousness of the offence generally and the specific manner in which it was committed here. As I have attempted to explain above, neither of those factors work in Mr. Dhaliwal’s favour.

[76]      Crown counsel submits that the appropriate range of sentence in the present case is between one and two years of imprisonment. Having given the matter my most anxious consideration, both before and after I heard counsel’s submissions, I must say that I agree entirely with that assessment. In support, I refer specifically to those various cases which are referred to at paras. 17 to 26 in the case of R. v. Singh, 2012 BCSC 466, which I found most helpful.

[77]      The effect of the defence submissions, it seems to me, is to place this case at the bottom end of the range which I have just referred to. It does not have any greater effect beyond that.

[78]      Mr. Dhaliwal, I hereby sentence you to a period of one year of imprisonment.

[79]      The prison term will be followed by a period of probation that will be 18 months in length.

[80]      (Discussion followed regarding the conditions or probation and certain ancillary orders required by the circumstances).

[81]      Thank you counsel for your helpful submissions, which allowed me to render my sentencing decision without further delay.