IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         D.S. is being sentenced for assaulting his spouse, K.K., in 2019 and for threatening her in late 2021. Under a separate file, he is being sentenced for breaching his release order by having contact with her on Valentine’s Day in 2022.

[2]         The Crown is seeking short jail sentences on all three files, some of which would be time served. Alternatively, the Crown seeks a Conditional Sentence Order (jail in the community) on the breach file. The jail sentences are to be followed by a Probation Order for eighteen months, and certain ancillary relief is proposed. Of course, the Crown’s position would result in criminal convictions for Mr. S.

[3]         In contrast, the defence seeks a conditional discharge with 24 months of probationary conditions, including community work service. This would mean no criminal conviction for Mr. S. so long as he complied with the conditions.

[4]         The Crown and defence are miles apart in their sentencing positions, and my task is to render a fit sentence for these offences.

[5]         Mr. S. has pled guilty to assaulting his spouse sometime in 2019 under Count 3 of File 94528-1K. Ms. K. had undercooked dinner, so Mr. S. struck her with a rolling pin, leaving Ms. K. with a lump on her head. Mr. S. told Ms. K. to tell others that a log had fallen on her head.

[6]         Mr. S. said he acted out of anger and without premeditation. His business was suffering, and this assault was out of character for him.

[7]         Mr. S. also pled guilty to uttering a threat to Ms. K. on December 13, 2021, under Count 1 of the same file. At that time, the parties were separated. Mr. S. attended at Ms. K.’s residence, and demanded to see their two children. He threatened to kill Ms. K. and unsheathed his kirpan.

[8]         Mr. S. says he wanted to see his children and he was acting out of love for his children. He had no intent to harm his former spouse. He was living at the Sikh temple and had not seen the children for over one year. He had just started counselling.

[9]         Under file 94258-2KA, Mr. S. pled guilty to breaching a release order by having contact with Ms. K. on February 14, 2022. Ms. K. had been grocery shopping when Mr. S. swore at her and raised his hand from a nearby truck. Mr. S. says that this contact began by accident, and he was again wanting to see his children.

[10]      The Crown also relies on another event on April 9, 2023, when Mr. S. breached a more recent release order. He pulled up his truck near Ms. K. and stated that he wanted to reconcile. He gave her his phone number, asking her to phone him and then to delete the phone log. Mr. S. says he again wanted to see the children, and he wished to reconcile given that he had taken courses to control his anger.

[11]      Mr. S.’s spouse did not provide a Victim Impact Statement, and she now wishes to reconcile. As discussed below, Mr. S. has engaged in extensive counselling. Mr. S. has not had in-person visits with the children for over two years, and the Ministry of Children and Family Development remains involved. He now talks to his spouse daily.

[12]      Notwithstanding the desired reconciliation, I must bear in mind these words of Mr. Justice Lambert in R. v. Stanley, [1986] B.C.J. No. 695 at para. 8:

[13]      In short, Ms. K. may forgive Mr. S., but this does not put an end to the matter. The sentence must be fit and proportionate.

[14]      Mr. S. is 47 years old, and he was born in Punjab, India. He is a devout Sikh and says he has never broken his vows. When he was 15 years old, he was baptized as a Sikh and he served at the Temple. He only has a Grade 4 education. He has devoted his life to the temple and traveled the world with a Sikh congregation.

[15]      When Mr. S. visited Canada in the early 2000s, he was introduced to his future wife, Ms. K. They had an arranged marriage and he moved to Canada in 2012. Their children are ten and thirteen years old.

[16]      Mr. S. has worked on farms and with a mill. In 2018, he started his own mobile pressure washing business cleaning trucks.

[17]      Mr. S. was arrested for these offences on December 19, 2021, so I am sentencing him nearly two and one half years later. On August 23, 2023, the release order was varied to allow phone contact between the parties, and he apologized for his actions. I understand that a prior protection order in Family Court has expired.

[18]      Mr. S. has undertaken extensive counselling and classes. He has participated in Abby Dads at Archway Community Services, and has attended 40 sessions of Chai Time between June and December of 2023. He appears sincere about changing and wants to improve his relationship with his spouse.

[19]      Mr. S. participated in four of eight sessions of the Punjabi Men in Relationship Program ending in July of 2022, and he completed the Punjabi Anger Awareness Program in October of 2022. He did six of eight sessions of the Punjabi Men in Relationship Program ending in December of 2022. He successfully completed the 10-week Courtyard for Men Counselling Program.

[20]      The Kalgidhar Darbar Sahib Society has written letters of support for Mr. S., emphasizing his volunteer work with the Temple. He helps prepare and serve food to the community, and cleans inside and outside the building. He is described as humble, respectful and reliable. He has support letters from friends and family.

[21]      Mr. S. has not seen his children for over two years, and the Ministry is re-evaluating their position in that regard. Mr. S. clearly wants to reunite with his family. His business has suffered as a result of these criminal charges. He has spent three days in custody because of the arrests. He may wish to become a security guard.

[22]      Section 718 of the Criminal Code outlines the fundamental purpose of sentencing, which is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society. The just sanctions have objectives including denunciation, deterrence, separation of offenders where necessary, rehabilitation, reparations, and promoting a sense of responsibility in offenders.

[23]      Section 718.1 of the Criminal Code directs that a sentence must be proportionate to the gravity of the offence and the responsibility of the offender. Section 718.2 requires the Court to consider aggravating and mitigating factors, and section 718.2(a)(ii) lists intimate partner abuse as an aggravating factor.

[24]      A conditional discharge is available for Mr. S.’s offences under s. 730 of the Criminal Code. The conditional discharge must be in the best interests of the offender and not contrary to the public interest. It results in no conviction being entered, if the conditions are satisfied. Mr. S. seeks a conditional discharge for 24 months with certain no contact provisions, counselling and community work service. The Crown submits that a conditional discharge would be contrary to the public interest.

[25]      Many cases uphold suspended sentences for domestic violence. In R. v. T.E.C., 2015 BCCA 43, our Court of Appeal upheld a suspended sentence where the accused threw a plastic cup of water and a sleeve of crackers at his wife, although it was a low end assault. The public interest did not warrant a discharge, and there was an interest in preventing conflict between warring spouses from becoming physical. The Stanley case above was cited.

[26]      I would note that the present case is more egregious than T.E.C. Mr. S. struck his wife with a rolling pin and he later threatened her with a religious object. Moreover, he breached release orders and made efforts to conceal his misdeeds.

[27]      In R. v. Begley, 2019 BCCA 331, our Court of Appeal upheld a suspended sentence for an offender who threatened to shoot his wife and then claim self defence. A conditional sentence was not in the public interest. Those facts are perhaps worse than the present case, but in both cases, children were home and Mr. S. did make a threat with a kirpan.

[28]      Of course, sentencing is a very individualized process, and one can find many relatively serious cases of domestic violence where discharges were granted. In R. v. Popovich, 2021 BCPC 278, the accused kneed his spouse in the face, causing her to become unconscious. There were two other violent incidents and subsequent breaches of release conditions. The offender was a young man with no criminal history, and he took rehabilitative steps. He received a conditional discharge. The offending in Popovich appears as bad or worse than the offending in the present case, but I note that the offences there were over a shorter time span than those in the present case.

[29]      In R. v. Li, 2019 BCSC 648, the assault on the spouse consisted of choking. The Li case was an appeal of a suspended sentence, and a conditional discharge was imposed instead, with a longer period of probation. I note that case focussed on an isolated incident, unlike the present case where different offences occurred over a considerable span of time.

[30]      In R. v. Ranspot, 2017 BCPC 101, the court balanced general deterrence and denunciation with rehabilitation when sentencing an offender to a conditional discharge for domestic violence. The court reviewed many cases where a conditional discharge was appropriate because the offender had little or no criminal record, he had engaged in rehabilitation, and a conviction would negatively affect employment. The victim in Ranspot had bruising and a laceration, and the offender also had injuries. Unlike the present case, there was one major incident to consider.

[31]      In R. v. Delgren, 2019 BCSC 396, the appellate court dismissed an appeal of a conditional discharge sentence for a series of incidents including choking, head butting, and a cigarette burn. Mr. Delgren did have some mental health and substance abuse issues which were not present with Mr. S. As alluded to above, it is difficult to reconcile all of these cases except to say again that sentencing is an individualized process, and when examining appellate decisions, intervention is warranted only when there is a material error or a demonstrably unfit sentence.

[32]      The mitigating factors are as follows:

[33]      The aggravating factors are as follows:

[34]      I am of the view that a jail sentence or jail in the community sentence is too severe in this case, given the rehabilitative steps taken by Mr. S. and other mitigating factors. However, a conditional discharge is not a fit sentence here.

[35]      There is no question that a conditional discharge would be in Mr. S.’s best interests. He has no criminal record and the spouses wish to reconcile. He seeks employment and travel, both of which may be hampered by a criminal conviction.

[36]      Nevertheless, a discharge is contrary to the public interest on many fronts. This file began with an assault with a rolling pin and ended with breaches. In between was a threat to kill with an unsheathed kirpan. I am sentencing Mr. S. for more than one offence, and the offences span at least a couple of years. Ms. K. did nothing to provoke the assault or later threat. Mr. S. also tried to manipulate his wife by having her lie about the lump on her head and by requesting she delete the later phone calls from him.

[37]      I appreciate the good work Mr. S. has done in his counselling, and that is why there will be a suspended sentence with conditions that are not very onerous and are rehabilitative in nature. I sincerely hope the family can reunify in a manner which is safe and secure, and the Ministry will be reassessing his lack of contact with his children.

[38]      For all files, my global sentence is a suspended sentence for 18 months. The no contact provisions between the parents are relaxed as suggested, and further counselling is required.

[39]      Mr. S. please stand up. On all counts, I am imposing a suspended sentence with probation for 18 months. The conditions are:

[40]      Pursuant to s 110 of the Criminal Code, you are prohibited from possessing any firearm, crossbow, restricted or prohibited weapon, prohibited device, ammunition, or explosive substance for 2 years from today.

[41]      The assault and threatening convictions are secondary designated offences. After considering the factors set out in s 487.051(3) of the Criminal Code, I am satisfied that it is in the best interest of the administration of justice to authorize the taking of samples of bodily substances from you. You shall provide a sample to the Abbotsford police station by April 30, 2024.

[42]      The victim fine surcharge is waived given your financial circumstances.