R. v. Sidhu and Sweeney, 2018 BCPC 312

Citation: R. v. Sidhu and Sweeney 2018 BCPC 312 Date: 20181116 File No: 65465-4C Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. IQBAL SINGH SIDHU and KELLY DANIEL SWEENEY REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. SUDEYKO Counsel for the Crown: Henry Waldock Counsel for the Accused: Jeffrey R. Ray Places of Hearing: New Westminster and Chilliwack , B.C. Date of Hearing: October 26, 2018 Date of Sentence: November 16, 2018 Introduction [ 1 ] Sentencing is an individualized process. It involves examining the circumstances of the offence, the circumstances of the

offender, and applying the principles, purposes and objectives of sentencing codified in s. 718 of the Criminal Code , so as to provide a proportionate sentence. [ 2 ] This case involves the illegal possession of multiple handguns by a first time offender, and gives rise to the competing sentencing objectives of deterrence and denunciation against that of rehabilitation and restraint. Circumstances of the Offence [ 3 ] On August 18, 2016, Iqbal Singh Sidhu (“Mr. Sidhu”), along with a front seat passenger, Kelly Daniel Sweeney (“Mr.

Sweeney”), was stopped while driving his truck on a forest service road out of a remote area known for target shooting. This was essentially a random stop and search by conservation officers pursuant to the Wildlife Act . He was not under investigation by the police. [ 4 ] Located in the back seat driver side floor area of his truck were six new unregistered and unregisterable (no serial numbers) 45 calibre handguns, all threaded for use with suppressors, also called “silencers”. They did not have safety switches.

Also located there was a suppressor, as well as 78 rounds of ammunition and 4 magazines containing another 11 rounds (“the firearms”). [ 5 ] Mr. Sidhu had no license to possess the firearms, nor authorization to transport them. The street value was between $30,000 and $90,000. [ 6 ] Mr. Sidhu was charged with possession and insecure transport of the firearms, under s. 95(1) , 92(1) , 91(1) , 91(2) and 86(2) of the Criminal Code . [ 7 ] At the conclusion of the Crown case, I granted Mr. Sweeney’s no evidence motion. Mr. Sidhu did not call any evidence.

I convicted him on all but the count under s. 91(2) (overcapacity magazine). [ 8 ] I have already found that Mr. Sidhu had knowledge and exercised control over the firearms. I also have no trouble concluding that the firearms were meant for criminal purposes, based upon the number and nature of them. [ 9 ] What is less clear is Mr. Sidhu’s particular role, beyond that of possession. Mr. Sidhu’s role [ 10 ] The Crown suggests I could infer a number of scenarios, including Mr. Sidhu’s involvement with the passenger as a now convicted drug dealer. Those particular scenarios would be aggravating circumstances.

However, I find that there is not enough evidence to establish any of those scenarios beyond a reasonable doubt. It would be speculative to do so. [ 11 ] On the other hand, defence counsel submits that he is instructed that his client did not “own” the firearms, which was to suggest Mr. Sidhu’s involvement was limited to assisting others who had ownership of the firearms. That submission is not evidence, but may be a reasonable inference based on the evidence. The Crown concedes that he cannot prove Mr. Sidhu’s ownership.

But does the evidence, on a balance of probabilities, support non-ownership as a mitigating circumstance? [ 12 ] The police had an opportunity to further investigate Mr. Sidhu’s involvement, including having seized his cell phone; but there was no further evidence offered of his involvement beyond his possession on this occasion and in these circumstances. [ 13 ] Despite that lack of further evidence, non-ownership may itself not be mitigating, or at least not significantly so. He may have been paid a fee for his involvement, without ownership.

Instead, as I assume the defence would have me conclude, he may have simply assisted someone to transport these items, including for inspection or testing, without receiving any financial benefit. From the evidence, I simply don’t know. [ 14 ] In the end, I agree with the Crown that the evidence established that Mr. Sidhu was certainly involved with the firearms and had an enabling role towards their expected distribution for a criminal purpose. Circumstances of the Offender [ 15 ] Until the discovery of these items, Mr.

Sidhu, 29 years old at that time, was not someone who the police were actively investigating in relation to this matter. He also has no previous criminal record. [ 16 ] He is the youngest and only son of five children who has, with some personal sacrifice, assisted his parents and family with the running of their blueberry farm. In addition, he completed his secondary schooling and has taken post-secondary courses to achieve his electrical certification, even while suffering from a back condition that has recently required surgery.

He has a history of offering his services to the local Sikh temple and otherwise volunteered in his small farming community. [ 17 ] I was provided with twenty four letters of support, mostly from extended relatives, who expressed their shock over his involvement in this matter, and strongly extolled his many positive qualities, including hard work, loyalty, and a willingness to help others. It was also a common theme that his involvement in this matter was a single mistake in judgment.

He has significant and continuing family and community support, including employment either in his electrical construction field, or his family’s blueberry farm. [ 18 ] He has expressed, through his counsel, the shame this has brought upon him and his family. The time over which this matter has taken to get through the courts has undoubtedly been stressful. He has been on strict bail terms since August 2016 and no issues have arisen. Positions of Crown and Defence [ 19 ] The Crown seeks a sentence of 4 years in jail. He focusses on the objectives of deterrence and denunciation and relies on the

Supreme Court of Canada (“SCC”) case of R. v. Nur, 2015 SCC 15 , [2015] 1 SCR 773 (“Nur”).

In Nur, the SCC found theminimum 3 year sentence under s. 95 of the Criminal Code to be unconstitutional, based on the possibility of a very low end ofseriousness of a possession, such as when a person may have a valid license for a firearm, but stores it with ammunition at a cottagerather than their residence, akin to a regulatory offence. [20] But the SCC made it clear that deterrence and denunciation remain significant objectives in most other cases of illegalpossession of a firearm, that a jail sentence will usually be appropriate, and that the length will depend on the seriousness of thecircumstances surrounding the illegal possession of firearms.

At the high end of seriousness, the SCC, reciting Doherty J.A.’s commentsin the court below, identified those cases where a party “carries a loaded prohibited or restricted firearm in public places as a tool oftheir criminal trade” and “poses a real and immediate danger to the public”. The SCC further recites Doherty, J.A. that, for the vastmajority of those cases, a three year sentence may be appropriate. [21] The Crown here also relies on the more recent comments of our court of appeal in R. v. Kachuol, 2017 BCCA 292 at para 25(“Kachuol”), that the objectives of deterrence and denunciation remain primary.

In addition to Nur and Kachuol, the Crown relies onthe cases of R. v. Holt, 2015 BCCA 302 (30 months), and R. v. Wilson 2018 BCSC 1405 (30 months). [22] As in all cases, there are both differences in the circumstances of the offence and the offender. Those differences may benegligible or significant and therefore distinguishable. In regard to each of those cases, the offender had a loaded handgun, whichdistinguishes them from this case.

There may be other distinguishing circumstances, but I needn’t consider them. [23] The defence submits that a Conditional Sentence Order (“CSO”) of 2 years less a day or, alternatively, a 12 month jail term,followed by two year probation, is appropriate. [24] He relies on a number of pre-Nur cases, including R. v. O’toole 2003 BCSC 747 (minimum 1 year), R. v. Nguyen 2005 BCCA115 (concurrent 1 year minimum jail terms), and R. v. Desmond BCSC 698 (2 years less a day). I agree with the Crown that these casesmust be approached with some caution, in that they pre-date Nur and the guidance provided by the SCC.

For that reason, I did not findthem particularly helpful. [25] The more recent post-Nur decisions relied upon by the defence includes R. v. Sellers 2018 BCCA 195 (“Sellers”) (2 year CSO),R. v. Sears, 2016 BCSC 965 (“Sears”) (19 month CSO plus 6 months jail), R. v. Devink, 2016 BCSC 1658 (“Devink”) (12 month CSO),and R. v. Haus 2016 BCPC 11(“Haus”) (6 month CSO). [26] I find Sellers distinguishable on the basis of the offender’s indigenous background and application of the Gladue factors, aswell as the apparent reliance on “exceptional circumstances”.

As for Sears, this was at the minor end of criminality, although there wassome immediate danger as a result of the offender’s suicidal behavior while in possession of a loaded firearm. The sentence was alsoseemingly illegal in that it exceeded the 24 month limit for a CSO. Devink also involved the lower end of criminality in that this was thedesperate act of a paraplegic man who perceived his need for a loaded handgun for his defence, rather than furtherance of criminalactivity.

Haus involved a collector of weapons, who posed no risk to the safety of the community. [27] All of these decisions from both Crown and defence may assist, even with their recognized differences, with regard to theprinciple of parody. However, I also endorse the thoughts of my brother Judge Gulbransen in R. v. Galang 2014 BCPC 240 ,2014 BCPC 0240 (appealed on other grounds) at para 3: As in most sentencing proceedings, this decision must focus on the application of general legal principles to the specific circumstances ofthe offence and the offender.

The focus is not on determining whether the sentence imposed in another case should apply to this case. Application of sentencing purposes, principles and objectives [28] Despite our country’s general abhorrence, as reflected in our laws, towards the use of guns by our citizens, illegal firearms andin particular handguns, have found their way into our communities with increasing frequency. Those illegal firearms have been used tofurther criminal purposes, including gangs and shootings. We see it almost every day. Uninvolved citizens are sometimes the tragicvictims of those shootings.

The harm to our community as a result of those illegal firearms cannot be overstated. [29] For that reason, the illegal possession of firearms generally calls for sentences that reflect the objective of deterrence anddenunciation. Following from Nur, the more aggravated the circumstances of the possession, the greater the focus on those sameobjectives. [30] In this case, the number and nature of the firearms puts this at the higher end of seriousness for possession in criminalcircumstances. It is, as the Crown says, danger in “gestation”.

However, the possession was in a rural area and none of the firearmswere loaded, such that it did not present as a more immediate danger. I conclude that this possession lies towards, but not at, the highestend of seriousness. [31] Balanced against that is the very positive background circumstances of the offender, Mr. Sidhu, and the suggestion that he madea single bad decision to involve himself in this matter. In turn, that supports my conclusion that specific deterrence is not a consideration,and there is no need for continuing rehabilitation.

It also supports application of the principle of restraint. [32] Applying the general principles and objectives of sentencing, I conclude that a jail sentence is necessary. To do otherwisewould not be consistent with the fundamental purpose and principles of sentencing. However, that jail sentence need not be as long assuggested by the Crown, but longer than that submitted by the defence. That sentence will be a global term of incarceration for 2 yearsless a day.

I conclude there is no need for further rehabilitation and no probation period will follow. [33] I would only add that I was also provided with medical documentation and submissions regarding Mr. Sidhu’s back condition,but was satisfied his rehabilitative treatment would not be compromised by a jail term.

Sentence [ 34 ] Specifically, with respect to count 3, s. 95(1), unlicensed and unregistered possession of a restricted firearm with ammunition, the sentence will be 2 years less a day. [ 35 ] With respect to count 2, s. 91(1), unlicensed and unregistered possession of a firearm, I accept the submission of both Crown and Defence that the Keinapple principle applies and a conditional stay of proceedings be entered. [ 36 ] With respect to count 1, s. 86(2), insecure transport, I impose a 30 day sentence to run concurrently to the 2 years less a day. [ 37 ] With respect to count 4, s. 92(2), possession of a prohibited device, a suppressor, I impose a 6 month sentence to run concurrently to the sentence of 2 years less a day. [ 38 ] As for the other ancillary orders, with regard to count 3, s. 95(1), I make the mandatory s. 109 order for a prohibition from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for a period of 10 years. [ 39 ] I also make the mandatory order under s. 109(2)(

b) for a prohibition from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [ 40 ] I make the discretionary order for a DNA sample, with regard to count 3, pursuant to s. 487.051(1) (c). [ 41 ] I make the forfeiture order for all exhibits as set out in the Crown’s written submissions, pursuant to s. 491, as well as the order that the cell phone be returned to Mr. Sidhu, should the period for notice expire without appeal. [ 42 ] Finally, I order that the Crown be forfeited the long gun legally owned and possessed by Mr.

Sidhu, unless within 90 days he can provide proof that he has transferred lawful ownership to another person and that person may then receive that long gun and case. ______________ D. SUDEYKO Provincial Court Judge