R. v. Bains, 2022 BCPC 335

Citation: R. v. Bains 2022 BCPC 335 Date: 20220428 File Nos: 232395-1 236970-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REX v. GURDEEP SINGH BAINS MARTIN DJUNGA (RE: ACCUSED BAINS) ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. ALBERT Counsel for the Crown: P. Bachra Counsel for the Accused: R. Larmer Place of Hearing: Surrey , B.C. Dates of Hearing: January 7 and February 28, 2022 Date of Sentence: April 28, 2022

[ 1 ] THE COURT : I am rendering my decision orally. Should a written version be released, I reserve the right to edit it for grammar, structure, complete citations and organization without changing the reasoning or result. Introduction [ 2 ] Mr. Bains is before me today for sentencing in relation to a series of drug trafficking transactions that occurred between November 2018 and March 2019. Each of these transactions involved him selling a small quantity of drugs to an undercover police officer. These transactions were arranged by way of a cell phone number that the undercover operator used to contact Mr.

Bains or his associate. The nature of this enterprise is properly characterized as a dial-a-dope one. The drugs that were sold included cocaine, heroin, fentanyl and on one occasion, carfentanil. [ 3 ] The Crown seeks a global sentence of 36 months. They submit that the appropriate sentence for the transaction involving carfentanil is 36 months and the sentence for the trafficking of the other drugs should be 24 months in jail.

They agree that this time should be served concurrently. [ 4 ] Defence counsel agrees that a jail sentence is required but argues that the sentence I should impose is two years less one day and urge me to consider Mr. Bains as an appropriate candidate for the imposition of a conditional sentence. [ 5 ] I must determine firstly what the appropriate range of sentence is for Mr. Bains and, secondly, if I determine that that range is less than two years, I must decide whether he should be allowed to serve his sentence in the community by way of a conditional sentence order.

Background [ 6 ] In September of 2018, the Surrey RCMP drug enforcement unit began investigating a dial-a-dope phone line. Between September 12th, 2018 and October 31st, 2018, utilizing undercover police officers to act as drug users they purchased drugs from persons associated with that phone number on 10 different occasions. [ 7 ] On November 6th, 2018 an undercover officer contacted the same phone number and arranged to purchase drugs. At the pre- arranged meeting place, the undercover officer entered a vehicle with three occupants; Mr. Bains was the driver. The vehicle was registered in his name.

One of the passengers in the vehicle conducted the physical exchange with the undercover officer but Mr. Bains engaged in a discussion about payment which demonstrated his role in the operation. The transaction resulted in the trafficking of three baggies of cocaine, each weighing approximately .3 grams and two packages weighing .23 grams and .07 grams that analyzed as fentanyl. [ 8 ] On November 15th, 2018, the undercover officer called the same number and spoke to a person who identified themselves as Gucci (phonetic). It became evident that this person was in fact Mr. Bains.

The undercover officer placed an order for three points and one gram of soft. Gucci advised the officer that he was out of soft but could provide four points. This is a demonstration of Mr. Bains' involvement in the operation. A meeting took place at a pre-arranged spot; Mr. Bains arrived in a different vehicle and was alone in the vehicle. After some discussion about the price, nature and quantity of drugs, a transaction took place where two packages of fentanyl weighing .24 grams and .1 grams were exchanged for $70. [ 9 ] On November 20th, 2018, another meeting was arranged where Mr.

Bains trafficked .36 grams of cocaine and three separate bags of fentanyl weighing approximately one gram each for $100. [ 10 ] Next, on December 5th, 2018, the undercover officer arranged to purchase cocaine from another individual associated to the same dial-a-dope phone number. A meeting took place at a pre-arranged location and four packages of cocaine, each weighing approximately .3 grams were exchanged for $140. Mr. Bains was the driver during this transaction. [ 11 ] These facts provide the substance for the amended counts on court file 232395-1 that Mr.

Bains has pled guilty to. [ 12 ] The next transaction occurred between February 21st, 2019 and March 26th, 2019 and relates to Count 1, as amended, and Count 3 on court file 236970-1. [ 13 ] On February 21st, 2019, Mr. Bains was contacted by an undercover officer at the same dial-a-dope phone number and arrangements were made to meet at a specified location. Mr.

Bains arrived by himself driving his own vehicle and exchanged five packages containing a total of .76 grams, of what was determined after analysis to be fentanyl, for $110. [ 14 ] On March 7th another transaction took place for three separate packages containing approximately one gram in each package for $50. These drugs also were analyzed to be fentanyl. [ 15 ] The final transaction occurs on March 26th, 2019; two separate packages weighing .246 grams and .119 grams are exchanged for $50 between the undercover officer and Mr. Bains.

On this occasion the drugs analyzed to be a mixture of heroin, fentanyl, an analogue of fentanyl and carfentanil. [ 16 ] On each transaction there were discussion between the undercover officer and Mr. Bains about the nature of the drugs, the price and where to meet. The dialogue between them demonstrated Mr. Bains' ability to provide drugs in different quantities and also an awareness of the presence of police and efforts to avoid police detection. The Defendant's Personal Background [ 17 ] Mr. Bains is 32 years old and was 28 years old at the time of these offences. He was born and raised in the Lower Mainland.

He has three siblings. His family are supportive of him, although I am told that these charges have placed some strain on their relationship. He is currently living with his girlfriend, Harleen Kandola (phonetic). I am told that she provides him with pro-social support. He

graduated high school and is currently working towards becoming a red seal electrician. He has attended Vancouver Community College and BCIT. He spent four years serving with the Canadian Forces. He recently has been employed with Riverside Recycling and Hydro Works Plumbing and Heating. He has no criminal record. [ 18 ] Mr. Bains has involved himself with the Sikh community and has been doing volunteer work with Guru Nanak's Free Kitchen. This is a Sikh organization involved in food security. He began this work in August of 2019 and continues to do volunteer work there at the present time. [ 19 ] Mr.

Bains has struggled with substance misuse and, specifically, a cocaine addiction. At the age of 23 he completed a two-month program at Edgewood Treatment Centre in Nanaimo. He explains the criminal charges I am to sentence him for as being part of his drug using lifestyle. More specifically, he states that he committed these offences to support his own substance use. Since he was charged with these offences, he has adhered to strict bail conditions.

Although the pre-sentence report suggests some issues with him complying with the terms of his bail, his counsel points out that he has not been charged with breaching any of these conditions. More importantly, he reports that he has managed to stay sober throughout this period of time. Victim Impact [ 20 ] The Crown has provided materials as part of their submission to highlight the seriousness of the offences facing Mr. Bains. They have included a report from Dr.

James Kennedy, a doctor of internal medical, clinical pharmacology and toxicology from 2016 providing information about the use, abuse and toxicity of fentanyl. They have also provided reports from the B.C. Coroner Service providing statistics relating to illicit drug toxicity deaths in B.C., dating from before these offences to the present time. Finally, they have included a separate report from the B.C.

Coroner Service, more specifically addressing fentanyl detected illicit drug toxicity deaths. [ 21 ] These reports, along with the submissions of Crown and the review of the legal authorities provided by the Crown leave no doubt that the trafficking of fentanyl is serious and is a leading cause of the public health emergency facing our community and all of British Columbia. The distribution of fentanyl and carfentanil, along with other opioids has led to a pathway of death and destruction, one that is often focused on the most vulnerable within our society.

The Law - General Principles [ 22 ] I am mindful that all sentencings are inherently individualized exercises. I must balance the various goals of sentencing while taking into account the particular circumstances of the offender as well as the nature and number of their crimes. The statutory principles and considerations that inform my determination of the sentence to be imposed are found in s. 10 of the Controlled Drugs and Substances Act and ss. 718 through 718.2 of the Criminal Code . Both statutes set out the purpose and principle of sentencing.

The fundamental purpose of sentencing is to contribute to respect for the law and maintenance of a just, peaceful and safe society; to impose just sanctions to denounce unlawful conduct; to deter the offender and others from committing offences; to separate offenders from society where that is necessary; to assist in the offender's rehabilitation; to provide reparations and to promote a sense of responsibility and acknowledgement of harm done. [ 23 ] There are additional principles set out in s. 718 through 718.2 of the Code , particularly; the sentence imposed must be proportionate to the gravity of the offence and the offender's moral culpability.

I must also take into account both mitigating and aggravating factors. Moreover, the sentence should be rationally related to other sentences for similar offences and similar offenders. The Criminal Code directs me to show restraint in the application of sentences of imprisonment, applying such sanctions only where the circumstances make that necessary. The principle of restraint applies to all offenders. The Criminal Code requires particular attention to be paid to the circumstances of aboriginal offenders. [ 24 ] A guilty plea, and particularly an early guilty plea, is a mitigating factor on sentencing.

The degree of mitigation attributed to a guilty plea varies somewhat depending on the circumstances of each case. A guilty plea is most often evidence of remorse and public acceptance of responsibility for the criminal wrongdoing. A guilty plea results in a saving of public costs and expenses and even when it appears to simply be a recognition of the inevitable, the plea brings finality, spares judicial resources and in certain cases reduces the trauma and inconvenience to victims and witnesses. [ 25 ] The youthfulness of an offender is also a consideration for the court.

It is particularly important when an offender is youthful and a first time offender: It is a general principle of sentencing that before imposing a custodial sentence on a first offender, the court should carefully explore the other disposition available. Specific Principles for the Trafficking Offences [ 26 ] Deterrence and denunciation generally must be given primacy in sentencing cases involving the trafficking of fentanyl and cocaine. The normal range of sentencing for trafficking, even in small amounts of fentanyl, for first time offenders is 18 to something that may exceed 36 months of jail: see R. v.

Smith , 2017 BCCA 112 at para. 45 . This range applies to first time offenders as well. [ 27 ] The presence of carfentanil in one of the packages trafficked by Mr. Bains is particularly troubling. Our Court of Appeal in R. v. Mann , 2018 BCCA 265 stated the following at para. 27: Carfentanil is about 100 times more potent than fentanyl and 10,000 times more potent than morphine. Due to its extreme toxicity, carfentanil has no safe or beneficial human use, even within the medical community in highly controlled environments.

Its sole use appears to be as a large animal tranquilizing agent . . . there is “no way to effectively and safely try to mix [carfentanil] for any sort of street-level distribution”. A user of carfentanil will likely go into immediate overdose and require the administration of naloxone. [ 28 ] I must also emphasize deterrence and denunciation when sentencing a person trafficking drugs when they employ a mode of distribution known as dial-a-dope. This would be the case even if the drug trafficked was not fentanyl or carfentanil.

This is because these offences are not impulsive or spontaneous but require a great deal of planning, including the marketing of a specific phone number to allow the offender or offenders to distribute the drugs. It is therefore reasonable for those considering entering into this form of

enterprise to take into account the likely penalty they may receive upon conviction: see R. v. Oates , 2015 BCCA 259 at para. 19 . [ 29 ] The normal sentencing range for an offender who was involved in a dial-a-dope trafficking operation of hard drugs is between six to nine months and upward to 18 months in some cases, absent exceptional circumstances: see R. v. Voong , 2015 BCCA 285 at para. 44 and para. 59. Analysis [ 30 ] The nature of the drugs trafficked, including fentanyl and carfentanil is an aggravating factor. The drugs sold by Mr. Bains were potentially lethal.

This is especially true of the packages of drugs sold on March 26th, 2019, which contained carfentanil. [ 31 ] Mr. Bains, you should know that some of the persons you sold the drugs to may very well have died as a result of your actions. There is rarely a way to link any of these fatalities to a specific criminal transaction but as the number of deaths rise, those who choose to sell illicit drugs should assume that some of their product is likely poisoned and will cause the consumer real harm. [ 32 ] As referenced above, the mode of transportation is also aggravating.

This, in part, is because this mode of distribution makes enforcement by the police more difficult. This was evident in the telephone conversations that occurred between the undercover officer and Mr. Bains discussing where to meet in order to avoid police attention. [ 33 ] It is also aggravating that Mr. Bains conducted his illegal activity for an extended period of time. This was not a one-time occurrence or even a spree within a short time frame. The trafficking took place over a number of months. I also find it aggravating that Mr.

Bains was engaged in the business to a greater degree than as a simple delivery person. He negotiated price and quantity with the various undercover officers who contacted him. [ 34 ] In mitigation, I have considered that Mr. Bains is a relatively young person and has no criminal record. He has managed to address his addiction to cocaine and has been sober and drug free for a number of years since his offending. He has developed a positive relationship and terminated his relationships that led him into these troubles.

He has found employment and is working towards attaining certification as an electrician. [ 35 ] I have also considered the bail conditions that Mr. Bains has been on while these matters remained outstanding. Mr. Bains' guilty plea, his comments in the pre-sentence report and the submissions of his lawyer all reflect his expression of remorse for his criminal action. [ 36 ] I have considered the authorities provided by both counsel in determining what a fit range of sentence is for the offences for which I am to sentence Mr. Bains.

I appreciate that no two cases will ever be identical and remain mindful of the need to sentence Mr. Bains on an individual basis. [ 37 ] The cases provided by the Crown are distinguishable in many ways; some of the offenders were on bail at the time of the commission of the offences they were being sentenced for: see R. v. Smith . Often the drugs were accompanied by weapons offences: see R. v. Smith , R. v. Mann , and R. v. Kirton . Many of the defendants in the cases provided to me had previous criminal histories: see R. v. Milliken , R. v. Shusterman and R. v. Gill .

In certain of the cases where lengthier sentences were imposed, the amount of the drugs were greater and the motivation for the criminal behaviour was identified as greed rather than Mr. Bains' situation which was to support his own substance misuse challenges. [ 38 ] I have also considered the gravity of these offences and the degree of Mr. Bains' responsibility and I find that a sentence of 18 months for Counts 1 and 2 on court file 232395-1 and Count 1 on Information 236970-1 and a sentence of two years less one day for Count 3 on that Information, the transaction involving carfentanil is appropriate.

I have concluded that all of these offences, although occurring over a number of months, are in essence one criminal enterprise and that each of these terms of imprisonment should run concurrent to each other. [ 39 ] Having determined that the sentence I would impose is less than two years, I must now consider whether Mr. Bains should be permitted to serve the sentence within the community. [ 40 ] It was not submitted that Mr. Bains' circumstances are so extraordinary that I should consider a suspended sentence, as in R. v. Voong . Rather, defence counsel asked that I place Mr.

Bains on a conditional sentence order. Both counsel agree that given the successful challenges to the legislation prohibiting the imposition of a conditional sentence for these types of offences that a conditional sentence is a lawful option. [ 41 ] The decision as to whether a conditional sentence is appropriate begins with an examination of the provisions of s. 742.1 of the Criminal Code . This

section states in part: If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community subject to conditions imposed under s. 742.3, if (

a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 . [ 42 ] I have determined that the sentence I would impose is less than two years and, therefore, the first requirement is met. Mr. Bains has been on bail for a lengthy period of time and has not committed any further offence. He appears to have addressed the underlying issues that led to his criminal activity and is leading a pro-social life.

This satisfies me that the service of the sentence in the community would not endanger the safety of the community. This is another requirement in imposing a conditional sentence. [ 43 ] Finally, I must determine whether the imposition of a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in s. 718 to 718.2.

[ 44 ] The nature of the offences Mr. Bains has pled guilty to require that I focus my attention on the principles of denunciation and deterrence. Many of the authorities provided by the Crown are dated during the time when the imposition of a conditional sentence was prohibited and, therefore, other than the emphasis on the applicable principles of sentencing, they provide limited guidance to assist me in my determination whether to impose a conditional sentence. [ 45 ] The case of R. v. Milne , 2021 BCSC 1859 and R. v.

Gill , 2021 BCSC 2269 are both cases that considered the imposition of a conditional sentence order. In R. v. Gill , Justice Ahmad finds that given Mr. Gill's criminal history, he would present a risk of reoffending in the community and therefore he was not a candidate for a conditional sentence order. In the Milne decision, Justice Williams rejected the submission as to the appropriateness of a conditional sentence and imposes a real jail sentence of 18 months. I find that Mr.

Bains' personal circumstances are different enough that this case also is distinguishable. [ 46 ] I have considered the principles set out in the case of R. v. Proulx from the Supreme Court of Canada including:

Section 718.2 (

d) and 718.2 (

e) of the Criminal Code codified the important principle of restraint in sentencing and were specifically enacted along with s. 742.1 to help reduce the rate of incarceration in Canada. 2. A conditional sentence can achieve both punitive and restorative objective. 3. A conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed and the public is aware of the sentence: para. 107. 4. The conditions must have a punitive aspect: para. 103. 5. The stigma of a conditional sentence with house arrest should not be underestimated: para. 105. 6.

The greater the need for denunciation, the longer and more onerous the conditional sentence should be: para. 106. 7. There is the possibility of deterrence through the use of community service orders, including those in which the offender may be obliged to speak to members of the community about the evils of the particular criminal conduct which he or she engaged in: para. 107. [ 47 ] Applying the above principles, I have concluded that Mr. Bains can serve his sentence in the community by way of a conditional sentence order. Those conditions must be punitive and also must include restorative aspects.

This sentence will therefore have an element of house arrest followed by a curfew condition. Given the serious nature of the offences and the importance that must be placed on denunciation, I find that these conditions will have to be monitored in part electronically to ensure that he complies with them. [ 48 ] In imposing community work service, my hope is that Mr.

Bains can continue to do the type of work I am told that he has been doing within the Sikh community and perhaps he will be able to speak to members of the Sikh community or the community at large about the risks associated with illicit drug use. [ 49 ] Mr. Bains, I am sentencing you to two years less a day but have decided that you may serve that sentence by way of a conditional sentence order. The terms of that order are as follows: [ 50 ] This is for two years less one day, all counts.

I mentioned, Madam Clerk, the last count is two years less a day, the other counts are 18 months all to run concurrent one to the other. [ 51 ] There are compulsory conditions. You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court.

You must notify the court or your conditional sentencing supervisor in advance of any change of name or address and promptly notify the court or the supervisor of any change in employment or occupation. [ 52 ] You must report in person to a conditional sentencing supervisor at Unit 102, 14245 - 56th Avenue, Surrey, B.C. by 3:00 p.m. today, April 28th, 2022 and after that, you must report as directed by your supervisor. [ 53 ] When first reporting to your conditional sentencing supervisor you must provide them with the address where you live and your phone number.

You must not change your address or phone number without prior written permission from your supervisor. [ 54 ] For the first 12 months of this order, you must obey house arrest by being inside your residence, or on its lot, 24 hours a day every day. You must present yourself immediately at the door to your residence or answer the phone when any peace officer or conditional sentencing supervisor attends or calls to check on you during the house arrest.

You may be away from your residence during the house arrest with the written permission of your conditional sentencing supervisor; such permission is to be given only for employment or other compelling reasons. You must carry the permission with you when you are outside your residence. This condition is to be monitored electronically. [ 55 ] For the second 12 months, less one day of this order, you must obey a curfew by being inside your residence, or on its lot, between 9:00 p.m. and 6:00 a.m. every day.

You must present yourself immediately at the door to your residence or answer the phone when any peace officer or conditional sentencing supervisor attends or calls to check on you during the curfew. You may be away from your residence during the curfew with the prior written permission of your conditional sentencing supervisor. Such permission is to be given only for employment or other compelling reasons. You must carry the permission which can be in electronic format with you when you are outside of your residence. [ 56 ] You may also be away from your residence during the house arrest or curfew hours: (

a) while at or going directly to or returning directly from a health care facility because of a medical emergency. If asked, you must provide your conditional sentencing supervisor with proof of your attendance at the facility and (

b) in the immediate presence of a person who you have received permission from your conditional sentencing supervisor to be with but only with the prior written permission of your conditional sentencing supervisor.

[ 57 ] You must not possess or consume alcohol, drugs, or any other intoxicating substance except with a medical prescription. [ 58 ] You must attend, participate in, and complete any intake, assessment, counselling or education program directed by your conditional sentencing supervisor. [ 59 ] You must complete 75 hours of community work under the direction of your conditional sentencing supervisor. Your community work service must be completed by April 27, 2023. [ 60 ] You must not possess, directly or indirectly, any weapon as defined by the Criminal Code , including: (

a) firearms and ammunition; (

b) cross-bows, prohibited or restricted weapons or devices, or explosive substances; (

c) anything used, designed to be used, or intended for use in causing death or injury to any person, or to threaten or intimidate any person; (

d) any imitation of all of the above, including any compressed air guns or BB pellet guns; or (

e) any related authorizations, licences and registration certificates and you must not apply for any of these. [ 61 ] This part of your sentence will be followed by a period of probation for 12 months. The conditions of your probation order are as follows: [ 62 ] The compulsory conditions. You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court.

You must notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the officer of any change in employment or occupation. [ 63 ] You must report in person to a probation officer at Unit 102 -14245 - 56th Avenue, Surrey, B.C. within two business days after the completion of your conditional sentence unless you have obtained before the completion of your conditional sentence, written permission from the probation officer to report elsewhere or within a different time frame.

After that, you must report as directed by your officer. [ 64 ] You must attend, participate in and complete any intake assessment, counselling or education program as directed by your probation officer. [ 65 ] Your reporting ends when you have satisfied your probation officer that you have completed all your counselling and treatment or that it is not required and your officer has told you that you are no longer required to report. [ 66 ] 2610 is the same firearms condition that I imposed, the same weapons condition that I imposed attached to your conditional sentence order. [ 67 ] There are victim fine surcharges in relation to this file and given that you will be working in the community, I will direct that those be paid, and I will give you until December 30th, 2022 to pay the various victim fine surcharges attached to it. [ 68 ] There are ancillary orders as well.

Given the nature of the offences, I am going to order that you provide your DNA to the DNA Databank. All these counts on both Informations are secondary designated offences. After considering the factors set out in s. 47.051(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 substance from you. You must attend at the Surrey RCMP station in Surrey, British Columbia before June 30th, 2022 and submit to the taking of the samples.

This order is valid until it is executed. [ 69 ] Pursuant to s. 109 of the Criminal Code , you are prohibited from possessing any firearm other than a prohibited firearm or restricted firearm, any cross-bow, restricted weapon, ammunition and explosive substance for a period of 10 years from today, and any prohibited firearm or restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [ 70 ] CNSL P. BACHRA: Your Honour, Ms.

Yip had asked -- or asked me to ask Your Honour to consider the following conditions; to be in possession of only one cell phone and provide that number to his CSO supervisor. The basis for that is that it's a dial-a-dope offence. Secondly, not to be in a motor vehicle without the registered owner present with the exception of public transportation. And, then, lastly, no contact with his co-accused, Mr. Martin Djunga. [ 71 ] CSL R. LARMER: I don't have an issue with the first one, Your Honour. I think the vehicle is unnecessary here.

He's in the process of getting his licence and it would perhaps pose problems with that. [ 72 ] THE COURT: What I will add is a condition that says you must have no contact or communication directly or indirectly with Martin Djunga. [ 73 ] You must not possess or use any mobile communication device. The exceptions are as follows: [ 74 ] You may possess one cell phone that has only one phone number and is registered in your name: (

d) you must provide your conditional sentencing supervisor with the cell phone number and service provider and not change it without prior written permission from your conditional sentencing supervisor. A peace officer may obtain the number from your supervisor: (

e) you must keep a history of, and not delete, your call and text usage: (

f) upon the request of a peace officer, you must give them access to any cell phone in your possession so they can verify compliance with the condition. [ 75 ] I have considered the driving and I am going to decline to impose that restriction. (ORAL REASONS FOR SENTENCE CONCLUDED)