R. v. Rathor Date:, 2011 BCPC 338

Citation: R. v. Rathor Date: 20111005 2011 BCPC 0338 File No: 172625-2C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ROBINDERPAL SINGH RATHOR REASONS FOR SENTENCE OF THE HONOURABLE JUDGE P. D. GULBRANSEN Counsel for the Crown: C. Hough Counsel for the Defendant: A. Willms Place of Hearing: Surrey , B.C. Date of Hearing: October 5, 2011 Date of Judgment: October 5, 2011 INTRODUCTION [ 1 ] THE COURT : In April and May of 2008, Robinderpal Rathor unlawfully converted $560,000 in U.S. currency into Canadian cash for two persons he believed were drug dealers.

They were in fact undercover police officers. Mr. Rathor has now pleaded guilty to a charge under s. 462.31(1) of the Criminal Code . It is essentially a charge of money laundering. [ 2 ] Crown and defence agree that the court must impose a prison sentence, but disagree whether it should be a conditional sentence. The Crown asserts that the pressing need to deter and denounce money-laundering offences precludes the use of a conditional sentence in this case. The defence replies that but for this offence the accused has led an exemplary life.

In such circumstances, argues the defence, a conditional sentence will achieve the proper balance between the need to deter from such crimes and the goal of rehabilitation. APPLICABLE LEGAL PRINCIPLES [ 3 ] The law gives a trial judge a wide discretion in the sentencing of offenders. The trial judge has a duty to apply general legal principles to the individual circumstances of the accused and of the offence, and to strike a balance, if possible, such that a fit sentence is

imposed. The punitive aspect of the sentence must be no more than is required. The Supreme Court of Canada in R. v. M. (C.A.), (SCC), 105 CCC (3d) 327, uses the term “retribution” but not in the sense of revenge. It means striking a fine balance in theindividual circumstances of the accused, but taking into account the greater context of the law and the need to deter crime. [4] The rules which apply to the imposition of a conditional sentence were delineated by the Supreme Court of Canada, R. v. Proulx,2001 1 SCR 61, and I will summarize the pertinent ones for this case.

A conditional sentence may be imposed if a sentence ofimprisonment must be imposed but is of less than two years. As well, there must be no minimum sentence and the offence that has beencommitted must not be a “serious personal injury offence”. [5] And finally the court must find, before a conditional sentence can be considered, that it would not endanger the safety of thecommunity to have the offender serve the sentence in a community. If those findings are made, the Supreme Court of Canada has saidthat the sentencing judge must then give serious consideration to a conditional sentence.

It does not mean the judge has to impose aconditional sentence. The judge must give serious consideration to it. [6] Where the objectives of deterrence and denunciation are particularly pressing in any particular case, the court should usuallyimpose a sentence of incarceration. But there is no strict rule that a court must do so in every case.

The issue for the court in each case,once the prerequisites have been established and the court is required to consider a conditional sentence, is that whether the imposition ofa conditional sentence would be consistent with the principles of sentencing as set out in s. 718 of the Criminal Code and the followingsections. In some circumstances a conditional sentence can address the objectives of deterrence and denunciation even in very seriouscrimes.

There do not have to be exceptional circumstances in any case before a conditional sentence can be imposed, and it would be anerror in law for the judge to require such a burden on the party seeking a conditional sentence. [7] The offence itself under s. 462.31(1) of the Criminal Code is entitled "Laundering Proceeds of Crime." The essence of theoffence is that an offender has dealt with property, in this case money, intending to conceal or convert that property, knowing orbelieving that the property was obtained by the commission of an offence under either the Criminal Code or the other federal statute.

This crime is punishable, if the Crown proceeds by indictment, to a maximum term of imprisonment of ten years. There is no minimumsentence. [8] As well, there are strict rules which govern businesses which are engaged in foreign currency exchange. The Act which governshow people must look after their affairs in that business is called Proceeds of Crime (Money Laundering) and Terrorist Financing Actand Regulations. All such businesses must set up a compliance program so that, in particular, suspicious financial transactions arereported to the authorities.

Without going into unnecessary detail, the law requires people who are in currency exchange to keep track ofwho puts money through them, to identify who they are, and if the circumstances warrant it, to report such potentially unlawfullyobtained money to the authorities. CIRCUMSTANCES OF THE OFFENCE [9] The accused, in partnership with his cousin, purchased a currency exchange business in Langley in June of 2007. Theypurchased a second one, also in Langley, in April 2008. Both businesses were operated through limited companies of which they werethe directors and shareholders. When the offences occurred, Mr.

Rathor was on parental leave from his job as a Corrections Officer. [10] In January 2008, two undercover police officers began an investigation intended to find out if the accused would becomeinvolved in what he believed were unlawful exchanges of foreign currency for persons who held themselves out to be drug dealers. Within a few weeks of the first meeting with the undercover officers, it was clear that Mr. Rathor was eager to become extensivelyinvolved in money laundering. [11] There is no need to review the different transactions or scenarios in detail. A brief

summary is as follows: The officers firstasked to exchange relatively small amounts of money from Canadian to U.S. funds, but strongly implied that they did not want to complywith the legal requirements of identifying themselves and having the transactions recorded. Very quickly the accused believed that hewas dealing with some drug dealers. They began discussions about surreptitious exchanges, exchanging large amounts of cash from U.S.dollars into Canadian dollars, and they discussed exchanging hundreds of thousands of dollars. [12] The undercover officers explicitly stated that they were drug dealers.

They grew marihuana in Canada, supposedly went down tothe United States, exchanged it for money and cocaine. The accused told these officers that he knew someone from whom he could getlarge sums of Canadian currency to exchange for large sums of U.S. currency that the undercover operators had obtained by traffickingdrugs in the United States. [13] The transactions were not recorded, nor reported as required by the governing legislation. The exchanges were done at theaccused's place of business in private and surreptitiously. Of course, the transactions themselves did not go through either company.

They were done outside of that as well, so it was not part of the exchange business in that sense. [14] On April 16th, 2008, the first exchange took place where Mr. Rathor exchanged $100,000 U.S. funds for a similar sum ofCanadian funds. On April 28th, 2008, he exchanged $200,000 U.S. for Canadian funds. On May 12th, 2008, he exchanged $100,000U.S. for Canadian funds. And on May 26th, 2008, he exchanged $160,000 U.S. for Canadian funds. The total profit that the accusedmade on these transactions amounted to just over $16,000.

The Canadian currency used by the accused was not from a bank and themoney did not come from his account and did not come from the account maintained for the exchange business. It was much moremoney than he had. [15] It is clear that the accused genuinely believed that the undercover officers were drug dealers. He was enthusiastic about dealingwith them. He told them that he was willing to accept their offer to exchange up to $500,000 U.S. for them every two weeks. He wasarrested after completing the last transaction.

He was released by the police and has not been on bail during the time that these mattershave been pending. He was summonsed to come to court. [16] Of note, I think, as well, just to complete my

summary of the circumstances, the accused had only been in the currency exchange

business for about seven or eight months when he became involved with the undercover operator. There was no evidence presented that he had been involved in similar unlawful activities before starting the business. CIRCUMSTANCES OF THE ACCUSED [ 17 ] Before his arrest in May of 2008, anyone knowing of Mr. Rathor's background would have described him as an outstanding citizen and an outstanding person. He was raised in Williams Lake where his father is the longest serving alderman in that city's history. Mr. Rathor was a highly admired and respected high school student.

He made very strong and many contributions to his school and his community while he was a student. After graduation in 1997 he moved to the Lower Mainland. He studied criminology. After he graduated he obtained a job as a Corrections Officer. He is married, although he and his wife appear to be estranged now, and he has a young son. [ 18 ] He continued his extensive involvement in the community once he began living in the Lower Mainland. He coaches boys' soccer and is widely admired and appreciated by the parents of the boys he coaches.

He volunteers at the food bank where he does not just give money or hand out things, he actually packs the bags and helps other people set up things. He has organized Bhangra Festivals; apparently the largest Bhangra Festival was arranged by him in Vancouver some time ago. [ 19 ] It seems to me, having read the letters of reference, that he has what I would call a truly extraordinary ability to make friends and to maintain friendships. Many of the reference letters filed with the court are from people who are friends but not family.

They have met him as a neighbour, as a business associate, an acquaintance of a mutual friend. They each attest to his loyalty, his kindness and willingness to help a friend in need. They describe specific considerate, spontaneous acts of kindness by this man for them. [ 20 ] It appears that the letters that those people wrote are not just “pat” letters telling me to give the man a break. They refer to specific instances where they have received help and encouragement from a man they met and who became a friend. [ 21 ] Mr. Rathor is the linchpin of a large and very successful extended family.

For instance, he manages a family-owned franchise restaurant called Nando's. Another example from his family is his sister. She has a serious chronic illness. She has to go to the hospital fairly often. He is the one who drives her there, makes sure she gets her treatment, drives her back. Another employee of Nando's wrote a letter saying that he or she, it might be a she, did not have a car and works late. Mr.

Rathor, without seeking any compensation, drives this person home after work. [ 22 ] For his elderly grandparents, who must come from Williams Lake to get some medical treatment, he makes sure they get the treatments, he makes sure they get to and from where they are going. These are just some examples. There are many other instances of Mr. Rathor's performance of good deeds for people. [ 23 ] He has gained the respect and admiration of other relatives. I am talking about cousins, uncles, aunts. He is the person the family turns to, that people in the family turn to when they want advice or support.

Several of his younger relatives give him credit for supporting them and encouraging them to get educated to become professionals or to become successful people in the community. These relatives also speak of numerous acts of kindness and support that he has freely given to them. [ 24 ] From my assessment of those letters, it appears to me that Mr. Rathor has considerable leadership skills and business acumen. When his family took over the Nando's Restaurants, another letter said, it was failing. He turned it around.

On top of all that, despite being estranged from his wife, she wrote a very supportive letter attesting to his character and telling me that he is a devoted and affective father. [ 25 ] The consequences of this man's arrest and conviction have been quite serious for him and for his family. He has brought great shame to his family. He has alienated his wife by his acts, depriving his son, it appears, of having a unified family. He has himself suffered shame and humiliation, a particularly bitter consequence for such a widely admired man.

He has lost at least $250,000 as a result of his arrest and the closing of his business. Of course he will no longer be permitted to have any exchange business. His career as a Correctional Officer is surely doomed. ANALYSIS [ 26 ] The accused is one of those rare persons convicted of a serious offence who can be in my view truly described as a person of otherwise good character. He has been a good citizen, a valuable member of the community, a respected volunteer, a loyal friend, a loyal son and a loving father and a successful restaurateur. So, why would such a good man get involved in such a bad crime?

That is truly a mystery, but not one that this court has to solve. Rather, the question before the court is this: whether the need to deter would-be money launderers and to denounce such crimes is sufficiently important to require the incarceration of the accused despite his many positive attributes, his past contributions to society and his potential to continue those contributions in the future. [ 27 ] The offence under s. 462.31 is serious because money laundering is insidious. This practice erodes the moral, economic and social structures of our society.

The practice encourages and facilitates unlawful activity; in this case it would be drug traffickers. It helps criminals to hide their activities from the police. The whole drug economy works outside the regular economy. The participants do not pay income tax or make the requisite contributions for various social programs, such as pensions or healthcare. [ 28 ] There is no individual victim here. There are no broken bones, no psychological trauma, no direct financial loss to anyone. The victim of such a crime, such as Mr. Rathor has committed, is society itself.

As well, the particular circumstances of the offence indicate that the accused had a high level of moral culpability. He was eager to assist people he believed were drug dealers. He knew that the exchanges of money were unlawful, but continued on anyway. The amount of money was significant, slightly more than half-a-million dollars. The money that he obtained from making these exchanges was not from a bank, nor was it his. It has some sort of “shady” source. [ 29 ] But as I remarked before, he had been in this business only a relatively short time. There is no past history of similar conduct.

He made approximately $16,000, which I do not think is a particularly great sum of money, although, of course it would be tax free and I

think he was looking forward to doing it repetitively. But it cannot be said that he made or expected to make huge sums of money inthese transactions. [30] I think it is fairly said that it is actually fortunate for him, for Mr. Rathor, that he got caught, because he is not a hardened oreven a sophisticated criminal. I think in the scenarios that he participated in with the undercover officer, the accused betrayed himself asbeing somewhat naïve to think that drug dealers would so quickly take him into their confidence and use his services.

In any event, hewas caught before he became proficient at these unlawful activities with real criminals. That never happened and we are all luckybecause of that, I think. CONCLUSION [31] Now, what is a fit sentence here? I agree that is less than two years. Clearly Mr. Rathor is able to rehabilitate or reformhimself. He is well integrated in the community. He lives a pro-social lifestyle and by all appearances he has learned his lesson fromthese events. And what I mean by that is being arrested, charged, subjected to the rigors of the court process have all brought shame andhumiliation to him and his family.

A conditional sentence will achieve the goal of specific deterrence. [32] When looking at the issue of general deterrence, it is necessary to consider at whom the deterrent message is aimed. Persons likeMr. Rathor, people who are of basically good character, who have made one bad mistake, who are integrated into society and valuablemembers of society, will be deterred by a conditional sentence, in my view. On the other hand, hardened criminals who are entrenchedin an anti-social lifestyle, who operate on the fringes of society, would not be so deterred.

Of course, a sentence of incarceration certainlywould send the strongest denunciatory message. But the circumstances of the offence in my view reduce the need for a particularlystrong denunciatory message. That is, he has been in the “business” for a relatively brief time. Mr. Rathor has no criminal background. These circumstances lessen the need for a severe denunciatory sentence. [33] I am supported in that view, I think, by two of the cases cited to me by counsel from the Court of Appeal of British Columbia andthe Court of Appeal of Ontario.

Those cases show how differing circumstances can lead to incarceration for some money launderingoffences and to a conditional sentence in others. They show also that very much depends on the individual circumstances of the accusedand of the offence. [34] In the British Columbia Court of Appeal case of R. v. Lazeo 2000 BCCA 551 , 149 CCC (3d) 547, the appellant wasconvicted of money laundering offences in circumstances similar to this case. The Court of Appeal reduced the initial sentence at thetrial, which was 27 months, to one of two years less a day, but the court refused to impose a conditional sentence.

In the court's view, thecircumstances of the case were extremely grave and deterrence and denunciation were the paramount principles to be applied in thecase. I do point out, however, that case does not contain a detailed consideration of the accused and his circumstances of the case. [35] To contrast that, it is the case of R. v. Tejani 138 CCC (3d) 365, from the Ontario Court of Appeal. That court substituted aconditional sentence for an offence of attempted money laundering for which the offender had received a two year prison sentence. Thecourt substituted a conditional sentence of two years less a day.

In Tejani, the court focused on the personal circumstances of theaccused. The case had been before the court for ten years; he had been on strict bail terms; he had committed no further offences; he hadbehaved himself during that time. This is despite the fact that the accused could only be described as a notorious money launderer.

Hewas caught by a drug dealer who made a deal with the police who dropped charges against him, to infiltrate and get the confidence of hisformer money launderer to allow the police to “catch him in the act”. [36] The accused appeared to have reformed himself after he got arrested, but his background was of a person who was extensivelyinvolved with real criminals laundering money. But the Court of Appeal, considering the individual circumstances of the accused in thatcase, granted the conditional sentence.

Once again, that case did not contain the detailed analysis of the circumstances of the case and ofthe accused that a trial judge has to do. [37] Therefore, in my view a conditional sentence is appropriate in the circumstances of this case. The combination of the verypositive personal circumstances of the accused, the low likelihood that he will re-offend, the potential for him to make a strongcontribution to society, the support that he continues to have in his family and in the community at large, all support the imposition of aconditional sentence.

As well, and I include this, his remorse, his guilty pleas, his lack of criminal record, the relatively brief duration ofhis money laundering career mitigate the seriousness of the offence. In such circumstances, the objectives of general deterrence anddenunciation can be addressed by means of a conditional sentence. [38] Stand up, please, sir. I am going to impose a conditional sentence of two years less a day. [39] I am going to go over with you the terms of the conditional sentence, so bear with me here. I just want to get the proper section. I am not going to make it a particularly onerous one.

I think a lot of the punishment has taken place by you getting charged andconvicted, and I want you to continue your good work in the community. [40] All right, the terms are you have to keep the peace and be of good behaviour.

You know what that means. [41] You have to appear before the court when required to do so by the court. [42] You must report to a supervisor within two working days, thereafter as and when directed by the supervisor. [43] You must advise the supervisor of any change of name, change of address or change of occupation. [44] You must remain within British Columbia and you must not leave British Columbia unless you have written permission from thecourt or your supervisor. [45] And I already said this. I got it in the wrong order.

You must notify the court or supervisor of any change of name, change ofaddress or change of occupation.

[ 46 ] While you are on this conditional sentence you must abstain from the consumption of alcohol or other intoxicating substances. You must abstain from the consumption of drugs except in accordance with a medical prescription. Just like being in jail, you cannot drink or do drugs. [ 47 ] I do not usually order a lot of community service work, but in your case you are someone who is quite able to do it and I think could actually contribute quite a bit, and it may also help to bring home to you that this is a serious criminal offence.

So I direct that you perform under the supervision and to the satisfaction of your supervisor 100 hours of community service work. Those community service hours must be completed by the end of the sixth month of your conditional sentence. [ 48 ] I am going to place you on a curfew. This is more symbolic than painful. You must not be outside your home between the hours of 10:00 p.m. to 6:00 a.m. daily seven days a week unless it is for a medical emergency, it is for the purpose of your employment or business, or you have the written permission of your supervisor.

There will be no curfew after the first 12 months of this conditional sentence. As I said, sir, it is really symbolic. I mean, you've got a young son, you'll probably be tired at ten o'clock anyway, but it's meant to show that this is a prison sentence. [ 49 ] You also know, I don't have to tell you this, but I've got to say it for the record, that any disobedience of these terms will result in you being arrested and put in prison, and the Crown will seek to have your conditional sentence revoked. If you commit any offences during this time, of course the same thing will happen.

I'm pretty confident you're not going to commit any offences, but I'm not a fortune teller so I can't say for sure. [ 50 ] This is a case where DNA samples can be ordered. Has anybody any submissions on that? [ 51 ] MR. HOUGH: I mean, the Crown usually asks for a DNA order unless there's any particular difficulty with it. [ 52 ] THE COURT: I don't see any circumstances that should exempt him from it. All right. [ 53 ] MR. HOUGH: I have no submissions. [ 54 ] THE COURT: I direct that DNA samples may be taken pursuant to s. 487.051 of the Criminal Code .

Now, you got to organize yourself, sir, so what I'll say is that you -- there are certain days that they do it in Langley, but I'll just say this. You must report to the Langley RCMP station by 1:00 p.m., October 27 th , for those DNA samples to be taken. What you should do is contact the Langley RCMP and arrange for a time that you can go in. They do it certain days of the week. It'll just take a few minutes, but you have to do it, and I'll give you that time to go do it. [ 55 ] I have to think of a victim fine surcharge. There's no reason why you can't pay it. So the victim fine surcharge payable in this case.

The mandatory surcharge is $100. That'll be payable by -- make it June 30th, 2012. [ 56 ] Have I missed anything? Anything else? [ 57 ] MR. WILLMS: Your Honour, just on the curfew -- [ 58 ] THE COURT: Yes. [ 59 ] MR. WILLMS: -- you had said except for medical emergencies. Do we want to leave it like that? Or medical emergencies for you or your immediate family members? I'm just thinking about the parents. [ 60 ] THE COURT: Yes, he's got a young boy. Medical emergencies for you or your immediate family members. [ 61 ] MR. WILLMS: Thank you, Your Honour. [ 62 ] THE COURT: All right. There's one more remark, sir.

I don't usually lecture people, but your lawyer has done a wonderful job proving to me that you deserve a second chance. I can't figure out why someone like you would get into this sleazy money laundering business. And I truly hope you've learned your lesson and I'll say to you, you have a lot to offer to society, a great deal and you can do a lot of good. Someone with your abilities who gets into crime is a very dangerous person, and the reason I say that then, sir, if you get involved in crime again you won't get another break. All right. Thank you. [ 63 ] MR.

HOUGH: Now, Your Honour, I had handed up the forfeiture order which everyone had signed, so if you -- not sure if you have it or -- [ 64 ] THE COURT: I didn't keep it, so it should be in the file. [ 65 ] MR. HOUGH: If you -- if it's not in, we can always prepare another one, but I can always have another one prepared and it'll be signed. [ 66 ] THE COURT: Well, I always lose those orders so I never kept it. [ 67 ] MR. HOUGH: Yes, okay, well, I'll get another one signed. [ 68 ] THE COURT: All right, get another signed and I'll sign it, of course. [ 69 ] MR. HOUGH: Yes, yes, yes, okay.

Thank you. [ 70 ] THE CLERK: So there is a forfeiture order? [ 71 ] MR. HOUGH: Yes, there is.

[ 72 ] THE COURT: It's an order for all the offence-related properties then? [ 73 ] MR. HOUGH: Yes, it's the -- [ 74 ] THE COURT: Well, you've agreed on it. [ 75 ] MR. HOUGH: Yes, we'd agreed and it was the funds at the last transaction, the -- it was $154,500 Canadian that was forfeited. That was -- we'd agreed that that's -- [ 76 ] THE COURT: Okay. [ 77 ] MR. HOUGH: I'll get -- I'll submit the order, so -- [ 78 ] THE COURT: Thank you. [ 79 ] MR.

HOUGH: Okay. [ 80 ] THE CLERK: And the DNA is -- [ 81 ] THE COURT: Discretionary. [ 82 ] THE CLERK: -- a discretionary order? [ 83 ] THE COURT: It's discretionary. [ 84 ] MR. HOUGH: Discretionary, yes. [ 85 ] THE COURT: Okay, thank you, counsel. [ 86 ] MR. WILLMS: Thank you, Your Honour. [ 87 ] THE CLERK: And, Crown, the substantive file is still -- [ 88 ] MR. HOUGH: It's stayed. [ 89 ] THE COURT: Yes. [ 90 ] MR. HOUGH: The dash 1 is stayed. [ 91 ] THE COURT: Yes, okay, thank you. [ 92 ] MR. HOUGH: Yeah, thank you. (REASONS FOR SENTENCE CONCLUDED)