R. v. Mahil Date:, 2011 BCPC 448

Citation: R. v. Mahil Date: 20111122 2011 BCPC 0448 File No: 172739-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TALWINDER SINGH MAHIL ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K.W. BALL Counsel for the Crown: Federal Crown: P. Bachra Counsel for the Defendant: P. Janzen Place of Hearing: Surrey , B.C. Dates of Hearing: August 30, December 13, 2010; January 7, February 2, April 29, June 8, August 10, 2011 Date of Judgment: November 22, 2011

[ 1 ] THE COURT : Mr. Mahil is before the court today having entered not guilty pleas in this proceeding. The matter went to trial and there were, in my recollection, seven or eight days of trial. At the commencement of the trial, a voir dire was held. Reasons were given on the voir dire in early January of 2011, and then three further days of trial were held.

Ultimately, judgment was rendered on September 20th, 2011 and the matter has been adjourned to this date. [ 2 ] I heard sentencing submissions today and have had a brief period of time to reflect on the very careful submissions made by counsel, for which I thank them. [ 3 ] Mr. Mahil was found guilty by me of participating in trafficking of marihuana by what is called the "dial-a-dope" method.

That simply is a situation where a trafficker in a motor vehicle with one or more cell phones has a clientele who are able to phone a phone number and arrange a meeting with the trafficker to provide drugs, in this case marihuana, in various areas of the community. The method has been decried in virtually every legal authority that has dealt with the topic as something that has been very serious and has caused significant community problems.

In particular, dial-a-dope operations have allowed the drug trade to spread from what were isolated areas where the drug trade predominated to areas near schools, businesses and other areas in the community, including residential areas such as was present here.

On the facts of the case, this offence occurred between a business area and a residential area. [ 4 ] The Criminal Code provides in s. 718 , 718.1 and following, that there are three or four particularly important principles upon which sentences are to be based and those include deterrence, both general and specific, denunciation, protection of the public and the rehabilitation of the offender. [ 5 ] In the case at bar, Mr. Mahil was 22 years old on the 23rd of February, 2009. He has no prior criminal record and has apparently had some work history.

In the letter of support that was filed, some work was part-time and some work was full time, involved as a call-taker for a taxi firm "Richmond Taxi Company," which is very supportive of him in the letter filed. A second letter by Black Top and Checker Cabs was filed, but that letter was of almost no assistance because of the lack of reality when the writer of that letter speaks about this person, Mr. Mahil, as being someone of an exceptional character. There is no rationale for someone of exceptional character to be involved in a dial-a-dope operation. In the case at bar, no particular explanation for why Mr.

Mahil became involved in this activity, except to say that at some point in his life, apparently in his latter years of high school, he was someone who challenged authority and disobeyed rules for the sake of doing so. That information was taken from a letter signed by Mr. Sahota, a professional accountant, who signed a letter in support of Mr. Mahil. [ 6 ] The only reason that makes sense as to why Mr. Mahil was involved in this dial-a-dope activity was it was a source of income for him.

It is not suggested he was an addict or a drug user at any stage of this case. [ 7 ] Examining the cases which have been provided, I distinguish a number of them on the basis that those cases involved guilty pleas, they involved pleas in situations where a person was an addict, in other words, had an illness; they are not cases that are of particular assistance here. [ 8 ] The case decided by my brother Judge Lenaghan, R. v. Sidhu, which is Surrey file number 172607-2-C, decided on November the 25th, 2010, is a case which is essentially indistinguishable on its facts from the case at bar.

The only significant distinction was that case involved a guilty plea. Judge Lenaghan reviewed the situation where the Crown was seeking, in that case, a six-month sentence. Mr. Stowe, on behalf of the accused in that case, was seeking a conditional sentence. In the case, at bar, the Crown is seeking a shorter period of incarceration, perhaps reflecting on the ultimate decision in Sidhu , and Mr. Janzen, in his very capable style, is seeking a conditional sentence of imprisonment. [ 9 ] Examining, as I must, the principles of sentencing, I must do so in the backdrop of R. v. Proulx.

Clearly the sentence which is sought here is within the sentence limits that are set out in Proulx . These are offences, in my view, in this community at this time where specific deterrence is a very important element in sentencing. In fact, as noted by Judge Lenaghan, it is very important here that this accused appreciate that his behaviour cannot be permitted in this society. I am satisfied that a conditional sentence order is not appropriate here and that a term of imprisonment is the appropriate sentence. [ 10 ] That said, I think the period which the Crown has proposed is too long.

I likewise am assisted by the decision of Judge Lenaghan in Sidhu. I am satisfied a jail sentence of 45 days is appropriate. I have selected that time because I am aware that this accused has arranged for schooling to start in January. It is my belief that that sentence will be completed by the start of the planned schooling and will permit him to go on the road to successful rehabilitation in the community. He will be able to begin his schooling as planned without restriction. [ 11 ] I have thought about the Crown's request for a period of probation and decided that that is not necessary in this case.

I expect that Mr. Mahil, once he has completed the period of incarceration, will be of a mind that this sort of activity will be off his radar screen and he will set his mind to attending school properly. [ 12 ] There will be a s. 109 firearms order for a period of three years. [ 13 ] There will be a DNA order. He will provide, while in custody, a sample of his DNA suitable for analysis. [ 14 ] The items which were seized will be forfeited under s. 16 of the Controlled Drugs and Substances Act . [ 15 ] In all of the circumstances, and given that he is about to become a student, I am going to waive the surcharge.

Thank you, counsel. (REASONS FOR SENTENCE CONCLUDED)