R. v. Virk Date:, 2012 BCPC 519

Citation: R. v. Virk Date: 20120403 2012 BCPC 0519 File No: 187541-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BALJIT SINGH VIRK ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: Federal Crown: E. Albrecher Counsel for the Defendant: R. Dhanu Place of Hearing: Surrey , B.C. Date of Hearing: April 3, 2012 Date of Judgment: April 3, 2012 [ 1 ] THE COURT : My comments are not intended in any way to minimize the seriousness of your criminal conduct. The offence

that you have pled guilty to here today, that is, possessing a quantity of cocaine on the 25th of March, 2011, for the purpose of trafficking, is extremely serious. The courts in this province, and throughout Canada, have emphasized that trafficking in hard drugs must be addressed through a sentence that denounces that conduct in the strongest way, and acts, to the extent that it can, to deter other people from committing the offence, and specifically will act to deter the offender before the court.

That is because the trafficking illegally in hard drugs has extremely significant effects on communities where it takes place, and that is virtually every community in Canada. [ 2 ] Hard drugs have a terrible impact on the individual who consumes them, their families, and the neighbourhoods where they live.

Trafficking preys on the weaknesses of individuals who have become addicted to these drugs, and I have been told that you are an addict, that you are taking steps to address that, but you are a person who surely would understand the implications of hard-drug consumption. [ 3 ] The circumstances of your particular case, I am told, are that you were found to be in possession of 51 grams of cocaine in total, 38 grams of that found in your bedroom, and another quantity on your person at the time of arrest, and 87 grams of heroin, 84 grams of that total having been found in your bedroom and another small quantity of three grams or so on your person at the time of arrest, and a quantity of cash totalling close to $2,000, again found on your person and in your bedroom, as well as scales and score sheets. [ 4 ] The arrest occurred in the context of the execution of a search warrant based on a tip provided to police, and when that search warrant was executed at your home your wife was present, and that is the home in which your two teenage daughters reside with you.

As I have indicated, I understand that you participated in this activity, it sounds as though as a principal, although perhaps at a relatively low level in the drug-trafficking chain, that you are an addict and that you needed the income in order to address a debt and to provide an ongoing source of income to service your habit. [ 5 ] I have been told by counsel that you have been a permanent resident in Canada for about 20 years, that through substantially all of that time period you have been fully employed and you continue to be fully employed in the roofing business, that you have the support of family.

Your wife is here in the courtroom today; she is jointly charged but I understand the Crown does not intend to proceed, and that she had no

part in the trafficking operation, nor did she know that it was occurring in her home. I understand that she has supported you, along with other family members, in recent years in an effort to try to address your addiction, although without success, clearly, up to the point that the arrest was made, and as I indicated, that was March of last year, over a year ago now. [ 6 ] I am informed that since the charge was laid and you were brought before the court you have been fully compliant with bail, you have taken steps to address your addiction through methadone and what I take from your counsel, Mr.

Dhanu, to be a commitment towards ongoing rehabilitation in that way. [ 7 ] I have reviewed, as I have listened to his submissions here this afternoon, the several letters provided by people who know you and who speak highly of you, both in your work capacity, in your private life, and through your temple where your volunteer work has been recognized in these letters.

You are a person who has support in the community and who has a positive involvement in your community, all of which are significant when I consider an appropriate sentence in this case. [ 8 ] Counsel here have addressed what is well established in sentencing in cases such as this; that is, the clear need to deter and denounce the serious criminal conduct, to be balanced against restorative and rehabilitative principles when dealing with first offenders.

I have been referred to decisions of superior courts in this province, both the Court of Appeal and the Supreme Court, and inevitably in cases like this, the issue that a sentencing court such as this must determine is whether a jail sentence, which is the starting point, a sentence of custody in order to address deterrence and denunciation, whether that sentence must be served in a conventional jail or on strict conditions in the community where certain conditions have been met and are satisfied and which the sentencing court concludes will not place the community at risk. [ 9 ] I note that Crown counsel takes the position that a nine-month custodial sentence in a conventional jail is appropriate, and in support of that has provided, for example, the decision in R. v.

Biernaczyk , a decision of Judge Baird Ellan of this court in March of 2011 in which a first offender, trafficking in cocaine, with no prior record and relatively youthful, received a 12-month conventional jail sentence. What I view as significant in your case, Mr. Virk, is your plea of guilty, and that was not the case before Judge Baird Ellan at that time. A plea of guilty, in my view, is a significant recognition and acceptance of responsibility, and in your case it is supported by what I take to be a determination to address your addiction.

And I have, in addition, taken into account the positive features in your life referred to a moment ago. [ 10 ] When I balance all of those circumstances, as I am required to do, clearly a sentence in the range of nine to 12 months is appropriate. I am satisfied that you are not a risk to the community which is one of the issues I have to consider when determining whether a conditional sentence order is available. I then have to consider a balance of the principles of sentencing referred to a moment ago, and when I balance all of those considerations and consider the principles which Mr.

Dhanu has pointed out from the Court of Appeal and superior courts in this province as addressing considerations for rehabilitation, I am satisfied that a conditional sentence order is appropriate. [ 11 ] If you would stand up, please? There will be a conditional sentence order for a period of 12 months. The conditions are that you keep the peace and be of good behaviour.

You must report to a conditional sentence supervisor before 4:00 p.m. tomorrow, April 4, 2012, and thereafter as directed by the conditional sentence supervisor. [ 12 ] You will, following completion of this matter in court today, travel directly to your residence and you will remain inside your residence and you will not leave your residence before 6:00 a.m. tomorrow, April 4, 2012. [ 13 ] Thereafter, you will be bound by a house arrest condition for a period of nine months.

That condition will be that you are not to leave your place of residence except to attend court when required to do so, to attend to your legal counsel, to attend to your supervisor, to attend to your employment pursuant to a

schedule provided on the letterhead of your employer to your supervisor and approved by your supervisor, to attend to community work service as directed by your supervisor, to attend to any assessment, treatment or counselling that may be directed by the supervisor, to attend to any medical or dental appointments, having informed the supervisor in

advance of the date and time and location of that appointment. [ 14 ] You may be away from your residence on one or other of Saturday or Sunday of each week between the hours of 9:00 a.m. and 12 noon for the purpose of attending to banking or similar personal business. You may be away from your residence for a period of two hours each week for the purpose of attending religious ceremonies, having informed your supervisor in advance of the day and time of that commitment.

You may be away from your residence when travelling directly to or from any of these commitments. [ 15 ] You may be away from your residence where you have the prior written approval of your supervisor, which you must carry with you and produce on request of a peace officer or supervisor. [ 16 ] For the balance of the conditional sentence order, that is the final three months, you will be bound by a curfew.

You are not to be outside of your place of residence between the hours of 11 o'clock in the evening and six o'clock in the morning, seven days a week, unless you have the prior written approval of the supervisor, in which case you are to carry that with you and produce it on request of a peace officer or supervisor. [ 17 ] You are to attend the door of your residence, or telephone, if requested to do so by a peace officer or supervisor to confirm compliance with the house arrest or curfew conditions. [ 18 ] You are to attend, participate in and complete to the satisfaction of the supervisor any assessment, treatment or counselling that may be directed by the supervisor. [ 19 ] You are to abstain absolutely from the possession or consumption of alcohol or non-prescription drugs, or substances controlled under the Controlled Drugs and Substances Act unless you have a medical prescription for that substance issued in your name by a qualified medical practitioner. [ 20 ] You are not to possess any weapon as defined in the Criminal Code of Canada except an item meeting that description at a workplace for the purpose of your employment. [ 21 ] You will complete 30 hours of community work service before the end of the ninth month of the conditional sentence order to the satisfaction of your supervisor. [ 22 ] Those are the conditions that will apply on the conditional sentence order. [ 23 ] There will be a firearms prohibition order for a period of ten years pursuant to s. 109 of the Criminal Code . [ 24 ] There will be a forfeiture order as sought by the Crown. [ 25 ] The victim fine surcharge applies. [ 26 ] There will be, unless I hear a submission from counsel, an order that you supply a sample of your DNA to the National DNA Databank. [ 27 ] MR.

DHANU: I have no problem with that, Your Honour. [ 28 ] THE COURT: That order will be made. You are to attend at the Surrey detachment of the RCMP any Wednesday or Thursday between the hours of 8:00 a.m. and 3:00 p.m., but you must have attended and provided the sample of your DNA on or before Thursday the 19th of April 2012, so that gives you several weeks to make that appointment. [ 29 ] Time to pay on the victim fine surcharge? [ 30 ] MR. DHANU: Two months should be fine, Your Honour. [ 31 ] THE COURT: Victim fine surcharges are due and payable on or before July 31st, 2012. [ 32 ] MR.

DHANU: I would just ask Your Honour to consider one further exception to the house arrest which is to attend medical appointments for Mrs. Virk. She's now pregnant -- [ 33 ] THE COURT: Of course.

You may be away from your residence, I am going to add an additional exception, for the purpose of attending any medical or dental appointment involving your wife, Sandeep Kaur Virk, having informed your supervisor in advance of the date, time and location of that appointment. [ 34 ] I am also going to include in the curfew that you may be away from your residence in the event of a medical emergency involving yourself or your wife. [ 35 ] MR. DHANU: Thank you, Your Honour. The remaining counts? [ 36 ] MR.

ALBRECHER: Yes, Your Honour, stay of proceedings on Count 2 against Baljit Virk, and a stay of proceedings on both counts against Mrs. Sandeep Virk. (REASONS FOR SENTENCE CONCLUDED)