R. v. Virk Date:, 2014 BCPC 289

Citation: R. v. Virk Date: 20141030 2014 BCPC 0289 File No: 198005-3-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RAVINDER VIRK ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: P. Barclay Counsel for the Defendant: J. Ray

Place of Hearing: Surrey , B.C. Dates of Hearing: December 2, 3, 4, 5, 10, 11, 12, 16, 2013; Dates of Hearing: April 28, 29, 30, October 3, 2014 Date of Judgment: October 30, 2014 [ 1 ] THE COURT : On June 6, 2014, following a trial I convicted Ravinder Virk on five of seven counts set out in Information 198005-3-C. Following sentencing submissions on October 3rd, 2014, Mr. Virk is before the court today to have sentence imposed. The proceedings were by indictment. [ 2 ] The events underlying the offences occurred on the evening of December 6, 2012. Mr.

Virk was convicted on the following counts: on Count 1, the assault of his brother Parvinder Virk using a weapon, a firearm, contrary to s. 267 (

a) of the Criminal Code ; on Count 3, the assault of Parvinder Virk causing him bodily harm, contrary to s. 267 (b); on Count 5, possession of a loaded, prohibited or restricted weapon without being the holder of a required authorization or licence, contrary to s. 95(1) of the Criminal Code . This offence carries a mandatory minimum three-year sentence of imprisonment. These three counts all relate to the use of a 9mm handgun. Mr.

Virk was also convicted on Count 6 that he stored a Ruger .22 calibre rifle in a careless manner or without reasonable precautions for the safety of others, contrary to s. 86(1); and on Count 7 that he had possession of that rifle while not holding a licence or registration certificate, contrary to s. 91(1) of the Criminal Code . Mr. Virk was acquitted on Counts 2 and 4 which alleged aggravated assault of a friend Dinh Ngo and intentionally discharging a firearm while being reckless as to the life or safety of Mr. Ngo.

Those counts relate to the use of the 9mm handgun, the same handgun as was used with respect to Counts 1, 3 and 5. [ 3 ] In respect to Count 5 carrying the mandatory minimum three-year sentence, the Crown seeks a four-year sentence of imprisonment. The Crown seeks lesser concurrent sentences on Counts 1 and 3. The Crown seeks six-month sentences on each of Counts 6 and 7 relating to the .22 calibre rifle, concurrent with each other but consecutive to the four-year sentence on Count 5. If that position were adopted the effect would be a global sentence of four years and six months imprisonment.

The Crown position places the emphasis on deterrence and denunciation as primary sentencing objectives where violence involving firearms and their unsafe handling is involved. [ 4 ] Mr. Ray, on behalf of Mr. Virk, does not challenge the imposition of the mandatory minimum three-year sentence in respect of Count 5, but he argues that the global sentence on all counts should not exceed three years in total. He says that Mr.

Virk's personal circumstances and the absence of any prior criminal record elevate rehabilitative considerations to prominence in the proper balancing of sentencing objectives. [ 5 ] On June 6th of 2014 in convicting Mr. Virk, I gave lengthy reasons and made findings of fact. I will summarize those findings more briefly today for the purposes of sentencing, but I will note that both counsel agree, as do I, that the events were, if not unique, at least unusual. Ravinder Virk and Parvinder Virk are twins. They own a blueberry farm at 2837 - 247th Street in Langley.

At the time, Ravinder lived alone in the farmhouse on that property. Parvinder lived with his family in Abbotsford but was frequently at the farm. [ 6 ] Ravinder Virk, Parvinder Virk and their friend Dinh Ngo were at the farmhouse on the early evening of December 6, 2012. The three were gathered around a table in the kitchen. A fourth unidentified male was also in the farmhouse. Ravinder Virk had consumed a substantial amount of alcohol during the day, which continued while he was in the kitchen with the others. He became very intoxicated.

It appears Parvinder Virk told Ravinder Virk to leave the kitchen because he was drunk. He did so. He returned five to 15 minutes later carrying a 9mm handgun. He was laughing. Parvinder Virk saw him enter carrying the gun and jumped up to disarm him. He took a hold of Ravinder's hand and the gun. A struggle ensued. Ravinder pulled the trigger during the struggle and the gun discharged, injuring Parvinder's right wrist and a finger on his left hand. The struggle continued. Mr. Ngo got out of his chair to run outside. The gun discharged a second time. As Mr.

Ngo got up he was struck in the left thigh and he fell to the ground. Parvinder, perhaps with the assistance of the fourth unknown male, was able to disarm Ravinder. Parvinder then assisted Mr. Ngo into his vehicle and drove him to the hospital. [ 7 ] The handgun was not recovered. Its whereabouts following the disarming of Ravinder Virk was never addressed. The particulars of the handgun were established from the slugs later recovered by investigators in the residence. [ 8 ] Police attended the hospital. Although Mr.

Ngo and Parvinder Virk initially gave a concocted version of the events leading to their injuries, apparently to protect Ravinder from investigation, eventually Mr. Ngo resiled from that version and provided information which led police to the farmhouse where Ravinder Virk was arrested in the early morning hours, approximately six hours after the shooting. He was alone in the residence and in a state of significant intoxication. Police conducted a detailed search of the residence during which they discovered the Ruger .22 calibre rifle.

It is shown as it was found in various photographs included as exhibits at the trial. It was leaning against the head of the bed in the master bedroom. It was standing upside down and resting on the end of the barrel. It was fitted with an illegal magazine containing .22 calibre ammunition. The safety was off. Loose ammunition was found scattered in various locations around the house, including the bedside table next to the rifle itself, the bureau in the living room, in closets, on floors and in the basement. Other loaded magazines were also located. No steps to secure any of these objects were evident.

Ravinder Virk acknowledged he had used the rifle to scare off animals around the farm and had done so as recently as the day before these events. [ 9 ] There is no discernible explanation or motive to explain why Ravinder Virk returned to the kitchen with a loaded 9mm handgun. There is no evidence to suggest an animus towards his brother with whom he was close, or with Mr. Ngo. The evening to that point appears to have been amiable. Ravinder Virk's own evidence provides no explanation because he asserts he went to sleep and has no memory of the events.

That is, he went to sleep and has no memory of the events after leaving the kitchen, much less the sort of events his brother and Mr. Ngo describe.

[ 10 ] Mr. Barclay for the Crown says that Mr. Virk acted out in a drunken moment of non-judgment. Mr. Ray adopts that description. I concluded at trial that despite his intoxication, whatever level that may have been at the time of the offence, he was able to and did form the requisite intent in respect to the offences respecting his brother. In the circumstances of the struggle with his brother, separate and apart from intoxication, I was not prepared to find the requisite intent in respect of Mr. Ngo on Counts 2 and 4.

Having said that, the consequences of his possession of a handgun unlawfully pursuant to Count 5 and his actions in bringing it into the kitchen led to the injuries suffered by Mr. Ngo. The injuries are a consequence of the unlawful conduct for which Mr. Virk was convicted. Mr. Ngo suffered a significant wound. The outcome could easily have been much worse. He required surgery and was in hospital for ten or 11 days. He suffered significant pain and will endure a disability requiring he use a cane. Parvinder Virk's injury was much less serious and there is no suggestion of a long-term effect.

Nevertheless, it too could have been much worse. [ 11 ] Mr. Virk was born in 1966 in India. He is now 48 years of age. He is well-educated. He completed a B.A. and B.Ed. degree in India and he taught there briefly. In his early 20s he left India, eventually reaching Sweden. He now holds Swedish nationality. He married a Swedish national in 1991, that marriage ending in divorce. He has two children of that marriage, born in 1991 and 1995. He came to Canada from Sweden and settled with his extended family in the Fraser Valley.

His parents, his brother and family and his children of his marriage in Sweden all live in this area. He remarried, but that marriage ended in 2007. [ 12 ] Up to the date of these offences, Mr. Virk was the principal contributor to the family's blueberry farm in Langley. He lived on the property and appears to have taken responsibility to ensure that it prospered. He was involved in all aspects of the operation. His family and his life and work are all here.

He has the support of his aging parents and other family, and a wide circle of friends and business associates and acquaintances, many of whom have written letters on his behalf which have been filed on this hearing. A number of those people, including family members, were present in court on the last day and I see a number of people are here today in support of Mr. Virk. From those letters I conclude Mr.

Virk is a much-loved member of his family and well-respected in the community, active in his temple and in volunteer work, and considered a loyal friend and respected business associate and client of various business operators providing services to the farm. Through his significant contribution of energy and resourcefulness, the family blueberry enterprise has prospered. [ 13 ] Following his arrest and release on bail, Mr. Virk has been bound by conditions not to have contact with his brother, which also necessitated a condition that he not return to the blueberry farm.

As a result, he has had to reinvent himself in the community. He has found housing and become a foreman with a company that makes kitchen cabinets. His employer speaks highly of his work, his energy and his positive contribution to the business. Both of the younger men who he has shared accommodation with speak of him in the terms of a mentor. Those who have written letters of support agree that Mr. Virk's actions on December 6th, 2012 do not at all accord with the person they know, love and respect. [ 14 ] Mr. Virk has no prior criminal record.

He has complied fully with bail conditions over almost two years, conditions which have required a significant change in his circumstances as I have noted. Mr. Virk is a permanent resident in Canada. Beyond the impact of any penitentiary sentence I impose today, which must be at least three years, Mr. Ray informs me that Mr. Virk is likely to be deported based on federal immigration legislation. I am informed that his only avenue for reprieve from deportation is a plea to remain on compassionate or humanitarian grounds.

As a permanent resident with convictions such as these, he is unable to apply for Canadian citizenship and is inadmissible to Canada. Because he holds Swedish citizenship he will be deported there. He has no roots in or connection to Sweden today. He will leave behind his family and support network here should he be deported. [ 15 ] The sentences to be imposed upon Mr. Virk must be just sanctions which contribute to the maintenance of a just, peaceful and safe society and which address specific objectives. The objectives relevant here and to which counsel have referred are denunciation of Mr.

Virk's conduct, his personal deterrence if I believe that continues to be a concern, deterrence of others who may be inclined to act out with firearms, Mr. Virk's rehabilitation and the promotion in Mr. Virk of a sense of responsibility and acknowledgement of harm to victims and to the community. I must consider aggravating and mitigating factors. The sentences imposed should be similar to sentences imposed on similar offenders in similar circumstances. The global sentence of imprisonment imposed should not exceed what is required to address the relevant objectives.

Ultimately, the sentences imposed must reflect the seriousness of these offences and the degree of responsibility of this offender. [ 16 ] Although I am bound to consider sentences imposed in similar circumstances, every case is different. This case, as I have earlier noted, is itself unusual. The balancing of sentencing considerations I have referred to flows from an individualized analysis unique to this case. Mr.

Barclay for the Crown has argued that the sentences imposed arising from the possession and use of the 9mm handgun should result in a four-year global sentence, and the two offences relating to the Ruger .22 calibre rifle should be treated as sufficiently unrelated as to justify a further global six-month consecutive sentence. In respect to the offences arising from the use and possession of the handgun, the Crown anchors the four-year global sentence to a four-year sentence for the possession of the loaded handgun offence under s. 95(1) which carries the three-year minimum sentence requirement.

He proposes concurrent one-year sentences for the two assault-related offences. He has provided authorities which reflect escalating circumstances. At the lower end of this culpability spectrum he argues is fleeting possession which might justify all things being equal the minimum three-year sentence. [ 17 ] Ongoing possession is reflected in such cases as R. v.

Rennie, BCPC Richmond, No. 54863-1, January 5, 2010 in which Judge Fratkin of this court imposed three years and two months on pleas of guilty to carrying a concealed weapon, storing a firearm contrary to the Firearms Act and possessing a loaded prohibited weapon. The firearm was found in the offender's luggage at the airport. He had a dated criminal record which the court said carried little weight. The court imposed three years and two months on the offences carrying the mandatory three-year minimum and concurrent sentences on the others. [ 18 ] Moving along the spectrum, the Crown refers to R. v.

Kylie, March 26, 2010 BCSC, Kamloops Registry No. 87259. In that case, the offender in a drunken state waved a firearm about in a public place. He had a prior record which included a handgun offence and he was on bail with a condition not to possess a firearm. He was young and reasonable prospects for his rehabilitation were identified. A three-and-a-half-year sentence was imposed on the s. 95(1) offence. [ 19 ] The Crown referred to R. v. Brown, June 4, 2014 BCPC Vernon Registry No. 47846 C5.

On June 4th this year Judge Smith of this court imposed four years on the s. 95(1) offence and concurrent one-year-and-nine-month sentences for possession of a prohibited

magazine and possession of a weapon for a dangerous purpose. Police attended to deal with the accused who was drunk and acting out. A bag fell from his possession containing the handgun. The judge noted the offender was not present in Vernon for an innocentpurpose. He was young, but with a past record. He was on a firearms prohibition order. The Crown says Mr. Virk's sentence isaggravated by the use of the weapon in the assault of his brother and the consequential injuries to Mr. Ngo, bringing it into the four-yearrange. [20] In R. v.

Roberts 2011 BCPC 329, Judge Ball, who was then a member of this court, sentenced the offender on eight counts offirearms-related offences involving a handgun and including a s. 95(1) offence and other offences, including assault on an individualwhile using that handgun. The offender confronted another male outside of a nightclub and produced the handgun which dischargednear the victim's head, injuring his ear. The offender had consumed alcohol and drugs but was young, with no prior record.

Judge Ballimposed five years and six months concurrent on the offences relating to possession of the handgun, including the s. 95(1) offence andthe assault. He imposed consecutive one year six months sentences for using the firearm to commit the assault under s. 85(1) whichcarries a consecutive sentence. [21] The Crown says the range here is four to six years globally and proposes a sentence at the lower end of that range with anadditional six months for the rifle-related offences. The Crown says there should be little consideration given to Mr.

Virk's immigrationcircumstances and the expectation that he will be deported. The Crown says the authorities do not view this to be a mitigating factor butrather one of a variety of considerations which is of greater significance where unintended immigration consequences would flow if onefit sentencing option were imposed over another. That is not the case here. Mr. Virk's plight does not change if a three-year minimumsentence is imposed instead of a sentence in the four to six-year range which the Crown says is fit.

The Crown says this considerationshould have little if any weight, and to the extent it should be considered, that is accounted for by the Crown in the position which itproposes at the lower end of the four-to-six year range. [22] Recently in R. v. Pham in 2013 the Supreme Court of Canada in addressing how immigration circumstances should beconsidered by sentencing courts, stated at paragraph 11: In light of these principles, the collateral consequences of a sentence are any consequences for the impact of the sentence on theparticular offender.

They may be taken into account in sentencing as personal circumstances of the offender. However, they are not,strictly speaking, aggravating or mitigating factors, since such factors are by definition related only to the gravity of the offence or to thedegree of responsibility of the offender (s. 718.2(

a) of the Criminal Code). Their relevance flows from the application of the principlesof individualization and parity. The relevance of collateral consequences may also flow from the sentencing objective of assisting inrehabilitating offenders (s. 718(

d) of the Criminal Code). Thus, when two possible sentences are both appropriate as regards the gravityof the offence and the responsibility of the offender, the most suitable one may be the one that better contributes to the offender’srehabilitation. (R. v. Pham 2013 SCC 15) [23] The weight to be given collateral consequences, including immigration consequences, will vary from case to case.

A sentencingcourt may take account of such consequences to tailor a fit sentence so long as in the end the sentence imposed is proportionate to thegravity of the offence and the degree of responsibility of the offender. (R. v. Pham at paras. 12 to 14) I note here that Mr. Virk'scircumstances are that he was and is still lawfully in Canada as a permanent resident, which argues in favour of consideration over anoffender who was not lawfully in the country. (R. v. Daskalor 2011 BCCA 169 at para. 28) [24] Further, I take account of Mr. Justice Doherty's comments in R. v.

Hamilton (2004), (ON CA), 186 CCC(3d) 129 (Ont. CA) where he quoted these words which have been adopted in the British Columbia Court of Appeal in R. v. Daskalor,supra. He stated: In the first situation, the certainty of deportation may justify some reduction in the term of imprisonment for purely pragmatic reasons . .. [25] Here I conclude that the expectation that Mr. Virk will be deported is a factor which I can take account of, but I conclude itshould not carry significant weight in and of itself.

It is part and parcel of difficult personal circumstances which flow from thisconviction and which will likely see him separated from his family and forced to make a new life for himself in another country. Thesentence I impose will not alter that outcome based on the information that I have been given. [26] Mr. Virk has no prior record. He is loved and respected by family and friends and associates. These offences and hisunexplained conduct while in a drunken state led to injuries to two persons, injuries that were serious enough but which easily could havebeen much worse. The price Mr.

Virk has paid by reason of restrictive bail and will pay by virtue of the requirement of a federalpenitentiary sentence and ultimately then by the likelihood of deportation to an unfamiliar place, has enormous consequences. To hiscredit, he has performed well while on that restrictive bail and has responded to his circumstances as positively as one could hope. Hehas found housing, engaged positively with those he has lived with and become a valued employee. I conclude his personal deterrenceand rehabilitation are well in hand. But these are serious offences. Mr.

Virk's actions while drunk have had enormous consequences. Firearms and their unlawful possession and brandishing while drunk has resulted in precisely the outcome these laws are intended toprevent. I must impose sentences which strongly denounce and deter that conduct, in the interest of public safety. [27] I have concluded a fit global sentence which accommodates the variety of sentencing considerations I have referred to is fouryears' incarceration. I conclude the sentences respecting the handgun, Counts 1, 3 and 5 should carry the sentences recommended byCrown counsel.

On Count 5, the offence under s. 95(1) which carries a minimum three-year sentence, I impose four years'incarceration. On Count 1, the assault of Parvinder Virk while using a weapon, I impose one year concurrent to Count 5. On Count 3,assault of Parvinder Virk causing bodily harm I impose one year concurrent to Count 5. I have concluded the global four-year sentenceshould include the offences relating to the Ruger .22 calibre rifle. On Count 6 the unsafe storage of that rifle, I impose six monthsconcurrent with Count 5.

On Count 7, possession of that rifle without a proper licence or registration certificate, I impose six months

concurrent with Count 5. [ 28 ] The forfeiture orders which the Crown has sought have been signed off already. [ 29 ] I impose an order that Mr. Virk provide a sample of his DNA for the national DNA databank on the basis that Counts 1 and 3 are primary designated offences under the Code . [ 30 ] In addition, under s. 109 in respect of those offences I impose a ten-year prohibition order which is mandatory. (REASONS FOR SENTENCE CONCLUDED)