R. v. Aulakh and Toor Date:, 2015 BCPC 179

Citation: R. v. Aulakh and Toor Date: 20150326 2015 BCPC 0179 File No: 202034-2C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ARWINDER SINGH AULAKH and SANDEEP SINGH SUNNY TOOR ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE P. D. GULBRANSEN Counsel for the Crown: F. Lepine (for Federal Crown) Counsel for the Defendant: J. Henry Place of Hearing: Surrey , B.C.

Date of Hearing: March 26, 2015 Date of Judgment: March 26, 2015 INTRODUCTION [ 1 ] THE COURT : This is R. v. Aulakh and Toor. The two accused in this case have admitted that they were part of what I would call a low-level dial-a-dope operation. [ 2 ] Arwinder Aulakh has pleaded guilty to one count of trafficking in a scheduled substance, cocaine, doing so between November 20th and December 18th, 2013.

During that time, he sold $40 worth of cocaine to an undercover police officer on four different occasions. [ 3 ] Sandeep Toor has pleaded guilty to trafficking in cocaine by selling $40 worth of cocaine to an undercover officer and he also pleaded guilty to possessing a small amount of cocaine, which was found in his bedroom, for the purpose of trafficking. The Crown's position is that Mr. Toor played a far more significant

part in this operation than did Aulakh, and they suggest that Mr. Toor was the boss or the controlling mind of this small organization. [ 4 ] All of this was monitored by the police in a three-month investigation which led to the arrest of these two men. [ 5 ] The Crown says that the accused Aulakh was essentially a delivery driver for this dial-a-dope operation, while it says that Mr. Toor was much more than that, that at times he was the organizer, or the boss, and they say that he supplied the drivers with the drugs and even the cars to deliver the drugs to the customers.

While the police found only a small amount of cocaine in Toor's bedroom, they also found a digital scale, plastic baggies for packaging drugs, as well as score sheets. [ 6 ] The Crown submits that Mr. Aulakh should be sentenced to a prison term of nine to 12 months, and Toor to one of 12 to 15 months. [ 7 ] There really is no dispute that the objectives of deterrence and denunciation are of prime importance in sentences related to dial-a-dope enterprises. The Court of Appeal has made it clear that in most circumstances, judges should impose prison sentences, even for first-time offenders.

However, both accused argue that in their particular circumstances, the court would be justified in imposing a non-custodial sentence, or in Mr. Toor's case, at most a shorter jail term, which could be served intermittently. Offences for which the accused have been convicted do not carry a minimum term of imprisonment in these particular circumstances. [ 8 ] There are certain common elements between both of these men, and I will start my analysis by looking at those. Mr. Toor, I think, is now 29, Mr. Aulakh is 20.

Toor has a conviction for assault on his record, but it was entered on his record after he was arrested for these offences and occurred before these offences took place. Mr. Aulakh does not have any convictions. [ 9 ] Both men still live at home with their parents, both are employed. Both have the support of their families and their close friends, quite strong support. Both these men express sorrow and remorse for their crimes, and my impression is they are both ashamed for betraying their families and friends.

I say that because this kind of activity by men who otherwise appear to be of good character of course is a shock and a disappointment to their families. CIRCUMSTANCES OF THE OFFENCE [ 10 ] The circumstances of the offence are pretty straightforward. Mr. Aulakh's offence occurred in November and December of 2013. Mr. Toor's offences occurred in January of 2014. [ 11 ] It seems an inevitable conclusion that Mr. Toor operated this drug-trafficking business out of his parents' home, basically out of his bedroom. The drivers that were involved often used vehicles in some way connected to Mr.

Toor; they might be rented by him, might belong to his parents, might belong to him. After sales that were observed by the police, Toor was seen in the company of the salesmen. Mr. Aulakh was followed at least once to Toor's home, and Aulakh and Toor were obviously well acquainted. [ 12 ] In addition, when the police searched Mr. Toor's parents' home, they found some cell phones which belonged to him, and analyzing the texts on those telephones, it appeared that Mr. Toor was the person who bought drugs from a supplier. He was the middleman.

He got the drugs to the people who delivered it to the customers. [ 13 ] From what I heard from Crown counsel last time, it does not look like the business was doing very well. That is why I am calling this a low-level operation. It appears to me that Mr. Toor was being chased for money from his supplier, and it also looks to me like there were no indications that Mr. Toor was handling large amounts of cash or drugs when this happened.

He is obviously supplying drugs to the underlings, if I can put it that way, but there was not a lot of drugs and there was not a lot of money. [ 14 ] My other observation would be that both Aulakh and Toor were somewhat oddly enthusiastic about the business. On a couple of occasions when the drugs were sold, both Toor and Aulakh had told the undercover officer how excellent their drugs were, what good stuff it was. At one point Aulakh offered kind of a bonus or a discount to his undercover officer customer if he referred customers to him.

When I say odd, it is not a usual occurrence in these drug sales that someone talks up their business in such a way, as if they are selling soap or chocolate bars, but it is an odd sort of enthusiasm that I noticed. It also portrays a significant bit of naiveté. [ 15 ] It is clear from the circumstances of the case that they were not experienced criminals. They seemed not to have even a clue

that they were selling drugs to an undercover officer or that they were being observed by the police. The police are very good at surveillance, and I am not saying they should be noticed, but more hardened criminals might act in a much different way. [ 16 ] In terms of the operation itself, I want to make my findings on that. There really was no evidence that this operation involved a significant amount of drugs and a significant amount of money. By that I mean the police, when they searched Toor’s room, did not find either a large amount of cash or a large amount of drugs.

Of course, Toor was using his bedroom as sort of a “stash house”. In these cases, one often finds the police searching and finding cash in drawers, cash in desks, cash in boxes, piled up from the day's take or the month's take or the week's take, and very often will find drugs waiting to be taken by the persons who drive them off to the customers. We did not have that here. Of course there were some there, they did leave, and I am sure Mr. Toor handled some cash. The only point here is it does not seem to me that it was a significantly large amount of drugs or cash, but it was not insignificant either.

I do not want to downplay the significance of the offences, but those are my observations on the actual operation itself. [ 17 ] The other point would be that there must have been limitations on Mr. Toor's ability to do any business, because he is in his parents' home, and they were not in the business with him, and neither were his siblings. He would have to keep everything to a relatively low level. [ 18 ] I am not denigrating these two men, but there is a book called "Freakonomics", and

chapter 3 of that book is entitled "Why Do Drug Dealers Live with Their Moms", the point being that this is a dead-end road. It is a “lane for losers”. It is a place where sometimes young men go, thinking they have glamour, and they end up finding they get nothing. I think that is what has happened here and I hope they have realized that this is a dead-end road. The question is, have they got off the wrong path and back onto the right path? DISCUSSION [ 19 ] So what is a fit sentence here? I think I have to differentiate between Toor and Aulakh, and I will deal first of all with Mr. Aulakh.

Here are the circumstances that I think are significant for him. AULAKH [ 20 ] He is 20 years old, he has no criminal record. He still lives at home with his parents. He is employed. He finished high school and he is now trying to upgrade his math and English grades so that he can get post-secondary education. He has got a solid plan to go to BCIT and become qualified in automobile body repair. He has already got some experience in that regard, and the person who employed him will still employ him, and thinks quite well of him.

At the same time, he works for a separate company, a marketing company, and he is well liked there and well regarded there. Both people who employ him know about his convictions. [ 21 ] My impression from the Pre-Sentence Report is that Mr. Aulakh is seriously motivated to improve himself and to stay away from the false glamour of the drug lifestyle. My impression again is he is a young man of significant potential and has a solid future ahead of him if he puts his mind to it. [ 22 ] Aulakh wrote a letter of apology to the Court, which I believe is sincere. I think Mr.

Aulakh fits the pattern of many young men that I have observed over the years convicted of trafficking in a dial-a-dope operation, by being the “delivery man”, the person who drives or is the passenger, and sells drugs at $40 a pop. In my experience and observations, it is often men between the ages of 18 and 22, and I say "men" because it is extremely rare for women to get involved in this. It is an age when many young men are adrift in life; they do not know where they are going, they do not really know who they are, they do not know what direction they are going in.

This is really just pop psychology, I suppose, but young people's brains do not really mature until about 21 or 22. So it is a time when, and I have seen it time and time again, young men of about that age start off on the wrong foot. They are a bit uncomfortable, a bit adrift, maybe their education has not gone well, they have not got an occupation they really want to pursue yet, and they end up seeking easy money by selling drugs in a dial-a-dope operation, and as I said before, lured by the false glamour of this kind of activity. [ 23 ] So the question often becomes then, for men like Mr.

Aulakh; what has he done once he gets removed from the wrong path he is on? The question is; has he got back on the right path? It happens over and over again that people do that. I think Mr. Aulakh has done that and focused on getting an education aimed at getting him something significant. [ 24 ] Is there support from the family? There is support from Mr. Aulakh's family and his friends. Often young men who have done this show that they can work, can have a job and can make their way in society as contributing pro-social members of society. I think Mr.

Aulakh fits all of those attributes that I just set out; he is young, he is motivated to change, he has seen the error of his ways, he is otherwise a law-abiding person, he has got the support of his family and he has real potential to become someone who works, for example, in an auto body shop. If he works with his marketing company, he has got people who value him, people who are clearheaded and clear-eyed and who do not see him as being some sort of ideal person who they just want to save, they see him as someone who has made a mistake, but can change.

All of these collateral or corroborative persons tend to support the observations I have made about the likelihood of him re-offending, which I would say is extremely low. He is not a drug addict; that is, he is not going to be drawn back into dealing in drugs because of a need for drugs. [ 25 ] I want you to stand up, Mr. Aulakh. Come on forward. I have considered all of these things and you are one of the rare cases where I think a suspended sentence is appropriate. I say that because I have said all those positive things about you, and that is what I am going to do.

I am going to impose a suspended sentence, and I will tell you what that means in a second. [ 26 ] I place you on probation for a year, and the terms will be pretty straightforward. You have to keep the peace and be of good behaviour, appear before the court when required to do so by the court. You must advise the court or probation officer of any change of name, change of address or change of occupation.

You must report within two working days to a probation officer, and thereafter as directed by the probation officer. [ 27 ] You must perform, at the direction of and under the supervision of your probation officer, 40 hours of community service work. Those community hours must be done by the end of the first six months of your probation term.

[ 28 ] I have thought through making a no-contact order between you and Mr. Toor, and although I have sensed you are a dangerous pair, and I mean that figuratively, I am not going to make a no-contact order. [ 29 ] Under s. 109 of the Criminal Code , I prohibit you from possessing any of the weapons named therein for ten years. That is guns, bullets, dynamite, anything that can blow up. A whole bunch of lethal weapons, you cannot have them. It is mainly aimed at guns. I take it you do not have guns? [ 30 ] THE ACCUSED AULAKH: No. [ 31 ] THE COURT: Good.

Under s. 487.05(1) of the Criminal Code , I direct that DNA samples may be taken from you. So you must go to the Delta police station by 1:00 p.m. on Tuesday, the 31st of March, for those DNA samples to be taken. It is just a swab, a piece of hair. [ 32 ] I will order a victim fine surcharge of $200. I will give you some time to pay that, so until the end of the year, December 31st, 2015. [ 33 ] A suspended sentence is a rare sentence. What it means is I have not actually sentenced you, I have put you on probation.

If you get convicted of a crime during the time that you are on probation, the Crown can bring you back here and they can ask me to impose a different sentence. They would ask me to impose a prison sentence. So there is a real serious consequence if you commit any offences while you are on probation. I know you are on the right track, I know you are doing the right thing, but I just warn you that that could happen to you. [ 34 ] Secondly, if you traffic in drugs again, you are looking at a heavy sentence, serious time.

So I have given you a break because I think you deserve one, but I think you have to understand that you have to be very, very careful from now on. [ 35 ] So you have to sign that order upstairs on the second floor, so do not go away until that is done. [ 36 ] THE CLERK: And stay of proceedings on Counts 1, 2 and 3? [ 37 ] MR. LEPINE: Yes, on the outstanding counts. TOOR [ 38 ] THE COURT: Now I have to deal with Mr. Toor. Mr. Toor, I think, is 29. He lives with his parents as well.

He comes from very hardworking, successful parents who, as his dad said in his letter to the court, have operated a number of successful businesses in the Lower Mainland. They came from India and they devoted their lives to making better lives for their children, and they still support Mr. Toor. [ 39 ] Mr. Toor has got a Grade 12 education. He is now qualified to be an insurance broker.

He has successfully written the exams, but he still has yet to be licenced. [ 40 ] He currently works at his parents' restaurant, working something like 4:00 to 12:00, so that is pretty hard work, I think, and his dad says that he is doing a good job. In the past he has worked as a truck driver. He worked for CPR, but now he has this desire to sell insurance. [ 41 ] It is important to note he has got Crohn's disease, which is a very significant condition, and it is chronic.

In other words, it does not go away and he has to govern himself accordingly. [ 42 ] It appears that he has used drugs in the past, and especially while involved with this particular offence; he was probably using cocaine and maybe heroin. There is not much evidence that he is actually significantly addicted to drugs, and I say that because he is engaged to a pretty impressive person, a young woman who is a teacher.

She wrote a very good letter on his behalf, and I do not think he could fool her or be the positive person she portrays and at the same time be significantly addicted to drugs. [ 43 ] Secondly, as I said, it appears that Mr.

Toor is working some tough shifts at his parents' restaurant, and there is no way that a man who is seriously addicted to drugs could keep up the consistent and high-performing performance that he has done at the restaurant. [ 44 ] It appears to me, from looking at what I see in the Pre-Sentence Report and hearing from his family and friends, that he has also left this dead-end road of the drug-dealing world and is focused instead on doing something positive with his life. So I do find, even in Mr.

Toor's situation, that rehabilitation is an important factor which has to be considered, and at least has equal weight with the goals of denunciation and deterrence. [ 45 ] However, I also have to point out that Mr. Toor's moral culpability is higher in this case than Mr. Aulakh's. He is older than Mr. Aulakh. I do not think Mr. Toor has really found himself yet, which happens to people. He has worked at various jobs, he has got lots of potential, everyone likes him, he sounds like a good person, but he just does not know where he is headed, and at 29, it is a shame.

I would hope that he would have hit that point before he hit the age of 29. He is older than Mr. Aulakh and he surely had some influence on Aulakh as the leader of this group, although I have downplayed in some sense the level of his criminal activity here. He is not a big-time drug dealer. As I say, he is one of the drug dealers who lives with his mom.

He nonetheless organized this group, he provided the drugs to this group, he provided the vehicles to them, and I would think that his parents are more than dismayed over the fact that he was using his bedroom as a stash house, their house, the house that they worked so hard to obtain once they got here from India to raise their children, and he is using it to sell drugs from. That is something that he should have known better than to do. It is a betrayal of his parents. However, it is a real testament to his otherwise good character that his parents are sticking with him.

More than a few parents would write their son off if he had done this to them.

[ 46 ] So although his involvement in this case is much more serious than Aulakh's and he is not just a salesman or a delivery person, I do not want to portray him as some sort of major criminal. I think he has taken significant steps to try and show that he is going to lead a hardworking, law-abiding life like his parents have, and like his fiancée does, and I accept that that is what he wants to do.

I am concerned somewhat by the fact that he has got drug use in his background, but I do not think he is seriously addicted, so he is not someone I have to worry about falling off the wagon and immediately running back to selling drugs to get money for drugs. It appears that it is more he is someone who used it more than casually and could be tempted to get back in the drug world if he does not watch it. I think, however, that both his parents and his fiancée will be watching him pretty closely. [ 47 ] So considering all of these factors, I have to consider very carefully what is a fit sentence for him.

Come on forward, sir. [ 48 ] I have thought this through very carefully and I do not think I am in the position to give you a suspended sentence, but in my view, a prison sentence has to be imposed.

But, first of all, you have done some time in custody and in addition, I think the sentence ought to be at the lower end of the range such that once I take into account the time you have done in custody, then you will be eligible for an intermittent sentence. [ 49 ] So by my count he has done the credit of up to 42 days in custody, and if the sentence I would have imposed would be four-and- a-half months or 132 days, then giving credit for 42 days in custody, I can impose a sentence of 90 days, and that is the sentence I impose. [ 50 ] It is to be served intermittently, so that means that you have to serve your prison sentence on weekends, and while you are not in prison, you will be on probation.

So it is a 90-day intermittent sentence, one year probation. [ 51 ] Your first day will be today. You will be released from prison today, right here, and you must report to the institution in which you are serving your sentence. Mr. Karp, what hours are worthwhile here? [ 52 ] MR. KARP: Go in on Friday at four o'clock until I think it is at noon they release them usually. [ 53 ] THE COURT: Okay. This Friday, the 27th of March at 4:00 p.m. until Sunday, the 29th of March, at noon, and successive weekends thereafter until your sentence is served. [ 54 ] You must report to the prison in a sober condition.

I am just saying that because many, many years ago when they used to do a lot more intermittent sentences, guys would show up drunk, and the sheriffs do not want that, the guards do not want that, so just be sober. [ 55 ] You will be on probation for a year, and the terms are you have to keep the peace and be of good behaviour, appear before the court when required to do so by the court, advise the court or probation officer of any change of name, change of address or change of occupation. [ 56 ] You must report within two working days to a probation officer, and thereafter as directed. [ 57 ] I am saying that you must take such counselling for drug abuse as directed by your probation officer.

As I say, I do not think you are someone who has got serious problems with drugs, but I do not think you are someone who is free of problems. I think you need some counselling on that. [ 58 ] I am not going to ask you to do community service work. I want you to focus on serving your time and staying out of trouble. [ 59 ] I also am going to direct that you must not consume drugs except in accordance with a medical prescription, so I am ordering that you cannot have any illegal drugs.

You might be tempted to slip up, but if you ingest any drugs and the police find you, smoke a joint, for example, you can be arrested, and you do not want that to happen. [ 60 ] Under s. 109 of the Criminal Code , I prohibit you from possessing any of the weapons named therein for life. [ 61 ] I direct that DNA samples may be taken from you pursuant to s. 487.05(1) of the Criminal Code . So Mr. Karp, can your client report next week? [ 62 ] THE SHERIFF: Actually, Your Honour, that can be taken today before he is released. [ 63 ] THE COURT: You lucked out.

The sheriffs will take it from you before you go. [ 64 ] I order a victim fine surcharge of $200. I will give you until the end of December 2015 to pay that. [ 65 ] THE CLERK: That's two counts, Your Honour. [ 66 ] THE COURT: Oh, there are two counts. You get hit with $400. I will give you to December 31st, 2015 to pay that. [ 67 ] Any probation terms that I have forgotten? The essence of your client's sentence is that it is a deterrent sentence, but I will add one more thing, sir. (SUBMISSIONS BY MR.

LEPINE) [ 68 ] THE COURT: Within two working days, he has got to report to Probation, and all offence-related property will be forfeited. [ 69 ] So Mr. Toor, I am taking a chance on you. You have got a good family, a good lawyer. Do not betray anybody. Okay, thank you.

[ 70 ] MR. LEPINE: And I am directing a stay on any counts on which he has not been sentenced. (REASONS FOR SENTENCE CONCLUDED)