R. v. Singh Date:, 2016 BCPC 407

Citation: R. v. Singh Date: 20160804 2016 BCPC 407 File No: 213187-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. GURMEET SINGH ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K. ARTHUR-LEUNG Counsel for the Crown: C. Stanley Counsel for the Defendant: D. Silverman Place of Hearing: Surrey , B.C. Date of Hearing: August 4, 2016 Date of Judgment: August 4, 2016

[1] Gurmeet Singh has appeared before me after entering a guilty plea to Count 1 of a two-count Information stating that on orabout December 13, 2014, at or near the City of Surrey, in the Province of British Columbia, contrary to s. 131 of the Immigration andRefugee Protection Act, did knowingly induce, aid or abet or attempt to induce, aid or abet a person, to wit: Daler Singh and Nirmal Kaurto enter Canada without appearing for an examination to determine whether that person has the right to enter Canada or is or maybecome authorized to enter and remain in Canada, as required by s. 18(1) of the Immigration and Refugee Act and thereby did commit anoffence, contrary to s. 124(1)(

a) of the Immigration and Refugee Protection Act. [2] The facts are not in dispute. On December 13, 2014, two persons, that now being identified as Daler Singh and Nirmal Kaur,were observed to cross into Canada at the PAC crossing at the United States and the Canadian international border at approximately176th Street in Surrey, British Columbia. They were observed entering into a vehicle, once crossed, and traverse thereafter on 0 Avenueand proceeded north on 184 Avenue, thereafter entering into Langley, British Columbia, along Highway 10 and were dropped at theA&W restaurant.

The two persons exited that vehicle and met another couple within the A&W, that now being identified as Mr. Singhand his wife. [3] At all times, Canadian authorities had been notified by the United States Border and Immigration authorities, and the partieswere under surveillance and being followed. Mr. Singh, his wife, and the two individuals left the A&W restaurant and proceeded weston Highway 10 where they were then stopped by the authorities. Mr.

Singh was operating the vehicle and was identified as the driver,his wife was the front seat passenger, and the two named persons in the Information were in the back seat of Mr. Singh's vehicle. [4] Thereafter, in close proximity of time, all four persons were arrested. The search incidental to arrest of Mr. Singh's vehicleproduced the Nexus card of Mr.

Singh, the Nexus card of his spouse, two Indian passports belonging to the two persons in the back ofthe vehicle, two United Airlines boarding passes dated the 12th of December, sundry papers, a Royal Bank of Canada transaction slipdated December 13, 2014, an iPhone 5S, an iPhone 5, both belonging to Mr. Singh, and a Samsung belonging to his wife. [5] Investigations by authorities determined that Mr.

Singh withdrew the sum of $1,500 in cash from the Royal Bank branchlocated on 56th Avenue in Surrey, British Columbia. [6] Investigations of the mobile telephones by authorities determined that the iPhones were owned by Mr. Singh.

It wasdetermined that at least one of those mobile phones accessed the Sea-Tac Airport WiFi system on December 12, 2014, again onDecember 13, 2014, and a hotel located in Seattle on December 13, 2014. [7] Crown counsel respectfully submits that this court should impose a conditional sentence order, which is essentially a jail termserved in the community, of a period of 12 to 15 months. [8] Defence counsel respectfully submits that this court should impose a conditional discharge, or, alternatively, a suspendedsentence. [9] The codified portion of s. 718.1 of the Criminal Code of Canada states that: A sentence must be in proportion to the gravity of the offence and the degree of responsibility of the offender. [10]

Section 718.2 of the Criminal Code of Canada requires that: In imposing a sentence, the court must consider a set of principles that are set out within the Code. [11] So, too, I have considered s. 730 of the Criminal Code in determining whether it is appropriate to impose a conditional orabsolute discharge. [12] I, too, have considered the submissions of defence counsel seeking, in the alternative, a suspended sentence. [13] In R. v.

Fallofield (1973), (BC CA), 13 C.C.C. 450 (B.C.C.A.), the 1973 decision of the British ColumbiaCourt of Appeal, the court must consider that the granting of a discharge is not contrary to the public interest, that the person is of goodcharacter and without previous conviction and that the entry of a conviction would not be a necessity to deter that person from futureoffences. [14] Crown counsel seeks to rely upon the British Columbia Provincial Court decision of R. v.

Alvarez dated April 3, 2014,Abbotsford Registry, from the Honourable Judge Raven, wherein she imposed a conditional sentence order for a term of 15 months. [15] Defence counsel seeks to distinguish the Alvarez matter by illustrating that the two foreign nationals being brought in fromMexico by Mr.

Alvarez also carried a black bag with a pistol grip of a handgun that was fully loaded with a magazine and a significantamount of cash. [16] I, however, rely upon paragraph 8 of the Alvarez decision where in Judge Raven succinctly states, and I quote: The principles of sentencing, as set out by the Crown, are denunciation and deterrence because this type of offence is a threat to thepublic safety of Canadians, as it compromises the integrity of our borders. Because Mr.

Alvarez has not been involved in either this typeof offence or any other related offence and appears to be otherwise a contributing citizen to our society, I agree with what is beingpresented essentially as a joint submission, as follows: The suggested disposition is that Mr. Alvarez should receive a 15-month jail sentence which he would be allowed to serve in thecommunity by way of a conditional sentence order. These orders can be considered by the court where a person who would otherwisego to jail can be safely ordered to serve the jail sentence in the community on strict conditions. Because of Mr.

Alvarez's otherwise clean

record, his employment and a lack of other criminogenic factors, I agree that this is a sentence that he should be able to serve in the community. [ 17 ] Crown counsel also relies upon the British Columbia Court of Appeal decision of R. v. Ng , [2008] B.C.J. No. 2576 , wherein I will acknowledge it sentenced Mr. Ng to matters regarding both immigration and prostitution offences. However, the Ng decision is of note to myself and to any person seeking to undertake such an offence as what Mr.

Singh did and, notably, at paragraph 15, the Court of Appeal states: These types of offences can and do compromise the integrity of our borders and, as such, are a threat to public safety. [ 18 ] Defence counsel is seeking to rely upon the Manitoba Court of Appeal decision of R. v. Choi (J.W.), 2013 MBCA 75 , however, in the Choi matter, it can be distinguished as the offence occurred regarding temporary foreign workers and involved the Immigration and Refugee Protection Regulations . [ 19 ] Mr. Singh appears before me with no criminal record.

He is a realtor who has possessed his licence from 2013 and the renewal of such is currently pending a determination. I have been told that he is a developer. I have been provided with a letter of apology from Mr. Singh, a letter from a long-time friend, and two letters from two temples indicating Mr. Singh's participation in those temples at events. [ 20 ] I have also carefully listened and considered that in the matter before me, Mr. Singh has personally stood and apologized and expressed remorse for his actions to this court in person. [ 21 ] Mr.

Singh came to Canada from India in 2004, is married with two children, obtained his Canadian citizenship in 2011 and is considered to be a well-respected member within his own South Asian community and the community as a whole. [ 22 ] Defence counsel seeks to convince this court that Mr. Singh was exploited. I respectfully disagree.

As a person who undertook his own immigration process to become a Canadian citizen, as a real estate agent, as a businessman, he is aware of the importance to follow not only the laws of Canada but the general adherence to the values of society as a whole in being a productive citizen. He, himself, would expect no less from his own employees and work colleagues to uphold the law. [ 23 ] I disagree and do not find that Mr. Singh was exploited. His counsel submitted for consideration that Mr.

Singh is traditionally a very philanthropic person, sending sums of money back to India to assist persons in his home country. [ 24 ] Defence counsel submits that the two persons who entered Canada illegally are considered family members to Mr. Singh, that their own son had died, that they were financially destitute, and that he sought this as a way to bring them into Canada and to provide them with security. However, Mr.

Singh, being a realtor, a businessman and a Canadian citizen himself, is knowledgeable to wire or transfer funds back to India and, therefore, there was no plausible reason to prohibit him from doing so in this instance and thereafter to follow the legal procedures to bring these two persons into Canada. [ 25 ] The Canadian immigration process is a familiar process to Mr. Singh, having undertaken it for himself to immigrate to Canada, thereafter to become a Canadian citizen in 2011 and to bring over his own parent. Mr. Singh was not exploited. There was no urgency to this that would justify Mr.

Singh to undertake to plan this illegal activity. [ 26 ] The integrity and safety of our borders is paramount. Canadians take great pride historically and today to what has been referred to as the largest undefended border, that being between Canada and the United States. With that pride comes an expectation from fellow citizens that it is not to be abused, that it is to be respected and it is to be honoured. Mr. Singh violated that trust of his fellow citizens in participating in this illegal activity. It was not impulsive and he was not exploited. [ 27 ] Mr.

Singh put time into his participation in this event by actively seeking out a person to assist him in bringing these two persons illegally. He entered with the intent to participate in an illegal activity. He planned his participation; he utilized his access to monies to pay someone to facilitate this illegal activity. As a Canadian citizen and as someone who was designated by the Canadian government as what is known as a trusted traveller through the Nexus program, there is an expectation on Mr. Singh and all those in Canada to respect the integrity and safety of our borders and those who traverse it.

There must be the need for general deterrence in the sentence to be imposed. Mr. Singh's conduct must be denounced, as he wilfully ignored his legal obligations, none of which were unfamiliar to Mr. Singh. [ 28 ] No two sentences will fit the same fact pattern. I am mindful that Mr. Singh has expressed remorse, both in writing and in person today, that he is engaged in his faith within two temples, that he is a local businessperson in the community and that he appears before me with no criminal record. [ 29 ] I also find factors for consideration are that Mr.

Singh knowingly undertook to plan his involvement in this illegal activity, that he knowingly broke the law because, as I have noted, he immigrated to Canada himself, he became a Canadian citizen himself and he sponsored his own father.

Therefore, he is intimately familiar with the Canadian immigration procedures and policies and he chose to ignore them. [ 30 ] The safety of our community as a whole, the respect and maintenance of Canadian values living in a country that has the largest undefended border in the world, and that Canada, as a whole, is a signatory to a number of international treaties in which Canada signifies a commitment to uphold the law, including immigration policies and procedures, is important in imposing a fit and just sentence, addressing deterrence and denunciation. [ 31 ] Mr.

Singh, I find that you knowingly violated the faith of this country and trust of this community and that those in this community as a whole are to be safe and that those in this community, if they enter Canada, are to do so through lawful procedures. [ 32 ] Mr. Singh is not exempt, nor is he above the law. When one enters this country, it is to be done lawfully, and when one resides

or visits in the community, there are the generally held values of our citizens that those in our community not only abide by the laws once in our community but abide by the laws to enter the community from the very beginning. Mr. Singh violated that core Canadian value of trust. [ 33 ] As such, I do not believe that a conditional discharge or suspended sentence would fairly and adequately address the concerns set out herein and, therefore, Mr.

Singh, if you will please stand. [ 34 ] I will impose a 12-month conditional sentence order with the following terms and conditions. [ 35 ] Keep the peace and be of good behaviour. [ 36 ] Appear before this court as and when required to do so. [ 37 ] You are to report in person to your probation officer no later than 12:00 noon on Friday, August 5, 2016, and thereafter as and when directed to do so. [ 38 ] At your first reporting, you are to provide your probation officer with all residential and business telephone, addresses and communication numbers, and do not change those without the prior written consent of your probation officer. [ 39 ] You are, for the term of this order, to be bound by a curfew not to be outside your place of residence between the hours of 10:00 p.m. and 6:00 a.m., seven days per week, save and except unless you have on you the prior written consent of your probation officer. [ 40 ] Within the first six months of this order, you are to complete to the satisfaction of your probation officer, 40 hours of community work service hours that are not to be undertaken at a temple.

I pause, Mr. Singh, to say that because, as a whole, I would like you to give back and participate in the general community as a whole. Separate and above, I will note and acknowledge your participation in temples but my order specifically is to provide community work service hours to the general community as a whole. [ 41 ] Are there any other terms or conditions? Are there no-go zones at all? [ 42 ] MS. STANLEY: No, Your Honour, not seeking that.

Perhaps in relation to the curfew, I don't know whether it's your practice to include a condition for him to attend at the door for enforcement purposes. [ 43 ] THE COURT: You are to attend at the door of your residence or telephone, should a peace officer, probation officer, or curfew compliance agency telephone or attend your residence to determine compliance with this condition. [ 44 ] MS. STANLEY: That's fine, Your Honour. (REASONS FOR SENTENCE CONCLUDED)