R. v. Virk, 2024 BCPC 14

Citation: R. v. Virk 2024 BCPC 14 Date: 20240123 File No: 261952-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. ARUNJIT SINGH VIRK REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R.P. HARRIS Counsel for the Crown: A. Bultz Counsel for the Defendant: D. Karp

Place of Hearing: Vancouver , B.C. Date of Hearing: June 28, August 10, and November 27, 2023 Date of Sentence: January 23, 2024 [ 1 ] Mr. Virk was convicted of possessing a loaded handgun contrary to s. 95 (1) of the Criminal Code . A sentencing hearing commenced in June of 2023, it was adjourned to permit the preparation of a more comprehensive psychological report. In November 2023, the Court received an updated report and submissions of counsel.

This Court is tasked with identifying a just and appropriate sentence CIRCUMSTANCES OF THE OFFENCE [ 2 ] On March 28, 2021, at approximately 5:30 pm a Metro Vancouver Transit police officer was patrolling the Metro Town parking lot in Burnaby when he spotted Mr. Virk engaged in a suspected drug transaction. On seeing the officer, Mr. Virk moved in a hurried manner through the parking lot and into the mall. [ 3 ] The police monitored Mr. Virk movements inside the mall via CCTV and observed him make a number of clothing purchases. Mr. Virk then changed into his new purchases.

His actions were obviously designed to avoid police detection. [ 4 ] After changing his clothing, Mr. Virk exited the mall and entered a taxi. The police intercepted the taxi and removed Mr. Virk. He was then handcuffed and searched during which, Mr. Virk volunteered that the satchel in his possession contained a firearm. [ 5 ] The police searched the satchel and inside they located a Polymer 80 model PF940CL semi automatic handgun. The gun was loaded and it was a ghost gun in that it did not have serial number. In the result, the police could not trace the origins of the gun. MR.

VIRK’S PERSONAL CIRCUMSTANCES [ 6 ] Mr. Virk is 23 years old. He was born and raised in the Lower Mainland. He lived in a stable home, free from neglect, abuse and substance misuse. He recently married and he lives with his parents in Surrey. When Mr. Virk was 15, his uncle passed away and it is around this time that he started using Percocet. The passing of his uncle was traumatic for Mr. Virk. [ 7 ] As for his school years, Mr. Virk experienced some bullying. He was expelled from school in grades nine, 10 and 11. Ultimately, and at the age of 20, Mr.

Virk completed grade 12 through Queen Elizabeth Continuing Education. [ 8 ] Mr. Virk has no formal vocational training. He has worked at various jobs including, roofing, drywall, glazier and decorating. He has had little employment in the past three years. At the time of sentencing, he was working as an office assistant where his mother works. [ 9 ] As for substances, Mr. Virk began smoking marijuana and consuming alcohol in his early teens. At 17, he started using oxycodone and ultimately his drug use escalated and in an effort to assist him, his parents took him to India for treatment. Initially, Mr.

Virk responded positively; however, within a few months of his return he recommenced using. In 2022, Mr. Virk spent 30 days in a recovery home and in early 2023 he started using again. He then stopped in May of 2023. [ 10 ] As for a criminal record, Mr. Virk has two criminal convictions for unrelated offences and they postdate the offence in issue. I note these convictions not because they are aggravating, rather, because they demonstrate that Mr. Virk has faced some challenges since the instant matter. [ 11 ] In terms of Mr.

Virk’s attitude regarding his offence, the pre-sentence report notes, he acknowledges the harm that could have occurred, he admits putting others at risk, he recognized the impact of his offending and he understands that he makes poor decisions when using substances. [ 12 ] As for Mr. Virk’s mental health, filed with the court was a psychological assessment prepared by Dr. Khan. In the assessment Dr. Khan observes that Mr. Virk is a mild to moderate risk to reoffend. In forming his opinion, Dr. Khan recognizes Mr. Virk’s assertion that he has changed his life, but observes that the risk factors have not changed.

Dr. Khan also notes limited information owing to the fact that Mr. Virk would not consent to his records being reviewed. [ 13 ] Of note is, counsel for Mr. Virk challenges the assessment pointing out that Dr. Khan failed to consider Mr. Virk’s changes. I do not accept the challenge because Dr. Khan specifically commented on Mr. Virk’s changes and therefore I am satisfied he considered them in arriving at his conclusion. [ 14 ] The assessment also notes, Mr. Virk’s drug use and his May 2023 hospitalization and his current status with the hospital. As for medication, Mr.

Virk is currently on Olanzapine and he reports that it helps with his mood. [ 15 ] Although, Mr. Virk states he was previously diagnosed with Bipolar Disorder, Dr. Khan observes this is a self-diagnosis. He also notes that, Dr. Lax, a consultant forensic psychiatrist, who has worked with Mr. Virk, observed that Mr. Virk is not a reliable historian. [ 16 ] As for diagnosis, Dr. Kahn’s opinion is Mr. Virk suffers from an unspecified mood disorder, antisocial personality disorder traits and polysubstance use disorder traits. Dr. Khan recommends that Mr.

Virk attend and received treatment from the forensic psychiatric clinic. He also recommends a curfew, drug screening, anger management and a weapons prohibition. [ 17 ] Importantly, although Dr. Khan’s assessment identified Mr. Virk’s challenges, he did not conclude or suggest that Mr. Virk’s offence was linked to his mental health or drug use. In fact, Mr. Virk informed Dr. Khan that he possessed the gun for protection, thus, suggesting a deliberate process wherein he took steps to arm himself.

[ 18 ] Several letters were filed. The letters speak to Mr. Virk’s anxiety, depression and the treatment he has received. The letters are focused on advocating that Mr. Virk should not receive a jail sentence. In this regard, the writers opine that a custodial sentence would jeopardize Mr. Virk’s mental health and expose him to negative influences. [ 19 ] One of the letters submitted was from Dr. Sidhu who explained they have been Mr. Virk’s attending physician since January 2018. On reviewing the letter, and after hearing from the Crown, I give the letter minimal weight.

This is because the letter was created after Mr. Virk’s sister provided the doctor with a draft letter of what should be written, as such, I do not know what assertions are based on the doctor’s knowledge versus what the doctor was simply told. I also note, the doctor makes conclusory statements without providing support for the conclusions. A further concern is the doctor’s letter appears written from the position of an advocate rather than a balanced conveyor of observations. This perspective is exemplified by the doctor making recommendations regarding custody without knowing anything about the offence.

POSITION OF THE PARTIES [ 20 ] The Crown argues that a fit sentence is a 36-month custodial sentence. In support, the Crown highlights that denunciation and deterrence are the primary sentencing objectives and argues that the sentence suggested by counsel for Mr. Virk would compromise public safety. [ 21 ] Counsel for Mr. Virk argues a conditional sentence order in the range of 18 – 24 months followed by probation would support Mr. Virk’s continued rehabilitation while denouncing and deterring his offending conduct. Counsel highlights Mr. Virk’s youth, his mental health and his community support.

Lastly, counsel acknowledges the sentencing range for firearm offences but points out ranges are not inflexible boundaries and in appropriate circumstances a judge can impose a sentence that is above or below the stated range. THE LAW Purpose and principles of sentencing [ 22 ] The purpose and principles of sentencing are expressed in sections 718 – 718.2 of the Criminal Code . [ 23 ]

Section 718 outlines the fundamental purpose of sentencing and it lists sentencing objectives that contribute to achieving the overall purpose of sentencing. The

section provides: The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. Proportionality [ 24 ] Pursuant to

section 718.1, proportionality is a fundamental principle of sentencing. The

section states: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Additional sentencing principles [ 25 ] Additional sentencing principles relevant to the instant matter include are in

section 718.2 which reads: (

a) A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, … (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; … (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. APPLICATION Sentencing objectives

[26] Denunciation and deterrence are the primary objectives when imposing a sentence for a firearms related offence: R. v. Kachuol,2017 BCCA 292 at para. 21. That said, this court recognizes there are cases where the particular circumstances supports the conclusionthat a conditional sentence order will satisfy the requisite degree of denunciation and deterrence: R. v. Parker, 2023 MBCA 5. [27] The importance of imposing a sentence focussed on denunciation and deterrence is evidenced at para 19 of R. v.

Holt, 2015BCCA 302 where Justice Newbury observed that the proliferation of guns in the Lower Mainland indicate a need for a re-alignment ofthe sentencing “range”. [28] A further relevant sentencing objective is Mr. Virk’s rehabilitation. In this regard, he is youthful, he is a first time offender, hehas expressed a willingness to engage with rehabilitative services and he has the support of his family. Proportionality [29] Proportionality is a fundamental principle of sentencing. In R. v.

Ipeelee, 2012 SCC 13, LeBel J., commented on this principle atpara 37: [37] The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing — themaintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord tothe various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle ofproportionality. Proportionality is the sine qua non of a just sanction.

First, the principle ensures that a sentence reflects the gravity ofthe offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in thejustice system. As Wilson J. expressed in her concurring judgment in Re B.C. Motor Vehicle Act, (SCC), [1985] 2S.C.R. 486, at p. 533: It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a “fit” sentenceproportionate to the seriousness of the offence.

Only if this is so can the public be satisfied that the offender “deserved” the punishmenthe received and feel a confidence in the fairness and rationality of the system. Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness ofthe offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender.

In the Canadiancriminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense ofthe other. [30] With the above in mind, sentencing is an individualized process where the sentence imposed must consider the offender’s uniquecircumstances. The important link between individualization and proportionality was recently underscored in R. v. Parranto, 2021 SCC46 at para 12, where the Court referenced R. v. Lacasse 2015 SCC 64 , [2015] 3 SCR 1089 and commented: Individualization is central to the proportionality assessment.

Whereas the gravity of a particular offence may be relatively constant, eachoffence is “committed in unique circumstances by an offender with a unique profile” (para. 58). This is why proportionality sometimesdemands a sentence that has never been imposed in the past for a similar offence. The question is always whether the sentence reflectsthe gravity of the offence, the offender’s degree of responsibility and the unique circumstances of each case (para. 58). [31] Turning to Mr. Virk’s matter, the maximum available penalty of 10 years, when proceeded by Indictment, highlights theseriousness of the offence.

I also note the authorities are replete with commentary regarding the seriousness of gun possession and withthis in mind; I note Justice Newberry’s observations at para. 18 of Holt: With respect, I am unable to accept the defence’s arguments. In my view, the possession of a loaded firearm does pose a serious threat,and a growing one, to communities across Canada. There is no reason why British Columbia courts should take this threat less seriouslythan other Canadian courts now do. As Mr. Justice Code stated in Nur: … social norms and judicial responses to them, have changed since the 1980s and 1990s.

The proliferation of handguns has increased,homicides involving handguns have increased, and the justice system has responded to public alarm by stiffening its approach tosentencing in cases involving handguns. … [32] Turning to Mr. Virk’s moral culpability, and I recognize he has experienced some struggles, there is insufficient evidence toconclude that his mental health or drug use caused or contributed to his offence. Additional principles [33] Turning to the aggravating and mitigating factors. It is aggravating that Mr.

Virk chose to possess a firearm in a highly publicarea namely the exterior and interior of a mall. It is aggravating that the firearm was loaded and without a serial number. [34] In mitigation is Mr. Virk’s youth, his lack of criminal record, the support of his family, the rehabilitative steps that he has takenand his initiative of warning the police that he had a firearm in his possession. Similar sentences [35] Counsel has filed a number of authorities that best highlight their respective positions.

The cases provide guidance on theapplicable principles and assist in showing the sentences that have been imposed. Although the authorities are helpful, I remain mindfulthat sentencing is an individualized exercise and that individual circumstances may justify a sentence above or below commonly imposedsentences. [36] The cases relied on are; R. v. Kachuol, 2017 BCCA 292, R. v. Holt, 2015 BCCA 302, R. v. Grace, 2022 BCSC 475, R. v.Vaillant, 2022 BCSC 1137, R. v. Sears, 2016 BCSC 965, R. v. Ulmer, 2020 AQB 393, R. v. Parker, 2022 MBQB 66, R. v. Parker, 2023

MBCA 51 , R. v. McKay, 2019 BCPC 139 , R. v. Abma , 2019 BCPC 268 , R. v. Haus , 2016 BCPC 11 , R. v. Kinnear , 2023 BCPC 50 , R. v. Motevalli , 2019 BCSC 162 , R. v. Niederhumer, 2022 BCCA 88 . I have read all of the cases and below is a brief

summary of the more salient ones. [ 37 ] In Parker, The Crown’s appeal of a 21-month conditional sentence order, with consideration for pre-sentence custody was dismissed. The offence involved flight from police, the attempt theft of a vehicle, an assault, and the possession of a loaded handgun that the offender concealed under a barroom pool table. The offender had a long-standing drug addiction and criminal record.

At the time of sentencing the offender had been sober for 2 ½ years, he was engaged with a counselor and he had completed all programing. [ 38 ] In dismissing the appeal, the Court concluded that the sentencing judge made no errors and specifically referenced R. v.

Conlon, 2011 ABCA 379 , for the proposition that the need to emphasize denunciation and specific deterrence will be reduced where the offender has undertaken rehabilitative efforts and completely turned their life around. [ 39 ] In Grace , the offender was sentenced to a conditional sentence order of two years less a day after pleading guilty to possessing a loaded .40 caliber semi-automatic handgun. The offender possessed the gun while he was camping and he had it for the purpose of protecting himself. Of note is the sentence was based on a joint submission.

In accepting the joint submission, the Court observed there was no malicious intent; that the offender only wanted to be safe; the offender was young; the offender accepted responsibility; he was cooperative with the officer, and he lacked any pre or post criminal conduct. [ 40 ] In Vaillant , the offender was sentenced to a 2 year less a day conditional sentence order after he was convicted of a number of firearms offences. The circumstances involved the offender, who was suicidal at the time, barricading himself in a rural cabin, thereafter he brandished a firearm and fired it in the direction of police.

These actions were done in an effort to have the police take his life. In considering an appropriate sentence, Justice Myer concluded that the offender’s moral culpability was reduced because of a causal link between the offender’s mental health and the offence. Specifically, the justice concluded from the evidence that the offender was suffering from a mental illness at the time of his offending. At paragraph 60 of the decision Justice Mayer notes the range for true crime possession of a firearm with ammunition as being 30 months to 3 years. In support, Justice Mayer cited: Holt , Kachuol and R. v.

Padda , 2019 BCCA 35 . [ 41 ] In Sears , the offender pled guilty to a number of firearm offences and after recognition for pre-sentence custody of six months, an 18 month conditional sentence order was imposed. The offender had consumed a significant amount of alcohol and prescription drugs at the time of the offence. Importantly, the sentencing judge distinguished the offender’s possession of the firearms from being in furtherance of criminal activity. [ 42 ] In Ulmer, the offender pled guilty to possessing a loaded prohibited firearm that had been discovered concealed under the front seat of his car.

After pre-sentence credit of 82 days, the offender was sentenced to 18 months to be served conditionally. The offender was 61, he had overcome an addiction and the court concluded that his possession of the firearm was not related to criminal activity. [ 43 ] In McKay , the offender received a 21 month conditional sentence order after pleading guilty to possessing a sawed off. 22 calibre rifle. The circumstances involve the offender negligently discharging the rifle and striking his girlfriend as they sat in his bedroom.

The offender was 23 years old at the time of sentencing and he struggled with a drug addiction and he had taken several steps in an effort to address his addiction. Importantly, the sentencing judge found that the possession of the firearm was not to further the commission of additional offences, i.e., the offender did not possess it as “a tool of the trade.” [ 44 ] In Abma , Judge Cutler imposed a two year conditional sentence order on an offender who pled guilty to possessing two unloaded prohibited firearms.

The firearms were located after the police attended the offender’s rural property in response to a domestic dispute. The offender’s partner advised the police that the offender had firearms. At no time did the offender brandish, handle, or threaten his partner with the firearms. On imposing sentence, Judge Cutler observed at para. 17, that there was nothing to suggest that the firearms were possessed in furtherance of criminal activity. [ 45 ] In Haus , the offender pled guilty to possessing a number of firearms. The offender was older, he had health issues and he did not have a criminal record.

On imposing sentence, the sentencing judge observed that the pursuit of a hobby led to a conflict with the law and that the conduct was at the least blameworthy end of the spectrum. A six month conditional sentence order was imposed. Principle of restraint [ 46 ] Sections 718.2 (

d) and 718.2 (

e) are often referenced as codifying the principle of restraint. This principle reflects the requirement that a sentencing court impose jail only as a last resort and if jail is required that the lightest jail sentence that is reasonable be imposed: R. v. Bosco , 2016 BCCA 55 at para. 35 . Analysis [ 47 ] When I consider all of the facts and information, I am satisfied that Mr. Virk’s possession of the loaded firearm, even if for protection, was for a criminal purpose which is highly distinguishing from the majority of the cases relied on by counsel for Mr. Virk.

Specifically, McKay, Haus, Abma, Ulmer and Grace. [ 48 ] As for Mr. Virk’s mental health and drug use, there is no evidence to support the suggestion that his mental illness or drug use caused or contributed to his offence. In this regard, I note he was clear and lucid on arrest, further, his efforts at avoiding detection show clarity of thought and purpose. As such, the circumstances of his case are highly distinguishable from those cases where the offence was committed when the offender was experiencing a mental health crisis. [ 49 ] As for Mr.

Virk’s rehabilitative steps, they are to be applauded, however, his progress falls short of establishing that he is well on the road to recovery. In fact there are observations that cause a moment of caution. In this regard, he last used eight months ago and he has been less than forward with the assessors by not permitting access to his clinical records.

[ 50 ] In considering all of the above, I am of the view that a fit sentence is a custodial sentence of 30 months. Were it not for the mitigating factors I would be inclined to impose a higher sentence given the circumstances of his offence. Specifically, the public nature of the offence and the fact the firearm was loaded. ANCILLORY ORDERS Forfeiture [ 51 ] Pursuant to s. 491 of the Criminal Code , the firearm and ammunition seized from Mr. Virk is forfeited to the His Majesty and disposed of as the Attorney General directs.

DNA [ 52 ] Pursuant to s. 487.051 , of the Criminal Code , the instant matter is a secondary designated offence. When I consider the circumstances of the offence, Mr. Virk’s personal circumstances and his history, I conclude that that the best interests of the administration of justice outweigh Mr. Virk’s security of his person and privacy and I authorize the taking of a bodily substance from him for the purpose of the national DNA databank. Weapons prohibition [ 53 ] Pursuant to s. 109 of the Criminal Code , Mr.

Virk is prohibited from possessing any firearm, prohibited firearm, restricted firearm, crossbow, restricted weapon, ammunition and explosive substance for ten years. Victim fine surcharge [ 54 ] Mr. Virk will be in custody for a period of time and I conclude that it would be an undue hardship to impose one. _____________________________ The Honourable Judge R.P. Harris Provincial Court of British Columbia