R. v. Pahl Date:, 2016 BCPC 462

Citation: R. v. Pahl Date: 20160819 2016 BCPC 462 File No: 56320-4-C Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GURVINDER SINGH PAHL RULING RE GARDINER HEARING OF THE HONOURABLE CHIEF JUDGE CRABTREE BAN ON PUBLICATION 486.5(1) CCC; 486.5(9) CCC Counsel for the Crown: R. Leong Counsel for the Defendant: M. Stern

R. Bal Place of Hearing: Vancouver, B.C. Date of Judgment: August 19, 2016 [1] THE COURT: Gurvinder Singh Pahl pleaded guilty to a charge of possession of ecstasy for the purpose of exportation and wassentenced to five years' imprisonment. [2] The Crown appealed the sentence to the Court of Appeal. Leave to appeal was granted, and during the course of the hearing,the court ordered, pursuant to s. 683(1)(

e) of the Criminal Code, the Chief Judge of the Provincial Court of British Columbia appoint ajudge, other than the sentencing judge, as a special commissioner to conduct a Gardiner hearing and report back to the Court on whetherany of the aggravating and mitigating facts in dispute at the sentencing hearing on January 23rd, 2015, are established. [3] The Court directed counsel to arrange for the first possible hearing date before the judge appointed to conduct the hearing. [4] The matter was scheduled before me on June 28th, 2016. At that time counsel estimated one day was required to complete thehearing.

The earliest date convenient to both counsel's calendar was August 5th, 2016, and the matter was scheduled accordingly. [5] The hearing did not conclude on August 5th, and the matter was scheduled for continuation on August 11th, 2016. [6] The matter concluded on the second day and was adjourned over to today's date for decision. [7] The purpose of this hearing is to determine whether any of the facts in dispute at the original sentencing hearing exist and toreport on this matter to the court. [8] There are two questions to be addressed at this hearing. The first is whether Mr.

Pahl had previously been involved in theconveyance of illicit substances at the YVR Airport. The second is whether Mr. Pahl became involved in the events of May 11th, 2011as a result of threats to Mr. Pahl and Mr. Pahl's family. [9] In R. v. Sandher, , a decision of the B.C. Supreme Court describes the relevant test to be applied in thecircumstances where aggravating and mitigating facts are in dispute is described, at paragraph 19, in the following terms: ... the Crown must prove disputed, aggravated facts in a sentencing proceeding beyond a reasonable doubt. See Gardiner v. the Queen,, SCC.

The defence, however, is not without an obligation. If the defence wishes to put forward a disputed mitigatingfactor it must do so on a balance of probabilities. See R. v. Holt, (1983), (ON CA), 4 C.C.C. (3d) 32 (Ont. C.A.) andCriminal Code s.724. [10] Evidence proffered at the proceeding before me included the appeal book, which was introduced by consent of counsel andmarked Exhibit 1. It was further agreed by counsel that the material contained in the appeal book was evidence in this proceeding. [11] In addition, two witnesses were called; Mr. Pahl, the defendant in these proceedings, and Ms.

Gill. [12] The Crown submits that a relevant aggravating fact in the sentencing of Mr. Pahl is that he was previously engaged in theconveyance of illicit substances at the YVR through airport security. [13] To establish the aggravating fact, Crown relies on the statement made by Mr. Pahl to an undercover police officer while theofficer and Mr.

Pahl were located together in a cell at [omitted for publication]. [14] The transcripts of the recorded conversations are located at pages 45 to 252 of Exhibit 1, the material portion of which wasrecorded between 1752 and 2120 on May 20th, 2011, and is made in the context of Mr. Pahl discussing with the undercover officer thathe was involved with a drug transaction involving 12 "keys" where he handed it to another person in the washroom. [15] The relevant statement is found in the transcript at page 75 where Mr.

Pahl states, "It's because they, cause I'd already done itfour times." [16] The Crown also introduced a series of text messages located at Exhibit 1, pages 14 to 16. These messages are communicationsbetween Mr. Pahl and Mr. Green. Mr. Green is the individual that Mr. Pahl ultimately delivered the suitcase containing drugs to once hehad cleared security and made his way to the U.S. Departure area at YVR. [17] Mr. Pahl was in the washroom cubicle waiting for Mr. Green, who had not yet arrived. While Mr. Pahl was waiting in thatlocation Mr. Green text messaged Mr.

Pahl several times and on one occasion stated, "Same bathroom by the book store, right." [18] The Crown also introduced a copy of Mr. Green's passport located at Exhibit 1, pages 38 to 43 which contains four HomelandSecurity stamps indicating admission to the United States through YVR. The stamps are dated December 2nd, 2010; December 23rd or28th, 2010, as it is difficult to make out the specific date on the copy that was admitted in evidence; December 27th, 2010 and May 8th,2011. [19] Crown also introduced a video surveillance footage capturing Mr.

Pahl as he picked up the suitcase containing the drugs andproceeded through security and some of his actions in the U.S. Departure area, including entering and exiting the washroom. [20] Mr. Pahl's testimony was relevant to both the determination of the aggravating fact as well as the mitigating fact.

[ 21 ] Mr. Pahl testified that the comments made to his cellmate, the undercover officer, were part of an overall strategy to demonstrate that he was more important or experienced person than his youthful appearance would immediately suggest. [ 22 ] Mr. Pahl explained the reason for doing so was a concern that he held based on the appearance and aggressive nature of the undercover officer when Mr. Pahl first encountered him in the booking area. [ 23 ] At that time, Mr.

Pahl sat beside his future cellmate prior to being booked into custody. [omitted for publication] [ 24 ] While seated at this location the undercover officer was observed by Mr. Pahl to be acting aggressively toward the police who were in the vicinity. All of this caused concern to Mr. Pahl. [ 25 ] Mr. Pahl had not previously been held in custody. When he found himself placed in the two-person cell with the undercover officer that he had observed in the booking room, he became concerned for his safety.

He believed that if he demonstrated bravado and that he was more involved in bad or even criminal behaviour, that this would reduce the risk of being confronted in some fashion by this individual. [ 26 ] Mr. Pahl acknowledges the recorded statement is an accurate account of his conversation that took place with the undercover officer in the cell. However, he stated that a number of the comments he made during that statement were untrue, and in effect, he lied in an effort to protect himself. [ 27 ] In a detailed review of the statement, Mr.

Pahl went through it and pointed out a number of comments or statements that he made that were simply untrue. It is clear that several of the statements Mr. Pahl made during the interview were untrue. [ 28 ] For example, that Mr. Pahl spent time in prison. Mr. Pahl has only one conviction on a criminal record set out in Exhibit 1 at page 255 indicating that he had received a conditional discharge for an offence of unauthorized use of a credit card. There is no evidence to suggest that Mr. Pahl spent time in prison. [ 29 ] At another point in the statement, Mr.

Pahl made reference to the fact that he was in charge of security at the airport. [ 30 ] At another point in the statement, Mr. Pahl's description of his prior criminal activity involving credit cards appears to be an exaggeration in terms of who was involved. [ 31 ] With respect to the mitigating fact, Mr. Pahl testified that his reason for becoming involved in this incident was due to the fact that he owed a substantial amount of money to a person referred to as Mr. "X" and that he was unable to repay that debt. [ 32 ] As a result, Mr.

"X" asked him to use his position at the airport to take a quantity of drugs through the security system into the U.S. Departure area and to deliver them to another person, Mr. Green. [ 33 ] Mr. "X" threatened to harm both Mr. Pahl and his family if he did not participate in this scheme. As a result, Mr. Pahl eventually agreed to participate. [ 34 ] The circumstances giving rise to the loan took place a number of months prior to the actual incident at the airport. In the spring of 2010, Mr. Pahl located a BMW for sale on Craigslist that was located in Portland, Oregon. The sale price of the vehicle was $18,000.

Mr. Pahl was attracted to the motor vehicle and thought it was a "good buy" although he lacked the financial means with which to purchase it. [ 35 ] Mr. Pahl mentioned the vehicle to Mr. "X" during one of his encounters on the basketball court. Mr. Pahl described Mr. "X" as a person he had met on occasion three to four months earlier while playing basketball on a public court in Richmond, B.C. [ 36 ] Over this three to four month period, the two of them met occasionally, played pickup games with other basketball players, as well as played one-on-one games when the two of them happened to be at the same facility.

They did not socialize outside of these impromptu pickup games, which seemed to occur when people randomly converged from time-to-time at the public court. Mr. Pahl estimated his attendance at the public court to be approximately once per week. [ 37 ] During one of these random meetings where only Mr. Pahl and Mr. "X" were at the court, Mr. Pahl mentioned the vehicle in question and that he would like to buy it. Mr. "X" offered to lend Mr. Pahl $20,000 on the understanding that he would repay him the sum of $26,000 within six months. Mr. Pahl accepted the loan on those terms. [ 38 ] Mr. Pahl and Mr.

"X" met several days later at the park where the basketball court was located, but this time they went to Mr. "X's" vehicle. Mr. "X" asked to see Mr. Pahl's driver's licence, following which Mr. "X" produced a bag containing an amount of cash. [ 39 ] The original loan contemplated was $20,000. The money delivered in cash was not counted at the time of the transaction. Later when Mr. Pahl returned home he counted the money and discovered the cash total $19,985. [ 40 ] Over the next several weeks, Mr. Pahl set his sights on acquiring the vehicle.

He contacted the seller by email and inquired about any damage to the vehicle, and indicated he would like to purchase it. Discussions then focused on the actual arrangements to complete the transaction and deliver the funds to the seller. [ 41 ] Mr. Pahl was advised that the seller's brother was currently in Vancouver, and arrangements to deliver the funds to him would be arranged through the brother. Contact particulars were provided and the two of them spoke by phone to arrange a meeting place. [ 42 ] Initially, the seller's brother and Mr.

Pahl agreed to meet at the food court at the Guildford Mall in Surrey, B.C. Mr. Pahl attended but the seller’s brother did not show up. Subsequently he advised Mr. Pahl that he had been held up in a meeting and was unable to attend.

[ 43 ] A subsequent meeting was set up for the next day. Mr. Pahl was unavailable to attend and asked his girlfriend, Ms. Gill, to attend in his place. She agreed and Mr. Pahl provided her with the cash that he had received from Mr. "X". Ms. Gill set out to the Guildford Mall to meet with the brother. [ 44 ] Ms. Gill testified that she went to the Guildford Mall and met a man named Michael Kalatara [phonetic]. She asked for his driver's licence which was produced, and she recorded the name and address of the person and subsequently handed over the bag containing the cash.

Having done so, they parted company. [ 45 ] Following this event, Mr. Pahl attempted to contact both the owner and Michael without success for the next several days. They went to the street listed on Michael's driver's licence, only to discover that the residential address was not real. No further contact was made with either the seller or Michael, and Mr. Pahl then believed he'd been duped of his money. [ 46 ] Four or five days later, after the Guildford Mall exchange, Mr. Pahl and Ms.

Gill went to the RCMP in Richmond, B.C. and advised a police officer located at the counter of the detachment what had happened. [ 47 ] Mr. Pahl and Ms. Gill were told there was nothing the police could do. Mr. Pahl said they were in and out of the detachment in three minutes. The officer was not identified, nor did they receive a file number when at the detachment. [ 48 ] Approximately one week later Mr. Pahl advised Mr.

"X" that he had been duped out of the money, or had lost the money and that he would try and pay him back. [ 49 ] At some point later in 2010, or early 2011, during one of the encounters at the basketball court, Mr. Pahl advised Mr. "X" what he actually did at the airport. At this point, it was noted that Mr. "X's" demeanour changed and Mr. "X" told Mr. Pahl that he was going to do something for him in order to repay the debt. Mr. "X" indicated that he wanted Mr. Pahl to take drugs through the security area at the YVR Airport. At first Mr. Pahl resisted. Mr.

"X" threatened that if he did not do so, that he would harm Mr. Pahl and his family, at one point saying, "If you don't do it, you're dead." [ 50 ] These discussions and threats continued for a period of time, and eventually Mr. Pahl relented and agreed to participate in the scheme. [ 51 ] At this stage, a plan was developed which culminated in the events that transpired on May 9th, 2011 in which Mr. Pahl took a small suitcase containing drugs through the security area at the airport and delivered the suitcase to Mr. Green in the washroom located near the bookstore in the U.S. Departure area of YVR. [ 52 ] Ms.

Gill testified at the hearing before me that she had a shopping bag containing cash and delivered it to the person named Michael at the Guildford Mall. [ 53 ] She went with Mr. Pahl to the Richmond Detachment when he went to report what had happened, although she said she was very upset and crying and did not participate in the discussion with the police officer. [ 54 ] She also observed that Mr. Pahl became stressed and anxious at the time leading up to the events of May 9th, 2011. On one occasion she observed, while at Mr. Pahl's place of residence, a text message displayed on Mr.

Pahl's cellphone which conveyed a threat of physical harm. She understood that message to be from Mr. "X.". She did not particularize the wording of the threat. [ 55 ] The defence relies on the evidence of both Mr. Pahl and Ms. Gill in their submission that the aggravating fact has not been established and to support a finding that a mitigating fact exists. [ 56 ] Let me turn to a consideration of the evidence of Mr. Pahl and Ms. Gill. This event occurred in excess of five years ago, and clearly the passage of time has affected the ability of recall of the witnesses.

Both witnesses professed at different times during their testimony an inability to recall many of the details of the events which transpired leading up to the incident at YVR. The lack of specificity as to names, dates and details impacts the accuracy of each of the witnesses' evidence. [ 57 ] I turn to a consideration of the testimony of Mr. Pahl. Mr. Pahl's description of the loan, how it was incurred and how the proceeds were ultimately lost is vague and lacking in detail.

He provided many conclusory statements, but lacked detail that would be readily apparent and relevant to a person involved. [ 58 ] For example, he could not recall the year of the vehicle he wanted to purchase, despite having a particular interest in motor vehicles in general, and offered little detail as to why, in his view, it was such a good buy. [ 59 ] The same is true of the description of the events leading up to the loan of money by Mr. "X." It lacked detail and specifics. [ 60 ] In my view, the circumstances as described by Mr. Pahl surrounding the loan defy common sense.

The fact that a person, who knows Mr. Pahl, only through incidental contact, on a basketball court, for a short period of time, would lend $20,000 to another on the strength of producing a driver's licence is contrary to common experience and seems unlikely. [ 61 ] At the very least, in my view, there would have been a more meaningful exchange between the two parties than was described by Mr. Pahl prior to Mr. "X" agreeing to lend such a significant amount of money. [ 62 ] Mr. Pahl was evasive and non-committal as to who Mr.

"X" was despite the fact that they had had contact on a number of occasions over the four to five months prior to the loan being put in place. While I understand Mr. Pahl's fear for his personal safety, because he is incarcerated, in my view he minimized his evidence when he stated that he only knew Mr. "X" by his nickname. [ 63 ] Mr. Pahl's description of the arrangement of passing along $20,000 to a virtual stranger on the strength of phone calls and an exchange of email without any acknowledgement or plan in place to inspect the vehicle, secure transfer of ownership, and delivery of

possession is most unlikely. [ 64 ] Mr. Pahl testified that the amount borrowed was to cover the purchase price of the vehicle in U.S. funds and import duties to bring the vehicle to Canada. He testified that this amount that was calculated in total to be $19,600.00. He provided no explanation or detail as to how this was calculated. [ 65 ] This was a case where substantial documentation was available or could have been generated during the course of the transaction that would support the explanation and testimony.

Examples include: copies of Craigslist advertisement; the email exchanges between the seller and Mr. Pahl; the results of the social media searches that Mr. Pahl undertook to locate the seller's brother, including LinkedIn; the applications to secure a loan through a number of conventional institutions that Ms. Gill testified that they both applied for, and/or the notice of rejections that they received from such institutions to each of the applications; the name and spelling of the last name of the seller's brother and the address taken from the driver's licence and recorded by Ms.

Gill at the Guildford Mall; and finally, possibly, screenshots of threatening messages received from Mr. "X." [ 66 ] No documentation was gathered and taken to the Richmond Station of the RCMP when reporting the matter to the police in an effort to solicit their support to recover the funds. [ 67 ] The description that he was in and out of the Richmond Detachment of the RCMP in three minutes is not accurate and is an exaggeration. It is simply not possible to do what Mr. Pahl indicated they did within that timeframe. [ 68 ] The explanation proffered by Mr.

Pahl at the hearing as to the arrangements made to deliver the funds to acquire the vehicle is inconsistent with what Mr. Pahl reported to the psychologist in preparation for the report for the initial sentencing. [ 69 ] At page 289 of Exhibit 1 the psychologist reports that Mr. Pahl stated [as read in]: I gave the money to a friend who forwarded it to a seller in the United States who took the money and failed to forward the car. [ 70 ] None of this was testified to at this hearing. Mr. Pahl stated he gave the money to Ms.

Gill, who took it to Guildford Mall where she met and turned over the funds to a person described as the seller's brother named Michael. They lost contact with the seller and the brother and never received the vehicle. The inconsistency was not explained. [ 71 ] Mr. Pahl, in asserting that he was prepared to lie to avoid a possible confrontation with his cellmate in the jail cell, raises the spectre of whether a similar approach is taken before this court. [ 72 ] Is Mr. Pahl, once again, offering untruths in an effort to avoid what could amount to unpleasant consequences for him as a result of this proceeding?

At the very least, Mr. Pahl presents as a person who is careless about the truth. [ 73 ] Turning to Ms. Gill's testimony, she stated she delivered $20,000 to Michael at the Guildford Mall. Mr. Pahl stated that he only gave her $19,600. This discrepancy was not explained. There are other discrepancies between the two accounts including how many cellphones Mr. Pahl had at the material time. [ 74 ] Of note, Ms. Gill also stated how the loss of the funds and subsequent events caused Mr. Pahl great stress and anxiety. She also observed a text shown to her by Mr. Pahl indicating a threat toward Mr. Pahl and his family.

The evidence is in contrast and inconsistent with what she advised the sentencing judge at the initial hearing. Ms. Gill provided a detailed letter in support of Mr. Pahl at the initial sentencing hearing, describing the events leading up to his involvement in this incident. [ 75 ] No reference was made in her letter filed in Exhibit 1 to the loan, her involvement in delivering the money to the third party at Guildford Mall, attending the Richmond Detachment of the RCMP to report the incident, or to her observing a text message on Mr.

Pahl's phone threatening him and his family. [ 76 ] This inconsistency reflects on her forthrightness and her objectivity in giving evidence in this proceeding. [ 77 ] These comments highlighting concerns relating to the testimony of the witnesses who gave evidence before me at this hearing.

Let me now turn to the specific issues to be addressed. [ 78 ] As to the question whether the Crown has established beyond a reasonable doubt the aggravating fact, the Crown submits that the admission to the undercover officer in cells that he had done this four times previously, combined with the other pieces of evidence offered, show that he was actively involved in this type of activity prior to May 9th, 2011. [ 79 ] The text message exchange between Mr. Pahl and Mr.

Green, with the choice of words and the overall tone of the message, it is submitted, suggests that it was not the first exchange between these two individuals. It is further submitted that the overall import of the exchange suggests that Mr. Pahl is the person controlling the situation as opposed to being a first-time conveyancer of illicit substances. [ 80 ] The passport admission stamps recording Mr. Green's entry into the United States demonstrates, on the Crown's submission, that Mr.

Green has, on three prior occasions, been admitted to the United States. [ 81 ] And finally, the video surveillance footage shows the demeanour and body movement of Mr. Pahl which the Crown submits, depicts someone at ease with what they are doing. It is submitted that there are no movements which suggest nervousness or suspicious actions. [ 82 ] In my assessment of the matter, and bearing in mind my review of Mr.

Pahl's testimony and the concerns previously noted, I do not believe his explanation. [ 83 ] However, I am left with a reasonable doubt based on his explanation offered at the hearing that his admission to the undercover officer was puffery or bravado designed, along with other truths told by him, to the officer to put him in a better light, motivated in part

by Mr. Pahl's concern over his personal safety. [ 84 ] I come to this conclusion for the following reasons. The explanation has a ring of truth to it. He's a young man faced with his first time in a cell with an older, aggressive male, who has arrived in Vancouver, faces charges, has been arrested and detained. The actual admission by Mr. Pahl is not unequivocal. Mr. Pahl begins by stating "they," then changes it to "I." Does this mean others were involved before, or that Mr. Pahl was involved four previous times? On the face of it, the statement is ambiguous. [ 85 ] The passport stamps contained in Mr.

Green's passport do not assist. There is no evidence to suggest a prior relationship between Mr. Pahl and Mr. Green linking Mr. Green to any similar activity in the past. [ 86 ] There are three prior admissions to the United States recorded on the passport, not four. If the Crown's theory is that he was involved with Mr. Pahl on the previous occasions as Mr. Pahl indicated to the undercover officer, it falls one trip short. [ 87 ] Furthermore, there is the evidence of Mr.

Pahl where he states that he had restricted security clearance until the early part of 2011, which would preclude his participation in this type of endeavour as he was subject to a search on each occasion he went into the relevant area of the airport, as opposed to the random search protocol that he was now subject to. [ 88 ] Finally, the text messages from Mr. Green to Mr. Pahl are the words of Mr. Green, not Mr. Pahl.

When Green makes a reference to the same bathroom, is he confirming the location as originally discussed, or agreed to, when planning this event, or as Crown would suggest, the same bathroom as on the last occasion. [ 89 ] If it is the latter, according to the passport admission stamp, this would have been more than four months ago. This seems somewhat of a tenuous connection. [ 90 ] In the final analysis, Crown has failed to establish beyond a reasonable doubt the aggravating factor. [ 91 ] I turn to the second issue for determination in this proceeding, whether Mr. Pahl has established the mitigating fact.

As to this question, I conclude that Mr. Pahl has failed to satisfy the burden. [ 92 ] I come to this conclusion relying on my earlier comments as to the shortcomings of the testimony of Mr. Pahl and Ms. Gill. I find that Mr. Pahl's explanation of the indebtedness and the failed vehicle purchase transaction giving rise to Mr. "X's" threatening behaviour towards Mr. Pahl and his family, is not credible and I do not accept it. Mr. Pahl conceded that he was prepared to tell untruths to put himself in a more favourable light when in the police cell to avoid unpleasant consequences.

The willingness to do so affects the veracity of his explanation before this court. [ 93 ] In my mind, the explanation defies common sense. [ 94 ] And finally, the explanation is, in part, inconsistent with the statement that he made to the psychologist prior to the sentencing hearing. [ 95 ] Ms. Gill's evidence, where it purports to corroborate and support Mr. Paul, does not assist as it lacks credibility and cannot be relied upon. [ 96 ] In

summary, Mr. Pahl has failed to meet the standard, and failed to establish the mitigating fact on the balance of probability. [ 97 ] This concludes my reasons, subject to a review and edit for any obvious grammatical or stylistic errors when these reasons are reduced to writing.