R. v. Bawa Date:, 2014 BCPC 345

Citation: R. v. Bawa Date: 20141128 2014 BCPC 0345 File No: 81163-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. AMIT BAWA REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K.D. SKILNICK Counsel for the Crown: J. MacAulay Counsel for the Accused: C. Drinovz Place of Hearing: Abbotsford , B.C. Date of Hearing: November 28, 2014 Date of Judgment: November 28, 2014

[ 1 ] THE COURT : I am sentencing Amit Bawa for two offences, contrary to the Integrated Pest Management Act , specifically two offences under s. 26(1)(

e) of that Act. That

section makes it an offence for someone to intentionally make a false statement to, or mislead, or attempt to mislead the administrator, the Appeal Board, an inspector or another person in the exercise of powers or duties under the Act. [ 2 ] Mr. Bawa has pled guilty to these two offences so they are no longer allegations. Mr. Bawa has pled guilty to intentionally making false statements on pesticide certificate examinations to mislead or attempt to mislead the administrator, in this case, Marge Carty, the pesticide administrator, who is responsible for the issuance of pesticide Applicator Certificates. Ms.

Carty first became suspicious or concerned when a number of test results submitted by Mr. Bawa had grades significantly above the norm, consistently above the norm, and further investigation raised her suspicions about the authenticity of those exam results. [ 3 ] As a consequence of her suspicions, undercover officers, if I can use that term, were put in place to test Mr. Bawa's integrity in the issuance of examinations and on two different occasions two sets of officers determined that, in fact, Mr. Bawa was submitting false test results.

The officers intentionally wrote examinations in such a manner as to achieve below the requisite grade differently. Completed examinations were submitted sufficient to garner a passing grade and the undercover officers were able to obtain certification that they would not otherwise be entitled to. The officers noted a promise on the part of Mr. Bawa that they would pass the exams and, of course that was the final result, albeit through dishonest means. [ 4 ] The two undercover investigations disclosed this behaviour and, as a result, Mr. Bawa was charged with these offences.

He has pled guilty to these offences and the issue now is one of sentencing. [ 5 ] The Integrated Pest Management Act provides in s. 26(2) that an individual convicted of an offence under this Act is liable to a fine of up to $200,000 or to imprisonment of six months, or to both, for a first offence. In this case, it is not alleged that Mr. Bawa has any previous record, criminal or for a violation of this particular provincial statute. [ 6 ] There are a number of mitigating and aggravating circumstances that I have to take into account in imposing sentence on Mr. Bawa.

I take into account that he has entered a guilty plea at a relatively early stage and certainly in advance of trial. This is not a case where the expenditure of trial time was required nor for witnesses to be called. Mr. Bawa was cooperative with authorities at an early stage in the sense that when he was questioned by police about these offences, he admitted to the commission of the offences essentially in a statement that he gave to police and, therefore, there was an early acceptance of responsibility on his part. I agree with Mr.

MacAulay that this would not have been a difficult case for the Crown to prove but, by the same token, that is so because of the fact that Mr. Bawa owned up to his behaviour when questioned by police. [ 7 ] Submissions were made by defence counsel with respect to Mr. Bawa's background and his character. He became a Canadian citizen, I am told, on April 15th of 2009. He is a very educated man and the troubling aspect of that is that Mr.

Bawa, with his education and his various qualifications, has the potential well and beyond that of the average individual to earn a good income honestly and it is disappointing that on at least these two occasions, he chose dishonest conduct to earn his income. [ 8 ] A number of people speak highly of his character and again, while it is positive that the persons who have had dealings with him in the community feel that way about him, it is also somewhat offensive to those who spoke highly of him to later find out that Mr. Bawa was engaged in this sort of dishonest conduct.

I am told that he has worked in the security industry, a field in which members of the public put their trust in the integrity of the persons in that field and he now is before the court having committed these acts of dishonesty. He has provided reference letters and from the tone of those reference letters, I am certainly left with the impression that the individuals who wrote those letters were not aware of the matters before the court and I draw that inference from the language used in the letters. [ 9 ] I am told that Mr.

Bawa has some medical problems as a result of the stress from having been charged with this offence and I am also told that he has some financial problems as well and that he is carrying a high amount of debt and that he will have some difficulty in payment of a fine. Mr. Bawa has addressed the court in writing, indicating that he has pled guilty to this offence. He attributes the cause of the offence to depression and stress conditions. He makes reference to his debt load and makes a plea to this court for leniency.

He also expresses concern about how the effects of this conviction will affect his family and his ability to support his family. [ 10 ] There are a number of aggravating circumstances that the Crown has alluded to. This was an intentional, as opposed to an accidental, offence. It is not a matter of a lack of due diligence. This was certainly a scheme used by Mr. Bawa.

He indicated in his statement to police that his motivation was that if he made the obtaining of certification a likelihood that this would increase his business and so there was certainly some greed motivation on his part from the commission of these offences. [ 11 ] Counsel have provided me with a number of cases and certainly an offence of this nature is not one that frequently comes before the court and, therefore, does not attract a significant amount of jurisprudence that is entirely on point with respect to the statute or this fact pattern.

The cases submitted by counsel, however, do set out some principles of sentencing and one of the principles that comes out is that general deterrence is a significant consideration of sentencing. It is an important sentencing objective. That is so for a number of reasons. Mr. Bawa and persons like him are placed in a position of trust and a position of authority. Members of the community in the province and the government trust Mr.

Bawa to administer the certification tests with honesty and with integrity and when he fails to do so, he fails the community. [ 12 ] Deterrence is an important aspect because this is an offence with a low risk of detection and, therefore, it calls for increased attention to deterrence in order that other like-minded individuals would lose the temptation to commit this type of offence. While there is a low risk of detection, there must be a significant penalty to deter offenders, otherwise the low risk and the low penalty would encourage dishonesty for persons in Mr.

Bawa's position. [ 13 ] In this case, the individuals who took the test were undercover officers and there was no direct consequence because of the

dishonest certification. As a practice, the dishonest certification of persons applying pesticides can have very hazardous and serious consequences. Circumventing the regulatory scheme is fraught with potential hazards and potential risks to the environment and, therefore, the need to deter circumventing of the regulatory scheme is required with penalties that deter individuals who are of a mind to do what Mr. Bawa has done in this case. [ 14 ] I am taking into account all of those factors, the mitigating and the aggravating circumstances.

Let me start by saying that there was a considerable divergence in the proposed penalty. Both counsel agree that a fine is appropriate. In addition to some other sanctions, Mr. MacAulay is asking me to impose a fine in the amount of $15,000 while Mr. Drinovz suggests that the fine should total $5,000. In my view, taking into account the mitigating circumstances, Mr.

Bawa's lack of previous record, his cooperation with the authorities but also balancing that with the aggravating circumstances, the breach of trust and the need for deterrence in this type of offence, there must be a fine of sufficient amount to deter individuals. In this case, taking into account Mr. Bawa's particular medical and financial circumstances, in my view, fines totalling $10,000 are an appropriate sanction and I impose a fine of $5,000 on each count, for total fines of $10,000.

Those fines will attract the victim surcharge, the 15 percent victim surcharge as well, that is applied to provincial offences pursuant to s. 8.1 of the Victims of Crimes Act and, of course, that surcharge should apply to these fines as well. [ 15 ] Now, the Crown asks for an additional penalty under s. 30, I believe it is, of the Integrated Pest Management Act .

Section 30 says that if a person is convicted of an offence under the Act and the court is satisfied that, as a result of the commission of the offence, the person has acquired any monetary benefits or that monetary benefits accrued to the person, the court may order the person to pay a fine equal of the court's estimation of the amount of those monetary benefits. In my view, this is an appropriate case for Mr.

Bawa to refund the entire amount of the fees that were paid by the undercover officers and I impose an additional amount owing under s. 30 of the Act in the amount of $1400, and I do so because, in my view, this is equivalent to restitution to the taxpayer who was required to fund the undercover operation that was necessary to detect Mr. Bawa's dishonesty. He should not benefit at all from that dishonesty and that that full cost which the undercover officers paid to Mr. Bawa should be recovered. [ 16 ] I am told that there may have been a licence fee that Mr. Bawa may have paid but the fact is Mr.

Bawa should have never submitted those examinations and, if he had been honest, he would not have had to incur the licensing fee. In my view, there should be full reimbursement of the out-of-pocket amount of $1400. [ 17 ] Finally, the Crown is seeking an order under s. 31(1)(

a) of the Act prohibiting Mr. Bawa from doing any act or engaging in any activity that may result in the continuation or repetition of this offence. Specifically, I am asked to make an order that he be prohibited from teaching, instructing or invigilating the pesticide certification examinations under the Integrated Pest Management Act and I make that order. In my view, the making of that order should have little consequence to Mr. Bawa in that his commission of this offence should have destroyed any trust that the provincial government may have had in Mr.

Bawa in once again putting him in the position of administering the examinations. Because the examiners are subject to so little scrutiny and because of Mr. Bawa's conduct in this case, I am not of the view that he could be trusted to administer the examinations in future and, therefore, the order sought by the Crown under s. 31(1)(

a) is appropriate. [ 18 ] Now, finally, there is the issue of time to pay the fine and perhaps counsel can help me as to whether or not there is a maximum period that I can order and, if not, I am happy to hear submissions of what an appropriate period should be. Mr. Drinovz, you suggested that three years would be appropriate but I gather you were anticipating a $5,000 fine, is that right? [ 19 ] MR. DRINOVZ: I would say three years remains to be appropriate. I think that's what my friend had suggested as well. [ 20 ] THE COURT: Okay. Mr. MacAulay? [ 21 ] MR. MacAULAY: Three years. And then if Mr.

Bawa has demonstrated he's made attempts, I suspect [indiscernible] in three years and perhaps Mr. Drinovz can find me and we'll be back in front of Your Honour, assuming that Your Honour will still be here in three years. [ 22 ] THE COURT: I suspect we will all be around in three years. [ 23 ] MR. DRINOVZ: Perhaps if he could have leave to apply for an extension. [ 24 ] THE COURT: I think that exists under the Offence Act in any event so I do not think he needs the -- [ 25 ] MR. MacAULAY: Just make contact with me and we'll put it on. [ 26 ] THE COURT: Right. [ 27 ] MR.

MacAULAY: Just for clarification -- [ 28 ] THE COURT: I will make that order then giving Mr. Bawa until November 30th of 2017 to have that fine paid in full. I am sorry. What did you want clarification -- [ 29 ] MR. MacAULAY: Just for clarification, Your Honour, the $1400, that would be $700 on each count? [ 30 ] THE COURT: Yes. [ 31 ] MR. MacAULAY: And the prohibition, the Crown had sought three years. That's also, Your Honour -- [ 32 ] THE COURT: Yes, I am sorry. I did not mention a time because I did not see any times referred to in the statute and so I was not certain whether or not -- [ 33 ] MR.

MacAULAY: No, there is no limit in the statute. The Crown was seeking three years.

[ 34 ] THE COURT: Yes, I will make that for a period of three years. [ 35 ] MR. MacAULAY: Thank you, Your Honour. [ 36 ] THE COURT: Anything further that needs to be addressed? [ 37 ] MR. DRINOVZ: No, Your Honour. K.D. SKILNICK Provincial Court Judge