R. v. Grewal Date:, 2017 BCPC 412

Citation: R. v. Grewal Date: 20171027 2017 BCPC 412 File No: 84939 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SUKHPINDER SINGH GREWAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K.D. SKILNICK Counsel for the Crown: R. Randhawa Counsel for the Accused: C. Sicotte Place of Hearing: Abbotsford , B.C. Date of Hearing: October 6, 2017 Date of Sentence: October 27, 2017 [ 1 ] THE COURT : Sukhpinder Singh Grewal has pled guilty to one count of possession of controlled substances for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act .

The drugs he has pled guilty to possessing for the purpose of trafficking are cocaine, heroin, methamphetamine and fentanyl. It is the possession of fentanyl for the purpose of trafficking that is especially troubling to this court and to the citizens of British Columbia generally.

[ 2 ] The Crown has set out the circumstances in which Mr. Grewal was arrested for possession for the purposes of trafficking. He did so using his mother's vehicle. He did so in public places of business. He was observed at the Cloverdale Paint location in Abbotsford, a business premises, without having regard to what persons who operate business premises in Abbotsford must feel about this activity taking place on their property. [ 3 ] When he was arrested, he was found in possession of $1510 of cash.

He was found to be in possession of 6.15 grams of crack cocaine, 7.24 grams of methamphetamine and just over 15 grams of heroin that was later analyzed to be found to be mixed with fentanyl. In total, there were 54 pieces of heroin that were laced with fentanyl; there were 21 pieces of crystal methamphetamine; and 29 pieces of crack cocaine. [ 4 ] The accused has no previous criminal record. He is a young person; he is 22 years of age. He is not himself an addict or a drug user and it is conceded his motivation was to make money.

I will not call it easy money because of the risk to persons who are arrested for this type of offence, but it was a misguided and mistaken way for Mr. Grewal that he chose to make money. [ 5 ] In sentencing him for this offence I am required to take into account a number of principles of sentencing.

Section 718 of the Criminal Code says that the fundamental purpose of sentencing is to contribute to respect for the law along with crime prevention initiatives and to contribute to the maintenance of a just, peaceful and safe society that calls for the imposition of just sanctions that have these objectives. [ 6 ] First of all, it calls for the denunciation of unlawful conduct and the deterrence of this offender and other like-minded persons from committing offences of this nature.

The idea being that unless persons see a significant consequence for this type of activity, other offenders will essentially take the position of, well, that person received little or no penalty so there is little or no risk for me to conduct this type of activity. Of course, s. 718 of the Criminal Code calls for sentences that discourage and deter that type of thinking. [ 7 ] The Code also calls for sentences that separate offenders from society where necessary. I do not necessarily believe that Mr. Grewal needs to be separated from society. I do not perceive him to be a dangerous person.

The issue is whether or not the offence he committed is one that calls for a jail sentence. [ 8 ] A fundamental principle of sentencing is rehabilitation of offenders. There has to be more to sentencing than simply locking people up. Some rehabilitation is effected within the community, some rehabilitation is effected within the confines of institutions. In this case, I have been told of some efforts that Mr.

Grewal has taken towards his own rehabilitation in terms of volunteering with addicted persons and I take that into account. [ 9 ] The Code also says that a sentence should have the goal of providing reparations for harm done to victims or to the community and to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community. [ 10 ]

Section 718.1 of the Criminal Code says that a fundamental principle of sentencing requires that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. It is here that much of the law that has been provided by counsel comes into play because of the involvement of fentanyl in this offence. [ 11 ] We know that fentanyl kills people in alarming rates and that those who traffic in drugs that are mixed with fentanyl, contribute to that risk.

Statistics have been put before the court as part of the sentencing hearing about the alarming rates that fentanyl and other illicit drug overdose deaths have increased substantially within the last number of years; although, I should say that this is not a recent phenomenon. The statistics that have been provided as far back as 1991 when there was a significant number of drug overdose deaths in this province and that pattern has continued with alarming rates but that in particularly 2016 and this year, that number has jumped markedly, certainly tenfold over what it was in 1991.

Because of the fact that those persons who choose to traffic in substances that may be laced with fentanyl place other persons at risk for death, it is an offence that the court considers with a high degree of gravity. [ 12 ] The Controlled Drugs and Substances Act goes on to state that in addition to the principles for sentencing, the Controlled Drugs and Substances Act itself states that the fundamental purpose of sentencing for an offence under that Act is to contribute to respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation and treatment in appropriate circumstances of offenders and acknowledging the harm done to victims of the community. [ 13 ] The Criminal Code goes on to say that I am to take into account both aggravating and mitigating circumstances.

In this case, it is a mitigating circumstance that the accused comes before the court with no previous record. I certainly accept his counsel's submissions that he has accepted responsibility for his offence at a very early stage. He has entered a guilty plea very early on in the proceedings. He is a young person. According to the Pre-Sentence Report he is now 22 years of age. He has support within the community. [ 14 ] A number of persons, not just his parents, but other persons in the community including former employers have provided letters of reference or letters of recommendation.

For some of these it is unclear from the context as to whether or not the individuals were aware that the person for whom they were writing a letter of recommendation were aware of the circumstances. For example, there is a letter from the proprietor of Barnella (phonetic) Jewellery World that reads as an employment letter of reference but, nevertheless, a number of these others clearly write letters of support with that knowledge.

In particular, I refer to the letter from the proprietor of Sea to Sky Siding and Gutters, as well as family members who have provided that information. [ 15 ] I also take into account in mitigation the fact that after entering his guilty plea in this matter in the early months of this year 2017, the accused dedicated a number of hours working with the Surrey Crime Prevention Society and received favourable comments.

It is not clear to me again whether or not the proprietors of the Surrey Crime Prevention Society knew that the accused had been charged with this offence but, nevertheless, I do not think that takes away the work that he did for that community. [ 16 ] In aggravation, the major aggravating circumstance is that this offence was committed with the motivation of greed. That it involved the trafficking in hard drugs.

That it involved what is characterized as a dial-a-dope operation in hard drugs and that those offences are such that even before the Court of Appeal decision in Smith , case law called for significant deterrence for those types of

offences. The reason for that is because everyone has a sense of right and wrong and everyone knows that trafficking in cocaine and heroin is wrong. Everyone knows that doing that for purely profit motives is wrong, and everyone knows that the distribution of heroin and cocaine, even if it is not laced with fentanyl, contributes to human misery in society. It contributes to the prevalence of addicts and it adversely affects people who already lack hope in bettering their lives and contributes to keeping them in that position.

It is something that reasonable people ought to know is wrong and that, coupled with the harm done from the commission of that offence, has been met by the courts with significant sentences. [ 17 ] A Pre-Sentence Report has been provided and in the report the probation officer makes these comments. The writer Ranita Kashla (phonetic) states of this accused's attitude and understanding regarding the offence: The subject states that the index offence occurred at a time when he associated with negative peers upon moving to Abbotsford from Surrey.

He indicates his high school friend asked him to make a delivery for him and said he would pay for this delivery. The subject reports he felt pressured because his friend said he was desperate for help and the subject felt pressured for his own finances. The subject indicates that he felt regretful of his actions because of the impact it had on his life and that of his family.

He states he realizes his family is more important than money and that if he needs help he can go to his family. [ 18 ] In the conclusions to the report the report writer indicates that this offence marks the accused's first exposure to the criminal justice system.

He has not been on probation before, he has no previous record and I take that into account. [ 19 ] Recent case law in this province and across Canada generally has commented on the scourge, if I can call it that, of the prevalence of fentanyl and the fact that it has led to the deaths of a number of persons in British Columbia and across Canada. [ 20 ] The Crown has provided as exhibits on sentencing a report from Dr.

James Kennedy, dated July 25th, 2016, a report prepared prior to the commission of this offence, setting out the doctor's opinion on the harm that results from fentanyl use and the effect of fentanyl on individuals. [ 21 ] The Crown has also provided a report from the Coroner's Service on the illicit drug overdose deaths in British Columbia, making particular reference to the fact that deaths from drug overdose has been on the increase, particularly in 2016 and 2017. As counsel have pointed out, there was a particular spike in fentanyl deaths at about the time of this offence.

This offence occurred in mid- September and in subsequent months, in October and particularly in November, the number of deaths from overdose spiked significantly. Now, having said that, if one looks to even mid-2016, the number of fentanyl deaths were almost more than double from what they were previously. July of 2015 there were 34 overdose deaths; there were 69 in July of 2016. The corresponding numbers for July 2015 and '16 are 37 to 70.

While the increase was not as dramatic in August and September, nevertheless, overdose deaths were on the rise, but the most startling figures occurs in November of 2015 when 137 persons died from drug overdoses in this province. Unfortunately, the numbers did not subside. They continued well into the three digit range for the subsequent number of months, spiking to 161 in December, 136 in January of 2017 and continuing essentially along that pattern. [ 22 ] The Court of Appeal of this province gave a statement on how sentencing judges should address persons who traffic in hard drugs like fentanyl.

First of all, the court made a statement about the fact that very often persons who possess hard drugs for the purposes of trafficking may be unaware that the substance that they are trafficking in contains fentanyl and, therefore, the product that they are pedalling is one which has the potential to kill its users. [ 23 ] The court has acknowledged and I think counsel agree with this principle that the seller of a synthetic, illegal drug must be assumed to recognize an inherent risk associated with selling and distributing synthetic drugs.

The composition of the substance is unknown and the law has generally recognized that ignorance on the part of the individual as to whether or not the substance they are selling contains fentanyl is not a mitigating factor. Again, I think this is keeping with my earlier comments where, on the scale of knowledge of what is right and what is wrong, individuals know from an early age, I think, that trafficking in cocaine and heroin is wrong, that the misery it inflicts is something that no individual with a conscience or concern for the harm would embark on. [ 24 ] In R. v.

Smith , the court recognized that British Columbia has one of the worst if not the worst problems of fentanyl deaths in Canada. In the minority reasons of Madam Justice Newbury, she stated at paragraph 46 that an offence of this nature ought to attract a sentence range of between 18 and 36 months in jail absent exceptional circumstances. [ 25 ] The majority, in its reasons, agreed with much of what Madam Justice Newbury said and in particular, writing for the majority, Mr.

Justice Harris said: I endorse the sentencing range my colleague proposes in her judgment... namely, a range beginning at 18 months’ imprisonment that might exceed 36 months. [ 26 ] A distinguishing factor in that case was the time of the offence. Mr. Justice Harris said that in the interim between January of 2015 when Mr. Smith committed his offence and the time of sentencing: ...there has been a profound and enormous escalation in the extent of the fentanyl crisis and public awareness of it.

The court went on to say at paragraph 59: ...that, even in August 2015, while there was a clear association between increasing availability of illicit fentanyl and increasing numbers of accidental overdoses, there remained some uncertainty about the role of fentanyl in causing or contributing to accidental drug overdose deaths. [ 27 ] The court went on to say that as time went on this became more and more apparent, although the court was not precise in terms of saying when individuals ought to have reasonably inferred that the heroin and cocaine they were selling may also be laced with fentanyl and may be potentially lethal.

[ 28 ] The line from Mr. Justice Harris' judgment that is often referred to is in paragraph 61 and he says that: Since January 2015, there have been a number of changes which would render the sentence imposed on Mr. Smith demonstrably unfit had the offence occurred later, particularly if it had occurred late in 2016. It is this particular comment that bears some scrutiny in this case. [ 29 ] Crown says that because of the timing of this offence in mid-September of 2016, Mr.

Justice Harris' comments are applicable and the sentencing range beginning at 18 months is appropriate because by that point in time it was apparent to everybody, or it ought to have been apparent to reasonable people, particularly those with some involvement in the drug trade, that overdose deaths were on the rise and that the reason for that was the prevalence of fentanyl in synthetically produced drugs. [ 30 ] Mr.

Sicotte, on behalf of the accused, says well, that didn't really become quite apparent until the following month after this offence and in particular, in November when the number of overdose deaths really spiked. [ 31 ] I think a fair characterization is that as time progressed, the extent of illicit drug overdose deaths because of the presence of fentanyl in cocaine and other substances became more and more apparent but certainly by the time of this offence, there was a general public alertness of the problem.

Although the overdose deaths had not spiked as much as they had in November and would subsequently spike, by this point in time the number of overdose deaths was significantly greater than it had been in previous years. [ 32 ] As Mr. Justice Harris observed in his judgment: ...the numbers of fentanyl detected deaths in British Columbia and the Lower Mainland continued to grow at a frightening rate. The magnitude of the public health crisis increased dramatically.

The evidence accepted by the sentencing judge demonstrates an explosion in the number of illicit drug overdose deaths in 2015 and 2016 and the proportion of those deaths in which fentanyl was detected. He went on to refer to statistics: ... that in 2015 there were 397 illicit drug deaths and over 600 in the first 10 months of 2016 . [ 33 ] In sentencing Mr. Grewal, I am taking into account the circumstances of the offender and the circumstances of the offence.

I am satisfied that by September of 2015 it had become apparent that the trafficking in synthetically produced drugs such as cocaine and heroin was now a factor in contributing to the increase in illicit drug overdose deaths. [ 34 ] I do not find this to be a case where there are exceptional circumstances. While I accept that Mr.

Grewal is now gaining some insight into how his participation in this enterprise affected other individuals now that he has observed firsthand by his statement that he is working with addicts and sees the affect on individuals from the trafficking in cocaine and heroin, whether or not those substances have fentanyl, I am troubled by the fact that in the Pre-Sentence Report and even in a letter that he has provided, the regret and the remorse is essentially a self-centred remorse.

The probation officer says that the regret is felt because of the impact that this offence, being charged with this offence, has had on his life. The letter that he provides to the court today says: ...as having a criminal record it has already impacted my life a lot. [ 35 ] In the opening line he makes reference to: ...expressing sincere remorse for my irresponsible and dangerous actions. But then goes on to talk about his plans for university. [ 36 ] The reason that significant sentences for trafficking in heroin and cocaine are imposed are because of the devastating affect that it has on other individuals.

It is not enough to simply say well, these are addicts, they do not matter. Every addict is an individual who started life perhaps with greater goals and greater perspective for their life but because of the addiction and because of those who make the substances that support addiction readily available, those persons remain mired in their addiction.

The problem has been exacerbated now by the prevalence of fentanyl and carfentanyl in substances that are being sold to individuals who lack the ability to discern properly the risks and now the risks to their life because of that trafficking. [ 37 ] It is tragic that a young person with a supportive family has become involved in this activity and at the time these offences were committed, his conscience was not strong enough to say "I know right from wrong and this is wrong.

I know that it is wrong to make these hard drugs available to addicts and to other individuals for the purpose of ruining their lives and I know that it is wrong to do that purely for the motive of profit.

I know that it is wrong to bring this activity onto the premises of members of the community who also see this activity as wrong." [ 38 ] A number of appeals have been made in society to get the message across and regrettably, the prevalence of cocaine and heroin in this community remains tragic and is made all the more tragic now by the prevalence of fentanyl and carfentanyl. [ 39 ] Accordingly, the appellate courts of this province have given the direction to sentencing courts now that to address the problem, deterrence has become a primary consideration that other individuals who may think that it is not wrong to make some money by trafficking in these substances, those individuals have to be deterred by the additional knowledge that if they choose to do so, even with an absence of record, even with a supportive family, they will face a period of custody. [ 40 ] It is with regret that, under the circumstances, I am persuaded by the Crown that the appropriate sentence for this accused for this offence is one of 18 months and I sentence Mr.

Grewal to 18 months incarceration. [ 41 ] In addition, I am going to make an order pursuant to s. 109 of the Criminal Code prohibiting him from possessing any firearm, crossbow, prohibited weapon, restricted weapon, ammunition, prohibition ammunition, prohibited device or explosive substance for a

period of 10 years. [ 42 ] I am going to direct that a sample of his DNA be taken for inclusion into the National DNA Databank. That sample is to be taken forthwith by a peace officer authorized to take that sample and is to be taken by one of the methods prescribed in the Criminal Code . [ 43 ] I am also going to direct that the items seized from Mr. Grewal, including the money that was seized will forfeit to Her Majesty the Queen. [ 44 ] I believe that covers all the ancillary orders. [ 45 ] MR. RANDHAWA: Yes, Your Honour.

The Crown directs a stay of proceedings on the remaining counts on 84939-2C and all counts on 84939-1. [ 46 ] MR. SICOTTE: Your Honour, might the victim fine surcharge be payable forthwith? [ 47 ] THE COURT: Yes. I was just going to say, given Mr. Grewal's incarceration, I will direct that the victim fine surcharge be payable forthwith and in default he will serve one day concurrent with any other sentence. K.D. SKILNICK Provincial Court Judge