R. v. Singh, 2019 BCPC 124

Citation: R. v. Singh 2019 BCPC 124 Date: 20190528 File No: 87641-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. HARNIEL SINGH SINGH ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G.J. BROWN Counsel for the Crown: R. Randhawa Counsel for the Defendant: J. Ray, QC Place of Hearing: Abbotsford , B.C. Date of Hearing: April 30, 2019 Date of Judgment: May 28, 2019

[ 1 ] THE COURT : These are my Reasons for Sentence in the case of R. v. Singh, file 87641-1. Introduction [ 2 ] Harniel Singh Singh has pled guilty to possessing fentanyl and cocaine for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act . These offences occurred on April 5, 2018. Mr. Singh's plea is to an amended Count 1 under file 87641-1, which proceeded by indictment. [ 3 ] Taking into account the amount of drugs found and Mr. Singh's other conduct, the Crown is seeking a 24-month jail sentence.

Our Court of Appeal has said that the range for this type of offence is usually between 18 and 36 months. [ 4 ] The defence, however, suggests that Mr. Singh's case is one of exceptional circumstances. Mr. Singh suffers from bipolar disorder and in the spring of 2018 he experienced a worsening of his mental state due to a change in his medication. The defence asserts that he is a young man who is now doing exceptionally well. Accordingly, the defence submission is for a suspended sentence with extensive conditions including a Rogers order.

Alternatively, any jail sentence ought to be reduced because of these exceptional circumstances. Circumstances of the Offence [ 5 ] When describing Mr. Singh's offence I will, by necessity, be required to refer to some surrounding circumstances, including circumstances related to Mr. Singh's flight from a police officer on March 24, 2018. I hasten to point out that Mr. Singh was convicted of the flight from peace officer offence on June 21, 2018, a date which postdates the possession for the purpose of trafficking offence on April 5, 2018. Accordingly, I will, at all times, consider Mr.

Singh to be a person with no criminal record for the purposes of this sentencing. [ 6 ] However, our Court of Appeal in R. v. Morgan , 2004 BCJ No. 2561 , has stated that I am to examine subsequent offences to assess an offender's character, the likelihood of his rehabilitation, the need for specific deterrence, and any need to protect the public. [ 7 ] On February 25, 2018, Mr. Singh was arrested for threatening his father as there had been arguments about Mr. Singh's involvement in the drug trade. As will be discussed later, Mr.

Singh suffers from bipolar disorder, and a recent change in his medication resulted in a worsening of his mental state. Mr. Singh was released to his sister on terms of bail. [ 8 ] On March 24, 2018, police officers attempted to conduct a vehicle stop of Mr. Singh who was then a prohibited driver. Mr. Singh fled from the scene, striking a marked police vehicle. His vehicle was eventually found abandoned and within the vehicle cash, cell phones and morphine were located. [ 9 ] Mr. Singh ultimately pled guilty to the flight from peace officer offence and was sentenced on June 21, 2018.

Again, this conviction postdates the possession for the purpose of trafficking offence. According to defence counsel, this sentencing was a watershed moment for Mr. Singh. The court had granted a suspended sentence recognizing Mr. Singh's mental health problem and the fact that he had done well since April 6, 2018. [ 10 ] Turning back to the events in March of 2018, Mr. Singh at first did not do well while on bail. [ 11 ] On March 31, 2018, Mr. Singh allegedly threatened the mother of an individual with whom he had a no-contact order. I should add that Mr.

Singh has not been convicted of threats either to his father or the other individual but he clearly was not doing well with the change in his medication. A warrant was issued for Mr. Singh's arrest. [ 12 ] On April 5, 2018, the police engaged in a briefing as to how to take Mr. Singh into custody. It was considered a high-risk arrest. Covert surveillance was conducted and Mr. Singh was observed travelling from Richmond to Abbotsford. Mr. Singh was the passenger in a white Corolla which ultimately met up with a Dodge Ram.

The Corolla then met up with an SUV in a strip mall. [ 13 ] The police activated their emergency lights. The co-accused Mr. Patel complied with police instructions but Mr. Singh ran away. The police deployed two bean bag rounds but that was ineffective in slowing down Mr. Singh. A police dog ultimately took Mr. Singh down to the ground and Mr. Singh had some puncture wounds from a dog bite. [ 14 ] As Mr. Singh was taken down, a plastic bag of drugs fell out of his pants pocket, as did a flip cell phone. Another plastic bag fell from Mr. Singh's front right sweatpants pocket.

Two cell phones were found in the centre of the rear passenger seat where Mr. Singh was seen. [ 15 ] In the two plastic bags there were 16 baggies of crack cocaine weighing 6 grams. There were also 31 baggies of fentanyl totalling 8 grams in weight. Community and Victim Impact [ 16 ] Having reviewed the materials provided by Crown, there can be no doubt that fentanyl is a scourge in our province. Even Mr. Singh and his parents recognize the seriousness of trafficking in fentanyl.

Drug dealers are effectively dispensing "baggies of death." [ 17 ] The BC Coroners Service has prepared a report entitled "Illicit Drug Overdose Deaths in B.C.," covering the period from January 1, 2008 to November 30, 2018. In November of 2018 there were 120 suspected drug overdose deaths in B.C., which equates to about four deaths per day for that month.

The Fraser and Vancouver Coastal Health Authority have had the highest number of illicit drug overdose deaths, 462 and 408 deaths respectively. [ 18 ] Preliminary data suggests that the proportion of illicit drug overdose deaths for which illicit fentanyl was detected was

approximately 82 percent in 2017 and 85 percent in 2018 (data up to September 30, 2018). [19] Illicit fentanyl-detected deaths appear to account for the increase in illicit drug overdose deaths since 2012. Of course, no deathscan be directly attributed to Mr. Singh's drug offences in April of 2018. What can be said is that 136 British Columbians died April of2018 by reason of illicit drug overdoses. In Abbotsford 37 people died of illicit drug overdoses in 2018, not including December. Thosedying of drug overdoses cover a broad spectrum.

Individuals aged 19 to 59 accounted for 91 percent of illicit drug overdoses in 2018, andmost of them were male. Most of them died inside a residence. [20] Dr. James Kennedy prepared a report back in July of 2016 but some of his findings are still highly pertinent. Fentanyl is apotent, synthetic opioid and it is 100 times more potent than morphine. Heroin is only two times the potency of morphine. The effects offentanyl include euphoria but also sedation, respiratory depression and lowered heart rate. The great difficulty with fentanyl is that alethal dose is highly variable and often unpredictable.

Fentanyl also cannot be detected by a layperson outside a laboratory setting. Circumstances of the Offender [21] The thrust of the defence submission is that Mr. Singh was a young man suffering from a downturn in his bipolar disorder andhe was taken advantage of by more sophisticated drug dealers. It is argued that he fits the criteria for exceptional circumstances. [22] Dr. Gibson's letter of August 31, 2018 indicated that Mr. Singh was, in fact, hospitalized involuntarily for psychosis secondaryto bipolar disorder in 2016. Since then, Mr.

Singh was followed on extended leave under the Mental Health Act. [23] In the spring of 2018, Mr. Singh experienced a worsening of his mental state due to a trial of a reduced dose of medication. Thespring of 2018 was when this offence and his other concerning behaviours arose. Since that time, Mr. Singh has been compliant with hismedication. According to a second letter from Dr. Gibson on January 14, 2019, Mr. Singh continues to be treated under extended leaveprovisions of the Mental Health Act. He has been relatively stable but occasionally misses an appointment. [24] The defence further points out that Mr.

Singh has been complying with the probation order of Judge Skilnick granted June 21,2018. In short, the defence submits that when Mr. Singh is complying with treatment he is not a public threat and there is no need toincarcerate him to separate him from society. He has also complied with bail ever since April 6, 2018. [25] Mr. Singh was born in Abbotsford, B.C., and is now 23 years old. He was an honour roll student at Yale Secondary School. Hewas diagnosed with bipolar disorder in his graduating year and this was a great shock to his family.

He then started KwantlenPolytechnique University but ended up working at various jobs. When his bipolar disorder is at its worst, he is unable to exercise properjudgment. [26] Based on Dr. Gibson's letters, there is a medical team caring for Mr. Singh. Involuntary hospitalization is even possible if hiscondition worsens. [27] Mr. Singh does have the support of his family and friends in the community. Mr. Singh's father was astonished that gangs in theneighbourhood were recruiting kids as drug mules. He has observed that, since his son's arrest, his son has turned his life around. [28] Mr.

Singh's mother also explained that Mr. Singh was a star basketball player in high school. The symptoms of bipolar onlysurfaced in his late teens. Things became difficult when Mr. Singh's grandmother became ill. [29] Mr. Dhaliwal of Holts Custom Homes wrote that Mr. Singh has been a trustworthy employee who is very dependable whencalled upon. [30] Other letter writers have noted the concrete changes Mr. Singh has made since being on probation.

Sentencing Principles and Case Law [31] The statutory principles and objectives of sentencing are set out in s. 10 of the Controlled Drugs and Substances Act and in s.718 through 718.2 of the Criminal Code. While I am to balance denunciation and deterrence with objectives such as rehabilitation of theoffender, the principles of denunciation and deterrence come to the forefront when dealing with the harm caused by the trade of harddrugs like fentanyl. [32] The seminal case in this area is our Court of Appeal decision in R. v. Smith, 2017 BCCA 112 .

The court there pointsout at paragraph 49 that: ... other dangerous drugs do not kill as frequently, accidentally, or as unpredictably as fentanyl, but the risks posed by those drugs shouldnot be minimized... [33] The court also endorsed the sentencing range beginning at 18 months imprisonment and that might exceed 36 months. [34] When I review cases such as R. v. Kirton, 2018 BCPC 11, R. v. Grewal, 2017 BCPC 412, R. v.

Henry, 2017 BCSC 1627, R. v.Creuzot, 2017 BCSC 1075, it becomes clear that the low end of the sentencing range is reserved for street level dealers of fentanyl insmaller amounts and with little or no criminal record. The offenders are often drug users themselves. [35] When the amount of heroin/fentanyl is greater, or where the offender has a criminal record of some substance, the jail sentencesare more considerable. In R. v.

Poirier, (11 January 2018), Vancouver 233933-C2, 233648-C3 (B.C.P.C.), the court imposed a 30-month jail sentence on anoffender involved in a street-level trafficking operation where the amount of heroin laced with fentanyl was 13.35 grams and themethamphetamine was 12 grams. The offender had a criminal record and, in fact, he potentially suffered from bipolar disorder. [36] Defence counsel makes a strong submission that Mr. Singh's case does not fall within the usual norms. Mr. Singh suffered from

a downturn in his mental health, in particular, due to a change in mediation and these circumstances contributed to his offending. He has since done very well under Judge Skilnick's probation order. [ 37 ] The case law certainly allows for sentences well-below the Smith range where there are exceptional circumstances. Notwithstanding the seriousness of street-level trafficking in hard drugs, our Court of Appeal in R. v. Voong , 2015 BCCA 285 , established that in exceptional circumstances, noncustodial sentences could meet the principles of sentencing.

The court was careful to reserve this type of disposition for rare cases and only where the offender demonstrated a verifiable change in circumstances. The court said the following at paragraph 59: ... there must be circumstances that are above and beyond the norm to justify a non-custodial sentence.

There must be something that would lead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served by a non-custodial sentence ... it will be the rare case where the standard of exceptional circumstances is met. [ 38 ] In R. v. McClain , 2018 BCPC 369 , the court did find that Mr. McClain's case was exceptional and he had taken significant and identifiable steps towards rehabilitation of his drug addiction.

The court was careful to point out that the Voong case did not contemplate the current opiate crisis, but more recent decisions still allow for exceptional circumstances. [ 39 ] In R. v. Rutter , 2017 BCCA 193 , our Court of Appeal explained that the Smith range of 18 to 36 plus months of imprisonment was not a straightjacket, and sentencing judges still have the discretion to depart from the range in exceptional circumstances. [ 40 ] Interestingly, in McClain , the offender did suffer from ADHD and anxiety. Mr. Singh also suffers from a mental health condition.

The court in McClain ultimately imposed a suspended sentence which included a Rogers order. Crown counsel does point out that even if we accept that Mr. Singh's moral culpability is somewhat reduced due to his mental health, he was nevertheless able to engage in the drug trafficking business which involves many facets: receiving calls, making deliveries, and handling cash. Also, unlike Mr. McClain, Mr. Singh was not drug addicted. [ 41 ] In R. v.

Olenik , 2017 BCPC 390 , the court referenced considerations for exceptional circumstances such as drug addiction, significant steps towards rehabilitation, lack of a criminal record, and accessing mental health services. Mr. Olenik was charged with possessing heroin and fentanyl for the purpose of trafficking. He had no criminal record and was dependent on illicit drugs. Mr. Olenik had substantially turned his life around by stopping the use of drugs and severing his contact with negative associates. He was gainfully employed. He received a suspended sentence with house arrest.

Aggravating and Mitigating Factors [ 42 ] There are a number of strong mitigating factors in Mr. Singh's favour: 1. Mr. Singh has pled guilty and no trial dates were set in this matter. One can never underestimate this mitigating factor. At trial, a seemingly strong case for the Crown can go sideways with Charter challenges and other defences. Mr. Singh is also remorseful. 2. Mr. Singh is a young man at 23 years of age. 3. Mr. Singh had no criminal record at the time he committed this possession for the purposes of trafficking offence. 4. Most significantly, Mr.

Singh suffers from bipolar disorder and at the time of this offence his condition had worsened. This condition impaired his judgment to some degree. Now Mr. Singh is complying with his probation conditions and he has removed himself from negative associates. The aggravating factors are: 1. Based on the cell phones and drugs located, Mr. Singh was involved in a dial-a-dope operation. 2. Mr. Singh was in possession of fentanyl for the purposes of trafficking. The amounts were not insignificant. Fentanyl is a deadly drug causing carnage on our streets. 3. Mr. Singh was on bail when this offence occurred.

Decision [ 43 ] I must first determine whether Mr. Singh's case is so exceptional that I ought to render a noncustodial sentence. [ 44 ] I accept that there is concrete evidence that Mr. Singh suffered from bipolar disorder, and matters worsened for him at the time of the offence due to a change in his medication. I further accept that Mr. Singh is now following the terms of his probation order. [ 45 ] However, while these factors do reduce Mr. Singh's moral culpability to some degree, he had to have made a number of choices he knew to be wrong to descend into the trade of fentanyl and cocaine.

He succumbed to the pressure of neighbourhood gangs and became a drug dealer. He was more susceptible because of his condition but he, nevertheless, made a series of bad decisions to become so involved in the illicit drug trade. [ 46 ] I also note that Mr. Singh was being cared for by the same medical team when he committed this drug offence. As now, he was on extended leave under the Mental Health Act with the same medical professionals. A change in medication was a major issue, but the interventions then in place were insufficient to circumvent Mr. Singh's criminal behaviour. [ 47 ] I am of the view that Mr.

Singh's worsening mental health is a very strong mitigating factor placing him well below the Smith range of 18 to 36 months jail. However, I am not convinced that Mr. Singh's circumstances are so exceptional as to warrant a suspended

sentence. [ 48 ] Many offenders face desperate circumstances when they choose to engage in drug trafficking. In R. v. Grewal , cited above, a 22- year-old young man with no criminal record made a "delivery" because his friend was desperate for help and there were financial pressures. Mr. Grewal received an 18-month jail sentence. [ 49 ] I do find that Mr. Singh's circumstances are more unique. He was suffering from a worsening bipolar condition that affected his judgment.

Accordingly, his case warrants a jail sentence below the Smith range. [ 50 ] Based on the sentencing principles and my analysis above, I consider a jail sentence of nine months to be a fit sentence. Sentence [ 51 ] Mr. Singh, would you please stand up. [ 52 ] For the possession for the purpose of trafficking offence you are sentenced to nine months' jail, less three days of enhanced credit, which leaves a remaining jail sentence of eight months and 27 days. [ 53 ] Following your jail sentence, you will be on probation for one year on the following terms: [ 54 ] You must keep the peace and be of good behaviour.

You must appear before the court when required to do so by the court. You must notify the court or the probation officer two days in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation. [ 55 ] You must report in person to a probation officer at 2865 Cruickshank Street, Abbotsford, B.C., within two business days after your release from custody, unless you have obtained, prior to your release, written permission from the probation officer to report elsewhere or within a different timeframe.

After that you must report as directed by the probation officer . [ 56 ] When first reporting to the probation officer , you must inform him or her of your residential address and phone number. You must not change your residence or phone number without written permission from your probation officer . [ 57 ] Finally, for your rehabilitation, you must attend, participate in, successfully complete any intake, assessment, counselling, or program as directed by the probation officer. [ 58 ] I would just add this further comment. I will not be making a Rogers order, as I assume Mr.

Singh will be under the previous medical care upon his release. I also assume he will receive the appropriate medication while serving his jail sentence. [ 59 ] There will be the following ancillary orders: [ 60 ] Under s. 109 you are prohibited from possessing (

a) any firearm other than a prohibited firearm or restricted firearm, any crossbow, restricted weapon, ammunition, explosive substance for a period of 10 years; and (

b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [ 61 ] Under s. 487.051(3), I am satisfied that it is in the best interests of the administration of justice that you provide samples of your bodily substances for entry in the DNA National Data Bank. That will occur while you are in custody. [ 62 ] Finally, there will be a forfeiture order of all exhibits seized. (REASONS FOR SENTENCE CONCLUDED)