R. v. Deol et al., 2023 MBKB 125

Date: 20230828 Docket: CR 21-02-02166 (Brandon Centre) Indexed as: R. v. Deol et al. Cited as: 2023 MBKB 125 COURT OF KING'S BENCH OF MANITOBA B E T W E E N: ) HIS MAJESTY THE KING, ) Janna Hyman ) for the Crown and ) ) MANDEEP SINGH DEOL, BABALJIT SINGH, ) ) Robert Harrison Anthony Dawson ) for the accused (Deol) accused. )) Andrew Synyshyn ) ) ) for the accused (Singh) ) Judgment Delivered: ) August 28, 2023 LEVEN J.

Summary [ 1 ] Mandeep Singh Deol (“Mr. Deol”) was driving a rented van from Vancouver, British Columbia to Toronto, Ontario with a passenger - Babaljit Singh. Mr. Deol was pulled over on Highway 1 near Brandon, Manitoba. The police found about 26 kilograms of fentanyl and about 50 kilograms of MDA in the van. Some of the fentanyl was cut with benzodiazepines. Following a voir dire and a trial, I found Mr.

Deol guilty of possession for the purpose of trafficking (PPT) fentanyl and methylenedioxyamphetamine (“MDA”) and the passenger (the co-accused) not guilty. [ 2 ] The Crown submitted that the fentanyl would cost about $1,120,000 and the MDA woul d cost about $400,000. Mr. Deol only had a trivial amount of cash on his person. Mr. Deol had no criminal record, but expressed no meaningful remorse. A pre-sentence report (PSR) indicated that he was a medium risk to re-offend. Mr.

Deol is not a Canadian citizen, so his conviction will impact his immigration status. [ 3 ] The sentencing hearing was held on May 5, 2023, and I reserved my decision. [ 4 ] The Crown focused on the extreme dangers of fentanyl, and asked for a 22-year sentence (suggesting a couple of paths that could be taken towards that ultimate result). Defence counsel asked for 12 years. [ 5 ] For reasons explained below, I sentence Mr. Deol to a total of 14 years.

Facts [ 6 ] This is not a comprehensive recitation of all facts and argument; it is a concise

summary of certain important matters . As noted above, Mr. Deol was driving a rented van. He lived in the Toronto area. He rented the van in Toronto, drove almost non-stop to Vancouver, turned around and began to drive almost non-stop towards Toronto. He had a passenger and there was no evidence that the passenger did any driving. The passenger (the co-accused) chose to testify at trial, and I concluded that the Crown did not prove his guilt beyond a reasonable doubt. [ 7 ] The Crown submitted that 26 kilograms of fentanyl was the largest fentanyl bust in Manitoba history.

The Crown filed recent Canadian case law in which courts have commented about the extreme toxicity of fentanyl and the large number of fentanyl overdoes in recent years. The case law suggests a trend by Canadian courts to impose harsher sentences for fentanyl than for other serious drugs like cocaine. [ 8 ] The Crown tendered evidence about how fentanyl is mixed with cutting agents to reduce purity, and prepare it for street-level sale.

Some of the fentanyl seized in this case was cut with benzodiazepines, which made it more dangerous (it renders NARCAN ineffective in preventing overdose deaths). [ 9 ] Some of the fentanyl seized had a purity of about 17%, and some had a purity of about 3 or 3.5%. [ 10 ] There was very little evidence about the effects of MDA or the role it plays in society’s drug problems. [ 11 ] The PSR mentioned that the offender realizes that drug use can lead to health issues. Mr. Deol chose to speak at the sentencing hearing. He spoke about how difficult it has been for him to be away from his family.

His family lives in the Toronto area, and he was incarcerated post-arrest for over 1,000 days in Manitoba, so family visits were difficult or impossible. He did not even hint that he feels any remorse at all for the addicts who consume fentanyl and MDA, and sometimes die from fentanyl overdoses. Argument [ 12 ] The Crown focused on the extremely serious nature of fentanyl, and the enormous quantities of fentanyl and MDA. The enormous quantities must be taken to mean that the drug organization had a high level of trust in Mr. Deol.

The Crown asked for a 22- year sentence (suggesting a couple of paths that could be taken towards that ultimate result). The Crown argued that a 16 to 20-year range for fentanyl and an 8 to 12-year range for MDA would be fit. These ranges could be made consecutive, and then a “totality” reduction could yield 22 years.

Alternatively, the sentence could be 22 years for fentanyl, with some number of years for MDA concurrent. [ 13 ] Defence counsel mentioned the lack of a criminal record, the fact that the offender had very little cash, and the fact that the PSR called the offender a medium risk to re-offend, and asked for 12 years. Case Law Crown cases [ 14 ] R. v. Parranto , 2021 SCC 46 (“ Parranto ”) , was a sentence appeal in a fentanyl trafficking case. Mr. Parranto received 14 years. The court endorsed a non-binding starting point of nine years for wholesale fentanyl trafficking. Sentencing judges still have discretion.

At paragraph 68, in reference to Mr. Parranto’s facts, the majority observed that a range of about 8 to 15 years might be appropriate. [ 15 ] Mr. Parranto had a lengthy criminal record, but also had Gladue factors. He pled guilty to two counts of PPT of fentanyl in a wholesale commercial operation, two counts of possession of a loaded illegal handgun for use in trafficking, one count of possession of a handgun knowing he was under a prohibition order, and breach of a recognizance.

On one occasion, police seized 27.8 grams of fentanyl along with about $55,000 in cash and, on a second occasion, they seized 485 grams along with about $20,000 in cash. Following release from detention on previous matters, Mr.

Parranto resumed his activities as a wholesale trafficker in about 12 weeks. [ 16 ] At paragraph 93, two concurring judges (Moldaver, J. and Côté , J.) observed that, “over the past decade, fentanyl has altered the landscape of the substance abuse crisis in Canada, revealing itself as public enemy number one.” At paragraph 100, these learned judges commented that: …heavy penitentiary sentences will be appropriate where offenders have trafficked in large quantities of fentanyl and assumed leadership roles in the trafficking operation.

Indeed, in the context of largescale fentanyl trafficking operations, substantial sentences should be neither unusual nor reserved for exceptional circumstances. … [ 17 ] A co-accused (Felix) pled guilty to two counts of fentanyl trafficking and two counts of cocaine trafficking. He had no prior criminal record, and a positive PSR. He received 10 years. [ 18 ] R. v. McLean , 2022 MBCA 60 (“ McLean ”) , was a recent Manitoba case. The offender couriered 220 grams of fentanyl and 981 grams of cocaine from Vancouver, British Columbia to Winnipeg, Manitoba. He received nine years.

At paragraph 56, the court described the offender as a courier in a sophisticated interprovincial drug network, but without any decision-making capability. At paragraph 63, the court noted that drug couriers will pay a heavy price for their integral roles in the drug trade. At paragraph 64, the court commented on the concept of a “mere courier”. At paragraph 65, the court added that, where the courier is more trusted and exercises some independent control, they will be treated as more than a mere courier for sentencing purposes. [ 19 ] At paragraph 78, the court explained the “free ride” principle in sentencing.

Where the offender is convicted of multiple

offences, and the court chooses an appropriate sentence for the most serious offence, the court should not simply brush off the less serious offences with automatic concurrent sentences. The less serious offences should factor into the sentencing decision. At paragraph 87, the court pointed out that the fentanyl seized was already adulterated with a cutting agent. The fentanyl had a purity of about 1.6%.

At paragraphs 88 and 94, the court mentioned the extremely high risk of fentanyl overdoses. [ 20 ] At paragraph 118, the court concluded that the “range of sentence for someone minimally involved in mid-level fentanyl trafficking, such as a courier or custodian without some decision-making authority or responsibility in the trafficking activity, is six to eight years’ imprisonment (leaving aside the effect of aggravating and mitigating factors and, in the case of an Indigenous offender, a proper application of

section 718.2(

e) of the Code ). At paragraph 129, the court commented that, for the fentanyl offence, the offender deserved a sentence towards the high end of the six to eight-year range. Given the fact that he was also guilty of the cocaine offence (and given the free-ride principle), a nine-year sentence was not unfit. [ 21 ] R. v. Oddleifson (J.N.) , 2010 MBCA 44 (“ Oddleifson ”) , was an older Manitoba decision. The offender was convicted of PPT of 46 kilograms of cocaine. At paragraph 39, the court concluded that the offender was a trusted courier in a high-end trafficking scheme.

The sentence was ten years and the appeal court found that sentence was not unfit. [ 22 ] R. v. Kenyon (J.B.) , 2010 MBCA 70 , was another older Manitoba decision. The offender was convicted of two counts of PPT of cocaine and ecstasy. The value was in the millions of dollars. The offender was sentenced to 12 years for the cocaine and eight years concurrent for the ecstasy. The appeal court ruled that that the sentence was in keeping with the Oddleifson range, so it was not unfit. [ 23 ] R. v. Chartrand , 2018 MBPC 48 (“ Chartrand ”) , was a fairly recent Manitoba Provincial Court decision.

The offender was convicted of 30 drug and weapons offences, involving carfentanil, methamphetamine, hydromorphone, oxycodone and cocaine. He had a lengthy criminal record, including violent offences. He had behaved very poorly while in custody. There were Gladue factors. The PSR said he was a very high risk to re-offend. In short, there were many aggravating factors and few mitigating factors. After analyzing each of the offences and applying a “totality” analysis, the offender received 17 years. The carfentanil component (500 blotters) was 15 years. [ 24 ] R. v.

Olvedi , 2021 ONCA 518 (“ Olvedi ”) , involved an offender who received about 500 grams of very pure fentanyl citrate (worth roughly $15 million to $20 million) shipped from abroad. He had about $60,000 of cash when arrested, which he claimed was from selling marijuana. The offender’s only record was for failing to comply with a recognizance. The offender was sentenced to 15 years on the importing charge and 12 years concurrent on the PPT charge. The appeal court concluded that this was not unfit. [ 25 ] In R. v.

Hoang , 2022 ONSC 2534 (“ Hoang ”) , the offender was convicted of five counts of PPT of various compounds containing heroin, fentanyl, cafentanil, and cocaine; two counts of possession of proceeds of crime; and two counts of unsafe storage of a firearm. He had over 16 kilograms of illegal drugs and over $200,000 of cash. The offender had no criminal record. He had guardedly optimistic rehabilitation potential. At paragraph 69, the court mentioned the extremely toxic nature of fentanyl and carfentanil. At paragraphs 75 and 76, the court mentioned the Parranto and Olvedi decisions.

The court sentenced the offender to 18 years for the drug offences (the concurrency analysis is found at paragraphs 90-92). The offender was also sentenced to concurrent time for the possess proceeds charges. Finally, he was sentenced to concurrent time for the firearms offences (paragraphs 96-97). The offender was also fined $156,000 and there were certain other orders. [ 26 ] In R. v. Janisse , 2022 ONSC 4526 , the offender was found guilty of PPT of cocaine, fentanyl, crystal methamphetamine; cocaine trafficking; and possess proceeds of crime. The offences included about two kilograms of fentanyl.

The offender had a dated criminal record, including one violent offence. At paragraphs 30-31, the court mentioned Parranto . At paragraph 33, the court mentioned Hoang . The offender had an addiction and had begun treatment, which indicated some potential for rehabilitation. The offender was sentenced to 16 years. [ 27 ] R. v. Ali (Ont. SC, Nov. 2, 2022, Court file 15513/21), was a joint sentence recommendation of 23 years (and a large fine) for PPT of 26.5 kilograms of carfentanil and weapons offences. Defence cases [ 28 ] In R. v.

Hudson , 2019 ONSC 290 (“ Hudson ”) , the offender was 35 years old and had no criminal record. He was convicted of importing fentanyl and PPT of fentanyl. He possessed 300 grams of the drug, and was a “small cog” in the distribution wheel. He was sentenced to eight years imprisonment for the possession charge, and eight years concurrent for the importing charge. [ 29 ] In R. v. Slotta , 2020 MBCA 79 (“ Slotta ”) , the offender pled guilty to importing 49 grams of fentanyl. He was sentenced to eight years incarceration. The offender was not the primary actor in the crime.

The offender was 32, and had a prior criminal record. He stored the fentanyl in his home, where young children resided. The guilty plea was a mitigating factor. [ 30 ] In R. v. Petrowski , 2020 MBCA 78 (“ Petrowski ”) , the offender was convicted of PPT of fentanyl. At paragraph 39, the court mentioned the importance of denunciation and deterrence. At paragraph 49, the court commented upon the increased danger and harm caused by fentanyl, as compared with other drugs. At paragraph 59, the court mentioned Hudson as one relevant case.

The offender had a serious youth record, including serious convictions, and an adult record that included less serious matters. He received a 10-year sentence. [ 31 ] In R. v. Mastromatteo , 2018 ONCJ 421 (“ Mastromatteo ”) , the offender was only 20 at the time of the offence. He pled guilty to conspiracy to import fentanyl, failure to comply with a probation order and PPT of MDEA. At the time of the offence, the offender was serving a conditional sentence for possession of a controlled substance. The offender expressed remorse, and took serious steps towards rehabilitation.

He received a 7.5-year sentence for the fentanyl (with six months concurrent for the MDEA and one-month concurrent for the probation breach). Decision

[ 32 ] Counsel agree that proportionality is paramount in sentencing. They also agree that denunciation and deterrence are very important. If rehabilitation has any role in our case, it is a minor role. [ 33 ] The PSR mentioned that the offender realizes that drug use can lead to health issues. Mr. Deol chose to speak at the sentencing hearing. He spoke about how difficult it has been for him to be away from his family. His family lives in the Toronto area and he was incarcerated post-arrest for over 1,000 days in Manitoba, so visits were difficult or impossible. I have no doubt that Mr.

Deol really and truly misses his loved ones. However, that is not an expression of remorse for his offences. [ 34 ] To his credit, Mr. Deol has no criminal record. That is the major factor in his favor. Defence counsel argued that the conviction will have negative immigration consequences for Mr. Deol. I will give the offender the benefit of the doubt, and treat that as a form of mitigating factor. [ 35 ] The PSR says that Mr. Deol is a medium risk to re-offend. [ 36 ] Mr. Deol only had a small amount of cash in his possession.

In theory, there might have been an arrangement for him to be paid a large fee upon arrival in Toronto. The Crown did not prove this theory. Frankly, there is no evidence one way or the other. However, this factor does serve to distinguish our case from some of the sentencing decisions in which the offender was arrested while holding large sums of cash. In that sense, the small amount of cash might strengthen the defence argument to some extent. [ 37 ] PPT of fentanyl is an extremely serious offence.

The trend in recent years has been to sentence fentanyl cases more severely than cases involving illegal drugs like cocaine. The Crown submitted that this case involved the largest fentanyl bust in Manitoba to date. The defence did not dispute that claim. MDA is also a “hard drug”, and the MDA charge should not be ignored. [ 38 ] In any event, the sheer quantity of the fentanyl is an aggravating factor. In very simple terms, if distribution of fentanyl causes human misery and danger, distribution of 26 kilograms of fentanyl causes a great deal of human misery and danger.

As the Crown pointed out, the fact that some of the fentanyl was cut with benzodiazepines (which increases the risk of death by overdose), is even more troubling. [ 39 ] I hasten to add that sentencing for drug offences is not a mindless mathematical exercise in relating the quantify of the drug to the length of the sentence. In other words, if a fair sentence for PPT of 10 units of a drug is eight years in jail, that does not mean that a fair sentence for 20 units is automatically 16 years in jail.

The quantity of the drug is simply one sentencing factor among many. [ 40 ] Although no two cases are identical, I turn to the case law for some guidance. [ 41 ] The Ali decision from Ontario, based on a joint recommendation, has little weight. Of the Manitoba decisions mentioned, the longest sentence was 17 years in Chartrand . Though not binding upon me, Chartrand is somewhat helpful. Although Mr. Chartrand (unlike the offender in our case) had Gladue factors, and although Mr. Chartrand did not possess 26 kilograms of fentanyl, in every other way, his facts pointed towards a harsher sentence than Mr.

Deol’s facts. [ 42 ] Mr. Chartrand was convicted of 30 drug and weapons offences, involving carfentanil, methamphetamine, hydromorphone, oxycodone and cocaine. He had a terrible criminal record, including violent offences. He had behaved very poorly while in pretrial custody. The PSR said he was a very high risk to re-offend. Yet, he received 17 years total. [ 43 ] To be blunt, if Mr. Chartrand only received 17 years on his facts, it would seem unfair and unreasonable (and disproportionate) for Mr. Deol to receive more than 17 years. [ 44 ] The recent Manitoba case most helpful to the defence is Slotta .

In that case, Mr. Slotta pled guilty to importing 49 grams of fentanyl. He was sentenced to eight years. Mr. Slotta was not the primary actor in the crime. Mr. Slotta was 32, and had a prior criminal record. The guilty plea was a mitigating factor. Mr. Deol had about 26 kilograms of fentanyl and about 50 kilograms of MDA. He did not plead guilty. If eight years was fit for Mr. Slotta, a sentence of more than eight years would be fair for Mr. Deol. [ 45 ] In any event, I must look at Parranto.

In that case, the Supreme Court of Canada endorsed a non-binding starting point of nine years for wholesale fentanyl trafficking. Sentencing judges still have discretion. [ 46 ] In Parranto , the offender had a lengthy criminal record but also had Gladue factors. He pled guilty to two counts of PPT of fentanyl in a wholesale commercial operation, two counts of possession of a loaded illegal handgun for use in the trafficking, one count of possession of a handgun knowing he was under a prohibition order, and breach of a recognizance.

On one occasion, police seized 27.8 grams of fentanyl along with about $55,000 in cash and, on a second occasion, they seized 485 grams along with about $20,000 in cash. He only waited 12 weeks after getting out of jail before starting to traffic drugs again. He entered guilty pleas after exhausting Charter remedies. The sentence was 14 years. [ 47 ] In some ways, Mr. Deol’s position is more sympathetic than Mr. Parranto’s, and in some ways it is less sympathetic. Unlike Mr. Parranto, Mr. Deol had no criminal record and was not charged with gun offences (or breach of recognizance) along with the drug offences.

Mr. Parranto had large sums of cash when he was arrested. On the other hand, the amount of fentanyl (and MDA) that Mr. Deol possessed was enormous in comparison with the amount that Mr. Parranto possessed (although, as I noted above, relating drug quantity to sentence length is not a mere mathematical exercise). Mr. Parranto had Gladue factors; Mr. Deol does not. Mr. Parranto eventually entered guilty pleas; Mr. Deol never did. [ 48 ] In short, balancing all the similarities and differences between Mr. Parranto and Mr. Deol, I conclude that a 14-year sentence is proportionate and fit for Mr.

Deol. [ 49 ] There were few submissions about the dangers of MDA. It is obviously a harmful controlled substance, and possession is obviously a serious offence. Bearing in mind the “free ride” principle, and bearing in mind that the quantity of MDA was also enormous, I sentence Mr. Deol to 14 years for the fentanyl offence, and eight years concurrent for the MDA offence. If there had been no MDA at

all, the sentence for the fentanyl would have been somewhat shorter. [ 50 ] The sentencing hearing took place on May 5, 2023, and I reserved my decision. As of May 5 , 2023, counsel agreed that the offender spent 1,011 days in pre-trial custody. Multiplied by 1.5, that yielded 1,517 days as of May 5, 2023. As of today, August 28, 2023, Mr. Deol has spent 1,126 days in custody. Mr.

Deol will receive credit for pre-trial custody at the usual 1.5 rate, which yields 1,689 days as of August 28, 2023. [ 51 ] Counsel agreed upon the appropriate ancillary orders: a DNA order, a mandatory 10-year weapons prohibition and forfeiture of all seized items. These orders will form part of the sentence. [ 52 ] I thank counsel for their courtesy and helpful submissions. ____________________________ J.