R. v. Rajkumar, 2014 ONCJ 170

Court File and Parties

Court File No.: Brampton 13-323 Date: March 28, 2014 Ontario Court of Justice Central West Region

Between: Her Majesty the Queen — and — Ryan Rajkumar

Before: Justice Richard H.K. Schwarzl

Heard on: November 19, 2013 and March 13 & 28, 2014

Reasons released on: March 28, 2014

Counsel:

• Ms. Caroline Carrasco for the Crown
• Mr. Michael Caroline for the Accused

SCHWARZL, J.:

1.0: INTRODUCTION

1Ryan Rajkumar was charged by Peel Regional Police Services with eleven offences arising out of events occurring in February 2012, to wit:

• Count 1 – Trafficking cocaine, s. 5(1) Controlled Drugs and Substances Act (CDSA)
• Count 2 – Possession of cocaine for the purposes of trafficking, s. 5(2) CDSA
• Count 3 – Possession of cocaine for the purposes of trafficking, s. 5(2) CDSA
• Count 4 – Possession of marijuana for the purposes of trafficking, s. 5(2) CDSA
• Count 5 – Possession of cocaine, s. 4(1) CDSA
• Count 6 – Possession for the purpose of trafficking cocaine, s. 5(2) CDSA
• Count 7 – Possession of marijuana, s. 4(1) CDSA
• Count 8 – Possession of cocaine for the purposes of trafficking, s. 5(2) CDSA
• Count 9 – Possession of cocaine s. 4(1) CDSA
• Count 10 – Breach of Recognizance, s. 145(3) Criminal Code of Canada (CCC)
• Count 11 – Possession of property obtained by crime, s. 355 CCC

2Mr. Rajkumar entered pleas of guilty before me to three drug offences: Count 1 - Trafficking in cocaine, contrary to section 5(1) of the Controlled Drugs and Substances Act (CDSA); Count 2 - Possession of crack cocaine for the purposes of trafficking, contrary to section 5(2) of the CDSA; and Count 8 - Possession of cocaine for the purposes of trafficking, contrary to section 5(2) of the CDSA. The pleas were taken by me in November 2013 and a lengthy sentencing hearing took place in March 2014. The defence seeks a sentence of 3 to 5 years consecutive to the unrelated sentence he is currently serving. The prosecution seeks a sentence of between 5 and 8 years consecutive to the sentence he is serving. The Crown submits that if a reformatory sentence is imposed it should nevertheless be served in jail and not in the community.

2.0: CIRCUMSTANCES OF THE OFFENCE

3In September 2009, Mr. Rajkumar was charged in Toronto with selling an ounce or two of cocaine. When he was arrested he was in possession of 58 grams of cocaine. He was released on a recognizance of bail including a condition prohibiting him from possessing controlled substances. His mother, Bernadette Rajkumar, was his surety. The bail was still in force in February 2012.

4On February 25, 2012 the Peel Regional Police Services had cause to stake out Mr. Rajkumar's residence in Brampton. They saw Mr. Greg Moncrieffe enter the house and leave a short time later. The police stopped the man and found that he had just bought 29 grams of cocaine from Mr. Rajkumar. A short time later, Mr. Rajkumar drove away from his home to a location where he was seen to sell 40 grams of crack cocaine to a woman who paid him $2500 for the drugs. Police found these proceeds of the sale in Mr. Rajkumar's vehicle. He was immediately arrested.

5On the authority of a warrant, the police searched Mr. Rajkumar's home. At the time of the search, a number of people were occupying the place including Mr. Rajkumar's surety and mother, as well as Mr. Rajkumar's wife, child, and his brother. During the search the police seized a scale, ziplock baggies, wraps with cocaine residue, 83 grams of crack cocaine, 70 grams of cocaine, 12 grams of marijuana, $13,185 in cash, plus documents in Mr. Rajkumar's name.

6Based on information received from Bernadette Rajkumar, police obtained a warrant to search her apartment in Toronto, which she allowed Ryan Rajkumar to use for his own purposes. During the search of Mrs. Rajkumar's apartment police seized 814 grams of cocaine, cocaine wraps with Mr. Rajkumar's fingerprints on them, two scales (one with cocaine residue on it), and another cocaine wrap with cocaine residue in it.

7The total amount of cocaine seized or sold was nearly 1.04 kg. Of this amount, 123 grams, or nearly 12% was crack.

8Upon completion of this investigation, Ryan Rajkumar, his mother, his brother and his two customers were all charged with various drug and criminal offences. Mr. Rajkumar was held for bail and after one week he was released on a recognizance with an aunt and another relative as sureties.

9With respect to the charges against his co-accused, his brother Ravi pled guilty to simple possession of marijuana and received a sentence of five days, being time served. The charges against his mother have been stayed. The charges against Mr. Moncrieffe have yet to be disposed of.

3.0: CIRCUMSTANCES OF THE OFFENDER

10Mr. Rajkumar was born in August, 1982. At the time of the offence he was 29 years old. At the time of sentencing he was 31. At the time he committed these offences he had no criminal record but did have the Toronto drug charges pending. In January 2014 Mr. Rajkumar was sentenced to one year in jail for his role in the 2009 Toronto drug offences.

11The offender has worked for years as an appliance repairman for a family-owned business.

12He is married with one child, being a 7 year old son. He has been on bail in this matter for nearly two years. One of the conditions was to remain in his surety's residence at all times except for medical emergencies, court related matters, counsel matters, or in the presence of one of his sureties. Mr. Caroline submitted that this bail condition has had a significant impact on Mr. Rajkumar. One of his sureties works full time and the other did not want to supervise him outside of the home, making it difficult for him to maintain normal employment, family, and personal activities. For example, his wife and child only visited him intermittently because his residential surety would only allow such visits in her presence. In addition, he has been unable to work due to the house arrest bail condition.

13Mr. Caroline submitted that Mr. Rajkumar's trafficking of drugs started in large measure as a means of financing his personal drug addiction. The Crown submits that the offender is not a subsistence dealer selling drugs to feed his own habit, but is, on the evidence, a commercial trafficker who ranks as a street level supplier given his multi-ounce transactions and very large amounts of cocaine in his possession. Mr. Caroline does not disagree with this but submits that the raison d'être for selling (i.e. feeding his addiction) has been removed since being charged with these offences.

14Mr. Rajkumar has been a drug addict for more than six years. Since being charged with these offences he has been abstemious. He is under a physician's care and has, on at least one occasion, participated in a toxicology screen that showed the absence of drugs in his system. Mr. Rajkumar has gone to Narcotics Anonymous weekly since March 2012 and made a positive impression on his sponsor, who is also a family friend. The offender submits that by ending his drug use he has not only ended his need to sell drugs but has significantly increased his prospects of rehabilitation. The Crown submits that while Mr. Rajkumar's rehabilitation is a positive personal circumstance, his subsequent quitting drug use is irrelevant to his degree of involvement and responsibility for these crimes given that he was a commercial-grade trafficker whose business clearly went far beyond financing his personal use.

15After carefully assessing the evidence, the submissions and the case authorities provided, I find that Mr. Rajkumar was a commercial trafficker and distributor. The amounts he sold to the two others on the offence dates were amounts far in excess for personal use. The paraphernalia found in his possession, the large amounts of cash, and the huge amounts of drugs found after his sales that day all point to a criminal enterprise outstripping any subsistence peddling.

16Given his abstention from illegal drugs since his arrest, his accessing of medical services, and his regular participation in Narcotics Anonymous, there appears to be a realistic promise of rehabilitation for Mr. Rajkumar.

17Mr. Caroline submitted that on release from prison, the offender intends to return home and support his family lawfully by returning to, and perhaps one day taking over, the family appliance repair business. The offender has stated that his drug-dealing days are over and he wants to return to his wife and child as soon as possible.

4.0: MITIGATING FACTORS

18There are a number of mitigating factors surrounding this offence and this offender, all of which I take into account in passing sentence. They include:

(i.) No prior record at the time of the commission of these offences;

(ii.) A plea of guilty prior to any contested hearing;

(iii.) A remorseful offender;

(iv.) An offender with prospects for long-term rehabilitation;

(v.) He has been drug-free since being charged with this offence; and

(vi.) The bail order in this case has had a meaningful impact on his liberty interests prior to resolving this matter.

5.0: AGGRAVATING FACTORS

19There are a number of aggravating factors surrounding this offence and this offender all of which I take into account in passing sentence. They include:

(i.) He was a commercial grade trafficker;

(ii.) He was trafficking very dangerous drugs;

(iii.) The amounts of drugs he had were large;

(iv.) The nature of the offences is pernicious because it endangered the health and safety of the drug users and of society;

(v.) The nature of the offences involved an ongoing criminal enterprise that facilitated others to commit crime;

(vi.) The offender conducted his drug trade in the presence of his wife and child;

(vii.) The offender dragged his mother into his criminal activities;

(viii.) The offender committed these offences while at large and on bail for similar offences;

(ix.) The offender's moral and criminal responsibility is very high;

(x.) The offender was motivated by greed rather than by need; and

(xi.) The offender clearly profited financially from his crimes.

6.0: ANALYSIS AND SENTENCE

20After weighing the circumstances of the offences, the submissions of counsel, the mitigating and aggravating factors set out above, the principle of totality, and the case authorities to which I was referred, I find that the appropriate sentence in this case is as follows:

• Count #1 – 5.5 years consecutive to sentence serving
• Count #2 – 4 years concurrent to Count #1
• Count #8 – 4 years concurrent to Counts #1 and #2

21In addition, there will be the following additional orders on all counts:

• Mandatory in-custody DNA orders;
• Section 109 Criminal Code Firearms Prohibitions for life;
• Forfeiture orders of offence related property including all drugs, monies, and drug paraphernalia;
• Statutory victim surcharges of $100 per count with 60 days to pay; and
• An order pursuant to section 743.21 prohibiting Mr. Rajkumar from communicating with any or both of Greg Moncrieffe and Lorrie Laderoute.