R. v. Pugganwala, 2018 ONCJ 437

Court Information

Date: June 21, 2018 Information No.: 17-248 Ontario Court of Justice

Between: Her Majesty the Queen — and — Abdul Pugganwala

Before: Justice S. Bondy

Counsel:

• S. Szasz for the Crown
• B. Craig for the Accused

Matter heard: June 18, 2018

BONDY J.

REASONS FOR JUDGMENT

1After the plea to count one, the defendant was found guilty of possession of marijuana for the purposes of trafficking in Information 17-248. The facts reveal that following a Controlled Drugs and Substances Act (hereinafter referred to as CDSA) general search warrant in relation to a storage locker located at Guardian Storage at 5505 Rhodes Drive in Windsor, Ontario, the defendant's locker revealed 10,445 grams or approximately 27 lbs. or 12 kilos of marijuana located in one pound vacuum sealed bags on February 7, 2017. Inside the locker was a rental receipt in the name of the defendant, and fingerprints later retrieved from the plastic bags matched Mr. Pugganwala's. Another general warrant granted to enter a storage locker at the UHaul Moving and Storage at 5025 Walker Road in Tecumseh further revealed 1,794 grams of marijuana pieced out in one pound bags.

2The defendant is a first time offender. At the time of this offence he was 21 years of age and attending the University of Windsor in a Criminology course, hoping to attend Law School. He resided at home with his parents and was having financial difficulties and was using marijuana recreationally. Subsequent to these charges he was found guilty of a non-domestic assault and was provided a conditional discharge with probation to serve for 12 months.

3The pre-sentence report filed shows that the defendant was born in Pakistan, travelled to Canada with his parents and siblings, immigrated first to the United Kingdom, then Montreal and lastly Windsor. The defendant did not disclose any violence or abuse in his family home. His pre-sentence report reveals "tension" and "misunderstandings" at home while he was being raised, with no further elaboration. He is described as not close to his siblings and he describes his relationship with his retired parents as "improving." He has completed grade 12, no school suspensions or expulsions, completed one and a half years of University until he got "off track" as he put it. The defendant explained that he left University when he became involved with the criminal justice system. He further explained that his financial problems occurred when he did not receive an adequate amount of student financial aid and was feeling pressured to complete his post-secondary education by his parents.

4Relating to his alcohol and drug use, the defendant described himself as an occasional alcohol consumer. He has experimented with mushrooms, LSD and cocaine in the past. He describes his use of cannabis as recreational. According to the defendant, he denies any recent use of these substances. His pre-sentence report reflects no counselling or drug treatment in the past or after this offence.

5The defendant's mother expresses no knowledge of his problems at home or his drug use. His family is described as supportive and positive.

6As for the defendant's character and behaviour/attitude identified in the pre-sentence report, Mr. Pugganwala justified his offending behaviour due to his financial problems and indicated he saw trafficking as "a viable option in supporting his education and drug habit." He describes trafficking in marijuana as a victimless crime. Moreover, according to the author of the pre-sentence report, he does not appear to comprehend how his offending behaviour negatively impacts the Windsor community and wants to make "legal" money in the future. He also wants to return to school and to secure employment however at present he is doing neither. Of concern to the author of the pre-sentence report is the fact that Mr. Pugganwala's associates consume marijuana as well.

7The defence seeks a period of custody for Mr. Pugganwala for 90 days and also seeks no ongoing order of probation. Defence argues that the defendant accepts responsibility for his offence, provided a guilty plea, he was not arrested with any other drug paraphernalia or other evidence of serious drug trafficking activity. The defence suggests that what drove Mr. Pugganwala to the activity he engaged in was the new legalization of marijuana and the potential sway such news had on him, together with his view that his charges were largely a "victimless" crime.

Defence Case Law

8Defence referred to a number of cases as support for their position. In R. v. Pham, 2016 ONCA 258 the Ontario Court of Appeal confirmed a sentence of six months custody for a 52 year old first time offender, after trial, who had the sole support of her daughter who was a university student. The accused was in possession of 48 lbs. of marijuana and her sentence appeal seeking a conditional sentence was rejected. Her six month period of custody by the trial judge was confirmed.

9In R. v. Shine, an April 6, 2016 unreported ruling of Justice J. George of then the Ontario Court of Justice, an offender who did not appear for his preliminary/trial was granted the equivalent of a four month custody order (he served 120 days of pre-sentence custody) with one further day. The facts reveal a rather sophisticated drug scheme between Vancouver, B.C. and London, Ontario involving the transport and delivery of marijuana totaling 4.762 kilos in the first box and 4.713 kilos in a second box which the accused received and opened. The judgment provides little in the way of detailed analysis except for the comment that the judge found that "the amount of marijuana and the nature of the offence called out for a jail sentence." Mr. Shine also had no previous criminal record and was youthful; his age is not disclosed.

10In R. v. Minnis, a March 26th, 2012 unreported sentencing decision of Justice Rawlins of this Court; she imposed a 90 day intermittent sentence with three years of probation on a 32 year old repeat offender for possession for the purposes of trafficking in 20 pounds of marijuana. The defendant was a one-time courier for this offence. He had full time employment, was active in his two sons' activities, including a local baseball program. This order was as a result of a joint submission by the Crown and defence. Her Honour found that greed was a motivating factor and further considered the accused's association with others who were involved in drugs. In addition to the term of custody for the defendant the Court imposed an array of collateral orders including a $1000 victim fine surcharge, a s. 109 order for life, an order for DNA and an order of forfeiture of the defendant's truck.

11In R. v. Suntharalingham, 2018 ONCJ 234, I refused the defence request for a conditional discharge order for a first time youthful offender attending University who was found guilty of possession for the purposes of trafficking of 5223.6 grams or ½ kilo of marijuana located in the defendant's residence near the University of Windsor. There was no trial but a plea to the offence. I found it was inconsistent and contrary to the public interest to grant a discharge when one considered the amount of marijuana in question, that sales were likely made to university students, where the evidence revealed the defendant would likely not be deterred from future offences or seek rehabilitation without a conviction in place and where the offence was largely motivated by profit or greed.

Crown Case Law

12The Crown relies on cases such as R. v. Hoang, 2012 ONSC 995 aff'd 2013 ONCA 430, R. v. Cowan, 2015 ONSC 7205, and R. v. Herta, 2016 ONSC 3051, for authority that a fit and proper sentence in these circumstances is a period of six to nine months custody for the defendant. In Cowan, the accused trafficked in over 3 kilograms of marijuana together with Excise Act offences relating to the sale of unstamped tobacco products following a major under-cover police investigation. The defendant received $33,000 alone in connection from the sale of marijuana. He was involved in other drug transactions totaling four, ten pound marijuana sales. As for marijuana offences being a victimless or soft crime the court noted that such was not the case; the sentencing judge remarked that he could see the consequences of marijuana consumption on a daily basis in his courtrooms, in his family courts and child protection courts. At paragraph 42 of his judgment he said "there is nothing soft about the consequences of this drug on this community" [of Cornwall Ontario]. After a plea of guilt he sentenced the accused to a jail term of 12 months custody, with two years' probation, a s. 109 order for 10 years, an order for DNA and a fine of $83,750.00 on the marijuana charges.

13In Herta, Justice Carey of the Superior Court of Ontario at Windsor sentenced the defendant on two counts of trafficking in approximately ½ a kilo of marijuana to a period of nine months custody with two years' probation and other collateral orders. The Court noted Canada's changing attitude towards marijuana use with its announced intention to legalize marijuana possession and pondered its impact on the sentence to be imposed but also noted its psychoactive features that cause health issues and the criminality associated with its illegal sale and purchase. Mr. Herta was on probation during his commission of the offence and had a recent record for a similar offence. He was described as a small level trafficker in marijuana.

14In Hoang, the accused was convicted of possession of 29 pounds of marijuana for the purposes of trafficking in the trunk of his car while travelling down Highway 417. His motive for committing the offence was to obtain money to pay for his daughter's eye injury. He was financially strapped, unable to work due to childcare responsibilities and his wife had died tragically leaving him the single parent of three children aged 6, 11 and 15 years. The accused was a repeat offender, previously received a conditional sentence for a similar drug offence, the 29 pounds of marijuana were agreed as having a street value of $100,000.00. The Court of Appeal affirmed the sentence recognizing the amount of marijuana and the defendant's criminal antecedents.

Sentencing Principles

15The cases provide little in the way of specific direction at the issue of a fit and proper sentence for sales and distribution of marijuana as sentencing of course is an individualized process and the search for a single appropriate sentence for a similar offender and similar crime will frequently be a fruitless exercise of academic abstraction. See R. v. M.(C.A.), 105 C.C.C. (3d) 327. Each case of course can be distinguished on its own merits and each offender presents with their own peculiarities, attributes and circumstances. Proportionality is the most important objective in sentencing. Proportionality balances the moral blameworthiness or degree of responsibility of an individual with the gravity of an offence so that in the end a fit and just sentence is imposed. Other objects always include specific and general deterrence, retribution, parity, restraint, mitigating and aggravating circumstances, rehabilitation and restorative objectives. Section 10 of the CDSA and Sections 718, 718.1 and 718.2 of the Criminal Code must be considered. All of these objectives must be considered and balanced.

16I also wish to address the twofold argument by defence that marijuana is a soft drug which should result in a lesser degree of severity than other "harder" substances. In addition defense argues that the more recent dialogue in Parliament related to legislative amendments respecting marijuana possession support a reduced penalty on sentencing. Defence also asserts that such initiatives "swayed" the defendant to engage in the trade of marijuana. With respect, I entirely disagree. To be clear, legislative reforms relating to marijuana possession on the horizon do not entitle a sentencing judge to disregard the rule of law. See R. v. Tran, 2016 ONSC 3225; R. v. Caporale, an unreported decision of Justice G. King at Windsor Superior Court of Justice, dated April 14, 2016 and R. v. Bentley, 2017 ONCA 982.

17There was a significant amount of marijuana in play here. I do not know its street value or the number of persons it would service, but a seizure of some 27 pounds or 12 kilograms of marijuana is likely a significant commercial venture. The defendant was a youthful, first time offender with this offence; he does not understand or comprehend how his offence negatively impacts the Windsor community and he is oblivious to the fact that drug sales, even with a "softer" drug such as marijuana are not a victimless crime. I completely agree that marijuana possession charges for purposes of trafficking are not victimless and do impact the Windsor community which any judge sitting in this court and family and child protection courts sees its ravages day after day for those who would be addicted to its affects. See Cowan. Unregulated sales of marijuana impact public health and illicit criminality with its sales and psychoactive effects. See Herta. In R. v. Dylan South, 2017 MBPC 3, the Court said the following at paragraph 26:

There is a reason Parliament doesn't want individuals selling substances to its citizens unless those drugs are controlled by the state. The premise is that society has a strong interest in knowing that what they are ingesting is safe, but in the short and long term, or at the very least [Canadians] can make themselves aware of potential harm and make a decision based on the known side effects.

18The defendant is a youthful first time offender. He was motivated in part by addiction which is a factor for consideration. Most of his motivation was greed and profit; clearly his was a commercial enterprise which sought to earn him "easy" money regardless of the consequences for those who are ultimately addicted to marijuana's use and its potential gateway to other intoxicants. Deterrence and denunciation in this case must be balanced with the possibility of rehabilitation and restorative objectives for a youthful offender. The defendant also comes from a good and supportive family but he seems to have swayed from their positive influences and support. He provided the Court with a guilty plea. These are all mitigating factors. However, the amount of marijuana at play here is a significant aggravating factor. Another aggravating factor is his indifference to the harm he causes.

19The defendant and other like offenders who possess sufficient quantities of marijuana for the purposes of trafficking must suffer the consequences of their troubling choices. Sentencing objectives must serve as an important deterrent to others. Parliament's intention to reduce the criminal sanctions involved with possession of minor and insignificant quantities of marijuana do not in any way justify a wholescale unregulated operation such as the kind the defendant was operating. Many of the cases referred to by the defence involved significantly reduced amounts of drugs or joint sentencing initiatives. Some of the cases referred by the Crown which resulted in longer periods of incarceration involved complex and major drug operations, repeat offenders with criminal antecedents and the offence of trafficking.

20I think this is a proper case for a period of custody for six months followed by 2 years' probation. I think this period balances the various criteria and objectives that I have identified. At the same time it should serve as a powerful message that there is no profit to be gained from illegal drug activity. Mr. Pugganwala's period of incarceration and probation should provide him with the time to reflect and engage in rehabilitative efforts. Hopefully it will deter him from future endeavours. Hopefully it will provide him with the time and opportunity to comprehend and appreciate the error of his ways.

Probation Conditions

21The order of probation shall include the following terms:

1. Report as directed and in any event, within 3 working days of his release;

2. Not to associate or communicate directly or indirectly with the co-accused Mr. Kular;

3. Not to purchase possess or consume any non-medically prescribed drugs;

4. Not to purchase, possess or consume marijuana;

5. To attend for such assessment counselling and treatment as directed related to his substance abuse, i.e. drugs;

6. To sign all releases of information so that probation can monitor his progress and he shall provide proof of attendance at all programs, compliance with conditions etc., that he is directed to attend/complete.

Collateral Orders

22There shall be a mandatory s. 109 order for a period 10 years.

23DNA to issue.

24Pursuant to s. 16 of the CDSA an order of forfeiture is granted. The following items are hereby forfeited to Her Majesty the Queen in Right of Canada to be disposed of:

1. 1225.00 CND currency seized from Kular incidental to arrest;

2. $80,775.00 CND currency seized from the shoe box in the north/west bedroom;

3. $535.00 USD currency seized from the shoe box in the north/west bedroom;

4. Blackberry seized from Kular;

5. Samsung cell seized from Kular;

6. ZTE cell seized from Kular; and

7. Grinder seized from Kular's bedroom.

25Pursuant to s. 490(9) of the Criminal Code there will be a return order in relation to the following items seized:

1. $5880.00 CND currency seized from envelopes in the north/east bedroom;

2. $88.00 USD currency seized from envelopes in the north/east bedroom;

3. $2480.00 CND currency seized from south/east basement;

4. $300.00 CND currency seized from Pugganwala incidental to arrest; and

5. Iphone seized from Pugganwala.

26There shall be a victim fine surcharge of $200.00 with one year to pay.