Court File and Parties

COURT FILE NO.: CrimJ(F) 170/14 DATE: 2017 01 13 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN L. McKenzie, for the Crown

- and -

NARANKAR DHILLON M. Caroline, for the Defence Defendant

HEARD: December 13, 2016

REASONS FOR SENTENCE

Bielby J.

Overview

[1] On October 28, 2016, I convicted Narankar Dhillon, the offender, of trafficking in a controlled substance, namely heroin, contrary to section 5(1) of the Controlled Drugs and Substances Act.

[2] On June 3, 2013, the offender was observed in a Home Depot parking lot delivering to another male a coffee cup which contained 101 grams of heroin.

The Facts

[3] On June 3, 2013, the Street Crime Gang Unit of the Peel Police Force had the offender under surveillance. The offender, together with another man, was observed driving from the offender’s home to the offender’s place of business. The men then travelled to the parking lot of the Home Depot. The offender got out of the vehicle in which he was riding and was observed handing a Tim Horton’s coffee cup to another individual (the customer) who had arrived in a separate vehicle. The offender and the customer both returned to their respective vehicles and left the parking lot.

[4] Members of the Street Crime Unit followed the customer’s vehicle and conducted a traffic stop. Within the vehicle was located the coffee cup, first observed in the offender’s hand, and which was found to contain the heroin.

Circumstances of the Offender

[5] The offender is 53 years of age, married, with five children. He is a Canadian citizen, having resided in this country for 30 years. For the purposes of the trial and the sentencing hearing he required Punjabi interpreters.

[6] Prior to his arrest the offender operated, at different times, a painting business and a vehicle repair/sale business.

[7] The accused has no criminal record. At the time of his arrest for this offence he was already on judicial release pending trial on another matter. Subsequently, that charge(s) on the other matter was (were) dismissed.

[8] While on pre-trial judicial release on the matter before me, the offender was arrested and charged in regards to homicide. The matter proceeded to a judge alone trial on a charge of manslaughter. The trial judge’s decision is yet to be released.

[9] As a result of the alleged homicide, however, the offender’s pre-trial release was revoked.

[10] For my purposes, I will sentence the offender on the basis of having no criminal record and he will be treated as a first time offender.

[11] With respect to the manslaughter charge, guilt or innocence has not been determined so presumptively the offender is innocent of the charge. For the purposes of this sentencing, all of the days in custody will be considered and credit given.

[12] To the date of sentencing the offender has been in custody for 1200 days.

[13] The offender seeks a credit for time served at the rate of 1.5 days for each day of custody. The Crown does not oppose the request. Accordingly, the offender’s credit for time served will be 1800 days.

[14] Of the days in pre-trial custody the offender was in full lockdown for 213 days and partial lockdown for 96 days, for a total of 309 days. The offender seeks credit of three months for these circumstances arguing such circumstances ought to mitigate against sentence. The Crown opposes this request.

[15] Defence counsel submits that the offender is a user of heroin and had been for a period of time prior his arrest. The Crown submits these facts were not given in evidence and submits the offender’s motivation for trafficking must be presumed to be pure greed, given the value of the drug.

Impact on the Victim and/or Community

[16] R. v. Ramos, 2014 ONSC 5675, is a decision of N.J. Spies J. of the Ontario Superior Court of Justice. In terms of the impact of heroin on the community I can say it no better than said in paragraph 75,

“The earliest case provided to me that does provide an evidentiary basis for the court’s conclusion that heroin is the “worst of the worst” is R. v. Pushpanathan v. Canada, [1998] 1 S.C.R. 982. The dissenting reasons of Cory and Major JJ. are often cited from this decision. Mr. Pushpanathan was a member of a group convicted of trafficking in heroin with a street value of $10 million. At paragraphs 79 and 154 Cory J. stated:

[79] The United Nations considers heroin to be the most dangerous of illicit drugs. Trafficking in that drug is indeed a despicable crime. It will be demonstrated that is consumption lead consumers, almost inexorably, to commit crimes to satisfy their addiction. The potential profits are so high that it frequently leads to criminal activity and money laundering. It can lead to corruption of customs officials, police and judicial officers. It is a crime with such grievous consequences that it tears at the very fabric of society.

[154] Heroin is thought to be the most harmful of illicit narcotics…[Source is the UN International Drug Control Program, World Drug Report from 1997].”

[17] R. v. Giammarco, 2012 ONSC 1053 is a decision of C. W. Hourigan J. of the Ontario Superior Court of Justice, as he then was. From paragraph 43 I quote,

“Similarly in Sidhu, which involved an importing conviction and is therefore distinguishable from the present case, the court described heroin (at paragraph12) as “the most pernicious of hard drugs – it is the most addictive, the most destructive and the most dangerous. Heroin trafficking has been described as a ‘despicable crime’ and one that ‘tears at the very fabric of our society.”

[18] The maximum sentence for the trafficking of drugs such as heroin is life imprisonment.

Positions of Crown and Defence

[19] The Crown seeks a global sentence of eight years in custody. She submits the amount of heroin sold was approximately 3.6 ounces and had a street value of somewhere between $12,000 and $15,000.

[20] The Crown submits the offender was not just a street dealer but rather was selling, at the ounce level a hard, serious and very dangerous drug. She suggests the offence was committed for profit.

[21] The Crown also seeks an order for a DNA Sample, a Forfeiture Order and a Weapons Prohibition Order, requests not opposed by the offender.

[22] The Crown submits that the very nature of the drug is an aggravating factor.

[23] The Crown submits that the applicable principles of sentencing are general deterrence and denunciation and to a lesser degree, specific deterrence. It is submitted that the offender is an unlikely prospect for rehabilitation.

[24] Counsel for the offender submits that a fitting global sentence would be six years in custody, the range for trafficking approximately three ounces of heroin being 6-8 years. It is submitted that the quantity of drug trafficked is a significant factor.

[25] Defence counsel submits the appropriate sentence is six years. He submits that the authorities relied on by the Crown involved greater amounts of heroin. It is further submitted that the range for one ounce starts at 6–7 years and for larger amounts, the range is 8-12 years.

[26] Defence counsel submits that while the offender did not plead guilty the trial was of very short duration, with a number of facts being admitted.

[27] Counsel also asks me to take into consideration the fact that this was what I believe counsel called, a bare prosecution. There were no scales or cash or debt lists seized.

[28] Defence counsel, as noted, seeks a 1.5 to 1 credit for the time in pre-trial custody and three months enhanced credit for the time in lockdown.

Case Law

[29] In the Giammarco case cited above, the defence sought a sentence of less than two years. From paragraph 55, I quote,

“The sentences proposed by defence counsel do not adequately reflect the serious nature of the crime committed, including the large amount of heroin involved. In my view, a case such as this, involving over 3.5 kilograms of heroin, requires a substantial penitentiary sentence.”

[30] The two offenders in the Giammarco matter were first time offenders, with strong family support and both with stringent bail conditions. They were sentenced to five and six years imprisonment.

[31] R. v. Ramos, 2014 ONSC 5675 is a decision of N.J. Spies J. of the Ontario Superior Court of Justice. The two accused were charged and convicted of trafficking in heroin. The judge reviewed a number of cases and concluded, at paragraph 49, “In summary, I conclude based on Shahnawaz and Ngo, that the range of sentence established by the Court of Appeal for a conviction for trafficking in a half kilogram of heroin is eight to ten years.”

[32] R. v. Nguyen, [1996] O.J. No. 2593 is a decision of the Ontario Court of Appeal. The two accused entered pleas of guilty to two counts of trafficking in heroin and one count of conspiracy to traffic in heroin. The total amount of heroin discovered was one pound.

[33] The trial judge sentenced Mr. Nygen to 4 ½ years and Mr. Vuu to 3 ½ years in prison. The Crown appealed the sentences.

[34] The Court of Appeal found the sentences to be manifestly inadequate and clearly unreasonable. From paragraph 9 I quote, “This court has consistently held that heavy sentences are called for in cases of this nature.” The sentences were increased to 8 ½ years and 6 years in custody.

[35] R. v. Nguyen, 2006 ONCA 845, [2006] O.J. No. 5450 is also a decision of the Ontario Court of Appeal. The appellant was convicted by Dunnet J. of trafficking in heroin and sentenced to six years imprisonment. The appellant appealed his conviction and sought leave to appeal the sentence.

[36] Defence counsel acknowledged that the sentence although high was within the range. The Court of Appeal dismissed the sentence appeal saying that it was open to the trial judge to make the findings she did in respect of the aggravating circumstance (para. 7).

[37] In R. v. Ngo, [2000] O.J. No. 4881 the appellant was convicted of trafficking and conspiracy to traffic in heroin and was sentenced to 11 years. The amount of heroin was 8.4 ounces. For reasons specific to the facts of the case, the Court of Appeal reduced the sentence to eight years. At paragraph 11 the Court comments, “It seems that the parties and the trial judge were in agreement that the proper range for this offence was eight to twelve years.”

[38] R. v. Bains, 2013 ONSC 6532, Justice F. Dawson sentenced the accused for possession of heroin for the purpose of trafficking. At paragraph 31, Dawson J., after reviewing the authorities, concluded the range of sentence of from six to 12 years for offences related to trafficking in between approximately one-half to one kilogram of heroin.

[39] The amount of heroin in the matter before me is 101 grams, and which as pointed out by defence counsel is significantly less than ½ kilogram.

[40] In the case R. v. Bannatyne, 2012 ONSC 4593, White J. sentenced a 39 year old heroin addict to six years in jail for trafficking in a total of five ounces of heroin. While the accused did plead guilty, he also had a criminal record.

[41] R. v. Do, [2001] O.J. No. 5931 is a decision of McNelly J. of the Ontario Superior Court of Justice. The two accused were convicted of possession of heroin for the purpose of trafficking. The amount of heroin seized was 111 grams for one and 13 grams for the other.

[42] The one accused was sentenced to four years and two months in custody in addition to 11 months pre-trial custody. The other accused to three years and three months in addition to 1 ½ months of pre-trial custody.

[43] The court considered the primary considerations were denunciation, general and specific deterrence, and rehabilitation.

[44] One of the authorities provided by defence counsel is R. v. J.B., 2016 ONSC 939, [2016] O.J. No. 855. One of the issues dealt with by B.P. O’Mara J. was pre-trial custody lockdowns. From paragraph 22, I quote,

“The fact that an inmate has experienced lockdowns certainly does not lead automatically to any additional mitigation of their ultimate sentence. However, a prolonged lockdown that is unrelated to the misconduct of the accused before the court may constitute harsh conditions that merit some mitigation of sentence. A lockdown is not the norm within the institute and it should not be viewed as such. When a lockdown occurs, the inmate is cut off from contact with the outside world, including family, friends and counsel.”

[45] The accused received an enhanced credit of three months for lockdowns in excess of 225 days.

[46] R. v. DeSousa, 2016 ONSC 5443 is a decision of Gilmore J. who had to consider the issue of whether credit should be given for pre-trial custody lockdowns. A three months credit was given.

Mitigating and Aggravating Factors

[47] I accept the Crown’s submissions that the circumstances surrounding the offence are an aggravating factor. The offender was involved in the sale of heroin at the ounce level with heroin being a hard, serious and dangerous drug. The motive for the enterprise was profit.

[48] There are no mitigating factors other than the offender is married with children and without a criminal record.

Principles of Sentencing

[49] The authorities are clear; the primary principles are denunciation and general and specific deterrence. On the facts before me rehabilitation is not a primary consideration.

Reasons and Final Decision

[50] On the facts and circumstances before me and taking into account the type of drug at issue, I consider the appropriate global range for less than ½ a kilo of heroin to be six to nine years in jail. I find that a global sentence of seven years is fit and just and proportionate to the crime. While the offender has no criminal record and the amount of heroin seized was substantially less than ½ of a kilo, the actions of the offender are not a mistake of youth as he is 53 years of age. The offender was part of a commercial enterprise of selling heroin, the hardest of drugs.

[51] There is no indication of remorse.

[52] In regards to the issue of lockdowns, I will exercise my discretion and provide an enhanced credit for time in lockdown, of 90 days. The substantial number of days on lockdown were not a result of any misconduct on the part of the offender.

[53] Accordingly, after taking into account all the credits the offender, Narankar Dhillon, is sentenced to a further one year and ten months in custody.

Ancillary Orders

[54] The offender is required to provide a DNA sample.

[55] A forfeiture order shall issue.

[56] The offender is prohibited from possessing any weapons for a period of ten years.

Bielby J. Released: January 13, 2017