R. v. Selvaratnam 2018 ONSC 3135

COURT FILE NO.: CR-17-90000742-0000

DATE: 20180518

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Arielle Elbaz for the Public Prosecution Service of Canada

• and -

KARTHICK SELVARATNAM

Michael A. Leitold for Karthick Selvaratnam

HEARD: May 10, 2018

REASONS FOR SENTENCE

CORRICK J. (orally)

Introduction

1Mr. Selvaratnam pleaded guilty before me on May 10, 2018 to two counts of possession of cocaine for the purpose of trafficking, and one count of possession of heroin for the purpose of trafficking. He appears before me today for sentencing.

Circumstances of the Offences

2The charges arise from two discrete events. The first occurred on November 28, 2013 in the Township of Dambrossio in the District of Algoma. Mr. Selvaratnam was a passenger in a car that was stopped for speeding by the Ontario Provincial Police on Highway 17. Investigation of Mr. Selvaratnam revealed that he was in possession of two pieces of luggage and three duffel bags containing 30.2 kilograms of marijuana and 479 grams of cocaine. He was also in possession of $1,340 in Canadian currency.

3The second event occurred on December 30, 2015 when Toronto Police Service officers executed a search warrant at 250 Davenport Road, Apt. 101. At the time, Mr. Selvaratnam was found in possession of a black gym bag containing 274.70 grams of cocaine, both in powder form and crack, and 69.78 grams of heroin. Police also seized scales and other drug paraphernalia, as well as $1,050 in Canadian currency.

Legal Parameters

4Possession of cocaine and possession of heroin for the purpose of trafficking are punishable by a maximum of life in prison. The maximum penalty reflects the seriousness with which Parliament regards these offences.

Positions of the Parties

5Ms. Elbaz, on behalf of the Crown, submits that a 7½ year prison sentence is the appropriate disposition in this case. She also seeks forfeiture of the Canadian currency seized from Mr. Selvaratnam, a DNA order, and a lifetime weapons prohibition order. I signed the forfeiture order on May 10, 2018.

6Mr. Leitold, on behalf of Mr. Selvaratnam, submits that the court ought to credit Mr. Selvaratnam with four years and seven months for the time he has spent in pre-trial custody and for the harsh conditions he has endured during that time. Mr. Leitold submits that no further custodial sentence should be imposed. Rather, sentence should be suspended, and Mr. Selvaratnam should be placed on probation for twelve to eighteen months. In the alternative, Mr. Leitold submits that a further period of three to six months in custody should be imposed, and consideration given to permitting Mr. Selvaratnam to serve that sentence on an intermittent basis.

7Mr. Selvaratnam does not contest the imposition of the ancillary orders sought by Ms. Elbaz.

Governing Sentencing Principles

8In determining a fit sentence for Mr. Selvaratnam, I am governed by the sentencing principles set out in the Criminal Code.

9The first is the fundamental purpose of sentencing set out in s. 718 of the Criminal Code, which is to "contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society" by imposing sentences that have one or more of the following objectives:

1. denouncing unlawful conduct,
2. deterring the offender and others from committing crimes,
3. separating offenders from society where necessary,
4. assisting in the rehabilitation of the offender,
5. providing reparations for harm done to the victim or to the community,
6. promoting a sense of responsibility in the offender, and
7. acknowledging the harm done to victims and the community.

10The second principle is proportionality as set out in s. 718.1. Any sentence I impose must be proportionate to the gravity of the offence and the responsibility of the offender.

11I am also required by s. 718.2 to take the following matters into consideration when imposing sentence:

• the sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
• where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
• the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
• offenders should not be deprived of liberty if less restrictive sanctions may be appropriate; and
• all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.

Circumstances of the Offender

12Mr. Selvaratnam is 31 years old. He was born in India, and came to Canada with his parents in 1993. His parents opened a restaurant in Toronto, which ultimately failed, causing a significant amount of tension between them. His parents divorced, and his father left the family. Mr. Selvaratnam and his sister were then raised by his mother.

13Mr. Selvaratnam has not completed high school. In 2008, he attended Seneca College in a General Arts and Science program, but he did not complete it. His goal is to attend a culinary arts program at college upon his release from prison.

14Mr. Selvaratnam has a son, who was born in September 2015. Sadly, the child’s mother is addicted to drugs. Mr. Selvaratnam’s mother is his son’s legal guardian. This has placed a great deal of stress on Mr. Selvaratnam’s mother, who suffered a major stroke in 2013 and has significant mobility issues. A letter from Mrs. Selvaratnam, filed as an exhibit, describes the difficulties she has coping with the physical demands of a toddler.

15Mr. Selvaratnam has the following criminal record.

April 5, 2007 Possession of a Schedule I substance for the purpose of trafficking 18 months conditional sentence order + 12 months probation

March 3, 2010 Unauthorized possession of a firearm 5 months (12 months, 15 days pre-sentence custody)

16In 2010, Mr. Selvaratnam began using illicit drugs. At the time of his arrest in December 2015, he was using heroin, Percocet, marijuana and cocaine. He has abstained from drugs while in detention, despite having received no programming or counselling for his addiction.

17Mr. Selvaratnam has spent 878 days in pre-trial custody. He was in custody for seven days after being arrested in 2013, and has been in custody since his arrest on December 30, 2015 – 871 days. This time has not been easy for Mr. Selvaratnam. He has not had any physical contact with his son since December 2015.

18In addition, records filed from the Toronto South Detention Centre indicate that Mr. Selvaratnam was subjected to lockdowns for about 40% of the time he has been in custody. In the vast majority of the cases, the stated reason for the lockdowns was staff shortages at the institution. During lockdowns, Mr. Selvaratnam was confined to his cell 24 hours a day, without access to fresh air, exercise, showers, shaves or telephones. He was unable to have visits with his family, or even his lawyer. Programming that would ordinarily be available to him was not available during lockdowns.

Sentences Imposed in Other Cases

19To determine the appropriate disposition, I must consider sentences imposed on similar offenders for similar offences in similar circumstances. I turn to that now.

20I have reviewed the decisions to which Ms. Elbaz and Mr. Leitold have referred in support of their positions. A careful review of them demonstrates that sentencing is not an exact science. It is instead a profoundly individualized process driven by the unique facts of every offence and the unique characteristics of every offender. The circumstances of any case, including this one, can be readily distinguished from any other case. Despite this, prior decisions assist in defining the principles that I must apply, and in determining the appropriate range of sentence and the factors that place Mr. Selvaratnam within that range.

21The decisions make it clear that people who possess substantial quantities of dangerous drugs, like cocaine and heroin, for the purpose of trafficking can expect to receive lengthy prison sentences. This is necessary to achieve the sentencing objectives of denunciation and deterrence, which are paramount in this case.

22The Ontario Court of Appeal, in two decisions, made general statements about the appropriate range of sentence for cases involving the possession of substantial amounts of cocaine for the purpose of trafficking.

23In R. v. Bajada,¹ the court noted that sentences of five to 5½ years were ordinarily imposed in cases involving possession of substantial amounts of cocaine for the purpose of trafficking even in cases where the offender pleaded guilty or had no prior criminal record.

24Similarly, in R. v. Bryan² the Ontario Court of Appeal noted that the normal range of sentence for a first offender convicted of possession of slightly more than a pound of cocaine for the purpose of trafficking is between five and eight years.

25Mr. Leitold referred me to a number of cases in which sentences shorter than five years were imposed. In R. v. Ceballos,³ Justice MacDonnell sentenced a first offender found guilty of possessing 326 grams of cocaine to 2½ years.

26In R. v. Nguyen,⁴ Justice Woollcombe imposed the maximum reformatory sentence on an offender found guilty of possession of 182 grams of crack cocaine and 424 grams of marijuana for the purpose of trafficking. Mr. Nguyen was also found guilty of trafficking in 28 grams of crack cocaine and 200 grams of marijuana.

27In R. v. Sanchez,⁵ Justice Dunphy sentenced an offender after trial to 4½ years for possessing 1.043 kg. of cocaine, 1.8 kg. of marijuana, 577.59 grams of psilocybin, and 112 tablets of oxycodone, all for the purpose of trafficking. Mr. Sanchez was a 32-year-old first offender with a strong work ethic, excellent prospects for rehabilitation and tremendous family and community support.

28In R. v. Fisher,⁶ Justice Bourgeois sentenced a 19-year-old first offender to 57 months on nine counts related to the possession of firearms and the possession of a variety of substances for the purpose of trafficking, including 457 grams of cocaine, 71 tablets of fentanyl, and 14.4 grams of heroin.

29As I have already indicated, no two offences or offenders are the same, and it is difficult to compare this case to any other. Many of the cases referred to by Mr. Leitold involve first offenders, smaller quantities of drugs, or single occurrences of possession. These circumstances are different than Mr. Selvaratnam’s circumstances, which are more serious.

Aggravating and Mitigating Factors

30I turn now to the aggravating and mitigating factors of this case, which I am required to consider.

31First the aggravating features.

1. Mr. Selvaratnam was in possession of large quantities of two different and dangerous controlled substances – heroin and cocaine. Both drugs are poisons that wreak havoc on the lives of addicts, their families and the community at large. Our courts have recognized on numerous occasions the immeasurable harm cocaine does to the fabric of our society.⁷
2. Mr. Selvaratnam was on bail for the 2013 offence of possession of cocaine for the purpose of trafficking when he committed the same offence in 2015.
3. Mr. Selvaratnam has a criminal record, including a conviction in 2007 for possession of cocaine for the purpose of trafficking. Although the conviction is dated, it appears that the leniency shown Mr. Selvaratnam at the time did not have the desired rehabilitative and deterrent effects.

32I have also considered the following mitigating factors.

1. Mr. Selvaratnam has taken responsibility for these offences. He has pleaded guilty. He told me that he regretted his actions, and the pain and grief he has caused the community, his mother and his son. He is anxious to put this behind him, and move on with his life. I take him at his word. The fact that he has pleaded guilty, taken responsibility, and shown remorse, augurs well for his rehabilitation.
2. He has the support of his mother. His mother attended his court appearance when he pleaded guilty before me. Despite her mobility issues, she has taken her grandson to see Mr. Selvaratnam in jail when he was allowed to have family visits. In her letter to the court, she wrote that she believes that becoming a father has caused Mr. Selvaratnam to want to change his life style. I hope that this is so. I am mindful, however, that Mr. Selvaratnam committed the 2015 offences only three months after the birth of his son.
3. Mr. Selvaratnam has demonstrated the ability to achieve some goals when he sets his mind to it. He has abstained completely from drugs since December 2015. That is a significant accomplishment. It is no secret that illicit drugs are available in prisons.

33Mr. Leitold argued that the court ought to consider Mr. Selvaratnam’s relative youth as a mitigating factor. I cannot accept that. Mr. Selvaratnam was 26 years old in 2013, and 28 in 2015. These were not offences committed by a teenager exercising poor judgment as in the case of R. v. Fisher⁸ and R. v. Borde.⁹ Mr. Selvaratnam was an adult, and in 2015, the parent of a newborn child.

34Mr. Leitold also argued that Mr. Selvaratnam’s role in this drug trafficking enterprise was one of courier, which carries with it the highest risk of detection. In that sense, Mr. Selvaratnam was a pawn in the drug trade. This too should be considered by the court in mitigation. There is no evidence that Mr. Selvaratnam was merely a courier. There is no evidence about his place in the commercial drug hierarchy. Notwithstanding the absence of evidence on this point, the quantity of drugs in Mr. Selvaratnam’s possession on both occasions was significantly higher than amounts typically found in street level trafficking.

What is the Fit Sentence?

35As I have already indicated, the paramount sentencing objectives in cases involving large amounts of cocaine and heroin are denunciation and deterrence. Rehabilitation, however, must not be overlooked.

36I cannot accede to Mr. Leitold’s submission that a suspended or intermittent sentence is appropriate in this case, even after Mr. Selvaratnam is given credit for the time he has spent in harsh conditions in pre-trial custody. In my view, such a sentence is below the range of sentence for the possession of large quantities of dangerous drugs for the purpose of trafficking.

37After considering all of the circumstances of this case, and the relevant sentencing principles, I have concluded that a total sentence of six years before credit for time spent in pre-trial custody in harsh conditions is appropriate. This sentence is proportionate to the gravity of the crimes committed by Mr. Selvaratnam and his degree of responsibility. It also recognizes his guilty plea and his potential for rehabilitation. Were it not for his guilty plea, the sentence suggested by Ms. Elbaz would have been the appropriate disposition.

38Mr. Selvaratnam will be given credit for the time he has spent in pre-trial custody, pursuant to s. 719.3 of the Criminal Code. He has served 878 days. Enhanced at 1.5 days for each day he has spent in pre-trial custody, Mr. Selvaratnam will be credited for 1,317 days or 43 months, 1 week.

39In certain circumstances, the court may consider harsh pre-sentence incarceration conditions when determining the appropriate sentence.¹⁰ There is no mathematical formula for doing so. I have already outlined the harsh conditions at the Toronto South Detention Centre. Mr. Selvaratnam’s affidavit outlines how being locked down in a cell for 318 days has affected him. Mr. Selvaratnam was not responsible for any of the lockdowns.

40Based on the evidence before me, I am prepared to credit Mr. Selvaratnam with a further nine months for the harsh conditions he has experienced while in pre-sentence custody in the Toronto South Detention Centre.

41In conclusion, Mr. Selvaratnam is sentenced to a total sentence of six years less 43 months and one week for the time he has spent in pre-sentence custody in accordance with s. 719.3 of the Criminal Code, and less a further nine months for the harsh conditions he has endured during that time, in accordance with R. v. Duncan. In total, I have credited Mr. Selvaratnam 52 months and one week. Once the credit is deducted from the total six-year sentence, Mr. Selvaratnam is required to serve a further 19 months, 3 weeks.

42The sentence will be recorded as follows.

Count 1 – 2013 – possession cocaine for the purpose of trafficking – 3 years

Count 2 – 2015 – possession cocaine for the purpose of trafficking – 3 years consecutive to count 1

Count 3 – 2015 – possession heroin for the purpose of trafficking – 3 years concurrent to counts 1 and 2

43In addition, Mr. Selvaratnam will be placed on probation for a period of one year. In addition to the statutory terms, he will reside at an address approved of by his probation officer, will not possess any weapons, will take any counselling for vocational or addiction issues directed by his probation officer, and sign any releases necessary to permit his probation officer to monitor his compliance with this condition.

Ancillary Orders

44I make the following additional orders, on consent.

45Pursuant to s. 109 of the Criminal Code, Mr. Selvaratnam is prohibited from possessing any weapon described in that section for life.

46Pursuant to s. 487.051(3), Mr. Selvaratnam will provide a sample of a bodily substance for the purpose of forensic DNA analysis.

Corrick J.

Footnotes

1. 1(2003), 2003 15687 (ON CA), 173 C.C.C. (3d) 255, at para. 13
2. 22011 ONCA 273
3. 32015 ONSC 720
4. 42016 ONSC 1286
5. 52018 ONSC 1294
6. 62017 ONCJ 831
7. 7See for example, R. v. Cunningham, (1996) 1996 1311 (ON CA), 104 C.C.C. 542 (Ont. C.A.); R. v. Hamilton, (2004) 2004 5549 (ON CA), 186 C.C.C. (3d) 129 (Ont. C. A.); R. v. Woolcock [2002], O.J. No. 4927 (C.A.)
8. 8Supra note 6.
9. 9(2003), 2003 4187 (ON CA), 63 O.R. (3d) 417 (Ont. C.A.)
10. 10R. v. Duncan, 2016 ONCA 754