Court File and Parties
Oshawa Court File No.: CR-17-14546 Date: 2019-03-15 Ontario Superior Court of Justice
Between: Her Majesty the Queen – and – Pankaj Bedi, Defendant
Counsel: Gregory J. Raven, for the Crown James L. Miglin, for the Defendant
Heard: January 8-10, 14-15, 21 and 25, 2019
Reasons for Sentence
Charney J.:
Overview
[1] On January 15, 2019, Pankaj Bedi re-elected to be tried by a judge alone, and was convicted of two separate counts of trafficking heroin (counts 4 and 7), two separate counts of trafficking fentanyl (counts 5 and 8), two separate counts of possession of proceeds of property (counts 6, 9) and one count of possession of heroin for the purposes of trafficking (count 10). Counts 1, 2 and 3 were dismissed on consent.
[2] On January 21, 2019, I granted the defence Application to conditionally stay the two counts related to trafficking fentanyl in accordance with the principle set out in R. v. Kienapple, [1975] 1 S.C.R. 729.
[3] On January 25, 2019, I heard sentencing submissions and reserved my decision until today.
Facts
[4] The conviction was based on an Agreed Statement of Facts which are summarized as follows:
[5] In August of 2016, Durham Regional Police believed that Pankaj Bedi was involved in trafficking heroin in the Oshawa area, and that he was supplying quantities of heroin to Bryan Lemieux.
[6] Police decided to use an undercover officer to attempt to approach Bryan Lemieux in an effort to further their investigation into Pankaj Bedi.
[7] On August 3, 2016, Detective Constable Smith was working undercover, and attended in an area believed to be near Lemieux’s apartment. At approximately 5:10 p.m., Lemieux exited a black Honda vehicle that parked in front of the building at 21 King Street West. Pankaj Bedi was driving the vehicle, and exited along with Lemieux. DC Smith passed himself off as a lost friend of Lemieux and began a conversation with him. Lemieux agreed to meet at another time, and gave DC Smith his phone number. Following this meeting, both Lemieux and Bedi entered the front door of 21 King Street West and went out of sight. The interaction between DC Smith, Lemieux and Bedi was recorded on surveillance video.
[8] On August 4, 2016, DC Smith texted the number that Lemieux had provided and asked if he would meet DC Smith along with his girlfriend (another undercover officer) at the Stag’s Head bar in Oshawa. DC Smith eventually spoke with Lemieux in a phone call and he agreed to come. During this meeting, DC Smith and the undercover officer had a staged conversation where she had to leave, and he provided money, expressing concern over who she was going to be meeting with.
[9] After she left, DC Smith told Lemieux that she used heroin and he was afraid she was getting “shit laced with fentanyl”. DC Smith and Lemieux continued conversing with each other, and Lemieux suggested they go outside for a smoke. When they got outside, Lemieux advised he would be able to arrange for a supply of heroin for DC Smith’s girlfriend, as Lemieux had a supplier, and gave DC Smith information about pricing. Lemieux said he could not be sure there wasn’t fentanyl in the heroin, but that DC Smith should wean his girlfriend on to the drug. Lemieux advised he could attempt to arrange for a purchase that evening, but later texted DC Smith and told him that tonight was “not good”. Lemieux did not provide any information to DC Smith as to who his supplier was during this meeting.
[10] On August 17, 2016, DC Smith had a text conversation with Lemieux and Lemieux advised that he could get heroin that evening. DC Smith asked in a phone call for two packages of heroin weighing .3 grams each. The agreed upon price was $140.
[11] At 3:56 p.m., Lemieux and DC Smith spoke in a phone call and Lemieux advised his supplier was good and would be ready in 20 minutes, and directed DC Smith to attend his apartment building at 21 King Street West. When he arrived, DC Smith was let into the building by Lemieux and went into Lemieux’s apartment. DC Smith stayed in the living room with Lemieux’s girlfriend while Lemieux attended the front door of his apartment, out of sight of DC Smith. There, Lemieux met with a male, returning shortly to DC Smith, with three clear plastic bags, two of which he gave to DC Smith. DC Smith excused himself from the apartment shortly after.
[12] At the time of this meeting, officers observed Pankaj Bedi attending 21 King Street West, and entering the front door to the building, before exiting a short time later. During this period, DC Davies recorded DC Smith attending the area of Lemieux’s apartment building, Bedi attending in the Honda vehicle and entering the front door of the apartment building, Bedi re-entering his vehicle and driving away, and DC Smith leaving the apartment building. The drugs were later weighed to be a total of 0.32 grams, and were analyzed by Health Canada to contain both heroin and fentanyl.
[13] On August 23, 2016, DC Smith agreed to buy 1 gram of heroin from Lemieux for an agreed price of $220. At 7:55 p.m., DC Smith attended Lemieux’s apartment. Lemieux again attended the front door to his apartment, out of sight of DC Smith, after there was a knock at the door. Lemieux returned 3 minutes later after having spoken with a male, and provided two packages of powder to DC Smith. While DC Smith was inside the apartment building, Bedi was again seen attending inside the building. Bedi was recorded attending the area of the apartment building in a white U-Haul truck, and walking towards the front door of the apartment building, and re-entering the truck.
[14] Immediately after leaving the area of Lemieux’s apartment building, Bedi was followed to the Hollywood Cone store on Simcoe Street, just North of King Street in Oshawa. He was recorded leaving the store. After Bedi left the store, DC Naccarato attended inside the store and retrieved $10 of the pre-recorded buy money that DC Smith had used to pay for the heroin he bought on August 23, 2016. The heroin was later weighed to be two packages of 0.45 grams each, and was analyzed by Health Canada as containing both heroin and fentanyl.
[15] On August 30, 2016, DC Smith agreed to buy 3.5 grams of heroin from Lemieux for $700. DC Smith went to Lemieux’s apartment at 4:33 p.m. Two minutes later, at 4:35 p.m., there was a knock at the door and Lemieux again spoke out of sight with a male voice, returning with 10 packages, which were provided to DC Smith. Bedi was again seen attending the apartment building during the time that DC Smith was present in Lemieux’s apartment. Mr. Bedi was recorded leaving the area of the Honda vehicle and attending the front door of 21 King Street West, where he waited for a brief period before being let inside the building. The ten packages were later weighed to be 3.58 grams and analyzed as containing both heroin and fentanyl by Health Canada.
[16] On October 7, 2016, Lemieux advised DC Smith that he would prefer if DC Smith dealt directly with his supplier. DC Smith, in a text conversation with Lemieux agreed to buy one ounce (28 grams) of heroin for $4,000. Lemieux told DC Smith that he could meet the supplier at his apartment. When DC Smith attended Lemieux’s apartment, he was introduced to Pankaj Bedi, who told DC Smith that he needed to meet his own supplier, but that each of Lemieux, Bedi and Smith would go to the meeting in Bedi’s vehicle and that Bedi would meet his own supplier before returning to his vehicle and completing the transaction. Bedi received the pre-recorded buy money from DC Smith. Bedi, Smith and Lemieux drove to the Walmart parking lot on Laval Drive in Oshawa and waited in the car. Once Justin Bellinger arrived in his white Audi, Bedi left his car and entered the passenger side of Bellinger’s vehicle. Shortly after entering the vehicle, police called the arrest of the occupants of the Audi.
[17] The buy money that was provided to Bedi was found in the pocket of the driver’s side door, next to Justin Bellinger, the driver of the Audi. No drugs were located on a brief search incident to arrest of Bedi and he was taken to 17 Division in Oshawa for a detailed search. During the detailed search, an ounce of heroin was found in a pocket sewn into the waistband of his dress pants. Also found was a package containing suspected drugs, secreted between the cheeks of his buttocks.
[18] The ounce of heroin that was located was analyzed by Health Canada to contain both heroin and fentanyl. The four grams of heroin that were found between Mr. Bedi’s buttocks were analyzed to contain heroin only.
Position of the Crown and Defence
[19] The Crown seeks a custodial sentence of 6 years, while counsel for Mr. Bedi submits that an appropriate sentence would be 2 - 4 years. Counsel agree that Mr. Bedi should receive 30 days credit for 20 days pre-trial custody. In addition, the defence submits that Mr. Bedi should receive 5 months credit for the 13 months Mr. Bedi was under strict house arrest.
Circumstances of the Offender
[20] Mr. Bedi is 39 years old. He has a college diploma in Business Information Systems, and worked for the Government of Ontario for 10 years. He has struggled off and on with addiction issues for approximately 10 years.
[21] Mr. Bedi lives with his common law spouse and their 18 month old son. He has a 7 year old daughter from a previous relationship, but was not involved in her life. His spouse spoke at the sentencing hearing and emphasized the close relationship that Mr. Bedi has with his son. He is an involved father, and the family is economically dependent on him.
[22] Mr. Bedi has worked for his spouse’s father for the last one and one/half years, installing insulation. His spouse’s father has provided a letter attesting to Mr. Bedi’s work ethic and his close relationship with and dedication to his son and the rest of the family. He confirms that Mr. Bedi will have a job to return to once his legal problems are resolved.
[23] Mr. Bedi has been undergoing opioid replacement therapy since May 2017 and has never had a positive drug test since October 28, 2016. His doctor confirms that he has been compliant with medications, drug testing and clinic visits.
Principles of Sentencing
[24] The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions: s. 718 of the Criminal Code. The following objectives must be considered in forming a just sanction:
(a) To denounce unlawful conduct; (b) To deter the offender and other persons from committing offences; (c) To separate offenders from society where necessary; (d) To assist in rehabilitating offenders; (e) To provide reparations for harm done to victims or to the community; and (f) To promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.
[25] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1 of the Code.
[26] A sentence must also take into account any aggravating or mitigating circumstances relating to the offence or the offender, as well as the sentences imposed on similar offenders for similar offences committed in similar circumstances: ss. 718.2(a) and (b) of the Code.
[27] It is well established that the paramount principles of sentencing with respect to the commercial trafficking of illicit drugs are denunciation and general deterrence. At the same time, it is incumbent upon me to consider all of the principles of sentencing contained in s. 718 of the Criminal Code, including rehabilitation.
[28] The cases reflect a number of considerations with respect to sentencing:
(a) The quantity of drugs seized, the motive for trafficking - whether profit, addiction, or both; (b) The existence and nature of any prior criminal record and the presence of weapons; (c) The offender’s position in the chain of sale or distribution - being higher up in the hierarchy is an aggravating factor; (d) Wilful blindness is not a mitigating factor, although, where an offender takes reasonable steps to ascertain the nature of the drug and is duped by his co-conspirators, this will serve as a mitigating factor (R. v. Sidhu, 2009 ONCA 81, at paras. 17 to 19); (e) The presence of duress may be a mitigating factor (R. v. Olvedi, 2018 ONSC 6330, at para. 113).
[29] Also relevant is s. 10 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, which adds the following:
- (1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.
The Kienapple Principle
[30] The Kienapple principle bars multiple convictions for two or more offences arising out of the same criminal act or transaction in circumstances where the essential elements of the offences are meant to cover the same wrong. In order for the Kienapple principle to apply, there must be both a factual and legal nexis between the charges.
[31] The Crown argued that the Kienapple principle did not apply, and, in the alternative, if one charge is to be stayed, it should be the charge of trafficking heroin. Even though trafficking in heroin and fentanyl are subject to the same maximum penalty, many courts have found that, generally, trafficking in fentanyl will attract a higher sentence than trafficking in the same quantity of heroin, because fentanyl is 20 times more powerful than heroin and fentanyl can be deadly even in miniscule amounts (R. v. Loor, 2017 ONCA 696, at para. 36).
[32] As indicated above, on January 20, 2019 I granted the defence motion to conditionally stay counts 5 and 8, which related to the trafficking of fentanyl, on the basis of Kienapple. At the time, I stated that I was following the analysis of Edwards J. in R. v. Jenkins, 2018 ONSC 5078, at paras. 37-52. The facts in Jenkins were very similar to the facts in this case: the packages seized contained a mixture of heroin and fentanyl (plus, in that case, caffeine). There was no evidence that the accused knew that the package contained fentanyl, and there was no evidence regarding the quantity of fentanyl contained in the package. Edwards J. concluded that a conviction could be entered for either heroin or fentanyl, but based on the Kienapple principle should not be entered for both. Given that there was no evidence regarding the quantity of fentanyl, he held that the fentanyl charge should be stayed.
[33] Edwards J. stated, at paras. 37 – 48, and 52:
There is no dispute that the law is clear that the Crown does not have to prove that an accused has knowledge of the exact drug named in the indictment, as long as it is established that the accused knew that the drug was a controlled substance, see R. v. Gill, 2017 ONSC 3258, at para. 21, per Fairburn J. (as she then was). Further, it is no defence that an accused’s honest belief that some other illegal drug was being trafficked and not the drug alleged and proven to be trafficked is no defence, see R. v. Johnson, 2017 ONSC 796, at para. 18, per Code J.
In this case, while the Crown did not have to prove that [the accused] knew that the substance in the package was both fentanyl and heroin, there can be no dispute that the factual delicts are identical. The charges against [the accused] are based on the one package found in the container. The charges are based on the same act of trafficking or possession for the purposes of trafficking in a controlled substance, and has the same mental element of intending to traffick in a controlled substance.
As noted by Green J. in R. v. Lemieux, 2017 ONSC 5465, at para. 52:
The factual delicts in this case are identical. The charges are based on the same act of trafficking in a controlled substance and the same mental element intending to traffick in a controlled substance. It was one single act with the same mental element and the Crown has not proven any additional mental element that Mr. Lemieux knowingly or was wilfully blind to trafficking in the more dangerous narcotic of fentanyl. Similarly, there are no additional or distinguishing elements such that the legal nexis is readily apparent. Each offence is designed to protect the same societal interest and the offences do not proscribe different consequences. Finally, there is no statutory provision in section 5 of the C.D.S.A. that specifically provides for multiple convictions arising out of the same delict.
In the result, in Lemieux Green J. determined that where two substances were combined in a single package and found to contain both fentanyl and heroin, the appropriate disposition was to enter a single conviction. On the facts before the court, the single conviction that was entered was with respect to trafficking in heroin and not trafficking in fentanyl.
I am satisfied that…a conviction could be entered for trafficking in either narcotic as against [the accused]. There is both a factual and legal nexis between both offences, and applying the Kienapple principle a conviction on one offence would preclude a conviction on the other.
There simply is no evidence before this court with respect to the quantity of fentanyl in the package that was analysed… There is no evidence that either [accused] knew that the 20 grams of the controlled substance was a mixture of heroin and fentanyl. There can be no dispute that both heroin and fentanyl are dangerous drugs. Fentanyl of the two, based on my review of the jurisprudence is by far the most dangerous, as its consequences can be deadly even in miniscule amounts.
In determining which of the two charges should be conditionally stayed, I adopt the reasoning of Green J. in Lemieux at para. 59, where he states:
The Crown did not call expert evidence or provide an expert’s report to address the obvious weaknesses with the Certificates of Analysis. It is equally plausible that the fentanyl found in the substance was a trace amount as it is that it was a more significant quantity. It is incumbent on the Crown to present fulsome evidence to address these deficiencies in the Certificates of Analysis…
If I had evidence as to the quantity of fentanyl found in Exhibit 2, I would, if the quantity was anything other than a trace amount, have had no hesitation in entering a conviction for trafficking in fentanyl or possession of the purposes of trafficking in fentanyl. I would have stayed the convictions as they relate to the heroin counts. The Crown tendered no evidence as it relates to the quantity of fentanyl found in the drugs seized. In future, where charges are laid in relation to one package found to contain both heroin and fentanyl, I would expect the Crown to request evidence from Health Canada that delineates, if possible, the quantity of heroin and fentanyl found in the package. In this case, I am left to guess as to the amount of fentanyl and guessing counts for nothing in the criminal context. In the end result, because the quantity of the fentanyl is unknown - as reflected in Exhibit 2, I am staying the convictions as it relates to the charges concerning fentanyl.
[34] As indicated, I wholly adopt this analysis.
[35] I note, incidentally, that the Lemieux case relied on by Edwards J. relates to the same Mr. Lemieux referred to in the facts of this case and arises from the same facts set out above.
Aggravating and Mitigating Factors
[36] Until the arrival of fentanyl on the illegal drug market, heroin had been consistently characterized as the most dangerous and addictive of hard drugs. In R. v. Persaud, 2014 ONSC 6577, at paras. 10 and 11, Nordheimer J. stated:
[L]est there be any doubt about it, heroin represents the worst of the hard drugs…Time and again, this court and the Supreme Court of Canada have made it clear that heroin is the most pernicious of the hard drugs – it is the most addictive, the most destructive and the most dangerous. Heroin trafficking has been described as a “despicable” crime that “tears the very fabric of our society.
[37] See also: Pushpanathan v. Canada, [1998] 1 S.C.R. 982, at para. 79; R. v. To, [1998] O.J. No. 6425, at para. 15.
[38] Persons who traffic in heroin “are to be dealt with severely and must expect to receive a penitentiary range” (R. v. To, at para. 15).
Presence of Fentanyl as an Aggravating Factor
[39] Since the relatively recent arrival of fentanyl on the illegal drug market, and the recognition that fentanyl is 20 times more powerful than heroin, fentanyl has been seen as a more dangerous drug than even heroin. As noted above, fentanyl can be deadly even in miniscule amounts.
[40] In R. v. Smith, 2017 BCCA 112, at para. 48, the British Columbia Court of Appeal referred to: “the public health crisis caused by unintentional overdosing by people who use drugs, particularly since typically they do not know that the drugs they are consuming contain fentanyl”. The Court stated, at paras. 48 and 65:
[F]entanyl is a scourge. It poses intolerable risks of accidental overdosing because it is so much more powerful than morphine. Illegally manufactured fentanyl can be particularly and unpredictably potent, even tiny amounts of fentanyl mixed into other drugs such as cocaine or heroin may be fatal; often street drugs have fentanyl cut into them, and it is practically impossible for drug users to recognize whether the drugs they buy contain fentanyl.
In sum, the continuing escalation in the number of fentanyl-detected deaths, the enormity of the total numbers of accidental overdosing, the increasing percentage of fentanyl detected deaths as a proportion of the total, and the currently ubiquitous awareness of the risks posed by illicit fentanyl, in combination, justify a recognition of a very substantial increase in the sentencing range applicable to street-level dealing in fentanyl.
[41] In Loor, the Ontario Court of Appeal noted, at para. 33:
[F]entanyl is a highly dangerous drug. Its widespread abuse, though recent, has quickly become entrenched in our country. Every day in our communities, fentanyl abuse claims the lives of Canadians.
[42] The evidence regarding the impact of fentanyl was also recently reviewed in great detail by Petersen J. in R. v. Olvedi, 2018 ONSC 6330, at paras. 12-48. After reviewing a number of decisions, she stated at paras. 14 – 15:
In recent years, daily news reports have covered the alarming opioid crisis in our country. Fentanyl, in particular, has assumed centre stage in the unfolding tragedy. A number of courts have found that, every day in cities across Canada, fentanyl use is resulting in overdoses and fatalities. It is ravaging communities and claiming lives …
Evidence of the devastating impact of fentanyl in other communities across Ontario has been documented in several recent sentencing cases…(Citations omitted).
[43] While the fentanyl related charges against the accused have been conditionally stayed under the Kienapple principle, the Crown argues that even trace amounts of fentanyl qualify as an aggravating factor to be considered in sentencing.
Justice Green, in his decision [in Lemieux], goes on in paragraph 59 to state: “As such, the Crown will be significantly curtailed when relying on fentanyl being found in the heroin as an aggravating factor during the sentencing”.
While I agree with the ultimate disposition of Green J. in Lemieux, I do disagree that the Crown should be significantly curtailed when relying on fentanyl being found in the heroin as an aggravating factor during sentencing. I say this because there can be no dispute that fentanyl is a highly potent drug, which regardless of its quantity when mixed with heroin will present a significant hazard to the unwary drug user on the street. The comments of Pearlman J. in R. v. Naccarato, 2017 BCSC 645, at para. 37, are apropos as it relates to the issue of the presence of fentanyl in the heroin as an aggravating factor:
Here, Ms. Naccarato knew she was transporting heroin, but was not aware that the heroin had been laced with fentanyl. However, in my view, her lack of specific knowledge that the heroin contained fentanyl is not a mitigating factor. The Crown and defence agree and I have found that at the time of the offence, Ms. Naccarato was aware that heroin could be laced with fentanyl. Ms. Naccarato was aware she was transporting an illegal drug that could be adulterated with fentanyl. Her ignorance about whether or not the heroin contained fentanyl did nothing to ameliorate the risk of overdose to anyone who purchased the drugs.
While I have no evidence that either [accused] knew that the heroin contained fentanyl, whether in a trace amount or otherwise, their possible lack of knowledge is irrelevant. Both chose to participate in an enterprise that regardless of their specific knowledge of the fentanyl must be seen as highly dangerous to the end user. The end user is usually an addict. The end user is in need of the drug to deal with their addiction. The end user assumes that the drug that they are using is the drug that they had purchased. It is highly unlikely that the end user would be seeking to purchase a concoction that contained an unknown amount of fentanyl that could have deadly consequences. At best, [the accused] could be said to be wilfully blind to the existence of the fentanyl found within the heroin. The fact that fentanyl was found within the heroin is, in my view, an aggravating factor that does not need to be proven by the Crown…
[45] Edwards J.’s decision in this regard is consistent with the decision of Ratushny J. in R. v. Joumaa, 2018 ONSC 317, at para. 19:
In the context of the illicit drug scene in Canada at this time and the ever-present possibility that a powder or pill being sold may contain some amount of fentanyl, it seems to me that sellers, buyers and users of most kinds of illicit drugs are placing themselves in a situation not that dissimilar from their pointing a gun and firing it without knowing if it’s loaded, not unlike the dangerous game of chance called Russian roulette. The consequences of involvement in the illegal drug trade are now potentially fatal.
[46] I adopt Edwards J.’s conclusion that the fact that fentanyl is found in the heroin is an aggravating factor to be considered in sentencing.
[47] In this case there was no evidence that the accused took any reasonable steps to ascertain the nature of the drug or that he was duped by his supplier.
Mitigating Factors
[48] While Mr. Bedi did not plead guilty, he did agree to an agreed statement of facts that resulted in a guilty verdict and avoided the necessity of a trial. While this was an eleventh hour plea, I understand that he could not agree to the facts that resulted in his conviction until his challenge to the constitutional validity of the strip search was decided. While I rejected this challenge, Mr. Bedi had the right to raise this issue and he should not be denied the benefit of this mitigating factor because he raised this issue. His acceptance of the agreed statement of facts, while not quite a guilty plea, did demonstrate a certain acceptance of responsibility for his actions.
[49] In his elocution Mr. Bedi displayed genuine remorse for his participation in heroin trafficking. He explained that he engaged in these activities while he was a heroin addict, without any real consideration of the consequences, because the addiction prevented him from thinking of the consequences. His arrest and detention was a wake-up call, and he is now sorry and ashamed of his conduct. Since being on bail, his son was born and he has turned his life around because he does not want his family to be affected by his actions. He knows that he cannot get into trouble again.
[50] Mr. Bedi’s statement of remorse is backed up by the report from his doctor, which confirms that he has been clean for two years. It is also supported by statements from friends and family who comment on the positive changes that Mr. Bedi has made in his life since his arrest and release on bail. If Mr. Bedi continues on the present trajectory, he is an excellent candidate for rehabilitation.
[51] It is clear that Mr. Bedi has suffered from addiction issues over the years and this appears to have been his primary motivation for trafficking drugs. He appears to be a classic addict/trafficker in this regard.
[52] As indicated above, Mr. Bedi has maintained a steady job for the last eighteen months and has been clean since his arrest over two years ago.
[53] He has also been compliant with his bail conditions since his arrest.
Aggravating Factors
[54] The primary aggravating factor in this case is the amount of heroin seized by the police when Mr. Bedi was arrested. One ounce (28 grams) of heroin commonly attracts sentences in the five to eight year range. Three to four years for less than five grams is not uncommon.
[55] Mr. Bedi might be described as a mid-level trafficker. He was one rung up the ladder from Mr. Lemieux (who was not charged in relation to the ounce, and received a sentence of 20 months less credit for pre-trial custody), and one rung down the ladder from Mr. Bellinger. Mr. Bedi had to obtain the ounce of heroin from Mr. Bellinger. A search of Mr. Bedi’s residence following his arrest did not disclose any other drugs or drug paraphernalia to suggest that he was higher up in the drug distribution scheme or that he commonly had possession of that quantity of heroin.
[56] Mr. Bedi does have a prior criminal record for possession of property obtained by crime in 2010 (suspended sentence followed by 2 years’ probation), unauthorized possession of a prohibited or restricted weapon in 2011 (suspended sentence followed by 2 years’ probation), and assault in 2014 (26 days and 18 months’ probation). None of these crimes are drug related, and none resulted in a penitentiary term.
[57] I remind myself of the direction provided by Rosenberg J.A. in Regina v. Borde (2003), 63 O.R. (3d) 417, that a “first penitentiary sentence should be as short as possible”.
Credit for Restrictive Bail Conditions
[58] In R. v. Downes, 79 O.R. (3d) 321, the Court of Appeal confirmed that some mitigating credit should generally be given to an offender who has spent a long time under house arrest and that it is incumbent on the sentencing judge to explain why he or she has decided not to take pre-sentence house arrest into account. The Court stated, at para. 29:
Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistent with the fundamental principle of the presumption of innocence. House arrest is a form of punishment, albeit of a different character than actual incarceration.
[59] The Court concluded, at para. 34:
[I]t is inappropriate to adopt a rigid formula because there can be such a wide variation in bail conditions and even house arrest conditions. In some cases, the terms of the house arrest may impinge very little on the offender's liberty. Some accused may be allowed to work as usual, take care of their family obligations as usual and in general, see little serious impact on their pre-bail way of life. For others, house arrest may be very difficult. The accused may find themselves essentially confined to a very small space, cut off from family and friends and unable to obtain employment.
[60] The Court summarized the principles for approaching credit for pre-trial bail conditions at para. 37:
- Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor.
- As such, the trial judge must consider the time spent on bail under house arrest in determining the length of sentence.
- The failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle.
- The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply.
- The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender's liberty; the ability of the offender to carry on normal relationships, employment and activity.
- Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code.
[61] I have not been provided with any evidence regarding the impact or hardship of 13 months of house arrest and 15 months of curfew on Mr. Bedi. Nonetheless, I accept that there was a significant restriction on Mr. Bedi’s liberty during the house arrest. As indicated above, counsel for the defense takes the position that the defendant should receive 5 months credit for the house arrest and an additional month for the curfew period. The Crown has taken no position on this issue.
[62] While there is no formula that the court is required to apply, it is helpful to see how other courts have approached this issue in similar circumstances. See: R. v. Fenton, 2017 ONSC 5945, at para. 32 and cases cited therein, which states: “For bail involving house arrest, credit of one day for every four to 4.5 days is not uncommon.”
[63] In R. v. K.M., 2017 ONSC 4769, at para. 25, K.L. Campbell J. accepted the defence counsel submission that a credit of approximately one day in custody for every four days that the accused was subject to “house arrest” was appropriate.
[64] In R. v. Ebanks, April 28, 2016, unreported, Salmers J. provided two months credit for five months house arrest and 20 months curfew for a 25 year old offender convicted of possession of 11 grams of cocaine for the purposes of trafficking.
[65] While credit should be given for Mr. Bedi for his house arrest, I am not prepared to provide any credit with respect to the period covered by the curfew. The evidence indicates that Mr. Bedi was able to maintain employment during this period, and while no doubt his curfew was inconvenient, there is no evidence that it presented real hardship or restriction on his liberty.
[66] In the circumstance of this case, the custodial sentence that would otherwise have been imposed on Mr. Bedi will be reduced by three months as credit for the period that he was under house arrest.
Conclusion
[67] Mr. Bedi, in the result I sentence you to four years in the penitentiary for trafficking heroin.
[68] You will receive one month credit for your time in pre-trial custody, and three months credit for the period you were under house arrest, for an effective sentence of 44 months.
[69] There will be ancillary orders under s. 109 prohibiting the possession of firearms and other weapons as cited therein for 10 years, to provide a DNA sample under s. 487.051 and forfeiture of the items seized at the time of your arrest.
Justice R.E. Charney
Released: March 15, 2019
