Court File and Parties

COURT FILE NO.: 18-G5304 DATE: 2021-01-21

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SAHIL CHADHA Accused

Counsel: Ashley Geerts, for the Crown Leo Russomanno, for the Accused

Sentence Decision C.T. Hackland, J.

Introduction

[1] The accused, Sahil Chadha, entered a plea of guilty to one count of possessing proceeds of crime of a value not exceeding $5000 contrary to section 355(b) of the Criminal Code of Canada and three count of possession for the purpose of trafficking of Schedule 1 substances, specifically cocaine and crack cocaine, contrary to the Controlled Drugs and Substances Act, SC 1996, c.19.

[2] Counsel have jointly proposed a sentence of two years less a day. However, the Crown submits that this sentence should be served by formal incarceration whereas the defendant submits that a conditional sentence to be served in the community would be appropriate.

Circumstances of the Offences

[3] Beginning in February 2018, the Ottawa police drug unit conducted surveillance on Mr. Chadha intermittently over a five-week period and observed him engaging in activity consistent with drug trafficking, i.e. short meetings in his vehicle with various persons throughout the city. On April 27 of 2018 surveillance was re-established and Mr. Chadha was observed engaging in two separate suspected drug transactions out of his vehicle. He was arrested during the second transaction during which officers observed open packaging containing cocaine between his legs in the front seat of his vehicle, along with a stack of money protruding from his pocket. He was released at that time on a promise to appear.

[4] The following items were seized incidental to this arrest:

• 6.3 g of cocaine
• 1.85 g of crack cocaine
• cash in the sum of $4430 (CAD)
• three functioning cell phones
• a black pocket knife

[5] A year later, on May 31, 2019 the Ottawa police drug unit spotted Mr. Chadha apparently engaging in a drug meet out of his motor vehicle and placed him under surveillance. He engaged in a total of five separate suspected drug meets in a forty-minute period. Officers approached his vehicle and noted that the accused was in possession of several plastic bags containing cocaine or crack cocaine. The following items were seized when the accused was searched incidental to his arrest:

• 67.4 grams of crack cocaine
• 44.3 grams of cocaine
• 46 capsules of hydromorphone
• 22.3 ml. of hydrocodone
• $880 (CAD) cash
• 4 cell phones
• a functioning digital scale
• empty dime bags

Circumstances of the Offender

[6] The court has limited information about Mr. Chadha. There is no pre-sentence report. He is 26 years of age, single, and resides with his father. He does not have a criminal record. He is in good health, although a doctor’s letter has been furnished on his behalf stating “recommend to avoid in person classes due to medical reasons. Patient has a history of asthma which can be a risk factor for severe symptoms if he contracts COVID-19 virus.”

[7] The accused has also supplied a letter dated November 20, 2020 from a construction company saying they are impressed with Mr. Chadha and would be pleased to offer him employment as a labourer should he be allowed to serve his sentence in the community. There is also a letter from Mr. Chadha’s father which expresses concerns about the coronavirus and his son’s asthma and about how the stress of a jail sentence could cause or aggravate previously unexplained mental health problems his son has had in the past. The father says his son is very intelligent and wants to improve his education in order to succeed and has developed a relationship with a partner who is a very positive influence.

Aggravating Factors

[8] The accused is a street level and possibly mid-level commercial drug trafficker. He is not an addict attempting to support his own habit. He displayed a level of sophistication in his drug dealings. At the time of his second arrest he had in his possession four cell phones and a functioning digital scale. On his first arrest he was carrying $4430 in cash.

[9] The accused has shown an apparent commitment to continuing and escalating his drug trafficking activities. The circumstances of his second arrest, while he was on judicial interim release, indicate that he had resumed and expanded his activities.

[10] The quantum of drugs seized from the accused upon his second arrest includes 67.4 gm of crack cocaine, 44.3 gm of cocaine and various narcotic medications. The quantity of crack cocaine is considerable and the breadth of his drug supply is also concerning.

[11] There is no track record of employment or of any positive community engagement or apparent effort to further his education.

Mitigating Factors

[12] The accused has pled guilty thereby signaling an acceptance of responsibility. This is recognized as a factor of significance in the case law.

[13] The accused has no criminal record.

[14] He has solid family support and would be under appropriate supervision by his father, in the family home, if he serves his sentence in the community.

[15] The accused has a viable offer of employment.

Sentencing Principles and Conditional Sentences

[16] The cases submitted by each counsel satisfy me that the duration of the proposed sentence in the joint submission - two years less one day - is within the range reflected in the case law and indeed is at the upper end of that range, and appropriately so, given the aggravating factors in this case. I refer to the commercial nature of the accused’s activities, the quantity of crack cocaine involved as well as the circumstance that the accused continued and apparently escalated his drug trafficking activities after his first arrest. I am also satisfied that a conditional sentence is a potentially appropriate sentence in spite of the aggravating factors that exist in this case.

[17] In R. v. Woolcock, (2002) O.J. No. 4927, the Court of Appeal observed (at para. 15) that the range of sentence for this type of offence appears to be six months to two years less a day. The court also made these observations concerning the approach to sentencing in cases of trafficking in crack cocaine:

[8] There is no disputing that crack cocaine is an extremely dangerous and insidious drug with potential to cause a great deal of harm to individuals and to society. Likewise, possession of crack cocaine for the purpose of trafficking is a serious offence warranting emphasis on the principles of deterrence and denunciation. However, when sentencing an offender convicted of such an offence, it is incumbent on the trial judge to consider all of the principles of sentencing - including the accused's prospects for rehabilitation. Section 718 of the Criminal Code directs a sentencing judge to consider the full panoply of sentencing objectives, including, but not limited to, assisting in the rehabilitation of offenders.

[18] I also accept the guidance of Hill, J. in R. v. Williams, 2010 ONSC 3904, where he observes (at para 17), “as a general rule, denunciation and general deterrence are the paramount sentencing principles in instances of commercial trafficking”. (citations omitted).

[19] The Supreme Court in R. v. Proulx, 2000 SCC 5, 2000 1 SCR 61, held that in order for a conditional sentence to be available, there are four essential considerations: the court must be satisfied that the sentence imposed should be less than two years and that the statutory conditions for a conditional sentence have been met (no minimum term of imprisonment, and the offence is one for which a conditional sentence may be imposed). Finding as I do in the present case that these criteria are met, there are two remaining critical issues that must be canvassed:

i. Whether a conditional sentence will endanger the safety of the community; and, ii. Whether the sentence is consistent with the fundamental purpose and principles of sentencing.

[20] The Crown’s submission is that imposition of a conditional sentence could indeed endanger the safety of the community if Mr. Chadha were to once again start dealing crack cocaine as he did following his first arrest. However, I do not think that is likely with a house arrest arrangement in which his father is his supervisor and what I take to be his current appreciation of the jeopardy he would be in if he re-engaged in drug trafficking. Moreover, the interests of the community may be best served by promoting the rehabilitative potential of this relatively young first offender, by facilitating his pursuit of further education or at least encouraging his regular employment.

[21] If the court were to focus only on the established sentencing principles in the case law applicable to commercial drug traffickers dealing in substantial quantities of crack cocaine, then the normal sentence would require institutional incarceration, as a means of meeting the sentencing goals of denunciation and deterrence.

[22] However, there is another important issue presented by the novel coronavirus pandemic which currently has necessitated this province being placed in lockdown. The coronavirus places inmates in penal institutions at much higher risk of COVID-19 infection than the general population. In Mr. Chadha’s case, his asthma condition places him at an elevated risk of serious consequences if he becomes infected.

[23] Counsel agree in their submissions that the pandemic can be a ‘collateral consequence’ for the purpose of sentencing, so long as it is not used to reduce a sentence to the point that it is no longer proportionate, see R. v. Morgan, 2020 ONCA 279, (at paras 9-10):

In our view, the appellant’s submissions fall into the category of collateral consequences for sentencing purposes. As Moldaver J. noted in R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 48:

The question is not whether collateral consequences diminish the offender's moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances.

I agree with the Court of Appeal that the fundamental principle of proportionality must prevail in every case - collateral consequences cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender.

[24] I respectfully agree with the recent observations of Pomerance, J. in R. v. Hearns, 2020 ONSC 2365, (at para. 16) as to how the current health crisis may impact the court’s analysis of what constitutes a fit sentence:

COVID-19 also affects our conception of the fitness of sentence. Fitness is similar to proportionality, but not co-extensive with it. Proportionality dictates that the sentence should be no more than is necessary to reflect the gravity of the crime and the moral blameworthiness of the offender. Fitness looks at a broader host of factors. A sentence may be fit even if it is not perfectly proportionate. Fitness looks, not only at the length of a sentence, but the conditions under which it is served. As a result of the current health crisis, jails have become harsher environments, either because of the risk of infection or, because of restrictive lock down conditions aimed at preventing infection. Punishment is increased, not only by the physical risk of contracting the virus, but by the psychological effects of being in a high-risk environment with little ability to control exposure.

[25] In a case such as the present where the parties have presented to the court an appropriate joint submission as to the length of the sentence, and where the mitigating and aggravating factors are reasonably balanced, I think that risks associated with the pandemic should be seen as an important collateral consequence sufficient to tip the scales in favour of a conditional sentence disposition.

Disposition

[26] On the trafficking charge, Mr. Chadha will be sentenced to a conditional sentence of two years less a day, the first 12 months of which will be under house arrest (with exceptions for attending employment, educational pursuits or medical or legal appointments including the time required to travel back-and-forth to such appointments), or as otherwise specifically authorized by his supervisor and for the balance of the sentence, he will observe a curfew of 10 pm to 6 am. He will also observe the compulsory conditions contained in sec. 742.3(1) of the Criminal Code of Canada. I will hear submissions from counsel as to any further refinements to this order.

[27] Following completion of the conditional sentence Mr. Chadha will serve one year of probation with the usual statutory terms, as well as a requirement that he do 100 hours of community service over the course of the period of probation.

[28] On the charge of possession of proceeds of crime, the accused is sentenced to one year to be served concurrently with the trafficking charge.

[29] I also make the following ancillary orders:

• There will be a section 109 Criminal Code weapons prohibition for a period of 10 years;
• Mr. Chadha will provide a DNA sample (section 487.051(2) of the Criminal Code); and
• He will be subject to a forfeiture order as previously presented to the court.

Released: January 21, 2021

COURT FILE NO.: 18-G5304 DATE: 2021-01-21

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SAHIL CHADHA Accused

Sentence Decision C.T. Hackland, J.

Released: January 21, 2021