Court File and Parties
Court File No.: CR-21-960-00 Date: 2023 07 26 Superior Court of Justice – Ontario
B E T W E E N:
HIS MAJESTY THE KING C. Kalantzis, for the Crown
- and -
NITISH VERMA D. Paradkar, for the Defendant
Heard: May 19, 2023
Reasons for Sentence
L. SHAW J.
1Mr. Verma was convicted by a jury on March 6, 2023, with one count of importing opium, contrary to section 6(1) of the Controlled Drugs and Substances Act, 1996, c. 19 (“CDSA”). He is before me for sentencing.
The Circumstances of the Offence
2Mr. Verma was arrested at the Toronto Pearson International Airport on August 4, 2019, upon his return from India. He was sent to secondary inspection and 13.739 kg of opium was found in his luggage in boxes concealed as Indian sweets and in plastic bags. The value of that amount of opium in Canada ranged from $294,316 to $936,460 depending on how it was sold.
3The only issue for the jury was whether Mr. Verma knew that that there was opium concealed in the cardboard boxes and bags in his luggage.
4Mr. Verma testified that he flew to India on July 31, 2019, to meet his family in India to help find a potential husband for his sister. His evidence was that on August 3, 2019, shortly before he was to fly back to Canada, he was contacted by a good friend in Canada and asked if he could do the friend a favour by bringing some sweets and gifts back to Canada from his relatives. Mr. Verma testified that he agreed, and a meeting was arranged at the airport in Delhi where Mr. Verma was given sweets boxes which he packed in his luggage. He denied knowing that there was opium in theses sweets boxes.
5The jury rejected Mr. Verma’s evidence and found that he knowingly imported opium into Canada, beyond a reasonable doubt.
6There was no evidence connecting Mr. Verma to a criminal or drug distribution organizations.
Position of the Parties
7The Crown submits that given the quantity of opium, the appropriate sentence is nine years. In addition, the Crown seeks ancillary orders including a DNA order under s. 487.051, a mandatory firearms prohibition order under s. 109(2)(a)(ii) for 10 years and a forfeiture order. The ancillary orders are not contested by the defence.
8The defence’s position is that as there are there are several mitigating factors, a sentence of seven years is appropriate.
The Circumstances of the Offender
9A Pre-Sentence Report was not filed as evidence. Rather, numerous letters of support and other documentation was filed as evidence by the defence.
10Mr. Verma is 34 years of age. He was 30 at the time of his arrest. He does not have a criminal record. He immigrated to Canada from India in 2010. He is a permanent resident of Canada; he is not a Canadian citizen. As a result, he will be deported from Canada upon completion of his sentence.
11Mr. Verma immigrated to Canada on his own in 2010. His parents remained in India. His sister lives in Australia. He was married in India in 2022; his wife still lives in India. When he arrived in Canada, he enrolled at Seneca College and in 2013 graduated with a diploma in computer networking.
12He has worked continuously since he graduated. In 2014, he worked for one year for Rogers. Commencing in 2015, he worked for three years at Bell Canada. He left that job in 2017 and worked as a truck driver for two years. He then became licensed as a real estate agent and was working for Royal LePage at the time of his arrest. He has continued to work in real estate. He received several awards at Royal LePage for his professionalism and sales leadership. He also volunteered for the Liberal candidate in Brampton during the 2021 Federal election.
13Letters of support were filed from family, friends, and co-workers. They are all supportive of Mr. Verma. He is described as hardworking and involved in the community. Many describe Mr. Verma as remorseful of his actions. They were all surprised that Mr. Verma was convicted of this drug offence and that it was out of character for him.
14Mr. Verma’s parents, Surinder Kant and Neelam Verma expressed their support. They describe their son as hardworking. His sister, Nitika Verma, is an executive at a bank in Australia. She described their close relationship and how hard working he is. His wife, Sanjima Rana, is a professor at a university in India. She describes Mr. Verma as kind, gentle and family oriented. Mr. Verma planned to sponsor her to move to Canada to start a family. She is still supportive of him.
15Mr. Amarbir Sidhu, a friend from Seneca College, met Mr. Verma in 2011. He describes Mr. Verma as a hard worker who volunteers and contributes to the community since he moved to Canada. Mr. Verma was elected as a student ambassador and member of the Board of Governors at Seneca College in 2011. He helped other students adapt to life in Canada.
16Mr. Dil Banga is a co-worker at Royal LePage. He describes Mr. Verma as reliable, resourceful, and a team player with a positive attitude. Mr. Verma has helped him and his family. For example, he took Mr. Banga’s wife to medical appointments when she was pregnant, at times Mr. Banga was unable to attend.
17Mr. Gurpreet Dhanu is a friend and co-worker at Royal LePage. He has known Mr. Verma since 2014 and considers him to be like a brother. He indicated that he and Mr. Verma have been going to the temple daily; they volunteer for chores and maintenance work. Mr. Verma has helped his family. For example, he helped renovate his house and helped his children with their homework.
18Ms. Herpreet Sirai is also friends with Mr. Verma. She said that Mr. Verma helped her when she needed housing. She and her son now rent part of his home. She described Mr. Verma as remorseful.
19Mr. Inderdeep Dhaliwal has been friends with Mr. Verma for 12 years; they both came to Canada on study permits. When Mr. Dhaliwal was going through a difficult time, Mr. Verma gave him a place to live and would not accept rent. He describes Mr. Verma as compassionate, caring, and hardworking. He volunteers at a soup kitchen in Brampton.
20Mr. Karan Devgan has been best friends with Mr. Verma since he came to Canada. They worked together, studied for their real estate license, and worked at the same agency until 2021. He was also Mr. Verma’s surety. He describes Mr. Verma as hardworking, positive, and involved in volunteer work in the community. Mr. Verma complied with all his bail conditions.
21Mr. Sukhjeet Lidder has known Mr. Verma for three years; they work in real estate together. He is supportive of Mr. Verma. He describes him as respectful, considerate, and dedicated.
Impact on the Community
22The importation of opium, as with any controlled substance under the CDSA, has a significant impact on the community as it is an addictive substance that can cause significant harm.
The Sentencing Principles
23The principles of sentencing are set out in sections ss. 718, 718.1 and 718.2 of the Criminal Code of Canada, R.S.C., 1985, c. C-46 (the “Code”). The objectives of sentencing are deterrence, denunciation, separation of offenders from society, rehabilitation, reparation to the victims and promotion of a sense of responsibility for the harm to victims. In R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, the court found that proportionality is a guiding principle in sentencing. The sentence must reflect the gravity of the offence and the degree of responsibility of the offender. Also of importance is the principle of parity, meaning that a sentence should be like sentences imposed on similar offenders for similar offences committed in similar circumstances.
24Section 10 of the CDSA provides the following regarding sentencing:
Purpose of sentencing
10 (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.
25Section 6 of the CDSA provides that the maximum penalty for importing a schedule I substance is life. The main sentencing principle to consider in the imposition of sentence for importing are general deterrence and denunciation. The maximum penalty is an indication of the seriousness of the offence.
26While the importation itself is not a violent act, in R. v. Hamilton et al, 72 O.R. (3d) 1(C.A.) Ont. C.A., the court noted that the consequences can be characterized as both serious and violent.
Caselaw
Crown Cases
27The Crown relies on R. v. Bokark, 2008 ONCJ 378. The offender was found guilty of importing 13 kilograms of opium and possession for the purpose of trafficking. In that case, Fairgrieve J. referred to R. v. Rashidi-Alavije, 2007 ONCA 712, another decision relied on by the Crown. In Rashidi-Alavije, the Court of Appeal upheld a sentence of five-and-a-half years for the importation of 5.9 kilograms of opium. The accused was a middle-aged first-time offender and a non-user.
28In Bokark, which was a controlled-delivery offence, the court found that the offender did not act as a mere courier, but played a central role in a sophisticated, well-planned importation scheme. Other than the absence of a criminal record, the court found that there was little in the offender’s personal circumstances that could be regarded as mitigating. The court also noted that there was evidence of a larger importation scheme of which the offender was involved. Mr. Bokark was sentenced to nine-and-a-half years.
29While Bokark involved a similar quantity of opium, in my view, there are several reasons why that case is distinguishable. Firstly, there are mitigating circumstances in Mr. Verma’s personal circumstances. In the relatively brief period that he has lived in Canada, he has contributed to society; he completed his education, pursued employment, and volunteered in community organizations. He is held in high regard by his family, friends, and co-workers. Furthermore, unlike in Bokark, there is no evidence that Mr. Verma was involved in a larger importation scheme.
30In R. v. ASL, 2017 ONSC 2055, the offender was convicted of importing 3.9 kilograms of opium in a false bottom of a suitcase. The offender was 43 years of age and moved to Canada from Iran in 1991. He managed a construction company. He was married and had the support of his family. He had no addiction issues. He was a first-time offender. Justice LeMay found that the offender was not just a courier but a principal, which was found to be an aggravating factor. The offender was sentenced to five years.
31I do not find that Mr. Verma was a principal but rather was a courier.
32In R. v. Ayati-Ghaffari, 2013 ONSC 4999, the offender was convicted of conspiracy to import three shipments of opium that totaled 123 kilograms. Given the large quantity of drugs, Thorburn J., as she then was, found that it could be inferred that there was a distribution network in Canada. There were two offenders who were first-time offenders and productive members of society with supportive families. Letters of support were filed. Neither was a drug user. The sole motivation was greed. One offender, involved with all three shipments, was sentenced to 14 years. The second offender, involved with two shipments totalling 97 kilograms, was sentenced to 12 years.
33The quantity of drugs in Ayati-Ghaffari was significantly greater than the amount that Mr. Verma imported.
34In R. v. Goodarzi, 2011 ONCJ 908, the offender was convicted of importing 34.5 kilograms of opium and possession for the purpose of trafficking and conspiracy. This was a controlled delivery case; the opium was shipped in crates of foodstuffs from Iran. The offender came to Canada as a refugee from Iran. He was 46 years of age with no criminal record. He was employed. Letters of support were filed that described him as a good father, hard worker, and compassionate – very similar to how Mr. Verma is described. He was sentenced to 8-and-a-half years.
Defence Cases
35The defence also relies on Rashidi-Alavije, ASL, and Bokark.
36In R. v. Rajaei-Mehrabadi, 2016 ONSC 3362, the offender was convicted of importing 6.5 kilograms of opium. The offender was 42 at the time of sentencing and suffered from periods of depression and anxiety. He and his wife immigrated to Canada from Iran in 1999 and had two children. He worked as a painter before he began to receive social assistance.
37Justice Dawson noted that there are relatively few cases dealing with the importation of opium. He relied on information about opium in R. v. Abolmolouk, [1987] O.J. No. 926 (C.A.) that while opium can be converted to morphine and heroin, it is one-tenth the strength of heroin. It is a physically addictive drug, like morphine. It has limited marketability in Canada. Justice Dawson noted that there was no evidence that the opium was being refined into morphine or heroin which would be an aggravating circumstance. Justice Dawson found that the range of sentence for the importation of multiple kilograms of opium for commercial drug trafficking is three to seven years: para. 23. He also found that while opium is an addictive substance, it is less serious than the importation of a similar amount of a more addictive drug such as cocaine: para. 33.
38Finding no evidence that the offender was a principal and that he was likely a paid courier, was a first-time offender, had good prospects for rehabilitation and a supportive family, Justice Dawson sentenced the offender to four-and-a-half years.
39In R. v. Hasankhani, 2018 ONSC 3669, the offender was convicted of importing five kilograms of opium. The offender immigrated to Canada from Iran in 2000. He was 39 years of age and worked full-time. He was described as a hard-working and thoughtful. Justice Baltman sentenced the offender to four years.
Analysis
40Mr. Verma is a first-time offender. The letters filed in support indicate that Mr. Verma has a supportive family. He has also developed a community of friends and co-workers since moving to Canada. He is to be commended for moving to a new country, on his own, and pursuing education and employment. It strikes me as tragic that someone who showed so much promise and had so much support could commit a criminal offence with devasting consequences. Those devastating consequences are not just for the victims who seek and use drugs but also the consequence he now faces. Mr. Verma had a bright and promising future. He had a career and friends who clearly are close with him. Furthermore, he gave back to the community when he was in school and then when he commenced working. His wife is also a victim as she planned to move to Canada and start a family with him. That plan is forever altered as the immigration consequences of his actions will result in his deportation once his sentence is served.
41This is Mr. Verma’s first offence. His work history, volunteer work, supportive family, and friends, are all mitigating factors. I also consider his rehabilitative prospects to be high.
42Opium is not as addictive as other Schedule One controlled substances such as cocaine. While it is still addictive, which can lead to other harms, the fact that it is not as addictive is a factor to consider on sentencing.
43The large quantity of drugs Mr. Verma imported and its value, are aggravating factors as it suggests this was a commercial trafficking operation and not just for personal use. A degree of planning and deliberation was also required which is an aggravating factor. Furthermore, this was a crime motivated by profit as there was no evidence that Mr. Verma had a drug addiction that he was trying to support. Rather, Mr Verma’s motive was greed which is an aggravating factor.
44The importation of drugs poses a serious threat to society. When sentencing couriers, the principal of general deterrence is significant; Rashidi-Alavije at para. 33. While opium does not pose the same threat as heroin and cocaine, that does not detract from the need for deterrence.
Sentence
45In imposing this sentence, I have considered the principles of sentencing, the jurisprudence, and all mitigating and aggravating factors. While there is always some tension in the principles of sentencing, they must be balanced and consideration must be given to the unique circumstances of each offender. Given the circumstances of this case, I conclude that a sentence of seven years is appropriate. That is a significant sentence for a first-time offender but reflects the need to denounce Mr. Verma’s conduct and serve as a general deterrent to others.
46Mr. Verma is to provide a sample of his DNA pursuant to s. 487.051 of the Criminal Code. There will also be a weapons and firearm prohibition order pursuant to s. 109(2)(a)(ii) of the Criminal Code for 10 years and a forfeiture order pursuant to s. 462.37 of the Criminal Code.
L. Shaw J.
Released: July 26, 2023