Reasons for Sentence

Court File No.: CR-21-6389
Date: 2025-01-09
Ontario Superior Court of Justice

Between:
His Majesty the King
– and –
Pritpal Singh, Defendant

Appearances:
Andrew Choat and Joseph Selvaratnam for the Crown
Ravin Pillay for Pritpal Singh

Heard: Sentencing Submissions made November 5, 2024

Judge: C. Boswell

Overview

[1] Mr. Singh is before the court today to be sentenced on one count of trafficking in heroin, two counts of possessing heroin for the purpose of trafficking, one count of possessing opium, and one count of possessing proceeds of crime in excess of $5,000. The route taken to reach this point has been a little unconventional, so I will take a moment to describe the process.

[2] Mr. Singh came to the attention of the police in the course of a major, cross-border investigation into importing and trafficking in controlled substances known as “Project Cheetah”. He was under surveillance by York Region Police officers for some time. On March 17, 2021, they observed him meet with someone in a Toyota automobile in a commercial parking lot in Brampton. The police suspected the meeting involved a drug transaction. They followed the Toyota and conducted a roadside stop soon after the meeting with Mr. Singh. They arrested the occupant of the Toyota – Mohammad Ullah – for possession of a controlled substance and they conducted a search of his vehicle incident to his arrest. They located a plastic bag containing 373 grams of heroin in the centre console.

[3] Following the arrest of Mr. Ullah, the police sought and obtained warrants to search a number of locations connected to Mr. Singh. The warrants were executed on April 8, 2021 and resulted in the location and seizure of the following:

• Roughly 2.5 kilograms of heroin at a Brampton-area business known as “Karebear Playland”. The business was operated by Mr. Singh’s daughter and associated to Mr. Singh through surveillance;
• Roughly 36 grams of heroin from a vehicle connected to Mr. Singh; and,
• 25 grams of opium and $32,000 in cash in a bedroom at Mr. Singh’s personal residence.

[4] Mr. Singh was arrested and charged with the offences he is before the court to be sentenced on today.

[5] The charges against Mr. Singh came up for trial in mid-January 2024. The trial was blended with a Garofoli [2] application by the defence to set aside the search warrants that led to the seizures on April 8, 2021, and to exclude any evidence seized.

[6] A key aspect of the Garofoli application was a request by the defence to excise any reference to the arrest of Mr. Ullah and the seizure of heroin from his vehicle from the Informations to Obtain filed in support of the warrant applications. Those facts were a central piece of the grounds relied upon by the police to obtain the warrants. The defence position was that if those facts were excised, there would be insufficient grounds to support the issuance of the search warrants.

[7] The excision request was based on the fact that a judge had found that the arrest of Mr. Ullah was unconstitutional, as was the search of his vehicle. The judge excluded the seized heroin from evidence in Mr. Ullah’s trial. The defence argued, based on a line of reasoning from R. v. Guindon, and other decisions, that unconstitutionally obtained evidence is to be automatically excluded from an ITO even if the constitutional breaches did not implicate the accused’s own rights.

[8] I declined to excise the evidence about Mr. Ullah’s arrest, and the heroin found in his vehicle, choosing to follow the decision of the Court of Appeal in R. v. Chang, which held that the rule of automatic excision of unconstitutionally obtained evidence only applies when the accused’s own Charter rights have been infringed. That decision was an important aspect of my reasons to dismiss the Garofoli application.

[9] On January 17, 2024, I provided counsel with a “bottom line” ruling on the Garofoli application so that the trial could proceed the next day. In particular, I advised counsel as follows:

For written reasons to follow, the Garofoli application with respect to the CDSA warrants to search Karebear Playland, 16 Ocean’s Pond Court, Centreville Creek, the white tractor truck bearing license plate BE56972, and the dark Dodge Caravan bearing license plate CPMX814 is dismissed.

[10] I reserved my decision with respect to the validity of the balance of the impugned search warrants.

[11] The trial proceeded on January 18, 2024. On that date, counsel filed an Agreed Statement of Fact, which effectively made up the whole of the Crown’s case. The accused elected not to call any evidence.

[12] I was invited by the Crown to enter convictions against Mr. Singh on all counts. Mr. Singh’s counsel made no submissions with respect to four of the five counts, all but conceding that the essential elements of those counts were made out on the content of the Agreed Statement of Fact. Defence counsel’s submissions focused on Count 1, the charge of trafficking in heroin.

[13] On January 18, 2024, I entered convictions against Mr. Singh on Counts 2 through 5, again for written reasons to be provided. I reserved my decision on Count 1.

[14] On March 20, 2024, I convicted Mr. Singh of Count 1 for reasons reported at 2024 ONSC 1302. I also provided written reasons supporting the bottom line Garofoli ruling I made on January 17, 2024 and explaining the basis for the convictions on Counts 2 through 5.

[15] Sentencing submissions were scheduled for March 28, 2024. Several days prior to then, however, the Court of Appeal heard argument on a case involving the central question on Mr. Singh’s Garofoli application, namely whether the rule of automatic excision of unconstitutionally obtained evidence from an ITO applies to evidence obtained in breach of a third party’s constitutional rights. It was anticipated that the Court of Appeal’s decision would either affirm my interpretation of Chang or would follow the line of reasoning articulated in Guindon, in which case it would be necessary to revisit my Garofoli ruling.

[16] Given that Mr. Singh is facing a significant penitentiary sentence, all of the participants – Crown, defence, and the court – considered it advisable to await the Court of Appeal’s ruling on the excision issue. That ruling was released on September 10, 2024 in R. v. Maric. It affirmed my interpretation of Chang and it was therefore unnecessary to revisit the Garofoli ruling. Sentencing submissions were then scheduled for November 5, 2024. On that date I heard counsel’s submissions and reserved my judgment on sentence to today. The following are my reasons for the sentence imposed.

The Circumstances of the Offences

[17] The circumstances of the offences are set out in some detail in my reasons for judgment. It is unnecessary to go into them in any significant detail here.

[18] In brief, I found that Mr. Singh trafficked 373 grams of heroin to Mr. Ullah on March 17, 2021. I further found that he constructively possessed 25.48 grams of opium seized by the police from his residence, 2,533.92 grams of heroin seized from Karebear Playland, and 36.68 grams of heroin seized from a black Dodge Caravan associated to him. I further found that he possessed the heroin found at Karebear Playland and in the Dodge van for the purpose of trafficking in it.

[19] The police also located and seized $31,995.00 in Canadian currency from Mr. Singh’s bedroom. I found not only that the money was Mr. Singh’s, but that it constituted proceeds of crime.

The Circumstances of the Offender

[20] Mr. Singh is 59 years old; a truck driver by trade. He was born in Punjab, India and immigrated to Canada when he was 9 years old. He returned to India as a teenager and finished his high school education there. He settled back in Canada in 1983, initially living in the Jane and Finch area of Toronto, then moving to Rexdale for roughly 20 years. He married in 1986 and has three children, who are now adults. He recently became a grandparent for the first time.

[21] Since 2012 he has resided in Brampton where he lives in a home he shares with his extended family, including his wife, his sister and brother-in-law and their two adult children.

[22] Defence counsel filed 11 letters of support for Mr. Singh, including from his wife, daughter, two of his brothers-in-law, a niece, two friends, his employer, the Sikh Temple he is a member of, and the North American Sikh League, which he has been involved in for the past two years.

[23] The letters of support speak of Mr. Singh in glowing terms. His family and friends describe him as a wonderful father and family man. He is nurturing and kind, funny and playful. He works hard and has been a good provider for his family. He is generous with his time and participates in charitable endeavours. And he is a valuable source of wisdom and guidance.

[24] The offences now before the court are at odds with the character described in the letters of support, as is Mr. Singh’s criminal record. He was convicted in May 1991 of sexual assault. He received a sentence of 90 days intermittent and probation. In 1994, he was convicted of credit card fraud. He was sentenced to 30 days intermittent and probation. In 2013, he was convicted of attempted murder, pointing a firearm, and failing to comply with a recognizance. He was sentenced to 6 years and 7 months, on top of 2 years and 5 months of pre-sentence custody.

The Impact of the Offences on the Community

[25] Mr. Singh’s crimes do not involve an identified complainant. That does not mean, however, that they are victimless crimes. The community as a whole is victimized by those engaged in the commercial spread of insidious drugs like heroin.

[26] We are in the midst of an opioid crisis in Canada. “Public enemy number one” may be fentanyl but trafficking in other opioids, like heroin, continues to pose an incredible public safety risk. The dangers of heroin were recently addressed by Justice Moldaver in R. v. Parranto, where he noted that trafficking in heroin is a “crime with such grievous consequences that it tears at the very fabric of society”. It causes direct and indirect harms to society, including:

• addiction, debilitating health effects, and death by overdose;
• increased crime committed by those seeking to finance their addictions and by organized crime syndicates seeking to profit from its trade;
• the ruining of lives and the destruction of families; and,
• substantial costs to society in terms of health care and law enforcement.

[27] It is thus understandable that significant penitentiary sentences are regularly imposed for those who traffic in large quantities of such drugs. And to be clear, the amount Mr. Singh was found to be in possession of – in excess of 2 ½ kilograms – is a large quantity.

Legal Parameters

[28] Pursuant to s. 5(3) of the Controlled Drugs and Substances Act, a person found guilty of trafficking in heroin, or possessing it for the purpose of trafficking, is liable to imprisonment for life.

[29] Pursuant to s. 4(3) of the Controlled Drugs and Substances Act, a person found guilty of possessing opium is liable to imprisonment for a maximum term of seven years.

[30] Pursuant to s. 355 of the Criminal Code, a person found guilty of possessing proceeds of crime greater than $5,000.00 is liable to imprisonment for a maximum term of ten years.

Positions of the Parties

[31] Crown and defence counsel are significantly apart in their positions on what a fit and just sentence would be.

[32] Crown counsel seeks a global sentence of 14 years imprisonment, with the conviction for possessing the heroin found at Karebear Playland being the principal driver of that sentence. He submits that while appellate courts in this country have not prescribed a range of sentence applicable to the amounts of heroin seized in this case, they have set a range of 6-12 years imprisonment for quantities in the range of 500g to 1 kg. Those cases are instructive, the Crown says, and suggest that a sentence in excess of 12 years is appropriate in the circumstances here.

[33] Defence counsel urges the court to consider a sentence half as long as that proposed by the Crown, less an additional ten months mitigation to reflect the restrictive bail conditions Mr. Singh has lived with for the past 3 ½ years. Defence counsel questions the validity of the range suggested by Crown counsel and suggests that appellate courts have not established a fixed range for this offence. In light of the aggravating and mitigating circumstances here, defence counsel submits that a net sentence of 6 years and 2 months would be appropriate.

Discussion

The Principles and Purposes of Sentencing

[34] Sentencing is an inherently individualized exercise. There are certain principles, however, that guide sentencing judges. They have long been known to the common law and are now codified in Part XXIII of the Criminal Code.

[35] Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: the denunciation of unlawful conduct, deterrence - both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims and the community, and the promotion of a sense of responsibility in offenders and an acknowledgment of the harm done.

[36] The importance of these individual objectives, and how they interact, varies from case to case. Counsel are agreed that, given the nature of the offences here, the principal drivers of any sentence imposed are denunciation and deterrence – both specific and general.

[37] The central question is what sentence is required to meet those objectives? In making that assessment the court is guided by the overarching principle of proportionality. Section 718.1 of the Criminal Code directs that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[38] The principle of proportionality takes into account and balances the concepts of censure and restraint. Any sentence imposed must promote justice for victims (in this case, the community) and enhance public confidence in the administration of justice. At the same time, it should not exceed what is appropriate in light of the moral blameworthiness of the offender. [7] The restraint principle directs the court to impose the least intrusive sentence and the shortest duration necessary to achieve a just, fit and proportionate sentence. [8]

The Applicable Range

[39] Inherent in the concept of proportionality is the principle of parity. Imposing sentences proportionate to the gravity of offences and the moral blameworthiness of offenders requires the court, on the one hand, to recognize where there are material differences between different offenders and different offences. On the other hand, s. 718(2)(b) of the Criminal Code requires that any sentence imposed must be similar to sentences imposed on offenders who have committed similar offences with equivalent moral blameworthiness. Parity, in other words, is an expression of, and gives meaning to, proportionality. [9] Sentencing “judges calibrate the demands of proportionality by reference to the sentences imposed in other cases.” [10]

[40] The search for a proportionate sentence, therefore, frequently begins with an examination of sentences imposed in similar cases, with a view to identifying the appropriate range of sentence applicable in the circumstances. A subsequent examination of any aggravating and mitigating circumstances aids in situating the sentence in issue within the identified range, recognizing of course that ranges are not written in stone and that any given sentence may, depending on the prevailing circumstances, fall above or below the identified range.

[41] Counsel appear to be in agreement that there is no fixed range of sentence for the quantity of heroin involved in this case. They are not in agreement about whether there is a fixed range for possession of heroin (for the purpose of trafficking) in amounts between half a kilogram and a kilogram.

[42] Twenty-four years ago, in R. v. Shahnawaz, the Court of Appeal for Ontario described the appropriate range of sentence for a person convicted of trafficking 650 grams of heroin as 9 to 12 years. They arguably re-affirmed that range fifteen years later in R. v. Bain. In Bain, two co-accused were convicted of possession of a kilogram of heroin. The trial judge identified the appropriate range of sentence as between 6 and 12 years. He imposed sentences of 9 years on each of the accused. On appeal, Watt J.A. found that the 9-year sentences were fit and within the appropriate range, though he noted, citing Shahnawaz, that there is authority to support a range of 9-12 years.

[43] A year after Bain was released, however, the Court of Appeal, in R. v. DiBenedetto identified the range of sentence as 6 to 12 years for offences involving trafficking of between half a kilogram and a kilogram of heroin. The 6-to-12-year range has been cited in a number of trial decisions since DiBenedetto was released, including, for instance, R. v. Poku, R. v. Tully, and R. v. Tasevski. I accept that it is the range appropriate for commercial traffickers in heroin up to the one-kilogram level.

[44] Mr. Singh is considerably beyond the one-kilogram level. I accept that there is no established range applicable to commercial traffickers at that level. As a matter of basic common sense, however, sentences imposed in such cases will not reflect a range lower than that applicable to the one-kilogram commercial trafficker. Indeed, one would expect the range to be higher, given the increased volume and the level of harm being perpetrated on the community.

[45] Crown and defence counsel each provided the court with caselaw to support their respective positions.

[46] Cases the Crown cited include:

• R. v. Brown, where a 34-year-old offender, with a record including half a dozen moderately serious prior offences, was sentenced to 9 years (less credits for pre-sentence custody and restrictive bail conditions) on conviction for possessing 1.133 kg of heroin for the purpose of trafficking;
• R. v. Burchell and Giammarco, where 28-year-old and 47-year-old first time offenders were sentenced to 6 years and 5 years, respectively, for possession of 3.8 kilograms of heroin. Both offenders received reductions in their sentences on account of co-operation with the police;
• R. v. Hoang, where a global sentence of 18 years imprisonment was imposed on a 38-year-old, first time offender, who was convicted of possession of 8.8 kg of opioids, including heroin, fentanyl, and carfentanil, along with 7.5 kg of cocaine, all for the purpose of trafficking. As part of that global sentence, 15 years imprisonment was imposed for possession of 5.1 kg of heroin for the purpose of trafficking. The global sentence was reduced to 15 years on appeal, based on an identified error on the part of the trial judge in failing to properly apply the restraint principle; and
• R. v. Phu, where a sentence of 14 years was imposed on an offender convicted, following a guilty plea, of possessing 2.5 kg of heroin for the purpose of trafficking. The trial judge indicated that he would have imposed a sentence of 16 years, save for the fact that the Crown had only sought a 14-year sentence. The defence had suggested 7 years, a figure the trial judge said was “significantly outside the appropriate range for an offence of this nature”.

[47] Cases the defence cited include:

• R. v. Bain and R. v. Giammarco, both referred to above;
• R. v. Berquas, where a 27-year-old offender with a dated, unrelated record, was sentenced, following a guilty plea to possessing 3 kg of heroin for the purpose of trafficking, to 6 years imprisonment; and
• R. v. Chan, where a package containing 6 kg of heroin was intercepted by RCMP officers, who conducted a controlled delivery of 1 gram of heroin to the offender. Mr. Chan was convicted, following a trial, to possession of heroin for the purpose of trafficking and sentenced to 10 years in prison. The sentence was upheld by the Court of Appeal.

[48] What I take away from the cases referred to me by counsel is that sentences imposed for possession of heroin for the purpose of trafficking, in amounts greater than 1 kg, can vary significantly, but arguably tend to land near or above the upper end of the range set out in DiBenedetto. That makes sense. It does not appear however, as counsel submitted, that a range has been fixed for cases that fall into this category.

[49] As always, the aggravating and mitigating circumstances of the case aid in calibrating the appropriate sentence.

Aggravating and Mitigating Circumstances

[50] I consider the following circumstances to be aggravating:

• The amount of heroin is obviously seriously aggravating. It can be a little tricky comparing one case to another, however, because the purity of the substance varies from case to case. I have no evidence about the purity of any of the substances seized by the police in this case, save for the heroin trafficked to Mr. Ullah, which was 62% pure. There is evidence that almost 8 kg of diphenhydramine, a cutting agent, was found near the heroin seized from Karebear Playland. Whether cutting agent had already been added to the 2.5 kg of heroin, or whether it was yet to be added, is unknown. Either way, the amount of heroin seized was substantial and would have contributed to immense misery in the community;
• Given the amount of controlled substances seized, and in light of the amount sold to Mr. Ullah, it is clear that Mr. Singh was deeply involved in the heroin trade at a wholesale commercial level. His moral blameworthiness is very high. He was clearly not involved in this criminal enterprise alone. Where he stood in the hierarchy of involved individuals is impossible to say. What is clear, however, is that he was not a low-level participant;
• Mr. Singh endangered his daughter by storing substantial amounts of heroin at her business, Karebear Playland. Drug dealing is a very dangerous business – one associated with regular incidents of extreme violence. The significant value of the drugs stored at Karebear would have made them a target for other unscrupulous members of the drug trade. Moreover, he exposed his daughter to prosecution; and
• Mr. Singh has an unrelated, but nevertheless concerning, criminal record. Two entries are dated, but the conviction for attempted murder was in 2013. The net sentence imposed on February 15, 2013 was 6 years and 7 months, meaning it expired in September 2019. The charges now before the court were laid roughly 18 months later. Suffice it to say that the lengthy sentence imposed in 2013 failed to have sufficient rehabilitative effect.

[51] There are also mitigating circumstances, which include:

• Mr. Singh has a very supportive extended family and employer;
• He did not plead guilty (a fact that is neither aggravating or mitigating), but he did enter into an Agreed Statement of Fact which substantially shortened the trial; and
• He has been on bail for roughly 3 ½ years. He has been subject to a house arrest condition, but there have been exceptions, including attending work, which he has been doing. The bail conditions were clearly not at the most stringent end of the spectrum, but he is, in my view, entitled to some modest mitigation of his sentence on their account. [23] He otherwise has just one day of pre-sentence custody, as he was released on bail the day of his arrest. He is entitled to 1.5 days credit for that time, which I will round up to 2 days.

Sentence

[52] In my view, the gravity of the offences involved here – particularly in light of the significant amounts of heroin involved – is extremely high. And Mr. Singh’s moral blameworthiness is similarly very high. The defence position of 7 years imprisonment reflects the low end of the range for a person convicted of possessing 1 kg of heroin or less, for the purpose of trafficking. In my view, that suggested sentence is not within the appropriate range.

[53] On the other hand, I believe the 14 years suggested by the Crown is close to spot on, save that it does not give quite enough mitigating effect to the Agreed Statement of Fact entered into by Mr. Singh. In light of that, and taking into account the mitigating impact of the significant time Mr. Singh has been subject to bail conditions, I would reduce the sentence to 13 years. I break it down as follows:

• Count 1: trafficking in 373 grams of heroin – 6 years;
• Count 2: possession of 2.533 kg of heroin for the purpose of trafficking – 13 years;
• Count 3: possession of 36.68 grams of heroin for the purpose of trafficking – 3 years;
• Count 4: possession of 25.48 grams of opium – 3 months; and
• Count 5: possession of proceeds of crime in excess of $5,000 – 6 months.

[54] All sentences are to run concurrently.

[55] The Crown sought a s. 109 order and a DNA order. These were not controversial requests. I impose s. 109 orders on Counts 1 to 4, inclusive. Similarly, I impose DNA orders on Counts 1 to 4, inclusive.

C. Boswell
Released: January 9, 2025

Endnotes

[1] This written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If there are any discrepancies between the oral and written versions, it is this official written Ruling that is to be relied upon.

[2] A Garofoli application takes its name from the Supreme Court’s ruling in R. v. Garofoli, [1990] 2 S.C.R. 1421. It is a defence-initiated review of the sufficiency of the evidentiary record that supported the granting of a judicial authorization or warrant. The goal is to exclude evidence the Crown seeks to tender at trial, on the basis that the evidence filed in support of the authorization or warrant failed to meet the standard required by s. 8 of the Charter, see Ontario (Provincial Police) v. Thunder Bay (City) Police Service, 2015 ONCA 722, at endnote 2.

[3] 2015 ONSC 4317

[4] (2003), 173 C.C.C. (3d) 397

[5] 2024 ONCA 665

[6] 2021 SCC 46, at paras. 87-92.

[7] See R. v. Ipeelee, 2012 SCC 13, para. 37.

[8] See R. v. Hamilton, paras. 95-96.

[9] See R. v. Friesen, 2020 SCC 9, paras. 32-33.

[10] Ibid.

[11] (2000), 51 O.R. (3d) 29 (C.A.), at para. 6.

[12] 2015 ONCA 677.

[13] 2016 ONCA 116, at para. 12.

[14] 2024 ONSC 4523

[15] 2022 ONSC 3515, at para. 56.

[16] 2020 ONSC 3724, at para. 32.

[17] 2016 ONSC 2997.

[18] 2011 ONSC 6649.

[19] 2022 ONSC 2534, varied 2024 ONCA 361.

[20] [1999] O.J. No. 5733 (S.C.J.), affirmed [2001] O.J. No. 5534 (C.A.), leave to appeal dismissed, [2001] S.C.C.A. No. 540.

[21] 2018 ONCJ 623

[22], [2003] O.J. No. 3233 (C.A.), leave to appeal dismissed [2003] S.C.C.A. No. 453.

[23] See R. v. Downes, 79 O.R. (3d) 321 (C.A.)