Reasons for Sentence

Court File No.: CR-22-900000408-0000
Date: 2025-01-09
Ontario Superior Court of Justice

Between:
His Majesty the King
– and –
Sukhraj Singh

Appearances:
Ashli Pinnock, Counsel for the Public Prosecution Service of Canada
Ayesha Abbassi and Carolyn Gandy, Counsel for Sukhraj Singh

Heard: June 21, 2024 and November 4, 2024
Released: January 09, 2025
Judge: Catherine Himel

Introduction

[1] Sukhraj Singh entered a plea of guilty to the charge of possession of methamphetamine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 as amended (“CDSA”). He had elected to be tried by a judge sitting alone.

[2] The plea inquiry pursuant to s. 606(1) of the Criminal Code was satisfied. Mr. Singh confirmed that he was entering this plea voluntarily, that he understood that the plea was an admission of the essential elements of the offence, that he was aware that he was giving up his right to have a trial, that he understood the nature and consequences of the plea, and that he was aware that this court was not bound by any agreement made between counsel regarding the sentence. I was also advised that Mr. Singh has consulted with immigration counsel and received advice on the consequences of a conviction for this offence.

[3] I ordered that a pre-sentence report (“PSR”) be prepared. It has now been received. Counsel have made their submissions on sentence. Unfortunately, on the date scheduled for sentencing, Mr. Singh was at the hospital with an urgent medical condition. For this reason, the matter was adjourned further to today’s date. The following are my reasons for sentence.

Factual Background

[4] On September 29, 2020, at 7:50 p.m., Toronto police executed a Controlled Drug and Substances Act search warrant at the Holiday Inn located at 600 Dixon Road in the City of Toronto. They had conducted surveillance on two occasions and observed multiple hand-to-hand transactions in the parking lot of the Holiday Inn. The room was registered to Sukhraj Singh. Officers located Mr. Singh inside room 549 in the company of another male. Mr. Singh was sitting on the bed. Police observed in the room a bag of 147.96 grams of methamphetamine and paraphernalia. There was just over $17,000 Canadian in the room. The second male present gave a statutory declaration and charges against him were stayed. On the basis of these facts and the admission of the defence, I found Mr. Singh guilty of the offence of possession of methamphetamine for the purpose of trafficking.

Evidence on the Sentencing Hearing

[5] The pre-sentence report was filed as an exhibit at the hearing. Crown counsel submitted the criminal record of Mr. Singh. On February 1, 2022, he was found guilty of fail to comply with order contrary to s. 145(5) of the Criminal Code and sentenced to 1 day of imprisonment with credit of 24 days of pre-sentence custody. Counsel for Mr. Singh submitted a letter from Eva’s Health Clinic dated May 8, 2024, which says that on August 8, 2021, Mr. Singh began methadone treatment for opioid dependence. He stopped the treatment but returned to the clinic to restart treatment on May 5, 2024. He has been receiving daily methadone treatment for opioid dependency. The letter also says that he is required to have a urine drug screen performed and receives supportive counselling with his methadone treatment.

[6] Counsel also filed a letter from the Guru Nanak Nishkam Sewa Centre dated May 8, 2024, which states that Mr. Singh performed volunteer services at the Temple from July 13, 2023, until May 8, 2024 during which time he served and prepared food, washed dishes, restocked the pantry shelves, and kept the surroundings clean. The author writes, “He has a very positive influence on other people and set a good example for others to show how to give back to the community.”

[7] Mr. Singh was detained from September 29, 2020, when he was arrested until October 2, 2020, a period of 3 days. On October 2, 2020, he was released on a recognizance in the amount of $5,000 with a surety, Sukhjit Dhugga, and was placed on house arrest. He was permitted to leave the house only for medical emergencies, for court appearances or meetings with his lawyer and while in the presence of his surety. Further conditions were not to contact Darsham Banair, not to attend the Holiday Inn, and not to possess any weapons. This release order has been in place until the present time. The release order was made an exhibit at this hearing.

Positions of the Parties

The Crown Position

[8] Crown counsel submits that an appropriate sentence in this case is a sentence of 3 years of imprisonment. The Crown requests that the following ancillary orders be made: a forfeiture order for the cash and paraphernalia located at the hotel room, a s. 109 order for life, and an order that a DNA sample be taken. Ms. Pinnock points out that Mr. Singh was 27 years old at the time of the offence which took place on September 29, 2020. He was released on bail on October 2, 2020, after spending 3 days in custody. The bail is a strict house arrest which allowed him to work but only because he was working in the presence of his surety. Apparently, that has changed, and he has not been able to work. The period of time on bail was 1,493 days as of the sentencing hearing on November 4, 2024. This is equal to 4 years and 1 month during which time, he has been compliant with these strict terms.

[9] Crown counsel takes the position that she has considered the amount of time that Mr. Singh has been on bail without incident in accordance with R. v. Downes, 79 O.R. (3d) 321 (C.A.) and that has factored into her position to ask the court to impose a 3-year sentence. She refers the court to the case of R. v. McLaughlin, 2020 ONCJ 566 where Band J. sentenced the offender for a number of offences including possession of two ounces of crystal methamphetamine for the purpose of trafficking, dangerous operation of a motor vehicle, fail to stop for police, possession of property obtained by crime “over” and possession of property obtained by crime “under”, fail to comply with probation and possession of break-in instruments.

[10] In McLaughlin, Crown counsel relied on some jurisprudence which discussed that the range of sentence for this offence was 2.5 to 4 years. The defence sought a sentence with a range starting at 18 months and cited some decisions where conditional sentences of two years less a day were imposed. The court agreed with the Crown that the cases cited by the defence were cases that predated the amendments to the legislation that moved crystal methamphetamine to Schedule I. The court wrote at para. 17: “They also do not reflect what we currently know about this drug: it has extremely profound impacts on its users and the community. It is also dangerous to produce.”

[11] Justice Band considered the decision of R. v. Ticzon, 2018 ONCA 198, where the Ontario Court of Appeal upheld a 3-year sentence for possession for the purpose of trafficking 64.1 grams of methamphetamine where the offender was 28 years old and had an unrelated criminal record. He also referred to R. v. Graham, 2017 ONCA 245, where the court held that a 2-year sentence was a fit sentence for an offender who had “very difficult background circumstances.” This offender was 29 years old and was in possession of two ounces of methamphetamine for the purpose of trafficking. In McLaughlin, Band J. concluded that the low end of the range was two years for the CDSA offence. The court imposed a global sentence for the various offences but apportioned the sentence for the CDSA count to be 2.5 years.

[12] One of the earlier cases dealing with possession of methamphetamine for the purpose of trafficking was R. v. Voisin, 2017 ONSC 871 where the court imposed a conditional sentence for a 26-year-old who was addicted to drugs and alcohol, had no criminal record, had a job with the armed forces and a family. He had over 1,000 pills and 20 ounces of powder methamphetamine along with cocaine in his possession. The court imposed a 12-month conditional sentence. In R. v. Gerrard, 2017 ONCJ 502, Wadden J. imposed a sentence of 18 months jail for a 26-year-old with no criminal record who had just under 300 methamphetamine pills along with cannabis, oxycontin and scales, packaging and a shotgun and ammunition in his possession.

[13] In R. v. Young, 2020 ONSC 7394, Kelly J. sentenced an offender who was in possession of 10 ounces of methamphetamine and possession of heroin mixed with fentanyl to a global sentence of 5 years of imprisonment less 14 months and 6 days for credit for time served in pre-sentence custody and 5 months of credit for harsh conditions in the jail. Kelly J. referenced R. v. Nguyen, [2008] O.J. No. 6044 (unreported dated June 5, 2008) where the offender had 11 ounces of methamphetamine in his possession, had a gambling addiction, difficult personal circumstances, was in possession of the methamphetamine for the purpose of trafficking as he was in business for a commercial purpose and had a prior related conviction. The sentence imposed was 6 years. Justice Kelly considered that case with reference to Mr. Young and concluded that the sentence should be 5 years of imprisonment. She noted Mr. Young’s very difficult childhood and background as set out in a Gladue Report, that he was on bail at the time of the arrest, that he had two imitation firearms, that he was in breach of a prohibition order at the time, and that he had a significant criminal record.

[14] Crown counsel submits that the circumstances in R. v. Young are similar to the case at bar. In the case of Mr. Singh, there was heroin present as well as methamphetamine and cash in the room. Mr. Young was in possession of 10 ounces of methamphetamine. Mr. Singh was in possession of 5 ounces of methamphetamine.

[15] While he had a fail to comply conviction, Crown counsel agrees this is his first substantive offence. Further, this would be a first penitentiary sentence. He has taken responsibility for his actions. He has had a difficult life. He was working and began to use methamphetamine through colleagues. Crown counsel submits that a 3-year sentence is responsive to his circumstances. He pleaded guilty and vacated a motion and trial. The Crown notes that proof of his efforts on rehabilitation are somewhat less than what the Crown expected, and the pre-sentence report falls short. He attended counselling only five times. In summary, in light of the jurisprudence, the Crown seeks a 3-year sentence and argues that the sentence proposed by the defence for two years served as a conditional sentence would be too lenient and is not appropriate.

The Defence Position

[16] Counsel for the defence asks the court to impose a sentence of two years of imprisonment less one day served as a conditional sentence followed by two years of probation. Ms. Abbassi outlined Mr. Singh’s background to the court. Unfortunately, while Mr. Singh is conversant in English, he is shy and had no interpreter with him during the interview for the pre-sentence report. A number of details of his background were not recorded. Counsel submits that a conditional sentence is an appropriate sentence particularly because Mr. Singh has been under house arrest and permitted to leave his house for emergencies or to work provided he was with his surety.

[17] Counsel submits that there is no concern for the safety of the community. Ms. Abbassi requests that during the conditional sentence, Mr. Singh should be under house arrest but permitted to work, attend counselling, medical appointments, addiction treatment, appointments with his lawyer, to do errands on Saturdays from 9:00 a.m. to 1:00 p.m. and on Sundays to attend Temple from 7:00 a.m. to 1:00 p.m. She argues that he has made genuine efforts to address his addiction and to contribute to society.

[18] Ms. Abbassi distinguishes the cases relied upon by the Crown. She submits that the case of R. v. McLaughlin involved an offender being sentenced for multiple offences and where a person was injured. There was risk to the public and there were other aggravating factors.

Analysis and the Law

[19] Before turning to the specific circumstances of this case, I first consider the general sentencing principles which apply. The fundamental purpose of sentencing is set out in s. 718 of the Criminal Code. It is to ensure respect for the law and to promote a just, peaceful, and safe society. The imposition of just sanctions requires that I consider the sentencing objectives referred to in this section which include denunciation of unlawful conduct, deterrence of the offender and other persons from committing offences, separating offenders from society where necessary, rehabilitation of offenders, providing reparation for harm done to victims or to the community, promoting a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community.

[20] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. When imposing sentence, I am to take into account certain factors which may increase or reduce the sentence because of aggravating or mitigating circumstances. The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This is known as the principle of parity reflected in s. 718.2(b). Where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh otherwise known as the principle of totality reflected in s. 718.2(c). The offender should not be deprived of liberty if less restrictive sanctions are appropriate and all available sanctions other than imprisonment that are reasonable in the circumstances, should be considered for all offenders, particularly Aboriginal offenders. These are known as the principles of restraint reflected in ss. 718.2(d) and (e).

[21] I now turn to the relevant jurisprudence on sentencing applicable to the offence in this case. In cases involving persons convicted of trafficking and possession for the purposes of trafficking in controlled substances, the courts have ruled that deterrence, and the protection of the public are of paramount consideration. The nature and quantity of the drug are relevant to the issue of sentencing. Whether there is a significant element of commercialism, the role of the offender and the circumstances of the offender are all relevant considerations. In passing sentence, the court may consider the well-being of younger but presently uncommitted potential users of drugs and in so doing, impose a sentence which emphasizes the protection of the public. The court will also look to the circumstances of the offender including whether the offender has an addiction to drugs.

[22] The sentencing decisions for possession for the purpose of trafficking in methamphetamine highlight that the quantity of the drugs involved, the nature of the transactions and the criminal antecedents of the offender are all relevant considerations. Indeed, the cases emphasize the primary objectives of denunciation and deterrence. Methamphetamine is a toxic drug which is a stimulant and can become highly addictive. “Today, methamphetamine, also known as ‘speed,’ ‘meth,’ ‘chalk,’ ‘ice,’ ‘crystal,’ ‘crank,’ and ‘glass’ is easily accessible, cheap to buy, and being used in both rural and urban areas.”: see “Methamphetamine Report for Federal-Provincial-Territorial Ministers Responsible for Justice”, at p. 2. This Government of Canada report dated February 3, 2023, highlights the danger of potential brain damage including long-term cognitive and psychological problems arising from the use of methamphetamine. The report also notes at page 5, as is mentioned in the case of R. v. McLaughlin, that until August 2005, methamphetamine was listed under Schedule III of the CDSA which carries lesser penalties. However, because of increased concern about the use and effect of methamphetamine on individuals and society, methamphetamine was moved to Schedule I of the CDSA and possession and trafficking of this drug carry higher penalties.

Decision

[23] Sentencing involves the exercise of discretion and requires the sentencing judge to consider the individual circumstances of the offender, the circumstances of the offence and the need for the sentence to meet the sentencing objectives outlined by Parliament. The goal of sentencing is to impose a just and fit sentence, responsive to the facts of the individual offender and the particular circumstances of the commission of the offence: see R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455 at para. 44. The sentencing process is an individualized one, but the court must remain mindful of the sentencing ranges discussed in the jurisprudence.

[24] In considering both the circumstances of the offence and the circumstances of this offender, I consider the relevant aggravating and mitigating circumstances. I must also consider that like offenders should be treated alike. I consider the following circumstances to be relevant in the case of Mr. Singh.

[25] Mr. Singh is 31 years of age and was born on August 17, 1993. He resides in Brampton, Ontario. Mr. Singh was born in India and immigrated to Canada in 2014. His parents reside in India. His family were farmers and Mr. Singh was to attend college. He had a positive relationship with his parents and siblings. He was married from 2016 to 2018 in an arranged marriage when he was only 18 or 19 years old at the time. He was sponsored by his wife to come to Canada. When he arrived, his wife’s family put him to work as a general labourer. Then his wife told him she did not want to be with him as she was in a relationship with someone else. They divorced and he had no one else in Canada. Through his employer, Mr. Singh found a place to live in a basement apartment. He began to drink and took methamphetamine and heroin. He became a Permanent Resident in Canada.

[26] Mr. Singh became involved with criminal behaviour in 2018-2019. Then he got a job as a mechanic’s assistant and was doing better. He became involved in a relationship with a woman who has a child. They resided together and he took care of her and the child. He began to slip back to using drugs in 2019 and started to sell drugs in the summer of 2020 to support his addiction.

[27] Since he was charged with this offence, he has been on strict house arrest. He resides with his surety, Sukhjit Dhugga at 53 Larkspur Road. He had worked in a truck yard for a period of time and was permitted to do so, because he worked with his surety. However, the company he was working for has closed down. He has been managing to stay out of any trouble for the last four years.

[28] As for education and employment, Mr. Singh had pursued his education in India but did not complete post-secondary education because of the move to Canada. He worked as a farmer with his father, then in a factory, followed by construction when he moved to Canada. He was unemployed between 2019 and 2021. He found employment in 2023 but lost his job in August 2024.

[29] Mr. Singh advised the probation officer that he consumed alcohol occasionally, but he began to use methamphetamine which he learned about from work colleagues. Drug use affected his employment. Friends encouraged him to seek medical attention. He began to attend Eva Health Clinic in May 2024 to take methadone daily to abstain from using drugs. The probation officer confirmed that he attended for the intake process, but the counsellor did not have counselling sessions with him. Mr. Singh has provided evidence that he attended counselling five or six times since May 2024 to address addiction issues.

[30] The probation officer found Mr. Singh to be polite and cooperative. He was forthcoming with information. He advised that he had been addicted to drugs and was involved in the offence to support his habit. He advised that he is remorseful and that he is seeking treatment to address the substance use problem. The probation officer was of the view that Mr. Singh appeared to be suitable for community supervision subject to engaging consistently with counselling and rehabilitation supports and made recommendations in this regard.

[31] I now turn to the circumstances of the offence. Mr. Singh was found in a hotel room registered to him at the Holiday Inn Hotel, where 147.96 grams of methamphetamine and drug paraphernalia were found. In addition, police located just over $17,000. The second male found in the room gave a statutory declaration and charges against him were stayed.

[32] Sentences for trafficking or possession for the purpose of trafficking in dangerous substances must emphasize that general deterrence and denunciation are of paramount concern. The effect of the drug is a relevant consideration, and the courts view the negative impact of illicit drugs on users and on society. Each case must be considered in light of its circumstances and the aggravating and mitigating factors. The accused’s prospects for rehabilitation as well as the other sentencing objectives must also be considered.

[33] In the case at bar, there are many factors in mitigation including that Mr. Singh pleaded guilty to the charge and has demonstrated remorse. He is taking responsibility for his actions. He has saved valuable court resources at a time when resources are scarce because of the aftermath of the COVID-19 pandemic. Mr. Singh became involved in trafficking methamphetamine to feed his own habit and for commercial reasons. He does not have a relevant criminal record. The very compelling evidence before me is that he has been on bail for four years without incident. I also accept that he suffered from addiction at the time of the offence.

[34] There is no question but that a period of imprisonment must be imposed for this offence. However, although aggravating circumstances relating to the offence increase the need for denunciation and deterrence, a conditional sentence may be imposed even if such factors are present. Each case must be considered individually: see R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, 140 C.C.C. (3d) 449. Section 742.1 of the Code provides that if the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in s. 718 to 718.2 of the Code, a conditional sentence may be imposed provided it does not fall in one of the listed categories in (b) through (f). Proulx highlights that a conditional sentence is available for all offences in which statutory pre-requisites are satisfied and that a conditional sentence can provide a significant amount of denunciation and deterrence particularly when onerous conditions are imposed. As was stated by the Supreme Court, when the objectives of rehabilitation, reparation, and promotion of a sense of responsibility may realistically be achieved, a conditional sentence will likely be the appropriate sanction, subject to considerations of denunciation and deterrence.

[35] I again emphasize that it is a principle of sentencing that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate and that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, particularly Aboriginal offenders.”

[36] In light of Mr. Singh’s role in the offence which involved being in possession of the drug for trafficking, that he was a user of drugs and involved in the drug trade to satisfy his own habit, and that he has no relevant criminal record, I am of the view that an appropriate sentence is one of two years less one day served in the community as a conditional sentence. There is no statutory bar to imposing a conditional sentence; it would still provide a significant amount of denunciation and deterrence and serving the sentence in the community would not endanger the community’s safety and would be consistent with the fundamental purpose and principles of sentencing set out in s. 718 of the Code.

[37] I agree that credit for pre-sentence custody should be given at 1.5:1 in accordance with R. v. Summers, 2014 SCC 26 which would equal 5 days. Mr. Singh has been on bail for 4 years without incident. In R. v. Downes, [2006] O.J. No. 555, Justice Rosenberg of the Ontario Court of Appeal wrote that time spent while on stringent bail conditions is a relevant mitigating factor that a sentencing judge must consider: see para. 37. The court is to look at the factors of the length of time on bail subject to the conditions, the stringency of the conditions, the impact on the offender’s liberty and the offender’s ability to carry on normal relationships, employment and activity. The judge has discretion to determine the impact of such mitigation. There is no set formula for credit. The conditions of Mr. Singh’s release over the past four years have been stringent. He has remained in his home mainly because he did not have employment and could not leave without his surety. I consider the time spent on strict terms of judicial interim release for 4 years and his compliance with those terms as a mitigating factor. That is what leads me to exercise my discretion and conclude that a sentence of 2 years less one day is appropriate in these exceptional circumstances.

[38] In summary, a sentence for this offence must emphasize denunciation and deterrence. The sentence must recognize that Mr. Singh had possession of a significant amount of a Schedule I substance. I am mindful that there are cases that support a sentence in a higher range. I am of the view that those cases may be distinguished from the case at bar. Further, the determination of a just sentence is a highly individualized exercise: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras 57 and 58.

Result

[39] Mr. Singh shall be sentenced as follows: for the offence of possession of methamphetamine for the purpose of trafficking, he shall be sentenced to 2 years less one day of imprisonment. He shall be credited with 5 days of pre-sentence custody in accordance with R. v. Summers. The balance of the sentence to be served as a period of imprisonment is 1 year and 359 days. His sentence of imprisonment shall be served in the community with the following conditions: in addition to the statutory conditions in s. 742.3 which I impose, Mr. Singh must report to his supervisor forthwith and attend as often as his supervisor deems appropriate. He shall reside at 53 Larkspur Road, Brampton, Ontario or such address as approved by his supervisor. He shall be under house arrest for the first twelve months of the conditional sentence and shall only leave the house for the purpose of attending appointments with his supervisor, to attend counselling, to attend medical appointments for himself or members of his immediate household, to attend for daily methadone for drug addiction treatment, to shop once each week for four hours and to attend on Sundays from 7:00 a.m. to 1:00 p.m. for Temple services as permitted and scheduled by the conditional sentence supervisor. In any event, he shall be in the house between the hours of 10:00 p.m. and 6:00 a.m. each day for seven days each week.

[40] For the remaining months of the conditional sentence, he shall be permitted to leave his residence, but he shall be subject to a curfew between the hours of 10:00 p.m. to 6:00 a.m. each day for seven days each week. The only exceptions are for medical emergencies for himself or a member of his household or with the prior approval of his supervisor. During the entire period of the conditional sentence, he shall attend counselling, educational training or work as directed by his supervisor and sign any necessary releases; he shall abstain from owning, possessing or carrying a weapon and he shall not apply for or possess a firearm acquisition certificate or gun licence.

[41] Following this period of imprisonment, Mr. Singh is placed on probation for two years. In addition to the statutory conditions, he shall reside at an address approved by his probation officer; he shall attend and participate in any counselling and/or treatment as directed by his probation officer and sign any necessary releases; he shall abstain from owning or possessing any weapon; he shall report to his probation officer forthwith following the conclusion of the conditional sentence and as often as the probation officer deems necessary.

[42] In summary, with the 4 years that Mr. Singh has been on bail, the 2 years less one day imprisonment to be served as a conditional sentence and the 2 years of probation, he will have been under the court’s supervision for 8 years.

[43] I further make an order under s. 109 prohibiting Mr. Singh from possessing any weapon as defined by the Criminal Code for 10 years. I also order that Mr. Singh provides a sample of his DNA pursuant to s. 487.051(3) of the Criminal Code. Finally, there will be an order of forfeiture of the cash and the paraphernalia seized by police at the time of the arrest.

Catherine Himel
Released: January 09, 2025