IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Mr. Mani pled guilty to two drug offences and to failing to stop while being pursued by a peace officer.  Sentencing submissions commenced on February 23, 2018; however, before the hearing concluded, Mr. Mani’s counsel withdrew.  

[2]           On April 12, 2018, the sentencing hearing continued with new counsel.  The matter then adjourned, permitting the Court an opportunity to consider all of the materials, submissions and relevant legal authorities.

[3]           The task for this Court is to impose a sentence that is fit and appropriate in all of the circumstances.

[4]           On January 15, 2016, the Coquitlam RCMP observed a grey Jeep fail to stop at a stop sign.  The police watched the Jeep as it pulled into a parking stall and stop.  They watched as Mr. Mani, who was the driver, exit and walk away from the Jeep. 

[5]           An officer approached Mr. Mani and asked to see his driver’s licence.  Mr. Mani produced his driver’s licence and told the officer that he had not been driving.  At this point the officer noticed a bulge in Mr. Mani’s front pant pocket.  The officer asked Mr. Mani if he had any weapons.  In response, Mr. Mani started to empty his pockets and as he did so he removed a key for a Jeep automobile. 

[6]           The officer confronted Mr. Mani about possessing the key to a vehicle that he claimed not to have been driving.  Mr. Mani admitted he had not been truthful and explained that he was an Interlock candidate and that the Jeep was a rental vehicle, as such, it was not equipped with an Interlock device.  

[7]           The officer went to the Jeep to examine it for an Interlock device and while examining the Jeep he noticed a clear plastic bag containing several smaller bags of various colours.  Based on his observations the officer believed the bag contained drugs.  Accordingly, he arrested Mr. Mani and conducted a search of Mr. Mani and the Jeep.

[8]           Found on Mr. Mani were two cellular telephones and $600.  Inside the Jeep the officer located a golf club, a baseball bat, a ZTE cellphone that rang continuously and a quantity of drugs.

[9]           With respect to the drugs, the officer found the following:

[10]        In total, Mr. Mani was in possession of 14.27 grams of schedule 1 substances.  Also located were 3.18 grams of marihuana.

[11]        On March 26, 2017, at 1:14 p.m., the police observed a vehicle driven by Mr. Mani, and based on their observations the police believed that the operator of the vehicle was possibly involved in drug trafficking.  A query of the licence plate was performed and the response received indicated that there was an outstanding inspection order for the vehicle. 

[12]        After a period of time the police decided to stop the vehicle.  The police activated their emergency lights and pulled up to the nose of Mr. Mani’s vehicle.  The officer then exited his vehicle and started walking towards Mr. Mani’s vehicle.  Mr. Mani reversed his vehicle and accelerated forward driving around the stopped police vehicle and the approaching officer.

[13]        The officer re-entered his vehicle, activated the siren and lights and he performed a u-turn.  He then began following Mr. Mani who was accelerating away. 

[14]        After a brief pursuit, the police pulled to the curb and shut off their lights and siren.  They then watched as Mr. Mani continued driving south.  When Mr. Mani reached the intersection of Canada Way and Smith, he entered the intersection without stopping or slowing for a red light.  Of note is, the intersection was a major four lane thorough-fare and traffic at the time was heavy.

[15]        Once in the intersection, Mr. Mani collided with two vehicles.  When Mr. Mani’s vehicle came to a stop he did not render assistance to the occupants of the other vehicles; rather, he ran from the scene.  The police were on the scene within moments and they apprehended Mr. Mani as he ran through a nearby lot. 

[16]        The occupants of the other vehicles suffered injuries.  Fortunately, the injuries were not serious.

[17]        Mr. Mani was searched and on his person the police located a folding knife.  In the vehicle the police located on the front passenger’s seat a large package of drugs.  Specifically the following drugs were located:

[18]        The police also located four cellular telephones, $200 cash, a baseball bat and identification in the name of Pflueger. 

[19]        Mr. Mani is 23 years old and he does not have a criminal record.  His parents separated when he was young, as such, Mr. Mani moved regularly between his parents.  Today, Mr. Mani has a good relationship with his mother, but he has limited contact with his father who has substance abuse issues.

[20]        It is Mr. Mani’s perspective that the break-up of his parents combined with the limited contact that he has with his father has resulted in self-esteem issues.  In this regard, Mr. Mani bullied children when he was in grade five, which resulted in him transferring schools.  At his new school Mr. Mani associated with students who were prone to acting out.

[21]        Mr. Mani went to a Vancouver high school.  He did not graduate as he needs one further class to fulfill his graduation requirements.  Despite not having completed high school, Mr. Mani attended a career college.  Although well intentioned, Mr. Mani was not motivated by his courses and he withdrew shortly before his arrest in 2016.  At the time of his offences Mr. Mani was not drug dependent and it appears his offences were motivated by greed.

[22]        After his arrest in 2016, Mr. Mani’s paternal and maternal grandfathers passed away, and then in November of 2017, Mr. Mani’s paternal grandmother passed away.  These individuals played a significant role in Mr. Mani’s upbringing and their passing had a significant impact on him.

[23]        Mr. Mani has been on judicial interim release since March 30, 2017.  As per the conditions of his release, he has been subject to a curfew requiring him to be inside his residence between 8:00 p.m. and 6:00 a.m.  In May of 2017, the curfew was amended allowing Mr. Mani to be outside of his residence provided he was in the company of his mother, his sister or his girlfriend.

[24]        Mr. Mani’s sentencing hearing was less than typical.  Accordingly, it is important to set out what occurred, the associated findings and the use that will be made of the findings.

[25]        Mr. Mani’s sentencing hearing started on February 23, 2018.  During the hearing Mr. Mani’s counsel (not Mr. Muldoon) made oral submissions, filed authorities, as well as, character letters, and letters of employment. 

[26]        As for the employment letters, one confirmed that Mr. Mani worked at an auto body shop and the other was from a furniture business which not only confirmed Mr. Mani’s employment, but suggested he was being considered for promotion. 

[27]        Near the end of the sentencing hearing Mr. Mani addressed the Court and he stated in part:

[28]        Submissions were also made indicating that Mr. Mani performed volunteer work with his step-father’s soccer club, St. Columbus, and that the home field was Newton Athletic Park.

[29]        Prior to the conclusion of the sentencing hearing, the Court asked Mr. Mani’s counsel if the letters of employment had been confirmed.  Counsel indicated that the letters had not been confirmed.  The Court then stood down so counsel could make calls related to the employment letters. 

[30]        When the Court reconvened, counsel advised that there had been a break-down of the solicitor-client relationship and he applied to get off of the record.  The application was granted, and the sentencing hearing was adjourned.  Transcripts of the sentencing hearing were ordered and a continuation date was scheduled. 

[31]        When the matter continued, the Crown advised they had made enquiries regarding Mr. Mani’s letters of employment.  In this regard, the owner of the auto body shop advised the Crown that he did not know Mr. Mani and that Mr. Mani had never worked at the shop.  As for the furniture company, it was learned that Mr. Mani had worked for the company between June 2017 and October 2017.  It was also learned that the letter filed with the Court had been altered from the one originally given to Mr. Mani.  In this regard, a paragraph indicating that Mr. Mani was about to receive a promotion was added, thus making it appear that he was working there and excelling.  This was not the case as he was no longer working for the company when the letter was drafted in January of 2018.

[32]        As for Mr. Mani’s volunteer work with the soccer club, the Crown could not find any information regarding the club.  The Crown contacted Surrey Parks and Recreation and spoke to the person responsible for assigning field times to various clubs.  The person had never heard of the St. Columbus soccer club.  Counsel for Mr. Mani did not challenge the Crown’s findings.

[33]        With respect to the above, it is clear the employment letters were false, as were Mr. Mani’s comments regarding his employment.  It is also clear Mr. Mani did not volunteer with the soccer club as indicated.  Despite these findings, I have not considered his conduct in relation to these issues to be aggravating factors in determining a fit and appropriate sentence; rather, I have concluded that there is no evidence to support the conclusion that Mr. Mani has rehabilitated himself or that he is remorseful.

[34]        I do appreciate that a guilty plea is typically an indication of remorse; however, in the circumstances any suggestion of remorse was erased when Mr. Mani falsely addressed the Court.

[35]        On the Port Coquitlam Information, the Crown argues that a fit and appropriate sentence is a custodial sentence of three months.  The Crown declines to take a position on whether the sentence should be concurrent or consecutive to any other sentence.

[36]        As for the Vancouver Information, the Crown argues that a fit and appropriate sentence is a global sentence of 20 moths jail, followed by a year of probation, a ten year weapons prohibition and a two year driving prohibition.  The Crown relies on: R. v. Smith, 2017 BCCA 112, and R. v. Voong, 2015 BCCA 285.

[37]        On the Port Coquitlam Information, the defence joins the Crown in recommending a three month sentence; however, counsel urges the Court to impose an intermittent sentence.

[38]        On the Vancouver Information, the defence recommends an intermittent sentence of three months to be served concurrently to the Port Coquitlam Information.  In the alternative, defence counsel urges the Court to impose a sentence in the range of 12 - 14 months.

[39]        In support, counsel for Mr. Mani reminds the Court that sentencing is an individualized exercise and that the Court must use the least restrictive means which will achieve the objectives of sentencing.  Counsel, also highlights Mr. Mani’s support, his young age, and his lack of criminal history.  Counsel relies on: R. v. Creuzot, 2017 BCSC 1075; R. v. Olenik, 2017 BCPC 390; R. v. Joon, 2017 BCPC 301; R. v. Tse, 2010 BCSC 1273; R. v. Priest, [1996] O.J. No. 3396 (CA); R. v. Arbuthnot, 2009 MBCA 106; R. v. Cuthbert, 2007 BCCA 585; R. v. Johal, 2018 BCSC 549

[40]        The purpose and principles of sentencing are set out in sections, 718, 718.1 and 718.2 of the Criminal Code.

[41]        The purpose of sentencing is found in section 718, which reads:

[42]        The fundamental principle of sentencing is articulated in s. 718.1 of the Code, which reads:

[43]        Other sentencing principles, found in s. 718.2 of the Code, relevant to these proceedings are:

[44]        In addition to the above, section 10 (1) of the Controlled Drugs and Substances Act, states:

[45]        Denunciation and deterrence are the primary objectives when sentencing an individual who has engaged in offences related to the trafficking of dangerous drugs: R. v. Smith, 2017 BCCA 112; R. v. Voong, 2015 BCCA 285; R. v. Creuzot, 2017 BCSC 1075.

[46]        Despite the above, sentencing is an individual exercise with no specific sentencing objective automatically trumping another.  It is for the sentencing judge to identify the primary sentencing objectives: R. v. Nasogaluak, 2010 SCC 6.

[47]        In considering the instant matter, I find that denunciation and deterrence are the primary sentencing objectives with some acknowledgment that Mr. Mani is a young man with some rehabilitative prospects.

[48]        The sentence that I impose is intended to communicate society’s condemnation of Mr. Mani’s conduct and send a message to Mr. Mani and others that the courts will impose heavy sanctions on those who traffic drugs.  The sentence imposed is also intended to assist Mr. Mani with his re-integration into the community.

[49]        In considering what kind of sentence will best achieve the requisite degree of sentencing objectives demanded by this case, I note in Voong, at paragraph 1, Madam Justice Bennett stated:

[50]        I acknowledge there are cases where the offender has turned his or her life around to such a degree that the protection of the public is best served by a non-custodial sentence: Voong, paragraph 59.  In my view, Mr. Mani has not demonstrated that he has turned his life around.

[51]        Section 718.1 of the Code mandates, any sentence imposed must be proportional to the seriousness of the offence and degree of offender responsibility.  Proportionality within the sentencing context was commented on in R. v. Ipeelee, 2012 SCC 13, where at paragraph 37, LeBel J., commented:

[52]        More recently, the concept of proportionality was discussed by Wagner J., in R. v. Lacasse, 2015 SCC 64, where he stated at paragraph 12:

[53]        I find the offences committed by Mr. Mani were serious.  This finding is exemplified in that; the maximum sentence for the possession of fentanyl, heroin and cocaine for the purpose of trafficking is life imprisonment, with the maximum penalty for flight from a police officer, being five years imprisonment. 

[54]        I also find Mr. Mani’s degree of moral responsibility to be high.  Specifically, Mr. Mani’s criminal conduct was not fueled by a drug addiction or desperation; rather, his conduct was motivated by greed.  As for his flight from the police, it is clear Mr. Mani’s conduct was motivated by his desire to avoid being apprehended and in so doing he had no consideration for the safety of others. 

[55]        I find the following to be aggravating factors:

[56]        I find the following to be mitigating:

[57]        The Court of Appeal in R. v. Smith, 2017 BCCA 112, established the range of sentence at 18 months up to and possibly exceeding 36 months for drug offences involving fentanyl.  Despite this range, this Court acknowledges that a “range” does not represent inflexible boundaries and there may be circumstances justifying a sentence above or below the range.

[58]        Counsel for Mr. Mani cited R. v. Basra (22 September 2017), Surrey 216743-3-C (Prov. Ct.) as being most analogous to Mr. Mani’s circumstances.  In Basra, an effective 15 month sentence was imposed on a first time youthful offender who pled guilty to three offences related to trafficking in cocaine, as well as the possession of heroin/fentanyl and methamphetamine.  In my view, the case is distinguishable in that the sentencing judge observed that the offender was just four months past his 18^th birthday at the time of his offences and that he had encouraging prospects for rehabilitation.  The same cannot be said for Mr. Mani.   

[59]        On the Port Coquitlam matter, I see no reason to depart from the joint submission of a three month custodial sentence.  In my view, a three month custodial sentence would not bring the administration of justice into disrepute, nor would it be otherwise unfit.  I have considered if the sentence should be intermittent, and in my view, such an approach would not adequately address the requisite denunciation and deterrence required in the instant case.  I also observe that there is no information suggesting that such a sentence would enhance Mr. Mani’s rehabilitation.

[60]        On the Vancouver matters, I observe, Mr. Mani’s motivation was greed, that the drugs involved were dangerous and addictive, and that his flight from the police demonstrated a callous disregard for the safety of others.  I appreciate that Mr. Mani is young and without a criminal record; however, his conduct needs to be deterred and denounced.  Accordingly, I impose a global sentence of 19 months followed by probation for 12 months.

[61]        In determining if the sentences imposed should be concurrent or consecutive, I have applied the test set out in, R. v. G.W.P (1998), 1998 CanLII 14992 (BC CA), 107 BCAC 49, at paragraph 35:

[62]        There is no evidence from which I can conclude that the Port Coquitlam offence in January of 2016 was linked to the March 2017 Vancouver offences.  Although, I appreciate the drug offences are similar, I observe they were committed in different jurisdictions and 14 months apart.  Hence, there is nothing to support a finding that they were linked, as such, the sentences will be served consecutively.

[63]        Given my conclusion that the sentences will be served consecutively to each other, I must, pursuant to s. 718.2 (c) of the Code, ensure that the combined sentence is not unduly long or harsh.  This approach was commented on in R. v. M.(C.A.), [1996] 1 S.C.R. 1, where at paragraph 42, the court stated:

[64]        Applying the above, I observe the total custodial sentence in the instant matter is 22 months less 11 days credit (the seven days that Mr. Mani spent in custody which is credited at 11 days), for a total sentence of 21 months 19 days.  I observe that, a custodial sentence of this duration is within the Smith range, and it is also proportional and it would not “crush” Mr. Mani’s rehabilitative prospects.  

[65]        Mr. Mani will be on probation for a period of one year.  The conditions of the probation order are as follows:

[66]        The Crown urges the Court to impose a two year driving prohibition; whereas, council for Mr. Mani urges the Court to impose a one year driving prohibition.  Counsel submits that a two year driving prohibition would inhibit Mr. Mani`s rehabilitation. 

[67]        In considering an appropriate length of driving prohibition, I note the following; Mr. Mani’s driving on the day in question was reckless, dangerous and in complete disregard for the safety of others.  I also note he has a lengthy driving record, and that his licence was cancelled at the time of the offence.  Finally, I have not received any evidence indicating how a two year driving prohibition would interfere with Mr. Mani`s rehabilitation.

[68]        As such, and after considering all of the factors, I am of the view that a two year driving prohibition is mandated.  Despite this, I observe, condition four of Mr. Mani’s March 2017, recognizance of bail prohibited him from being found in the driver’s seat of any motor vehicle.  Accordingly, and applying the reasoning in R. v. Burke, 2017 BCCA 381, Mr. Mani has already been prohibited for 13 months, as accordingly, he is credited with this period, thus Mr. Mani will be prohibited for 11 months.  The reality is; the net prohibition from driving will be two years.  

[69]        Pursuant to s. 109 of the Code, Mr. Mani is prohibited from possessing any cross bow, restricted weapon, ammunition and explosive substance commencing today and ends not less than 10 years after his release from custody. 

[70]        Mr. Mani is prohibited from possessing any firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. 

[71]        Mr. Mani consents to the forfeiture order being sought by the Crown, as such, it is granted.

[72]        The Crown applies for an order to obtain a sample of Mr. Mani’s DNA. 

[73]        Pursuant to s. 487.054 of the Code, Mr. Mani’s offences are “secondary” designated offences and by operation of s. 487.051 (3) of the Code, a court may make an order authorizing the taking of a bodily sample for the purpose of a DNA analysis if the court is satisfied that such an order is in the best interests of the administration of justice.

[74]        In deciding if a DNA order in is in the best interests of the administration of justice I must consider Mr. Mani’s criminal record, the offences for which he is being sentenced, the circumstances surrounding their commission, and the impact that an order would have on Mr. Mani’s privacy and the security of his person.

[75]        Mr. Mani does not have a criminal record.  When Mr. Mani was arrested the police located baseball bats, and a golf club which, in the context, appeared to be available should Mr. Mani need to protect himself.  As for Mr. Mani’s privacy and security of his person, I note the taking of a DNA sample is minimally intrusive and the results are guarded by statute.  I also observe that DNA is an investigative aid in that it identifies and eliminates those suspected of having committed criminal offences.

[76]        After considering the relevant factors, I am satisfied that the taking of Mr. Mani’s DNA is in the best interests of the administration of justice and therefore the Crown’s application is granted.

[77]        The victim fine sur-charges are payable on or before June 1, 2020.