R. v. Basi

2010 BCSC 1622 R. v. Basi

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Basi, 2010 BCSC 1622 Date: 20101018 Docket: 23299 Registry: Vancouver Between: Regina Appellant And: Udhe Singh Basi Bobby Singh Virk Respondents Before: The Honourable Associate Chief Justice MacKenzie Oral Reasons for Sentence October 18, 2010 Counsel for the Crown W. S. Berardino, Q.C., J. Winteringham, Q.C. & A.N. MacKay Counsel for the Accused Dave Basi Counsel for the Accused Bobby Virk Counsel for the Accused Aneal Basi P. M. Bolton & C. Hatcher K. McCullough & T. J. Russell E. Dance Place of Hearing: Vancouver , B.C. [1] THE COURT: Almost seven years after the laying of the indictment alleging breaches of trust in this case, Messrs. Basi and Virk have entered pleas of guilty. Mr. Dave Basi has also pleaded guilty to one count under s. 121(1)(c) of the Criminal Code of accepting, without consent, a reward of money from a person dealing with government. [2] Their changes of plea are the result of a negotiated agreement between Crown and defence who make a joint submission to the Court; that is, Crown and defence counsel agree on what are fit sentences for these offences. [3] Mr. Basi has pleaded guilty to Counts 3 and 7 as amended on the indictment. Mr. Bob Virk has pleaded guilty to Counts 7 and 8 as amended. [4] I direct that the Agreed Statement of Facts that the Crown has read into the record become Exhibit 1 on

the sentencing proceeding. Exhibit 1 is an Appendix to these Reasons. [5] The facts on the additional count to which Mr. Basi has pleaded guilty are as read in orally by the Crown. This count concerns efforts by Mr. Basi on behalf of Shambrook Hills' application to take land out of the Agricultural Land Reserve. Mr. Basi was an official within the meaning of s. 118 of the Criminal Code, and contrary to his oath of office accepted $50,000 with respect to the application in February 2002. [6] Mr. Basi met with Messrs. Duncan, Eden and another, and they expressed concerns about delay with their application. Mr. Basi advised them to speak to their local MLA. He said that he would also do so and would speak to other government officials on their behalf. Mr. Basi spoke to Tom Syer in the Ministry of Sustainable Resource Management and others about the application but his actions did not influence the decision of the government. [7] I turn to the submissions of Crown counsel. [8] The Crown says that Mr. Basi and Mr. Virk have taken responsibility for these offences. Neither has a criminal record, both have young families, and both have admitted grave transactions and serious bad judgment. The Crown submits that the appropriate sentence must also take into account the fact that that the administration of justice has been spared an inordinately long jury trial with all the attendant

risks that such long trials bring. Indeed, in this case we have already seen some of the exigencies that accompany a long jury trial. [9] Crown and defence counsel jointly submit that the appropriate sentences on the pleas and the facts upon which they are based is a period of incarceration of two years less one day to be served in the community under house arrest and other stringent terms. These are accepted and agreed to by Mr. Basi and Mr. Virk. [10] Mr. Basi has also accepted and agreed to a fine in lieu of forfeiture in the amount of $75,695 with 18 months in jail in the event of default. $75,695 is the total amount Mr. Basi was paid under the offences before this Court and under the Agricultural Land Reserve count. [11] The Crown says it has advanced its submissions on a just and fit sentence considering the appropriate range of sentences for offences under ss. 121 and 122 of the Criminal Code, the principles relative to joint submissions and also those relevant to conditional sentence orders for first time offenders and for offences of this nature. [12] Sections 121 and 122 of the Criminal Code create indictable offences for which the offender is liable to a term of imprisonment not exceeding five years. The authorities state that breach of trust by an official is indeed a serious offence but that a wide range of possible sentences may be imposed depending on all the

circumstances. The Crown relies on R. v. Berntson, 2000 SKCA 47, 145 C.C.C. (3d) 1. In that case, Mr. Justice Tallis referred to R. v. Hinchey, [1996] 3 S.C.R. 1128 at para. 18, 111 C.C.C. (3d) 353, where the Supreme Court of Canada said: ... given the heavy trust and responsibility taken on by the holding of a public office or employ, it is appropriate that government officials are correspondingly held to codes of conduct, which for an ordinary person, would be quite severe. [13] The Court in Berntson emphasized the importance of this trust, adopting the observation that "public office means serving the public and nobody else." I acknowledge that these principles are applicable in the present case. [14] The Crown submits that the joint submission on sentence is in the best interests of the administration of justice because the defendants have come forward and unequivocally accepted responsibility for their transgressions. In so doing, they have eliminated the exigencies inherent in a lengthy jury trial that would have occupied the members of the jury, the court process and court resources for a time well beyond mid‑March 2011 as had been scheduled. [15] The Crown says that the courts have confirmed that a term of imprisonment served under strict conditions addresses the applicable principles of sentencing in cases of this nature. Importantly, Mr. Basi and Mr. Virk are first

time offenders. They acknowledge their crimes publicly, and this will have a direct impact on their social and professional standing in the community. [16] The Crown further says that the proposed sentences meet all the applicable sentencing principles in the Criminal Code and the jurisprudence. The relevant principles are set out in ss. 718 to 718.2 of the Criminal Code. [17] Section 718.1 sets out the fundamental principle of sentencing that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Under s. 718.2(3), evidence that an offender abused a position of trust or authority in committing an offence is an aggravating circumstance. [18] Important to this case is the principle that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances, and all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders. [19] Section 742.1 of the Criminal Code sets out the criteria an offender must meet for a conditional sentence order. The offence cannot carry a minimum penalty and the term of imprisonment must be less than two years. The Court must also be satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentence. [20] The Crown relies on the Supreme Court of Canada's decision in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, and its companion case, R. v. Bunn, 2000 SCC 9, [2000] 1 S.C.R.

183. Bunn was a sentencing decision concerning convictions on six counts of breach of trust involving $86,000 (more than is involved here) and 145 transactions over a three‑and‑one‑half‑year period. [21] The Crown submits that Mr. Basi and Mr. Virk fall within the four corners of the sentencing analysis in Bunn and Proulx. They have experienced, says the Crown, a dramatic fall from grace given their positions as government officials. They have also accepted full responsibility for the transgressions that constitute the subject matter of the case and they have no criminal records. The Crown says there are material considerations which extend the present case beyond the circumstances in Bunn and Proulx, including the very lengthy trial to which the jury and the community would otherwise be subject. [22] Mr. Bolton says that Mr. Basi is 44 years old with no prior criminal record. He has lived in Victoria all his life. He has a long marriage with two children aged 15 and 10 years old. He commenced his public service career in 1994 after interning in 1993. He held a variety of positions. In 2001, he took the appointment of ministerial assistant to the Minister of Finance, Gary Collins, and was summarily dismissed following the search of December 28, 2003. He has been unemployed since and has been doing volunteer work for an uncle who has assisted in supporting his family. He will

become employed full-time very shortly. [23] Mr. Virk is 36 years old. He has been married for nine years, and his two young children are aged six and four. He has assisted in family businesses over the past six to seven years. [24] Counsel for Mr. Basi and Mr. Virk agree with the Crown's submissions and accept the stringent terms of the conditional sentence orders and the fine for Mr. Basi. Counsel point out the obvious, which is that this was a long, difficult case, and that the Crown has properly considered that as a factor in making its submission. [25] The law requires that a sentencing judge accord a considerable degree of deference to a joint submission. I recognize that the joint submission in this case was the product of lengthy negotiations over a considerable period of time by experienced counsel. [26] The fundamental purpose of sentencing, as expressed in s. 718, is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. This purpose is met through the imposition of just sanctions that have one or more of the objectives of denunciation, deterrence, separation of the offender from society, rehabilitation, reparation and the promotion of responsibility and acknowledgement of harm done to victims and the community. [27] Section 742.1 of the Criminal Code permits the imposition of a conditional sentence. A conditional sentence is a

sentence of imprisonment that is served in the community instead of a penal institution. In my view, the criteria for a conditional sentence order are met here. [28] It is important to recognize that a conditional sentence is not necessarily a more lenient sentence. In Proulx, at para. 105, the Supreme Court of Canada expressly referred to the stigma attaching to house arrest when it said: The stigma of a conditional sentence with house arrest should not be underestimated. Living in the community under strict conditions where fellow residents are well aware of the offender's criminal conduct can provide ample denunciation in many cases. In certain circumstances the shame of encountering members of the community may make it even more difficult for the offender to serve his or her sentence in the community than in prison. [29] I have referred to the relevant principles of sentence in this case. I am satisfied that the fine imposed on Mr. Basi is an appropriate form of punishment. In addition to having a denunciatory effect, it provides a means by which he is required to take responsibility for the consequences of his conduct, and it provides at least a partial means by which his rehabilitation may be measured. The default period, 18 months imprisonment, is substantial. [30] As to aggravating factors, these offences represent serious breaches of trust by people entrusted with

government positions and who swore oaths of office and enjoyed significant public confidence. The public trusted them and they violated that trust. [31] The mitigating factors have already been referred to by the Crown and defence for many years. The defendants have suffered the stigma of being charged with criminal offences. They have done so, it must be said, in a very public way. They have no criminal records and have young families. The charges have no doubt had a profound effect on their reputations in the community and in government circles with the attendant economic consequences. [32] I accept that the defendants are remorseful. They have expressed this remorse through their counsel who say they will not be back before the Court again. The guilty pleas even at this stage of the proceeding will significantly reduce its cost and add certainty to the outcome. Furthermore, a guilty plea is the formal way in which the defendants express their remorse to the public. [33] In all the circumstances, I accept the joint submission of Crown and defence counsel. The criteria in s. 742.1 for a conditional sentence order are met, and the offences in question fall within those for which a conditional sentence order with stringent conditions of house arrest, community work service and a curfew is fit. The proposed sentences properly address the principles of deterrence and denunciation,

which are the primary principles to be here. [34] Joint submissions by experienced counsel are entitled to deference. In the present case, the joint submission neither offends the interests of justice nor is contrary to the administration of justice. [35] If the conditional sentence order is violated -- and this is very important -- the defendant may be brought back before the Court to answer the allegation of breach. If the Court finds on a balance of probabilities that the defendant did breach a condition, then absent proof of a reasonable excuse, the Court has a variety of remedies open to it, including, significantly, the termination of the conditional sentence order and committal of the defendant to custody for the balance of the sentence. Thus, there is substantial pressure on the defendants throughout the term of the conditional sentence orders, which I note are the maximum they could be at law, to be vigilant about their conditions. [36] The conditional sentence orders here constitute a significant deprivation of liberty because of the house arrest and other stringent conditions. No doubt, the long term under which the defendants have been living with these criminal charges has taken its toll, and this adds to the penalty of the deprivation of liberty arising from the conditional sentence order. In all the circumstances, it is the least restrictive sentence that is appropriate in the circumstances. [37] I will impose the sentences now. [38] Mr. Basi, will you stand up, please. You are sentenced to a period of incarceration of two years less one day to be served in the community, and you shall comply with the following terms of the conditional sentence order: 1. Keep the peace and be of good behaviour.

2. Appear before the Court when required to do so by the Court.

3. Report to a supervisor within two working days after the making of this order, and thereafter when required by the supervisor and in the manner directed by the supervisor.

4. Remain within the jurisdiction of the Court unless written permission to go outside that jurisdiction is obtained from the Court or the supervisor.

5. Notify the Court or supervisor in advance of any change of name or address, and promptly notify the Court or the supervisor of any change of employment or occupation.

6. You shall perform 150 hours of community service to the satisfaction of the supervisor within the first 18 months of this order, and in any event at a rate of not less than 10 hours per month. At the end of each month of the term of this conditional sentence order, you shall provide proof in a form satisfactory to your supervisor of your completion of your community service hours that month.

7. You shall reside at [address redacted].

8. For the first 12 months of this order, but subject to para. 4, you shall be subject to house arrest in your residence or its grounds at all hours except when you are: a. at your place of employment for purposes of work or engaged in the course of your employment or business or work‑related matters; b. travelling from your residence directly to and from work or engaging in employment or work‑related matters; c. engaging in activities related to your children or travelling directly to or from your residence for that purpose; d. performing your community service hours or travelling directly to or from your residence for that purpose; e. if you are authorized in writing by your supervisor to be absent from your residence; f. attending court as required; g. attending your lawyer's place of business in Vancouver or Victoria for the purpose of dealing with the disposal of disclosure materials produced in the within proceeding; h. engaging in one hour of physical exercise three times per week; i. attending to medical appointments or dental emergencies involving yourself or your immediate family; and j. attending for personal grooming and grocery shopping for up to two hours per week.

9. For the second 12 months of the order, you shall be subject to house arrest in your residence or its grounds from 11:00 p.m. to 6:00 a.m., except when you are: a. at your place of employment for purposes or work or engaged in the course of your employment or business or work‑related matters; b. travelling from your residence directly to and from work or engaging in employment or work‑related matters; c. engaging in activities related to your children or travelling directly to or from your residence for that purpose; d. performing your community service hours or travelling directly to or from your residence for that purpose; e. if you are authorized in writing by your supervisor to be absent from your residence; f. attending court as required; g. attending at your lawyer's place of business in Victoria or Vancouver for the purpose of dealing with the disposal of the disclosure materials produced in the within proceeding; h. engaging in one hour of physical exercise three times a week; i. attending to medical appointments and dental emergencies involving yourself or your immediate family.

10. You shall maintain a non‑portable land line telephone at your Victoria residence and shall keep your supervisor apprised at all times of that current telephone number. Your telephone number shall not be subject to any call forwarding feature or service.

11. During those times that you are required by the order to be in your residence and are not excused in accordance with the terms of this order from being in your residence, you shall facilitate supervision of compliance with the terms of this order by presenting yourself to the door of your residence when required to do so and by personally answering your telephone when it is called.

12. You shall not possess, purchase or consume alcohol or any substance forbidden by the Controlled Drugs and Substances Act, R.S.C. 1996, c. 19, except as may be prescribed by a physician or a dentist.

13. You shall provide a copy of this conditional sentence order and its terms to your current and any future employer. [39] You will be provided with a copy of the conditional sentence order and it will be further explained to you if necessary. You may sit down. [40] I will advise you of the other potential features of a conditional sentence after Mr. Virk has been addressed. [41] Mr. Virk, will you stand, please. You are sentenced to a period of incarceration of two years less one day to be served in the community, and you shall comply with the following terms of the conditional sentence order: 1. Keep the peace and be of good behaviour.

2. Appear before the Court when required to do so by the Court.

3. Report to a supervisor within two working days after the making of this order, and thereafter when required by the supervisor and in the manner directed by the supervisor.

4. Remain within the jurisdiction of the Court unless written permission to go outside that jurisdiction is obtained from the Court or the supervisor.

5. Notify the Court or supervisor in advance of any change of name or address, and promptly notify the Court or the supervisor of any change of employment or occupation.

6. You shall perform 150 hours of community service to the satisfaction of the supervisor within the first 18 months of this order, and in any event at a rate of not less than 10 hours per month. At the end of each month of the term of this conditional sentence order, you shall provide proof in a form satisfactory to your supervisor of your completion of your community service hours that month.

7. You shall reside at [address redacted].

8. For the first 12 months of this order, but subject to para. 4, you shall be subject to house arrest in your residence or its grounds at all hours except when you are: a. at your place of employment for purposes of work or engaged in the course of your employment or business or work‑related matters; b. travelling from your residence directly to and from work or engaging in employment or work‑related matters; c. engaging in activities related to your children or travelling directly to or from your residence for that purpose; d. performing your community service hours or travelling directly to or from your residence for that purpose; e. if you are authorized in writing by your supervisor to be absent from your residence; f. attending court as required; g. attending your lawyer's place of business in Vancouver or Victoria for the purpose of dealing with the disposal of disclosure materials produced in the within proceeding; h. engaging in one hour of physical exercise three times per week; i. attending to medical appointments or dental emergencies involving yourself or your immediate family; and j. attending for personal grooming and grocery shopping for up to two hours per week.

9. For the second 12 months of the order, you shall be subject to house arrest in your residence or its grounds from 11:00 p.m. to 6:00 a.m., except when you are: a. at your place of employment for purposes or work or engaged in the course of your employment or business or work‑related matters; b. travelling from your residence directly to and from work or engaging in employment or work‑related matters; c. engaging in activities related to your children or travelling directly to or from your residence for that purpose; d. performing your community service hours or travelling directly to or from your residence for that purpose; e. if you are authorized in writing by your supervisor to be absent from your residence; f. attending court as required; g. attending at your lawyer's place of business in Victoria or Vancouver for the purpose of dealing with the disposal of the disclosure materials produced in the within proceeding; h. engaging in one hour of physical exercise three times a week; i. attending to medical appointments and dental emergencies involving yourself or your immediate family.

10. You shall maintain a non‑portable land line telephone at your residence and shall keep your supervisor apprised at all times of that current telephone number. Your telephone number shall not be subject to any call forwarding feature or service.

11. During those times that you are required by the order to be in your residence and are not excused in accordance with the terms of this order from being in your residence, you shall facilitate supervision of compliance with the terms of this order by presenting yourself to the door of your residence when required to do so and by personally answering your telephone when it is called.

12. You shall not possess, purchase or consume alcohol or any substance forbidden by the Controlled Drugs and Substances Act, R.S.C. 1996, c. 19, except as may be prescribed by a physician or a dentist.

13. You shall provide a copy of this conditional sentence order and its terms to your current and any future employer. [42] Mr. Basi and Mr. Virk, you, your supervisor or the prosecutor may propose changes in the optional conditions, if any, imposed upon you in the conditional sentence order: a. If your supervisor serves you with written notice of such a proposal you will have seven days after service upon you of the proposal to ask the Court to hold a hearing. A hearing will then follow. If you choose not to request the Court to hold a hearing, the proposed changes may, but not must, take effect 14 days after your supervisor filed the proposal with the Court. If you or the prosecutor proposes changes in the optional conditions, then the Court must hold a hearing. b. If you do wish to apply for a change in the optional conditions, you must file a notice to that effect in the Court's registry and serve a copy of that notice on the office of Crown counsel. Your written notice should state what changes you want and the reasons therefore. The Court will order a hearing to be held within 30 days of the date of the filing of your notice in the Court's registry. [43] You may be brought before the Court to answer an allegation that you have breached a condition of the conditional sentence order. If you appear before the Court in custody, you will be detained in custody pending the

hearing unless you show cause why your detention is not justified. A reasonable length of time before the hearing you will be served with a copy of a written report prepared by your supervisor. In the result, your supervisor may or may not testify at the hearing depending on your wishes and the rulings of the Court. If the Court finds on a balance of probabilities that you did breach a condition of the conditional sentence order, then absent proof by you of a reasonable excuse it will be open to the Court to do any of a variety of things ranging from nothing to terminating the conditional sentence order and committing you to custody for the balance of your sentence. [44] Mr. Basi, do you understand? [45] MR. BASI: Yes, My Lady. [46] THE COURT: Mr. Virk, do you understand? [47] MR. VIRK: Yes. [48] THE COURT: As I have said, the conditional sentence orders will be given to you and read to you. I understand the Crown will be staying the outstanding counts. Is there anything further? [49] MR. MCCULLOUGH: Minor. Their 10 hours of community work service, they have to complete them every month up to the 150, I take it that the first month of that will be November given that there's not much time left in October, that the first 10 hours will commence in November. [50] THE COURT: The Crown consents. The first 10 hours must be completed by the end of November. [51] MR. MCCULLOUGH: The

registry staff, the justice of peace will say this to the accused but the reporting obviously within the 48 hours or two days will be in Victoria. [52] THE COURT: Yes, the reporting will be to the Victoria office of the conditional sentence supervisor. [53] MR. MCCULLOUGH: Thank you. [54] MR. BERARDINO: I'm not sure if it's appropriate or not to cover the forfeiture order. [55] THE COURT: I understood the Crown to be seeking a fine in lieu of forfeiture. That's what your words were. [56] MR. BERARDINO: That's it. [57] THE COURT: I have not imposed a forfeiture order. The fine is imposed in the amount ordered with the default period of 18 months in prison. [58] MR. BERARDINO: Thank you. That's correct. "A. MacKenzie A.C.J." _______ Associate Chief Justice MacKenzie