The Legislature Raids

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Yesterday, the following comment was received here and the Anonymous sender may have thought I didn't appreciate it. Oh yes, I certainly did appreciate it ...

Anonymous said...

I heard that it came out in court today that Jasmohan Baines received a 9 year sentence after having been found guilty of conspiracy.

December 10, 2008 11:01 PM

but because I had seen no mention of this event in the news, I didn't know whether it was accurate or not, so I set out to verify the sources. Why was this important?

As you may recall, Jasmohan Singh Bains was one of the "persons of interest" arrested as a result of "Project Everywhichway", the raids on the Legislature. Bains was mentioned by Janet Winteringham in the Basi-Virk hearings in BC Supreme Court as follows:


Ms. Winteringham said the defence was simply wrong when it stated that the investigation, code named Project Everywhichway, suddenly veered off course to target Mr. Basi, who was an aide to then-finance-minister Gary Collins, and Mr. Virk, who was an aide to Judith Reid, the transport minister.

In fact, she said, Mr. Basi emerged as an early person of interest in a drug investigation that was triggered when informants told the RCMP that the arrest, in May, 2002, of U.S. drug dealer Cirilo Lopez had created an opening for a new drug boss on Vancouver Island.

"The word on the street was that Jas Bains was going to be the person taking over," Ms. Winteringham said.

Mr. Bains is Mr. Basi's cousin.

That drug investigation identified Ravinder Singh Dosanjh, who was then a Victoria police constable, and Mandeep Singh Sandhu as other persons of interest. Both are related to Mr. Basi.


So it was important to get it right, as to whether or not Jasmohan Bains had been convicted and sentenced to 9 years of imprisonment. It was important to know the charges, too ... as in "conspiracy" to do what? And in the end, I thought it was important to show the reasons in very human terms for the 9-year sentence. After a lot of help this past 24 hours, I can now report as follows:

Regina versus Bains File No. 127870C-3 took pace in B.C. Provincial Court, Victoria, B.C., on June 16 - 17 and 24-28, 2008.

Judgment was rendered on September 4, 2008 by R.A. Higinbotham.

Bains was charged with one count of conspiring to traffic in cocaine "with named and unnamed co-conspirators". The named co-conspirators relavant to the evidence introduced in this trial are Blythe Vernon, Brahm Mikol and John Scallon. [Unnamed co-conspirator(s) could possibly include the secret witness now being shielded by Special Prosecutor. - BC Mary]

The charge against Bains followed an investigation into the activities of the accused and his associates known as "Project Every Which Way". Investigators employed a variety of tactics in pursuing this investigation including the use of surveillance, controlled delivery of money, and judicially authorized wiretaps and searches ...

"In the face of a significant volume of evidence, I am grateful to counsel for the admissions made and the well-focussed closing submissions, which assist the court in isolating the key issues to be decided ...

All other potential issues have been conceded, including the accuracy of the transcripts of intercepted communications, [some portions of this evidence could conceivably be heard in the Basi Virk trial. - BC Mary] all relevant particulars relating to surveillance, continuity of seized exhibits, the nature of the substances seized and analyzed, and the identities of those arrested. The filed admissions do not concede the identities of the parties to the intercepted communications but Mr Bagnall [counsel for the defendant] confirmed during the course of his submission that this was no longer in issue ...

The evidence against Mr Bains is overwhelming and convincing. It leaves me in no doubt that he conspired with those named in the charge to traffic in cocaine and I find him guilty as charged.

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And now The Reasons for Sentence


Case Name:
R. v. Bains


2008 BCPC 261
File No. 127870-C3
Registry: Victoria
British Columbia Provincial Court
Victoria, British Columbia

R.A. Higinbotham Prov. Ct. J.

Heard: September 9, 2008.
Judgment: September 11, 2008.

REASONS FOR SENTENCE

1 R.A. HIGINBOTHAM PROV. CT. J.:-- I convicted Mr. Bains on September 4, 2008 of committing the offence of conspiracy to traffic in cocaine. The offence occurred approximately five years ago. In giving my reasons for judgment, I characterized the role of Mr. Bains in this conspiracy as follows:

* Mr. Bains had sent 12 kilograms of cocaine for distribution, and advised at least one of his co-conspirators that he could probably supply as many as 50 kilograms per week;
* He directed the operations of his co-conspirators in a broad sense, although he left the details of distribution within Toronto to (co-conspirators) Mikol and Scallon;
* The evidence does not reveal the existence of any person to whom Mr. Bains reported, but implies that no such person existed;
* Mr. Bains obtained the cocaine referred to in the charge through a cash purchase. He was not required to pass along any of the money he received;
* Mr. Bains had the power to authorize or approve changes in the price per kilogram for Toronto distribution purposes.

These factors, and the rest of the evidence taken as a whole, persuade me that Mr. Bains was the sine qua non of this conspiracy. He was the initiator, the driving force, and the chief executive officer of the trafficking enterprise, and he answered to no other person.

2 These findings constitute significant aggravating factors. Mr. Bains contributed in an important way to the infliction of untold damage on human lives through his distribution of this harmful drug. When I refer to this drug as harmful, I do not just refer to its impact upon individual users; I also refer to its impact upon society as a whole. Cocaine is not a purely "recreational" drug, as it was once thought to be. For many years now it has been capable of transformation into crack, a cheap and highly addictive form of cocaine that renders the addict incapable of little else but the all-consuming drive to get more. It leads to property and other crimes which affect all of society. The crack addict is unlikely to afford to feed this craving without resort to theft, breaking and entry, or robbery. There is a trickle-down effect resulting from Mr. Bains' conduct that hits the community as a whole.

3 The impact of this type of offence on the community has led appellate courts to conclude that deterrence and denunciation must be the primary considerations for a sentencing judge. That is my starting position.

4 During the course of submissions counsel made an effort to distinguish cases based upon the actual quantities and value of the drugs. In my opinion this type of analysis has limited utility once a certain threshold is reached. As it applies to this case, I consider it an aggravating factor that Bains sent twelve kilograms of cocaine to Toronto. That is a lot of cocaine, and if undetected, this shipment would have provided Mr. Bains with a cash inflow approaching $400,000, tax free. I consider it a further aggravating factor that he stated he was willing and able to provide up to fifty kilograms per week to a buyer located by one of his co-conspirators. Given the amounts referred to, the degree of culpability is very high, and no useful distinctions can be made by comparing this case with others where different, but also very significant quantities of cocaine were trafficked.

5 Crown counsel submitted that the range of sentence for cases like this is between ten and fourteen years imprisonment, while defence counsel argued the range is between five and eight years imprisonment. Both made valid arguments in support of their respective positions. When I examine the cases brought to my attention, I see consistency in the stated approach taken by sentencing judges as regards the principles laid down by the appellate courts, yet there is a greater than expected range in the actual sentences imposed. Perhaps that does nothing more than exemplify the human nature of the sentencing process. No two offenders are identical, and differences can always be found in the circumstances surrounding the commission of the offence. Judges are also human, and the submissions of counsel may strike more or less of a responsive chord with each of them.

6 I am grateful to counsel for the sentencing examples provided to the court. They provide a kind of standard, however broad, against which to measure the proportionality of any contemplated sentence in this case. Having said that, none of the cases fetter my discretion to impose a sentence that I deem fit, having regard to the sentencing factors set out in section 718 of the Criminal Code, and the penalty provisions set out for this offence in the Controlled Drugs and Substances Act.

7 Crown counsel outlined what he considered to be aggravating factors in this case, many of which can be found in my earlier comments and in my earlier decision on conviction. Crown counsel wishes to add that a further aggravating feature is that Mr. Bains was motivated entirely by greed, based entirely upon his personal choice, and not motivated by any circumstance over which he had little or no control. I prefer to think of this as simply denying Mr. Bains a potential mitigating factor.

8 In other cases, there is often evidence of the involvement of weapons, or violence, or threats of violence. There is none of that here to operate as a further aggravating factor, but the absence of evidence of those features is not a true mitigating factor either. I consider it neutral. The unquestionable impact of putting such a quantity of cocaine out on the streets is, in and of itself, the main feature of this case that demands a denunciatory sentence be imposed.

9 Despite the offence committed against the community, and Mr. Bains' key role in its commission, there are mitigating factors that must be taken into account. He is thirty-three years old, and has been facing this judgment day for almost five years, his initial arrest having taken place in December of 2003. He has no prior record of convictions. For four years he has been subject to release conditions and he has been compliant with those conditions.

10 During the period he has been on bail he has taken the opportunity to attend university and obtain a business degree. He has struggled to maintain his marriage and be a good father to his son, who will soon be turning six years old. I am particularly impressed by the recent letter written by his mother-in-law Sharon Ridley as to the changes she has seen in Mr. Bains, and particularly with her comments as to the quality of his parenting and his obvious love for his wife and son.

11 It should be noted that Mr. Bains also had a wife and one year old son when these offences were committed, and it most certainly cannot be said that he was then a good husband and father. What good husband and father would place his family at such risk by carrying on the business of a high level drug dealer?

12 I accept without equivocation that Ms. Ridley shares my view of her son-in-saw Mr. Bains as he was in 2003, and she has changed her view of him as he is now. I unequivocally accept her opinion that he has matured into a devoted family man with legitimate aspirations for the future. Her opinion is also supported by his good conduct on bail and his successful educational efforts.

13 Based upon the foregoing, and the presence of a strong and supportive extended family, I am of the opinion that Mr. Bains presents himself as having strong prospects for rehabilitation. His ability to reform is further enhanced by his intelligence and his entrepreneurial skills. While there is still a risk that these latter attributes, combined with his having had a taste of wealth, could plunge him back into the drug business, I think it unlikely, particularly given the impact of the sentence to be imposed.

14 In order to achieve a balance to the various aggravating and mitigating factors that apply here, I start with the premise that the circumstances of the crime itself, including the amount of drugs and Mr. Bains' lead role in its distribution, require not only a sentence that will convince him to never get involved again, but also a sentence that adequately reflects the community's abhorrence at his cavalier wreaking of misery upon the less fortunate members of our society.

15 From that starting point, I take into account the mitigating factors referred to above. They serve to reduce the sentence I would otherwise impose. In considering the case as a whole, I then look to other sentencing decisions with an eye to ensuring that the test of proportionality has been met. In particular, I compare the aggravating and mitigating factors in Mr. Bains' case to those that appear to have been taken into account in the sentencing of his co-conspirators. It has nothing to do with whether I concur with those decisions. The fact of the matter is that the sentence imposed on Mr. Bains must have an understandable relationship to the sentences imposed upon those who worked directly under him within the same conspiracy.

16 Finally, as a sentencing judge I must step back and consider whether a proposed sentence will have a crushing effect on the prospects for Mr. Bains' reform and rehabilitation.

17 The approach I have outlined above leads me to conclude that the sentence I am about to impose is the least possible that adequately reflects the sentencing principles of deterrence and denunciation. I have also come to the opinion that to impose a greater punishment would go beyond those principles and might crush any future prospects for rehabilitation. I sentence Mr. Bains to serve a sentence of nine years imprisonment.

18 I have been asked by defence counsel to make a recommendation to the corrections department that Mr. Bains serve his sentence at the William Head institution. While I am convinced that Mr. Bains' rehabilitation will be far better served with frequent and generous family contact, it is not my practice to make such recommendations, primarily because there are many other factors that corrections officials consider in order to classify inmates to which I am not privy. I am certain, however, that one amongst their considerations will be the findings I have made at this hearing.

19 The Crown further asks for an order of forfeiture of the sum of $12,718.11. These funds were seized from Mr. Bains' person and from his residence on the date of his arrest. I order that those funds are forfeited to the Crown under the provisions of Part 12 of the Criminal Code.

20 In addition, the Crown seeks a fine in lieu of forfeiture of funds received by Mr. Bains during the course of the investigation. The value of these funds is known to be $242,170.00, and due diligence has not discovered the location of those funds. It is not contested that these funds were proceeds of crime. I have little discretion in this matter, and this case does not fall within that narrow discretion. Further, the ability of the offender to pay is irrelevant. I must also impose default imprisonment of between two and three years, given the amount of the fine. My only real discretion is in determining the amount of time Mr. Bains will be given to pay the fine. I therefore order that Mr. Bains pay a fine in the amount of $242,170.00 in lieu of restitution pursuant to the provisions of Part 12 of the Criminal Code. He will have two years in which to pay the fine. In default of payment, Mr. Bains will serve three years imprisonment, consecutive to the term of imprisonment to which I have earlier sentenced him.

21 Finally, I impose a ten year firearms prohibition pursuant to section 109 of the Code.


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