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| John L. Hill |
The British Columbia Court of Appeal wrestled with what is a fit and proper sentence for Sukhvir Singh Gill (R. v. Gill 2022 BCCA 127). Gill was 19 years old in March and April, 2017 when the offences under the Controlled Drugs and Substances Act were committed. The first charge related to the sale of 6.53 grams of cocaine laced with carfentanil (which is 100 times more potent than fentanyl) to a member of the Abbotsford Police Service for $1,800. In April, the sale of $2,500 worth of cocaine mixed with fentanyl and carfentanil was interrupted when Gill and the driver of the truck Gill was in were arrested for possession of the substances.
Gill was a neighbour of the Mann brothers. The Manns were involved in “dial-a-dope” trafficking of fentanyl and its analogues in the Fraser Valley. Apparently, Gill became involved with the business by using the Mann phone numbers after the Manns were prosecuted. Gill wanted to earn extra money to buy luxury brand name goods. He did so knowing that the Mann case resulted in a five-year sentence for Karan-Jit Mann (R. v. Mann 2018 BCCA 265). The Mann case seemingly became the standard in British Columbia on how to get tough on this particular drug.
Nonetheless things appeared promising when Gill went to court in May 2021 and pleaded guilty. A pre-sentence report was prepared that showed he was from a supportive family and working toward completing a network engineering diploma. He expressed his remorse to the court. He had dissociated himself from a negative peer group. In short, he appeared rehabilitated even before the passing of sentence.
However, despite the mitigating factors, Gill was up against a rising tide of popular hostility due to the shocking number of deaths and mayhem rampant in British Columbia due to fentanyl. The Mann case became the standard and Gill was sentenced to two years for trafficking and five years concurrent for possession.
Gill appealed. Even though by the time the appeal was heard he had already served about a year in penitentiary, he faced the same obstacle — a court that did not want to appear to be soft on fentanyl.
The appellate court, in a 2-1, decision emphasized the need to punish traffickers of carfentanil more harshly that those who sold fentanyl alone (even though there was no analysis as to the amount of carfentanil in the packets of drugs Gill sold). The majority of the court found that the judge at trial failed to give credit to the fact that Gill had returned to a pro-social and stable lifestyle. But rather than accede to the 24 — 30 months sentence asked for by appellate counsel (which would make Gill immediately eligible for parole), the sentence was altered by shaving a year off the five years originally handed out.
The dissenting judge objected that the majority had not given proper deference to the trial judge’s assessment and would have allowed the five-year sentence. Again, the dissent relied heavily on the Mann decision even though that case was distinguished in R. v. Riera [2019] B.C.J. No. 398 where Riera was sentenced to two years less a day plus probation for trafficking in heroin and fentanyl.
Sentencing is a tough job. It becomes particularly difficult when public outrage at drug-related deaths is on the upswing and the offender is a young person whose life will be destroyed by a penitentiary term. Sukhvir Singh Gill was treated harshly by the courts so that the rest of us will come to realize the harm done by a drug. When the sentencing principles of general deterrence and rehabilitation collide, guess which one wins.
This is part one of a two-part series.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. Contact him at johnlornehill@hotmail.com.
Photo credit / canbedone ISTOCKPHOTO.COM
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