VANCOUVER — A man found guilty of using his job at the Vancouver airport to help smuggle drugs may spend more time behind bars.
Gurvinder Singh Pahl pleaded guilty in January 2015 to possessing ecstasy for the purpose of exportation and was sentenced to five years in prison.
The Crown had asked for eight years and appealed the sentencing decision, arguing the judge considered inadmissible information in a psychologist's report when determining the sentence.
A panel of three B.C. Appeals Court judges agreed in a ruling released Friday that a mistake was made, and a special commissioner will now determine the admissibility of the evidence and send the case back to the court for sentencing.
The sentencing hearing heard that Pahl was working as a security screener at the Vancouver International Airport in May 2011 when he took a backpack filled with nearly 15 kilograms of ecstasy to another man in the U.S. departures terminal.
Pahl didn't testify, but his lawyer submitted a report from a psychologist who said Pahl told him he tried to smuggle the drugs because he was being threatened and feared for the safety of himself and his family.
The Crown argued in the appeal that the judge imposed an unfit sentence because there was no evidence to support the explanation in the report, but it was still used as a mitigating factor in sentencing.
Justice S. David Frankel said in his written decision that he agreed, saying Pahl is not a credible witnesses.
"The veracity of his explanation rests entirely on his credibility and he cannot avoid an assessment of his credibility by having his counsel or anyone else simply repeat in court what he told them out-of-court," Frankel wrote.
The sentencing judge should have had a hearing to determine whether the explanation for the crime set out in the psychologist's report was admissible evidence, and then sentence based on that, he said.
It's impossible to say whether the sentence Pahl received is appropriate without knowing whether his explanation for the crime is credible, Frankel added.
Frankel wrote that he and Chief Justice Robert Bauman agreed a special commissioner should be appointed to hold a hearing on the disputed facts in the case, and report back to the court.
The third panellist, Justice Nicole Garson, said in her own written decision that the sentencing judge had made a mistake, but she didn't agree with ordering a new hearing.
Pahl had an opportunity to testify at his sentencing hearing and chose not to, she wrote.
"Having chosen to proceed in this manner, I do not agree with my colleague that it would be appropriate to offer him the opportunity to do now what he declined to do at the sentencing hearing," she said.
Garson wrote that the court should consider Pahl's current sentence based on the established facts, and impose a fit sentence or dismiss the appeal.
