COURT FILE NO.: CR-14-90000125-0000 DATE: 20170330 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Sarah Egan, for the Crown
- and -
JUSTIN SOON Liam O’Connor, for the Accused
HEARD: March 27, 2017 Thorburn J.
REASONS FOR SENTENCE
1. The Offences
[1] After a trial by jury, Justin Soon was convicted of trafficking in property obtained by crime on February 23, 2014, and of possession of 143.4 grams of cocaine for the purpose of trafficking and possession of proceeds of crime on March 5, 2014.
[2] In order to determine the appropriate sentence, I will review the circumstances of the commission of these offences and of this offender, followed by a review of the law including sentence ranges that have been imposed on similar offenders who committed similar offences.
2. Information About These Offences
Count 2: Trafficking Proceeds of Crime (February 23, 2014)
[3] On February 23, 2014 Justin Soon left his house, got into a silver Dodge Charger in the driveway and drove to Yorkdale Mall with a red and black CCM gym bag that contained $250,170. At 4:30 p.m. he walked over and entered a black Dodge Avenger, carrying the red and black bag and gave it to Mark Zirkind.
[4] Later that evening, Mark Zirkind was stopped while travelling eastbound on the 401 in his Dodge Avenger close to Cornwall and was found with the bag which contained $250,170 bundled but not vacuum sealed.
[5] The money was being transported for a Mr. Deo who was a friend of Mr. Soon’s.
Counts 3 and 4: Drug Trafficking and Proceeds of Crime (March 5, 2014)
[6] Justin Soon was arrested at his home at 115 Saturn Road, Etobicoke, ON on March 5, 2014. Police found the following items in his home:
a) $5,500 in Justin Soon’s jacket found on a couch in the kitchen and living room; b) $9,860 in a hidden compartment in a shoe rack on the wall in Justin Soon’s bedroom; c) $36,030 in a gift bag in the trunk of the silver Dodge Charger with license plate BREX307; d) a black and silver digital scale and packing tape in the kitchen; e) a Food Saver Vacuum sealing system and rolls, elastic bands and duct tape, yellow gloves and knives, in the office/computer room; f) two Ziploc bags containing cocaine inside a vacuum sealed bag, one Ziploc bag containing 47 grams of crack cocaine and the other containing 96.4 grams of powder cocaine in a jacket pocket found in Justin Soon’s bedroom; and g) two Black LG Nexus cellular phones, an LG flip phone, three blackberry curves, a blackberry bold and a black iPhone in the bedroom.
[7] It is agreed that the currency was the proceeds of trafficking cocaine.
[8] According to expert testimony, the cocaine was valued at $35,000 to $40,000 per kilogram although it could be worth as little as $20,000 per kilogram.
[9] Justin Soon testified at trial that he sold cocaine in small quantities up to one ounce (or 28 grams). At the time of his arrest, he had been dealing cocaine for over six months.
[10] At the beginning he was buying small quantities and then, when he realized that buying large quantities was cheaper, he bought by the ounce (28 grams) for $1,000 per ounce. He would break it down and sell parts to friends to make money.
[11] At trial, his counsel invited the jury to find Mr. Soon guilty of trafficking cocaine and possession of the proceeds of crime found in his home on March 5th.
3. The Circumstances of This Offender
[12] Justin Soon was born on April 19, 1984. His father is a bartender and musician in Vancouver. His mother worked on and off at a women’s clothing store but for most of Justin Soon’s life, has been on disability. She has battled addiction to drugs and alcohol and has been in various treatment centres.
[13] His uncle provided a letter attesting to the “storm” and stresses in Justin Soon’s home as he was growing up with a grandfather and mother who were addicts. He described how Mr. Soon helped his younger brother growing up.
[14] Another letter provides a poignant rendition of the challenges Mr. Soon faced growing up:
It is not easy for any child to grow up in a world where your mother is the drug addict that everyone sees making a scene at the grocery store or crashing your graduation party. The resilience that we have seen Justin display over the years and his continued dedication to his family, and to his mother’s recovery is something found in people few and far between. After all the broken promises, all the letdowns over and over again, he never stopped supporting his family both emotionally and financially.
[15] Notwithstanding these difficulties, Mr. Soon was on the Honour Roll in high school and graduated early while also working at various warehouses and in a car dealership. After high school he enrolled in the British Columbia Institute of Technology where he received a Marketing Management Diploma and majored in commercial real estate. After earning his diploma he began to sell real estate in Vancouver where he earned enough money to buy a home in Etobicoke. He also began a degree program at the British Columbia Institute of Technology where he pursued a degree in Business Administration. He completed two semesters.
[16] He moved to Toronto and obtained a job with In2ition Realty. There he managed presentation sites for new developments, gave presentations, negotiated contracts and was responsible for selling units.
[17] After his arrest in 2014, he returned to complete the degree program while on bail. He completed the degree course at Ryerson University. He also started a new business with two partners to shred mail for residents of condominiums. He also began another business called ‘The Click Team Digital Marketing’ to sell online products over the internet and used his skills to raise $6,000 to build a women’s work facility in Uganda.
[18] In 2016, Mr. Soon married a singer-songwriter. He has provided marketing expertise for his wife’s music career and promoted other businesses. His marketing company has earned gross revenues of over $300,000 U.S. He has also completed other marketing courses.
[19] Justin Soon provided many letters of support attesting to his acts of kindness and the many difficulties that he has overcome including the tempestuous household he grew up in. They speak of his willingness to work hard and help others in need and indicated that he was essentially a good person, had made a very bad decision to deal drugs but that they were ready to assist him with his life once he has served his time.
[20] Other letters attest to his growth and self-reflection after being charged with these offences.
[21] Mr. Soon chose to address the court. He stated that he was fully accountable for the crimes he committed and was deeply ashamed and remorseful. He acknowledged the stress he caused to his family and that, by trafficking drugs, he was a contributor to other people’s substance abuse.
4. The Principles of Sentencing
General Principles
[22] Section 718 of the Criminal Code, R.S.C., 1985, c. C-46 provides that, in sentencing a person convicted of offences, the court must consider:
i. denunciation of the unlawful conduct; ii. deterring the offender and others from committing offences; iii. separation of offenders from society where necessary; iv. rehabilitation of offenders; v. reparation for harm done to victims or to the community; and vi. promotion of a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
[23] Similar sentences should be imposed on similar offenders for similar offences committed in similar circumstances. The sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A sentence may be increased or reduced to account for aggravating or mitigating circumstances.
Consecutive versus Concurrent Sentences
[24] Whether sentences are consecutive or concurrent is determined by, “whether the acts constituting the offences were part of a linked series of acts within a single endeavour”. This is a factual assessment. (R. v. G.P.W. (1998), 106 B.C.A.C. 239 (B.C.C.A.) at para. 35 and R. v. Li, 2009 BCCA 85, 2009 B.C.C.A. 85 at para 47.)
[25] It is agreed that counts 3 and 4 (drug trafficking and proceeds of crime) involve a single endeavour and the sentences for those two offences should therefore be concurrent. Count 2 involves a different endeavour and that sentence must therefore be consecutive to the sentence for Counts 3 and 4.
The Totality Principle
[26] Where there are multiple offences, the principle of totality requires the court to craft a global sentence that is not excessive. (R. v. M. (C.A.), [1996] 1 S.C.R. 500 at para. 42 and R. v. Gummer, [1983] O.J. No. 181 (C.A.) at para 13.)
5. Sentence Ranges for These Offences
[27] Sentencing ranges provide guidelines for trial judges. (R. v. Stone, [1999] 2 S.C.R. 290 at para 244.)
[28] From a review of the cases provided to me by counsel (summarized below) [1], it would seem that the range of sentence for money laundering in the amount of $250,000 by similar offenders is from 1 to 3 years, and the range of sentences for possession of drugs and property obtained by crime involving similar quantities of drugs (143.4 grams or 5 ounces) by similar offenders is 20 months to 3 years.
Trafficking in property obtained by crime (Money laundering)
i. In R. v. Pelletier 2013 MBPC 35, [2013] M.J. No. 127 (C.A.), Pelletier was convicted of possession of $90,000 to purchase marijuana and sentenced to 12 months in prison and a forfeiture order. The offender was found to be a trusted cash courier for a high-level trafficker. ii. In R. v. Lucas et al [2010] O.J. No. 3300 (Sup. Ct.) Lucas and Coyle had no prior record and were convicted after a trial. Each received a sentence of 1 year. Lucas had proceeds of approximately $50,000 and Cole had proceeds of $110,980 from trafficking cocaine. iii. In R. v. Peloso [2011] O.J. No. 570 (Sup. Ct), Peloso laundered over $500,000, had no prior record and pleaded guilty, and received a sentence of 2 years less a day. iv. In R. v. Diez [1998] O.J. No. 3962 (Gen. Div.) Diez laundered over $500,000 by transporting drug money, had no prior record and pleaded guilty, received a sentence of 3 years.
Drug Trafficking
i. In R. v. Okash [2010] O.J. No. 1165 (O.C.J.) an offender who was a youth at the time of his arrest and trafficked 250 grams of cocaine, 109 grams of crack cocaine, had $2,045 in cash while on probation and breached a recognizance order was sentenced to 9 months’ imprisonment followed by 12 months’ probation in addition to having spent 10.5 months in presentence custody. He had a prior related record and was more than a street level dealer. ii. In R. Migalski [1999] O.J. No. 1235 (C.A.) the Court of Appeal upheld a trial judge’s sentence of 20 months for trafficking 13.5 ounces of cocaine. The offender pleaded guilty. iii. In R. v. Tran 2015 MBCA 120, [2015] M.J. No. 324 (C.A.), an offender with no prior record who had shown great strides while on bail for 4 years and was a very low risk to reoffend was given a sentence of 2 years less a day plus one year probation including 150 hours of community service. iv. In R. v. Rebello [2010] O.J. No. 650 (Ont. Ct. J) an offender who sold cocaine to an undercover officer 3 times (13.5 g, 14g and 83.48 g) as well as 17.59 grams and $107,760 found in his home in cash and an unproven debt list was sentenced to 2 years less a day blended sentence for the drug trafficking, purchase for the purpose of trafficking and possession of proceeds of crime. The transactions were financially motivated and he was more than a street level dealer but he was an unsophisticated dealer who had one dated conditional discharge, strong family ties and no breaches for 19 months. v. In R. v. Thomas, [2006] O.J. No. 6492 (S.C.J.), a first time offender who pleaded guilty after an unsuccessful Charter application, and had made significant rehabilitative efforts was sentenced to 2 years less a day imprisonment for possession of approximately 188.72 and 20.75 grams of crack cocaine. vi. In R. v. Goncalves 2011 ONSC 2577, [2011] O.J. No. 2029 (Sup. Ct.), an offender was found with 898.15 grams of cocaine and 39.52 grams of heroin in his home. He had one youth record, was a heroin and meth addict, owned his own business, was otherwise a valued member of society and had been employed since his arrest and had complied with his bail conditions for 1.5 years. He was sentenced to 2 years less a day after subtracting 24 days of presentence custody. vii. In R. v. Nguyen [2005] O.J. no. 6032 (S.C.), after trial Nguyen was sentenced to 3 years after trial. He trafficked 2 ounces (or 56 grams) and had a previous related record. viii. In R. v. Goulet, [1995] O.J. No. 340 (C.A.), after pleading guilty, Goulet received a 3 year sentence for trafficking 54.5 grams of cocaine. Goulet had an unrelated record. ix. In R. v. Ralph [2012] O.J. No. 830 (Sup.Ct.), an offender who engaged in 5 drug transactions with an undercover officer, the last 2 for 1 ounce and 250 grams and who offered the officer a milli gun was sentenced to 3 years’ imprisonment. The offender had a dated and minor record and had complied with bail for 4 years. x. In R. v. Rafilovich 2013 ONSC 7293, [2013] O.J. No. 5421 (Sup. Ct.), after pleading guilty, Rafilovich received a sentence of 3 years for trafficking over 500 grams and 25 grams of cocaine and possession of significant amounts of cash. He had a dated unrelated record and was treated as a first offender and had made significant efforts to rehabilitate himself. xi. In R. v. Bajada, [2003] 169 O.A.C. 226 (C.A.), the court held that “sentences of five to five and one-half years are not uncommon for possession of a substantial amount of cocaine for the purposes of trafficking following an accused’s guilty plea or where the accused has no prior record.” (That case involved over ½ kg of cocaine.)
[29] Counsel also referred me to R. v. Gadouas, Court File number 9-567-15 (S.C.J.), a case involving another offender associated with Mr. Deo. Mr. Gadouas pled guilty to possession of 15 kilograms of cocaine for the purposes of trafficking and was sentenced to 3 years’ incarceration. The sentencing judge noted that the offender was “wilfully blind in relation to knowing that the bag contained the cocaine that he was taking to Montreal”, there was a guilty plea and the accused had no record.
6. The Positions of the Parties
Mr. Soon’s Position
[30] Mr. Soon’s counsel submits that a global sentence of two years is appropriate to bring home the message of deterrence and denunciation to Mr. Soon and others like him without jeopardizing any chance Mr. Soon might have for rehabilitation.
[31] Mr. Soon’s counsel notes that throughout the trial he invited the jury to find Mr. Soon guilty of drug trafficking and possession of proceeds of crime.
The Crown’s Position
[32] The Crown suggests that the following sentences should be imposed:
i. three years for the money laundering; and ii. three years for drug trafficking and proceeds of crime.
After taking into account the appropriateness of the global sentence, the sentence would be reduced to a global sentence of five years.
[33] The Crown points out that denunciation and deterrence are primary concerns in cases involving drug trafficking and that this sentence is within the range for these offences.
[34] Finally, the Crown seeks a forfeiture order, a DNA order and a 10-year weapons ban, all of which Mr. Soon has agreed to.
7. Conclusion Regarding Sentence
[35] I have considered the principles of sentencing, the sentence range for comparable offences committed by similar offenders, and the primary importance of denunciation and deterrence in cases involving drug trafficking given the pervasive and serious damage created by those who induce others to take illegal drugs. (R. v. Sturge, [2001] O.J. No. 3923 (C.A.) at para. 6. and R. v. Popovics, [2005] O.J. No. 2456 (C.A.) at para. 7.)
[36] I have also considered the following mitigating factors:
a. Mr. Soon has no criminal record; b. He has been on bail without incident since his arrest on March 5, 2014; c. He faced significant, prolonged and serious challenges in his youth that he overcame through his own effort and determination; d. Since his arrest he has furthered his education and built a business that he can pursue upon his release; e. He has significant support from family and friends as a result of his own efforts to cultivate and contribute to their lives; f. The quantity of drugs to be trafficked was 143.4 grams (or 5 ounces); and g. While Mr. Soon did not plead guilty to any charges before trial, throughout the trial he acknowledged that he trafficked drugs and invited the jury to find him guilty on counts 3 and 4.
[37] On the other hand,
a. Mr. Soon contested his guilt on count 2 throughout the trial; b. Mr. Soon was easily impressed by Mr. Deo and interested in acquiring “fast money” through illegal means; c. He sold drugs for about six months; and d. He was selling drugs for financial gain, not because he was an addict;
[38] Mr. Soon has many great qualities: he is intelligent, hardworking and has helped others. However, he was led astray by an undue fascination with money and power without regard for the consequences although he should have been all too aware of the terrible consequences of such decisions.
[39] On balance, I believe Mr. Soon’s prospects for rehabilitation are excellent.
[40] In these circumstances, an appropriate sentence for the money laundering conviction is 18 months and an appropriate sentence for the drug trafficking conviction is 2 ½ years. The conviction for possession of proceeds of crime is a concurrent sentence of 2 years.
[41] In sentencing Mr. Soon, the court must ensure that the total sentence is just and appropriate. Based on the sentences imposed in the above cases and Mr. Soon’s circumstances, the appropriate global sentence is 3 years and 2 months.
[42] This period will be very difficult for Mr. Soon who has never been incarcerated. There will be temptations to associate with others who have been involved in such activities. Because I have confidence that Mr. Soon will withstand these temptations, will take the time to reflect, and will learn from this very serious lapse, I have given him a sentence at the low end of the range so as to give him the opportunity to make good on his promise to turn his life around.
[43] On the consent of both parties,
(a) Mr. Soon agrees to the terms of the forfeiture Order signed by me at the time of the sentencing hearing; (b) Mr. Soon shall provide a sample of his DNA pursuant to section 487.051(4) of the Criminal Code; and (c) Mr. Soon is prohibited from possessing any firearms or other weapons listed in section 109 of the Criminal Code for ten years.
Thorburn J. Released: March 30, 2017
[1] I note that the Crown did provide other cases involving higher sentences for drug trafficking but those involved offenders with criminal records and larger quantities of drugs.