ONTARIO
SUPERIOR COURT OF JUSTICE
OSHAWA COURT FILE NO.: 12581C/10
DATE: 20121105
BETWEEN:
HER MAJESTY THE QUEEN – and – BRIAN STEPHEN SHIN Defendant
R. Visca & J. Clark, for the Crown
C.R. Murphy, for the Defendant
DATE OF SENTENCE: October 30, 2012
McISAAC J.
[ 1 ] These are my formal Reasons for Sentence imposed on October 30, 2012.
[ 2 ] The offender, Brian Stephen Shin, is a career drug trafficker. According to his own evidence before the jury, he began trafficking marijuana in high school and continued to broker much larger amounts for 14 years until he was arrested on August 6, 2009. As of 2008, he had graduated to distributing 30 to 40 pounds of marijuana in two to three week cycles. At the time of his arrest, he admits that he was in possession of $150,000 which represented $120,000 owed to his supplier and $30,000 net profit to himself from a yet uncompleted cycle of sales. From these illicit proceeds he purchased several residences over the years and started a clothing company which I infer was to mask the criminal origins of this wealth. Of course, all of this income was accumulated without the aggravation of having to pay income tax. I am unaware if the Canadian Revenue Agency has taken any steps to re-assess him for undisclosed income over this lengthy period of criminal activity.
[ 3 ] In addition to being a member of the marijuana distribution elite, the offender also facilitated the “hard drug” trafficking of one of his criminal associates by allowing his “stash” house to be used as a bank for the deposit of cash from the sales of cocaine. He admits to possessing $85,000 on behalf of this associate on the date of his arrest and having provided this banking service for approximately six months prior to that date. As well, there was evidence from him that on two separate occasions he was prepared to facilitate the sale of large quantities of cocaine between two of his criminal associates. He was astute enough to keep his hands clean from these much more dangerous and potentially violent products.
[ 4 ] Although the offender claims to be remorseful for running this criminal enterprise for 14 years and deceiving his family each and every day along the way, I am not satisfied that this expression is anything more than regret for having been interdicted by the police: see s. 724(3)(d) C.C. If there was any legitimate remorse, he would have stopped wholesaling illicit drugs long before that event. An ideal opportunity would have been in 2006 when he graduated with his post-graduate degree in Taxation from the University of Waterloo and was offered a high-paying position with an international accounting firm. After completing a three-month internship with this company, he decided to reject this career because he quickly appreciated that he could make far greater income by continuing his marijuana wholesaling enterprise and he did not have to be bothered with all of those tax obligations he had learned about at graduate school. It is worthwhile noting at this juncture that the offender financed all of his under-graduate and post-graduate education with the proceeds from his criminal enterprise. Needless to say, Mr. Shin is a first offender in the shallow sense of that sentencing principle. However, in my view, he is disentitled to any mitigation for it given the many years he has operated in the higher echelon of this drug distribution network.
[ 5 ] There have been several character-reference letters filed on this sentencing hearing. For example, in a letter dated May 15, 2012, the President of the company that employs him presently as a finance and accounting recruiter concludes that the offender appears “remorseful and willing to take accountability for his actions” (see. P. 2, Exhibit 5). However, this belief is belied by the fact that Mr. Shin has launched a Charter -based appeal against his conviction which will, no doubt, be vigorously pursued. I want to emphasize that I am in no sense aggravating the sentence today because the offender intends to pursue his complaint of constitutional violations on appeal. That is a right enjoyed by any citizen of this country. However, it deflates any potential mitigation based upon genuine remorse and contrition.
[ 6 ] Insofar as the Pre-Sentence Report is concerned, I doubt that a more glowing assessment has ever crossed a judicial bench. It underlies his natural and professional talents and recommends no need for further rehabilitation. The author described “close, loving relationships” with his family which he has shamed with the disclosure of his criminal activity. There is no need to address substance abuse, anger management or employment deficits. He was simply motivated by greed and sought to run in the exciting atmosphere of the drug “high-life”. He claims to have frittered away all of his illicit drug proceeds on “clothes, vacations [and] nights out in the clubs”. He fails to mention how he financed the three residences he owned over the many years he trafficked those large amounts of marijuana. It appears the probation officer did not explore this aspect of the offender’s circumstances. I will come to my own conclusions in this regard in light of the offender’s ability to hide his criminality from his family for so many years.
[ 7 ] The offender seeks mitigation on the basis of alleged police misconduct at the time of, and following, his arrest on August 6, 2009: see R. v. Nasogaluak , 2010 SCC 6 . Firstly, he suggests that the arresting officers used excessive force when he was apprehended at the moment he returned to his “stash” house which was serving as a depot for a buffet of illicit drugs including a significant amount of cocaine and heroin. I am not persuaded by Mr. Shin that, given the circumstances then prevailing and the very minor injuries suffered by him, this case comes anywhere close to those that prevailed in R. v. Nasogaluak , supra. As for the balance of the complaints, the offender relies on the findings of MacDougall, J. who presided, on consent, at the pre-trial motions. In particular, he underlines the finding that the police breached not only s.8 of the Charter when they “over-stayed” their authority under a General Warrant but also his s.10(b) rights when they questioned him after he had indicated that he wished to speak to his lawyer and when they delayed his contact with that lawyer. All of these breaches were described by MacDougall, J. as “serious” breaches. Although this word was used at one point of the Charter ruling, MacDougall J. also said that the infringements were “less serious” because there was no bad faith on the part of the officers, because the evidence was otherwise legally obtainable or because the offender had a diminished expectation of privacy in his non-residential “stash” house. As well, nothing incriminating was said by him during the delay. Given the absence of anything approaching egregious conduct on the part of the police, I see no need to mitigate this sentence for what are merely technical breaches of the Charter : see R. v. Nasogaluak , supra, at para. 48 .
[ 8 ] The original submission on sentence by the Crown was four years in penitentiary broken down to three years for the possession for the purpose of trafficking marijuana and one year consecutive for the possession of proceeds of crime. The offender sought a conditional sentence. These positions were premised on the following circumstances: the offender was in possession of more than 12 kilograms of marijuana along with approximately $240,000 of proceeds of drug sales generated by himself and an associate known to him as a high-end cocaine dealer.
[ 9 ] The offender originally faced additional charges relating to the possession for the purpose of trafficking of cocaine and heroin which was found in a closed closet in the bedroom of this “stash” house. In light of the strong prima facie case premised on the offender’s being the sole sub-tenant of the premises, in my view, he had no choice but to testify to avoid conviction on these “more serious” charges. He either convinced the jury of his absence of knowledge of these drugs in the closet or he raised a reasonable doubt in that regard resulting in findings of “not guilty” on those two counts. The theory that he advanced before the jury was that he was such a successful long-term “high-end” marijuana trafficker that he had no need or interest in trafficking in the more pernicious and potentially violence-generating substances of cocaine and heroin.
[ 10 ] When I brought to counsel’s attention the judgment of the Supreme Court of Canada in R. v. Larche , 2006 SCC 56 which entitled a sentencing court to consider “any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge” under s.725(1)(c) C.C., I heard further submissions on whether I could and should take into account the offender’s confession to marijuana trafficking for 14 years prior to his arrest for these charges. The purpose of taking these additional uncharged but proven offences into account is as “aggravating circumstances” within the meaning of s.718.2(a) C.C.: see R. v. Larche , supra, 28.
[ 11 ] In order to qualify for this form of sentence enhancement, there are three conditions set forth in R. v. Larche , supra, that must be met. First, the aggravating additional offence must be established beyond a reasonable doubt. I have little difficulty finding this element so established based as it is on the offender’s “confession” before the jury. It is also consistent with their verdict. Second, the aggravating additional offence must be related to or form part of the charged offence, that is, there must be some “connexity” in time or place, or both. This connection can be met on the basis of a “system or of an unbroken pattern of criminal conduct”: see R. v. Larche , supra, at paras. 47-55 . It seems too clear to me that the events of August 6, 2009 are the culmination of an unbroken pattern of marijuana trafficking that continued in an increasing and unabated fashion from the offender’s early high school years. Third, the court must be sensitive to the possibility that this jurisdiction might operate unfairly against the offender. It may be, no doubt, unfortunate that this aggravating circumstance flows out of his own mouth. However, I fail to see how that would result in an unfairness to him. He was not forced to testify in his own defence by anything other than his association with known “hard drug” traffickers, one of whom apparently broke his promise to limit the use of his “stash” house as a bank as opposed to a repository for heroin and cocaine. In my view, it would be more unfair to the administration of justice to grant the offender total immunity from his confession to these aggravating circumstances by permitting him to play his s.13 Charter “trump” card in a separate prosecution for these additional offences.
[ 12 ] Having taken additional related offences into account to enhance the sentence, the court is required to “note” the facts of those possible charges under s.725(2)(b) which protects the offender from subsequent prosecution on them. I am satisfied that the charges that should be so noted are trafficking in marijuana for that extended period and possession of marijuana for the purpose of trafficking for that same period. Although invited by both sides to also note the offence of possession of the proceeds of crime for that same period, I am reluctant to do so because the offender has failed to satisfy me that he no longer possesses any of these proceeds either here in Canada or offshore. Friendly jurisdictions for the laundering of “dirty” money would, no doubt, be something he studied for his Masters in Taxation either formally or informally as a seasoned drug trafficker.
[ 13 ] I am satisfied that this offence separately and as amplified in the offender’s confession to the jury was committed “in association with a criminal organization” as catalogued in s.718.2(a)(iv) C.C. as a statutory aggravating circumstance that should be considered by this court in arriving at a fit sentence for this case of mega-trafficking in marijuana. For that reason, I find the middle single-digit range of sentence for mega-trafficking offences involving marijuana to be persuasive. These cases include R. v. Redekopp , ] 1998] O.J. No. 5366 (C.A.) – seven (7) years; R. v. Adams et al , 2007 BCSC 746 – seven (7) years; and R. v. Smith , 2008 SKCA 20 – six (6) years. All of these cases underline the need to emphasize denunciation and general deterrence as the paramount concerns for sentencing. I am of the view that a conditional sentence would constitute a profound error in principle for a case of this magnitude. I am also of the view that the Crown’s position of a global sentence of four years would result in an unfit sentence: see R. v. Hagen , 2011 ONCA 749 . It fails to factor in the 14 years of marijuana trafficking that preceded the offender’s arrest on these charges. It requires a higher sentence outside the “normal” range that would usually prevail: see R. v. Nasogaluak , supra, at para. 44 .
[ 14 ] The offender admitted to the jury in this case that he trafficked in marijuana from British Columbia as well as Ontario “home-grown”. The British Columbia Court of Appeal has recognized that the marijuana industry in that province is “a lucrative business permeated by organized crime and it is often accompanied by violence and danger to innocent citizens”: see R. v. Hill , 2007 BCCA 309 at para. 21 . It is no longer the “Kumbaya” drug of choice, at least, in that province. I am satisfied that these comments qualify as part of the background of this case as credible and trustworthy evidence that has not been challenged by the offender.
[ 15 ] In all of the circumstances I am satisfied the following sentences should be imposed. On count #2, possession for the purpose of trafficking of marijuana, five (5) years imprisonment and on count #4, possession of the proceeds of crime, 18 months imprisonment, consecutive. I am satisfied that this latter offence involves a separate delict and should involve a consecutive sentence: see R. v. Gummer (1983) 1983 5286 (ON CA) , 38 C.R. (3d) 46 (Ont.C.A.). Although most of the money found inside the “stash” house was generated by the offender’s marijuana sales, $85,000 of it came from his associate’s cocaine trafficking. However, I am prepared to deduct from this latter sentence a period of six months to reflect a 2:1 credit for pre-trial custody (one month) and for the terms of bail that became less onerous over time. This results in a net sentence on count #4 of one year resulting in a global sentence of six years which in my view reflects as well the principle of totality: see R. v. Jewell ; R. v. Gramlick (1995) 1995 1897 (ON CA) , 83 O.A.C. 81.
[ 16 ] The offender suggests that any form of penitentiary sentence for these offences would offend the principle of parity in relation to the other sentences meted out to his associates who were apprehended in this police operation. However, there is nothing before me to suggest that any of them were involved in the trafficking of illicit drugs for the length of time in which Mr. Shin operated. This period, I repeat, was for 14 years prior to his arrest.
[ 17 ] This brings me to a consideration of s.743.6(1) C.C. which permits an order directing that the offender serve one-half of this sentence before he may be released on full parole. That provision requires me to consider “the circumstances of the commission of the offence” along with “the character and circumstances of the offender” in conjunction with “the expression of society’s denunciation of the offence or the objective of specific or general deterrence”. In fact, denunciation and deterrence are “paramount” while “rehabilitation of the offender” is subordinate to these principles: see s.743.6(2) C.C. The Crown did not seek such an order.
[ 18 ] In R. v. Smith , supra, the Saskatchewan Court of Appeal had occasion to impose such an order in the case of a mega-trafficker of marijuana. Y.G.K. Wilkinson, J.A. for the court had the following to say in justifying this disposition:
Where denunciation and deterrence are the primary objectives, s.743.6 is to the sentencing exercise what the totality principle is to the length of sentence. While the totality principle is about the fairness to the offender, s.743.6 is about fairness to society. It affords the court the opportunity to step back and consider the larger picture – to ask itself “knowing what I know about the parole process, does this sentence sufficiently express society’s denunciation and interest in deterrence?” It is a question that the trial judge was not able to ask in this case on the issues as framed. Had he been directed to the provisions of s.743.6(1.2), and made aware that in the ordinary course, the Corrections and Conditional Release Act would entitle the respondent to seek day parole by June 2007, the outcome might well have been different.
Section 743.6 has on occasion, been scorned as the indiscriminate infliction of harsh punishment, the judicial application of salt to open wounds. It can, nonetheless, serve as a companion piece in the sentencing process and as counterpoint, if necessary, when societal interests outweigh those of the individual, and rehabilitation, as a sentencing objective, has been given a legislative back seat. (my emphasis added)
[ 19 ] Madam Justice Wilkinson in this passage no doubt had in mind the paramountcy in s.743.6(2) C.C. of denunciation and deterrence over the subordinate concern for the rehabilitation of the offender. I say this with full appreciation that she was dealing with a case where there was a presumptive application of the order because of there being convictions for criminal organization offences: see s.743.6(1.2) C.C. Although the offender before me was not charged with criminal organization offences, he was long embedded in the higher echelon of one.
[ 20 ] Given that the case at bar involves a career mega-trafficker in marijuana who has transacted hundreds if not thousands of drug deals, the imposition of such an order is far from a routine sentencing process. It is exceptional and demands the utmost denunciation by way of an order extending the period before the offender can be released on full parole.
[ 21 ] The Crown has not sought a fine as part of the disposition herein. This is despite the immense profits that the offender must have gained over the 14 year term of his career as a high-end marijuana wholesaler. I do not know if that failure flows from the fact that there has been an order of forfeiture of almost a quarter of a million dollars from the monies seized from the offender’s “stash” house on the day of his arrest. However, despite that fact, I am of the view that there should be, at least, a nominal fine imposed to strip the offender of some of the ill-gotten gains from his trafficking career that must have profited him hundreds of thousands, if not millions, of dollars: see R. v. Hill (2007) 2007 BCCA 309 () , 221 C.C.C. (3d) 472 (B.C.C.A.) at paras. 47-8 . The same case says that despite the requirement in s.734(2) C.C. that the court be satisfied that the offender have the means to pay a fine, it can be inferred that a career drug trafficker such as Mr. Shin has the ability to pay in the absence of evidence as to his means. The only evidence before me in that regard is his 2012 T4 which suggests he earned in excess of $120,000 in his “new” profession as a professional head-hunter. I do not qualify his statement to the author of the Pre-Sentence Report that he “frittered” away all of his illicit profits as “evidence”. He was not cross-examined on this suggestion and it is extremely self-serving.
[ 22 ] In all of the circumstances, including the fact that it represents only a small part of the total earnings gained over the term of 14 years that the offender operated his criminal enterprise, I impose a fine of $500,000: see R. v. Kotrbaty [1978] B.C.J. No. 1043 (S.C.) , aff’d [1980] B.C.J. No. 1250 (C.A.) . Given the period of imprisonment imposed today, I grant the offender three years to pay this fine. See as well R. v. Benlolo (2006) 2006 19284 (ON CA) , 81 O.R. (3d) 440 (C.A.) at paras. 39-43 .
[ 23 ] The final matter that I now must deal with is the victim surcharge under s.737 C.C. By the terms of s.737(2)(a), I am required to impose a surcharge of 15 percent of the $500,000 fine imposed, that is, $75,000 unless he obtains a hardship exemption under s.737(5) C.C. He declined my offer to seek such an exemption. I infer this decision was taken to avoid exposure to cross-examination as to his net worth.
McISAAC J.
Released: November 5, 2012