ONTARIO

SUPERIOR COURT OF JUSTICE

DATE: 20130802

BETWEEN:

HER MAJESTY THE QUEEN

– and –

CHOR-YIN CHOI

Hafeez Amarshi, for the Crown
Doug Gosbee, for Chor-Yin Choi

SUBMISSIONS HEARD: July 29, 2013

Reasons for Sentence

MacDonnell, J.

[1] On January 7, 2013, Chor-Yin Choi came before this court for trial on an indictment charging him with four counts of possession of controlled substances for the purpose of trafficking and one count of possession of property obtained by crime. The controlled substances and the property had all been seized during the execution of a search warrant. At the outset of trial, Mr. Choi brought an application under s. 24(2) of the Canadian Charter of Rights and Freedoms for an order excluding the fruits of the search on the basis of a violation of his rights under s. 8 of the Charter. On January 11, 2013 I dismissed that application. Mr. Choi then entered guilty pleas to four of the five counts in the indictment: three counts of possession of controlled substances for the purpose of trafficking (MDMA, Ketamine and marihuana) and one count of possession of property obtained by crime (Canadian and US currency).

A. The Circumstances of the Offences

[2] The warrant under which the controlled substances and the currency were seized was executed on April 29, 2010 at Mr. Choi’s residence, which was the home of his parents in Markham. In Mr. Choi’s bedroom the police found 1.7 kilograms of MDMA (ecstasy), 80.4 grams of Ketamine, and 418.3 grams of marihuana. The MDMA was in the form of pills, chunks and powder. The police also found two digital scales, clear unused baggies, empty plastic vials, a debt list, $3260 in Canadian currency and $570 in United States currency.

[3] The opinion of a police officer with expertise in relation to the drug trade was that the quantity of MDMA seized was enough to make 6900 pills and that the price per pill would be between $3 and $20, depending on where and how the pills were sold. The resale value of the MDMA, therefore, was between $21,000 and $138,000. The expert was further of the view that if the Ketamine was broken down into individual doses, its sale would yield between $4000 and $6000. He estimated the value of the seized marihuana to be between $2000 and $8000 depending on whether it was sold in bulk or as individual joints.

[4] It is admitted that Mr. Choi was in possession of all of those substances for the purpose of trafficking and that the currency found in his bedroom was substantially derived from his drug dealing activity. It is common ground that the inference to be drawn is that he was a mid-level drug dealer.

B. The Circumstances of the Offender

[5] At the time of the execution of the search warrant, Mr. Choi was 25 years of age. He is now 29. He was born in Hong Kong in 1984, and he emigrated to Canada with his parents and his younger sister in 1997. In 1998, the family settled in the Markham area, where they and Mr. Choi continue to reside. As he was growing up, Mr. Choi had the benefit of hardworking, somewhat strict but always caring parents. There were no exceptional conflicts in the home. His parents were shocked and disappointed when they learned of his involvement in the drug trade. They continue to offer him support and they have attended court each day throughout the trial proceedings. Mr. Choi has had a steady girlfriend for the past two years. The relationship is both serious and stable, and they hope to marry in the future.

[6] Mr. Choi graduated from high school in 2002. After high school he attended various business and engineering programs at community colleges, but he abandoned those programs when he realized that they were not what he wanted. While pondering what other educational programs to pursue he worked full-time at various fast food restaurants. In 2006, he decided that he ought to pursue his real passion, which was in the field of art, design and fashion. He enrolled in the Arts & Design Program at a community college, attending school by day and working in a restaurant at night. The following year, in 2007, he enrolled in the Fashion Arts program at Seneca College. He excelled in that program. One of his teachers provided a letter to the court in which she stated that Mr. Choi “possesses a rare creative genius for fashion design”. She added that “I have not, nor do I expect in my lifetime, to encounter such an exceptional young designer”. She described him as “my once in a lifetime student”.

[7] Mr. Choi’s success at Seneca College did not go unnoticed. The author of the Pre-Sentence Report noted:

[Mr. Choi’s] talent was soon recognized by the fashion design field and he was offered an internship by a reputable fashion merchandising company in the industry just a few months after his graduation. Based on the document he provided, which includes reference letters, transcripts, magazine [sic], clippings from the media, [he] appears to have excelled in the fashion design field in just a couple of years. He has since created his own brand name and has showcased his design works at the Toronto Fashion Week three years in a row. [He] is currently employed full-time as a design consultant and fashion designer by the same company while continuing to develop his own brand label in fashion and accessories. In addition, [he] also works part-time, mostly in the evenings, for a metal trading company.

[8] At the sentencing hearing, counsel for Mr. Choi provided the court with what appears to be the same material that was provided to the author of the Pre-Sentence Report. It demonstrates that within the fashion design industry Mr. Choi is recognized as having very real talent and great potential. The material also contains testimonials in relation to his mentorship of other young designers and his involvement in fundraising for charitable causes.

[9] Mr. Choi has no prior record, and has not been in any kind of trouble since his arrest more than 3 years ago. The author of the Pre-Sentence Report stated that Mr. Choi “presented himself as genuine, co-operative, honest, respectful and forthcoming”. She added that “all of his personal collateral sources indicate that [he] is hardworking, dedicated and full of compassion for what he does, and they have no concern that he would return to his negative past.”

[10] Mr. Choi told the author of the Pre-Sentence Report that he became involved in the drug trafficking business in 2009, in his last year of his studies at Seneca College. He had been working nights full time at a fast food restaurant since 2004, but he had quit that job in order to focus on his final year of studies. He stated that it was in this time period that he came under the influence of “bad” associates and was introduced into the drug culture. He stated that he gradually became more involved in the sale of drugs when people began to ask him to supply them and he realized that he could make a profit.

[11] The Pre-Sentence Report states that Mr. Choi reported that “the legal proceedings have hindered his career growth in the design field overseas because he had to turn down a number of invitations to showcase his work due to the travel limitations imposed on him because of the court matter. He admits to having sustained tremendous stress with the current legal matter, and he confides his fear of losing everything he has built up as a fashion designer…”

[12] When given the opportunity to speak at the sentencing hearing, Mr. Choi apologized to the court, to his family, to his friends, to his fiancée and to all those to whom he had sold drugs. He stated that in the three years since his arrest he has tried hard to make a life for himself as a useful member of the community, and he acknowledged that his involvement in the offences before the court was “really wrong”.

C. The Positions of the Parties

[13] On behalf of the Crown, Mr. Amarshi submitted that the appropriate global sentence for the four offences to which Mr. Choi pleaded guilty is a term of imprisonment of 4½ years.

[14] On behalf of Mr. Choi, Mr. Gosbee conceded that a term of imprisonment is called for, but he submitted that a sentence of two years less one day to be served in the community pursuant to a restrictive conditional sentence order, followed by three years of probation, would be appropriate.

D. Discussion

[15] At the time of the commission of the offences, s, 742.1 of the Criminal Code set forth four conditions to be met before a court could order a sentence of imprisonment to be served in the community: (i) the offences in question could not be serious personal injury offences, terrorism offences, criminal organization offences punishable by imprisonment for ten years or more or offences punishable by a minimum term of imprisonment; (ii) the sentence of imprisonment had to be less than two years; (iii) the court had to be satisfied that permitting the offender to serve the sentence in the community would not endanger the safety of the public; and (iv) the court had to be satisfied that permitting the offender to serve the sentence in the community would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of the Code.

[16] Subsequent to Mr. Choi’s arrest, s. 742.1 of the Criminal Code was amended in a manner that would preclude the imposition of a conditional sentence of imprisonment for possession of either ecstasy or Ketamine for the purpose of trafficking.[^1] By reason of s. 11(i) of the Charter, however, Mr. Choi is entitled to be sentenced in accordance with the provisions of s. 742.1 that were in force at the time of his offences.

[17] There is no dispute that the first and third of the four conditions that I have set forth have been satisfied in this case: the offences in question were not excluded from the conditional sentencing regime either by their nature or their penalties, and it has not been suggested that to permit Mr. Choi to serve his term of imprisonment in the community would endanger public safety. The dispute is in relation to the second and fourth requirements: is a term of imprisonment of less than two years within the appropriate range, and would a community-based sentence be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of the Code?

(decision text continues exactly as in the source)

MacDonnell, J.

Delivered Orally and Released: August 2, 2013

[^1]: S.C. 2012, c. 1, s. 34