Court File and Parties

Court File No. 12-1676-0000

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

QUOC LAM

P R O C E E D I N G S

BEFORE THE HONOURABLE JUSTICE HILL

on August 6, 2014, at BRAMPTON, Ontario

APPEARANCES:

J. Campitelli

R. Rusonik

Counsel for the Federal Crown
Counsel for the Quoc Lam

SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

REASONS FOR SENTENCE PAGE 1

Transcript Ordered: August 29, 2014
Transcript Completed: September 7, 2014
Date Notified: September 12, 2014

R E A S O N S F O R S E N T E N C E

CITATION: R. v. Lam, 2014 ONSC 5355

Hill J. (orally):

Convicted of offering a bribe to two police officers, Mr. Lam now stands to be sentenced for this crime.

Following Charter pre-trial motions, the seven other counts, other than count three in the indictment, the bribery charge, fell away. The offender agreed to the motion evidence applying to his trial on the bribery charge and a conviction was entered.

The background facts are set out in the court’s earlier reasons, 2014 ONSC 3538, and accordingly only summary mention is necessary here.

The police unlawfully entered the offender’s self-storage locker in breach of his Section 8 Charter right. In turn he was arbitrarily detained. During the course of this unconstitutional conduct by the police, Mr. Lam initially offered his marihuana, about a hundred pounds, as a bribe for the officers to let him go. The drugs at a street level retail value could be worth as much as $300,000.

The officers, apparently taken aback by the offer, declined that they would take the marihuana. Once $120,000 cash was located in the offender’s vehicle, he added that to the ongoing offer if he could then walk away. Mr. Lam held back the code for the storage compound gate as he continued to try to negotiate his release.

I am satisfied, on the evidence, that Mr. Lam intended, as a resource or technique of the drug trade, to avoid arrest and charges by corruptly offering the drugs and money to the attending peace officers. In my view, he did so without the influence of any earlier discussions with the police officers in May 2010.

The officers were, in the result, in no way influenced by the offender’s actions. After consultation with Crown counsel, the bribery charge was added to the then existing charges.

At the time of the offence, Mr. Lam was age 25. He has a prior criminal record. In May of 2005 he was given an 18-month conditional sentence for trafficking in a controlled substance. The trial evidence here established that the offender had been supporting himself through drug trafficking.

On behalf of the Crown, while recognizing that there is no defined range for bribery sentencing given the apparent relative rarity of the commission of the crime, Crown counsel submitted that a 12-month sentence would be a fit disposition in all the circumstances here.

Ms. Campitelli identified the offender’s actions as serious. In a drug-related context, the offender offered both drugs and cash to the police. While the criminal misconduct may have begun impulsively, it became persistent and a second asset, the money, was added to the offer. The value of the offer could be seen as constituting a serious temptation; there was a level of sophistication. General deterrence requires an exemplary sentence.

On behalf of the offender, Mr. Rusonik argued for a three-to-six-month sentence as a fit disposition. Counsel noted the dated criminal record. While there may not have been an early guilty plea, Mr. Lam clearly acknowledged the bribe in his evidence and a Charter ruling was, in effect, what kept the bribery charge alive. While acknowledging that any bribe or attempted bribe is serious, counsel described the bribe here as an impulsive act by the offender when unexpectantly confronted by the police. The bribe attempt may have continued, in part, because there was no express refusal or arrest when Mr. Lam first raised the issue. The crime was not planned or sophisticated. It could be said that the offer of a hundred pounds of marihuana in boxes was indeed objectively unrealistic. Mr. Rusonik underlined the context of the attempted bribe as an intrusion by the police into the offender’s reasonable expectation of privacy followed by arbitrary detention. That unconstitutional state misconduct led to a remedy respecting other charges in the indictment. It was submitted that as in Nasogaluak, mitigation of sentence of a Section 120(b) crime was appropriate given, at a minimum, the temporal opportunity connection between the police presence in the offender’s storage locker and his reaction to that unconstitutional intrusion.

On this point, Ms. Campitelli argued that in the absence of a direct causal connection, absent here, the unconstitutional actions of the police should not mitigate the sentence to be imposed. Section 120(b) of the Code provides that everyone is guilty of an indictable offence and liable to imprisonment for a term not exceeding 14 years, where that person, directly or indirectly, corruptly gives or offers to a peace officer, for the benefit of that person, any money or valuable consideration. So, with the intent of the person to do anything mentioned in the earlier subparagraphs, including declining, obviously, arrest or charges.

The common law definition of bribery, which informs the statutory definition, was recently described in R. v. J.D.V. and S., [2013] EWCA Crim 2287, at para. 10:

“At common law, bribery and corruption were criminal offences. A single definition is not easy but the general principles are set out in Russell on Crime (12th ed) 1964, p. 381 in the following terms,

Bribery is the receiving or offering of any undue reward or by or to any person whatsoever, in order to influence his behaviour in an official situation and incline him to act contrary to the known rules of honesty and integrity.”

The offence of bribery is considered to be a “serious” crime: R. v. Cooper, [1980] O.J. No. 776 (C.A.), at para. 3; R. v. Schiegel, [1984] O.J. No. 971 (C.A.), at paras. 4,6; In R. v. Jaremko, [1993] A.J. No. 314 (C.A.), at para. 1, the court observed,

“The offence is bribing a police officer. In our view, this is an exceedingly grave offence because if it begins to have any success at all, then the Court system becomes almost redundant and there is no real defence then against crime by solvent persons. And there can be nothing more dangerous to society than a corrupt police force. It leads to many evils of which unpunished crime is not the greatest.”

Justice Fish, when a member of the Quebec Court of Appeal, stated in R. v. De Francesco (1998), 1998 13079 (QC CA), 131 C.C.C. (3d) 221 (Que. C.A.), at para. 42:

“Any attempt to corrupt a police officer amounts to an attack on the integrity of an important social institution. Where the purpose of the bribe is to pervert the course of justice, especially in relation to a serious crime, the offenders must be severely punished.”

That general deterrence is the paramount sentencing consideration in bribery cases is readily understandable. Peace officers are expected to obey and enforce the rule of law. An attempt through bribery to corruptly depart from this obligation is itself an attack upon the rule of law.

The bribery sentencing jurisprudence is lean. In my view, this is, at least in part, a tribute to the integrity of our police officers across the country. Apart from the appellate authorities already discussed, there is relevant jurisprudence summarized in the following cases: R. v. Dennis, [2001] O.J. No. 1983 (SCJ), paras. 9-15, and, R. v. Kozitsyn, 2009 ONCJ 455, at paras. 16-18.

Needless to say, each instance of bribery has its own unique fact-driven circumstances.

The aggravating features of this crime and this case are manifestly apparent including:

1. The bribe was offered in the context of the

commission of a serious narcotics offence.

2. The bribe was offered to more than one

peace officer.

3. The bribe had significant, not trivial,

value in its effort to corruptly attempt

a breach of duty.

4. The offender persisted in offering a bribe

over a number of minutes and sought to

enhance its attraction by adding a large

sum of on-site cash.

In the balance, in mitigation, the following factors fall to be considered:

1. The attempt to bribe arose unexpected -

it was not planned. The confrontation by

the police was unexpected and the offender

reacted to it.

2. The offender’s attempt at corruption arose

in the context of serious breaches of his

Section 8 and 9 Charter rights.

3. The offender was relatively young at the

time of the offence, age 25, and has not

before served a custodial sentence.

4. While there was no early guilty plea, the

offender admitted the crime and only raised

a constitutional dispute.

5. The offender apologized here today for his

conduct.

The offender committed a serious crime, one from which the courts must deter others. Taking into account most of the circumstances discussed, an appropriate sentence would be nine months’ incarceration with an agreed reduction for three months’ of pre-sentence custody and a further two months mitigation for Nasogaluak considerations. The offender is sentenced to a further term of four months’ imprisonment.

THE COURT: Ms. Campitelli, can you address the forfeiture/return order that you had raised earlier?

MS. CAMPITELLI: Yes, Your Honour, I’m content - I’ve prepared a few copies here. I – I would imagine you would probably prefer - prefer one and then we can make a copy. And I’m content to provide that to Your Honour - and, yourself and Mr. Rusonik, whatever working you feel is appropriate, I – I’m content with that. I – I agree that it needs to be addressed with respect to the – the money seized and that any order of this court would take precedence over any application by civil remedies that would come subsequently. So....

THE COURT: Why don’t you just give us an overview then of – of the order that you’re proposing to - to file. Mr. Rusonik prepared a very – some wording and I’m content with that. He’s got the dates of the orders.

THE COURT: Subject of a forfeiture, as I read the draft then, is the hydraulic press, money counters, digital scales and drug packaging. Is that correct?

MS. CAMPITELLI: That’s correct, Your Honour, thank you.

THE COURT: And Section E then addresses the return issue?

MS. CAMPITELLI: That’s right, Your Honour.

THE COURT: And that relates to a motor vehicle, a 2011 BMW 6, a Rolex watch, a Honda motorcycle, designer clothing and sunglasses, and two specified quantities of cash, $120,000 and $70,000?

MS. CAMPITELLI: That’s right, Your Honour.

THE COURT: All right. Ms. Campitelli, I’ll come back to you. Mr. Rusonik, you may want then, for the record, to put some history in with respect to the earlier application before Justice Sproat, and what brings us here today then.

MR. RUSONIK: Yes, Your Honour. There was an application made before Justice Sproat which resulted in his ordering, early last year, the access to the first sum of money, so a hundred and - $120,000 seized on September 14th for Mr. Lam’s representation in regard to not only the – the two sets of charges that – that Your Honour has now dealt with, but a – a larger prosecution that at that time had begun and was ongoing and remains outstanding in the Toronto Jurisdiction. Those – that order originally was sought in relation to both sums of money that are – that are the subject of the – of the return order. The order at that time was only made in relation to the first sum so that Mr. Lam did not have to take a position in relation to the – to the second sum of funds.

THE COURT: Which is the $70,000?

MR. RUSONIK: That’s correct.

THE COURT: Yes.

MR. RUSONIK: There’s no issue that – that he is indeed the - the sole claimant to those funds.

THE COURT: There’s no third party that the – that you believe has an interest or the Crown believes has an interest?

MR. RUSONIK: No.

THE COURT: Yes.

MR. RUSONIK: Absolutely not, and those funds have – he has now exhausted, primarily because of the Toronto prosecution, the – the first sum that was ordered released, and in – in an application that’s now before you, we ask that the second sum be made available to him for the purposes – solely for the purpose of - of paying legal fees disbursements – appropriate disbursements and the applicable HST. And there’s a copy included in the materials of the order that was made by Justice Sproat, and I’ve made it. I’ve – I’ve drafted an order that just needs formatting along the same lines. If Your Honour would consider that directs that the $70,000 be released for the same purposes.

THE COURT: And it’s basically on the same terms and conditions...

MR. RUSONIK: Exactly.

THE COURT: ...respecting the defence of the charges that were before me?

MR. RUSONIK: Exactly.

THE COURT: Yes.

MR. RUSONIK: The – the only addition is that he was subsequently charged with an additional set of offences related to these offences in Toronto which is also outstanding, which relates to his release on these charges that are before Your Honour, and on the Toronto charges.

THE COURT: And I probably have to see the draft order to fully comprehend that.

MR. RUSONIK: All right. It’s a set of August 2013 charges of failing to comply with a recognizance; there are four counts in relation to that.

THE COURT: Mr. Rusonik, just while you’re – I found in the file, or there’s an original in the file, but something called “Copy” and it’s a single count indictment.

MR. RUSONIK: For what charge?

THE COURT: But I don’t remember us dealing with it. It is at the City of Toronto, on or about the 21st day of May 2010. Possess a Schedule III controlled substance, Amphetamines – Meth Amphetamine ultimately. Ecstasy it looks like is the subject of the charge but it’s a Central West Region indictment. This is – and I don’t remember us ever talking about this.

MR. RUSONIK: Related to Mr. Lam?

THE COURT: No, it’s related to someone else, so it should’ve been in the file. Sorry for that surprise.

MS. CAMPITELLI: That’s good news, Your Honour, because I didn’t know how to respond to that one.

THE COURT: Well, that’s the answer then. It’s misfiled...

MS. CAMPITELLI: Another box was waiting for me, or something.

THE COURT: ...from one box into the next. All right.

MR. RUSONIK: Your Honour, I have the – the draft and I can send it to you, it just needs to be properly formatted, but the wording is here.

THE COURT: And what are you looking at on...

MR. RUSONIK: I – I – it’s...

THE COURT: ... time for that?

MR. RUSONIK: ...actually drafted on – on my IPad, and I can send you – I can send the draft to your registrar. I just – I haven’t been able to format it properly.

THE COURT: But do you have the capacity to format it here?

MR. RUSONIK: I have the capacity to send it to someone who will format it and send it back to me. But the wording is – it’s easy to read now – it’s easy to read now for the wording, it’s just a matter of making...

THE COURT: Has Ms. Campitelli...

MR. RUSONIK: ...it stylistically.

THE COURT: ...seen the wording?

MR. RUSONIK: No, I have to show it to her as well.

THE COURT: All right.

MR. RUSONIK: Okay.

MS. CAMPITELLI: This is where the boxes become helpful, Mr. Rusonik.

MR. RUSONIK: The boxes?

MS. CAMPITELLI: With all the paper?

MR. RUSONIK: The paper?

MS. CAMPITELLI: Other than the fact that Mr. Rusonik spelled my name incorrectly...

MR. RUSONIK: No, Mr. Rusonik did - did not.

MS. CAMPITELLI: ...everything else is satisfactory, Your Honour.

MR. RUSONIK: I have it engraved...

MS. CAMPITELLI: Yeah, I’m sure.

MR. RUSONIK: ...in my mind but not - not everyone else knows you as well. It’s funny it recognizes it as a spellcheck problem.

THE COURT: So, why don’t I stand down? How long do we need 10 – 15 minutes you think, Mr. Rusonik?

MR. RUSONIK: It’s – it’s before – before I have it - believe me, it’s completely legible now, but before I have it formatted in to a signable version, if Your Honour has any changes that you want to make, this is the way to look at it now.

THE COURT: Right, well why don’t we get something printed out now...

MR. RUSONIK: Yeah.

THE COURT: ...and then we can have a formal order done up if this complies with one we sign off on?

MR. RUSONIK: Sure.

THE COURT: All right. MR. RUSONIK: Ms. Campitelli will print it right now.

THE COURT: Five after....

MR. RUSONIK: Please.

THE COURT: Okay, thank you.

R E C E S S

U P O N R E S U M I N G:

THE COURT: Ms. Campitelli, you’ve seen the draft?

MS. CAMPITELLI: I have, Your Honour.

THE COURT: Any submissions on that?

MS. CAMPITELLI: No, thank you, Your Honour.

THE COURT: I’ve added to the endorsement, “The order for disposition of property has been made. The draft order regarding the return of monies is approved by the court for signature when a formal order is filed.” Mr. Rusonik, you’ll do that in due course?

MR. RUSONIK: Yes.

THE COURT: Anything further, Ms. Campitelli?

MS. CAMPITELLI: No, thank you, Your Honour.

THE COURT: On your part, Mr. Rusonik?

MR. RUSONIK: No, sir.

THE COURT: Thank you, very much counsel.

MR. RUSONIK: Thank you.

MS. CAMPITELLI: Thank you.

...WHEREUPON THIS MATTER WAS CONCLUDED

FORM 2

Certificate of Transcript (Subsection 5(2))

Evidence Act

I, Mary Gabriele-DeRose, certify that this document is a true and accurate transcript of the recording of the proceedings in R. v. Quoc Lam, in the Superior Court of Justice held at 7755 Hurontario, taken from Recording No. 3199-406-20140806-085910, which has been certified in Form 1.

September 16, 2014

____________________ _________________________________ (Date) (Mary Gabriele-DeRose)