ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-14-137

DATE: 20150706

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JUNIOR LEE

Defendant

C. Noordegraaf, for the Crown

F. Lyons, for the Defendant Junior Lee

HEARD: May 1, 2015

REASONS FOR SENTENCE

J.R. McCARTHY J.

[1] Junior Lee (hereinafter the “Defendant”) is before me today for sentencing.

[2] The Defendant was convicted of possession of a controlled substance for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c.19, (“CDSA”).

Background

[3] On October 23, 2012, at approximately 11:15 pm, the Defendant was apprehended in a take down by officers of the Barrie Police Services (“BPS”). At the time, the Defendant was the operator of a red Suzuki, which was suspected of being involved in drug trafficking in the City of Barrie. The Defendant’s girlfriend was a front seat passenger in the Suzuki. Searches performed on the Defendant and his girlfriend at the BPS station revealed a quantity of marijuana on the former and a quantity of crack cocaine on the latter. BPS then obtained a search warrant on a residential unit associated with the Defendant in Toronto.

[4] Acting on the strength of that warrant, police entered into the residential unit on October 24, 2012 and located 324.9 grams of crack cocaine and 368.7 grams of powder cocaine in a safe on the premises. Police also found the amount of $12,020 in Canadian currency stored in the safe.

The Crown’s Position

[5] The Crown seeks a custodial sentence of 5 to 6 years. The Defendant was a mid-level operator supplying crack cocaine to a known dealer in Barrie by the name of John Minor. The evidence of the confidential informants, the currency found in the safe, and the manner in which the Defendant’s drug trafficking activities were carried out, establish beyond question that he was a dealer for profit. There is no evidence to suggest that the Defendant was trafficking in cocaine to satisfy an addiction; there is equally no evidence that he has been enrolled in any drug rehabilitation program. In addition, the amount of cocaine found at his residence was significant. The Defendant has a criminal record that includes similar offences committed as an adult and, on two separate occasions, as a youth. The Defendant is no longer a youthful offender. He committed the offences in question when he was twenty-four years of age; he is now twenty-seven.

[6] The Crown also seeks a mandatory weapons prohibition and a DNA screening order under ss. 109 and 487.051(3) respectively of the Criminal Code, R.S.C.1985, c. C-46. Finally, the Crown seeks a forfeiture order under s. 16 of the CDSA. These last three components of sentence are not contested by the Defendant.

[7] The Crown contends that there are no mitigating factors present. The Defendant invited a finding of guilt only after a lengthy pre-trial application on alleged Charter violations. This allowed an opportunity for the Defendant’s counsel to engage in vigorous and extensive cross-examination of nearly all of the officers involved in the investigation and arrest of the Defendant.

The Defendant’s Position

[8] The Defendant submits that the court should impose a sentence of between two and a half and three and a half years, less credit of a combined six to eleven months for both pre-trial custody and time spent on judicial interim release (“JIR”), during with which time the Defendant’s liberty was severely restricted. This should result in a sentence left to serve of between nineteen and thirty-six months.

[9] Rehabilitation of the offender remains a relevant consideration of sentencing under both s. 718 of the Criminal Code and s. 10 of the CDSA. There are no aggravating factors present: The Defendant was not on probation at the time; he was not on JIR; the purity of the cocaine is not in evidence; there is no evidence that he was part of a criminal organization; and there were no minors involved in any of the drug transactions.

[10] The offence took place over one brief period of time only, that being October 21-23, 2012. There is no evidence that the trafficking took place over an extended period of time. There was no violence or weapons associated with any aspect of the offence.

[11] There are mitigating factors as well: the Defendant has expressed some remorse; once his Charter applications were dismissed, he re-elected to be tried by judge alone and immediately invited a finding of guilty on an agreed set of facts, saving the court the need for a trial.

[12] The Defendant was only 24 years old at the time of the offence. His father passed away when he was just eight years old. He suffered abuse at the hands of his mother and grew up surrounded by street crime and drugs. Between the ages of 14 and 16, the Defendant was under CAS care and placed in various foster and group homes.

[13] The Defendant has struggled with alcohol and marijuana addictions since he was younger. In the past five years, he has developed a cocaine addiction. Since the bail variation he received, the Defendant has been engaged in addiction counselling. His crime was not motivated by profit, but rather by a need to support his addiction. He is attempting to upgrade his education; his prospects for rehabilitation and improvement are good. In the past, the Defendant has held employment with a cleaning service. He has three children with a woman named Kayla McAlmont. In the past, he has been active in community service in the City of Toronto.

[14] This is only the Defendant’s second drug related offence as an adult. It would offend the jump principle to impose a sentence in the range suggested by the Crown.

[15] In terms of credit for pre-trial custody and for time spent on restrictive JIR, the Defendant seeks a credit based upon a 1.5:1 ratio for the pre-trial custody of 22 days served between October 23, 2012 and November 13, 2012 when the Defendant was released on JIR. The Defence seeks a similar credit from April 17, 2015 to today’s date.

[16] The Defendant seeks a credit for the period between November 13, 2012 and October 25, 2013, during which time he was under house arrest with limited exceptions for medical and legal appointments and for attending at school. He also seeks credit for the period running from October 25, 2013 to February 27, 2014, during which time the Defendant was subject to a curfew. The Defendant relies upon the Ontario Court of Appeal’s decision in R. v. Downes, 2006 3957 (ON CA), [2006] O.J. No. 555, as well as upon three lower court decisions: R. v. Battista, [2011] O.J. No. 4867 (Ont. S.C.); R. v. Chaves, [2013] O.J. No. 5423 (Ont. C.J.); R. v. Saikaley, 2013 ONSC 2699, [2013] O.J. No. 2331 (Ont. S.C.).

[17] The Defendant submits that the JIR was sufficiently restrictive to qualify as onerous, deserving of the 0.3 to 1 credit approach favoured in Downes. Overall, the Defendant seeks a combined credit for pre-trial custody and time on JIR in the six to eleven month range.

[18] The Defendant asks the court to distinguish the cases cited by the Crown:

• In R. v. Bajada, 2003 15687 (ON CA), [2003] O.J. No. 721 (Ont. C.A.), an entire trial was necessary to secure a conviction; the purity of the banned substance was in evidence; and the Defendant was 51 years of age with a record that included several narcotics offences.

• In R. v. Dodd, [2004] O.J. No. 6074 (Ont. C.J.), the offence was committed purely for financial gain and the offender did not express any remorse.

• In R. v. Datta, [2011] O.J. No. 2685 (Ont. S.C.), the offender was on probation at the time of the offence and was found by the trial judge to have destroyed evidence.

[19] The Defendant submits that cases most similar to the one at bar have resulted in sentences well below the range sought by the Crown. In R. v. Ban, [2014] B.C.J. No. 334, the British Columbia Court of Appeal imposed a sentence of three years on a twenty-three year old mid-level trafficker who was found in possession of one kilogram of cocaine. In R. v. Cornacchia, [1988] O.J. No. 1759, the Ontario Court of Appeal imposed a sentence of three years on a drug trafficker found guilty of engaging in the sale of a pound of cocaine on one occasion only. In R. v. Allen, [2014] B.C.J. No. 1133 (B.C.S.C.), an offender found guilty of trafficking in cocaine, mixing agents and heroine for profit received a two and half year custodial sentence. The facts in the case at bar do not rise to the level of those present in the recent case of Her Majesty the Queen v Thompson, 2015 ONSC 663. In that case, Roberts J. (as she then was) found that a fit sentence was 57 months. The offender had a lengthy drug-related criminal record carrying on a commercially motivated drug trade out of his home. Minors resided in the home, and the offences were committed while the Defendant was serving a conditional sentence.

[20] At the conclusion of submissions, the Defendant was afforded an opportunity to address the court. He expressed remorse for his conduct, promised not to engage in criminal activity in the future and expressed a desire to upgrade his education, obtain employment and live a life free of drug use.

Analysis

[21] The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The exercise of imposing a just sentence must involve the promotion of these following objectives:

(a) To denounce unlawful conduct;

(b) To deter the offender and other persons from committing offences;

(c) To separate offenders from society, where necessary;

(d) To assist in rehabilitating offenders;

(e) To provide reparation for harm done to victims or to the community; and,

(f) To promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[22] S. 10.1 of the CDSA states:

Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.

[23] I am not prepared to afford much weight to the suggestion that the Defendant was not engaged in the trafficking activity for profit. There was no reliable, verifiable evidence that he suffered from an addiction or that he has engaged in rehabilitation for that addiction. The $12,000 cash located in the safe at his residence would tend to establish that his enterprise was producing significant revenue, consistent with commercial profit. Moreover, the amount of cocaine found at the residence would exceed what would be required to service the alleged addiction.

[24] I am not prepared to allow such a large credit for the time he was on JIR. The bail conditions became less restrictive over the period of time in question. The last segment of time imposed merely a curfew on JL. There was no compelling evidence of the impact that the conditions imposed on his liberty.

[25] The letter from Allison Lee of Allison’s Cleaning Services is unsigned. There is no sworn evidence of any past employment record. I am not prepared to afford much weight to the alleged employment activities or prospects of the Defendant. Similarly, the letter from Kayla McAlmont is unsigned. There is no sworn evidence from her. I am not prepared to afford much weight to this kind of evidence.

[26] I acknowledge that the Defendant did not involve minors in the offences in question. There was no violence associated with his crime. The take down itself involved aggressive police action secondary to a concern for weapons and officer safety; however, there were no weapons found on the Defendant and there is no evidence that his brief resistance to arrest was born of anything more than instinct, fear and alarm. He may have had some gang affiliation, but there is no evidence that the offences in question were in any way related to gang activity. He was not on probation at the time of the offence.

[27] I acknowledge the Defendant’s statement of remorse in open court. This cannot be an easy thing to do, and I am aware that many persons in similar circumstances remain defiant and unapologetic before the Court that has convicted them and stands poised to pass sentence on them. Still, one must remain wary of the sincerity of these types of expressions of remorse. Without engaging in any credibility assessment, one must always place such an expression of remorse within the context of when it was made.

[28] Finally, although the drug trafficking activities took place over a relatively short period of time, the quality, pattern, breadth and pace of the activities all point to an individual who was operating an enterprise of some sophistication, featuring local contacts, established meeting places and ready access to his own supply depot in Toronto for use in Barrie transactions. The Defendant’s criminal antecedents support the finding that he was no rookie in the drug trafficking business.

[29] In considering the impact of drug trafficking of this kind on our society, I am drawn to the view expressed by my brother O’Connell J. in Datta at para. 111:

Crack cocaine is cocaine’s wicked and more virulent companion. Addiction is often not seen by members of communities who live in blissful peace. It is however a disease whose tentacles affect people of all walks of life, and all economic classes. Crack cocaine addiction spawns despair in families, destroys the addict, and precipitates violence and criminality in the community, all wrought by the insatiable chase of the addict[‘s] desire and the greed of many of the dealers who perpetuate the sales.

[30] Although I am attracted to the sentence range suggested by the Crown for the reasons set out above, I remain mindful of the jump principle, the relatively young age of the offender, and the fact that rehabilitation cannot be ruled out as means through which the Defendant may still be able put his life in order. That said, denunciation and deterrence, both general and specific, must always be factors in drug related offences.

[31] I have concluded that the circumstances here are deserving of a sentence somewhere in the middle of the spectrum applicable to mid-level trafficking cases.

[32] Please stand Mr. Lee.

[33] Junior Lee, I sentence you to four years in the federal penitentiary. I deduct from that sentence the period you have served in pre-trial incarceration and post-conviction incarceration which, when applying the ratio of 1.5:1, amounts to 153 days. Based on the principles set out in Downes, I would deduct from your sentence a further 90 days for the fact that your liberty was partially impaired during the period of JIR. That leads to an effective sentence to be served as of today of 3 years and 122 days from today’s date.

[34] The order for forfeiture of the items the Crown seeks forfeited will be granted. A s. 109 order will issue for life. There shall be an order for a DNA sample under s. 487.051(3).

J.R. McCARTHY, J.

Released: July 6, 2015

NOTE: As noted in court, on the record, this written ruling is to be considered the official version and takes precedent over the oral reasons read into the record. Any discrepancies between the oral and written versions, it is the official written ruling that is to be relied upon.