Court File and Parties
Court File No.: 7562/15 Date: 2016-04-27 Ontario Superior Court of Justice
Between: Her Majesty The Queen And: William Lawrence Fleming
Counsel: M. Jones, for the Crown T.P. Waltenbury, for the Accused
Heard: April 25-26, 2016
Reasons on Sentence
A.D. KURKE, J.
1Mr. Fleming has pleaded guilty to trafficking in cocaine on the first Count of the Indictment. This Count had been amended on consent to expand the date of the offence to cover the period April 3, 2014 to May 1, 2014, in order to encompass four drug deals that were otherwise individually charged. On that Count I have registered a conviction, and a joint submission relating to most aspects of sentencing has been presented to me by counsel.
2The plea was taken on the day scheduled as the first day for trial. A pre-trial Garofoli application was heard and decided last year (2015 ONSC 7325). Still outstanding were Charter applications relating to “lost evidence” (Charter s. 7), and an application pursuant to s. 8 of the Charter, filed late last week, seeking to have me reconsider my Garofoli ruling on the basis of more recent appellate authority.
3I heard argument relating to s. 462.37(3) of the Criminal Code, which permits the imposition of a fine in lieu of forfeiture of proceeds of crime, as the Crown and the accused differ in their interpretation of the provision and its application to the circumstances of this case.
Facts relating to the offence
4A sting operation by the Sault Ste. Marie Police Service focused on Mr. Fleming as a substantial drug dealer. An agent was used by police to purchase increasing quantities of cocaine from Mr. Fleming, all while the four transactions at issue were surreptitiously recorded by police pursuant to a judicial authorization obtained on the consent of the agent to the interception.
5The buys were conducted in a manner to ensure the integrity of the evidence of drug trafficking. The agent contacted Mr. Fleming to arrange each transaction. Prior to the buys, the agent was searched by police to ensure that he had no money or drugs on his person. He was then provided with the buy money for the drugs, in the amount demanded by Mr. Fleming. The two met in public parking lots in Sault Ste. Marie, where the agent provide Mr. Fleming with money in exchange for the agreed-upon quantity of what was supposed to be powdered cocaine. The drug was then turned over by the agent to police for analysis and processing. The analyses resulted in Certificates of Analysis that verified that the items received by the agent from Mr. Fleming in each transaction were indeed cocaine.
6On April 3, 2014, the agent and Mr. Fleming met at Mr. Fleming’s truck in the parking lot of a Tim Horton’s. The agent gave Mr. Fleming $3,600, and received two ounces of cocaine.
7On April 10, 2014, the two met at the YMCA parking lot. The agent gave Mr. Fleming $8,250, and received 5 ounces of cocaine.
8On April 18, 2014, they again met at the YMCA parking lot. The agent provided Mr. Fleming with $18,000 for 10 ounces of powdered cocaine.
9On May 1, 2014, the agent and Mr. Fleming met again at the YMCA parking lot, where the agent received from Mr. Fleming 20 ounces of powdered cocaine for $35,000 cash.
10In total, Mr. Fleming received $64,850 from the agent for cocaine.
11Mr. Fleming was arrested May 27, 2014. After his arrest, searches were conducted by police of his home and vehicle and safety deposit box. Items from the home and the safety deposit box were seized by police, in addition to Mr. Fleming’s pickup truck. None of the money provided to Mr. Fleming by the agent, or property to which that money was traceable, was recovered in those searches or seizures.
Background of the offender
12The Crown alleges no criminal record for Mr. Fleming.
13By way of background, I have been told that Mr. Fleming is 30 years old, and a high school graduate. He took a Home Inspection program at Sault College between 2011 and 2013. Mr. Fleming has worked as a personal trainer and a snowboard instructor, and prior to his arrest had started a business: Interlock Builder Landscape and Design Inc. The business was not profitable before Mr. Fleming’s arrest in May 2014, but has continued operations under the control of Mr. Fleming’s employees, and has gradually advanced towards profitability. Mr. Fleming wishes to devote himself to that business upon his release.
14Mr. Fleming has been in custody since May 27, 2014, some 23 months. That period of pre-trial custody, for which Mr. Fleming does not earn early release, has been made more difficult by a labour dispute at the detention centre. This resulted in excessive lockdowns, reduced yard time, impaired telephone service and decreased visitor access. Counsel are agreed that Mr. Fleming’s pre-sentence custody should be credited at the rate of 1.5 to 1, pursuant to the principle in R. v. Summers (2014), 2014 SCC 26, 308 C.C.C. (3d) 471 (S.C.C.). While in custody, Mr. Fleming was not idle; he completed a “Change is a Choice Substance Use Program” in 2015, in order to ensure no relapse into a past significant problem with drug use.
The joint submission
15Crown and accused are agreed on the following aspects of sentencing and post sentencing issues, which are jointly submitted to me:
a. A further sentence of two years less one day incarceration without any probation to follow; b. A ten-year firearms prohibition pursuant to s. 109 of the Criminal Code; c. A sample of bodily substance from Mr. Fleming will be provided for forensic DNA analysis for entry into the National DNA Databank, pursuant to s. 487.051(3) of the Criminal Code. The charge of which he has been convicted is a secondary designated offence under the scheme in the Criminal Code; d. Orders should be made releasing to Mr. Fleming his vehicle and the contents of his safety deposit box, and forfeiting to the Crown drugs and drug paraphernalia seized by police during the course of the investigation.
16I am satisfied that the proposals appropriately address sentencing issues in the circumstances of this case.
17The incarceration, on top of the equivalent of almost three years of pre-sentence custody, amounts to a five-year sentence, which is at the low end of the range for trafficking cocaine in such quantities. However, it also takes into account the mitigating effects of the plea of guilt, which eliminated the need for trial and any resolution of outstanding issues under ss. 7 and 8 of the Charter and the defence of entrapment, not to mention credibility issues relating to the evidence to be given by the agent. In addition, Mr. Fleming has a plan for gainful employment upon release, which encourages me to consider Mr. Fleming’s rehabilitation as a real likelihood. I agree with counsel that the facts of the case present no need for an additional order of probation, and I have been assured by Crown and defence that the agent who occasioned Mr. Fleming’s downfall is safely away from contact with or by Mr. Fleming.
18The firearms prohibition is automatic for this offence. As to DNA, the circumstances of this offence involve multiple drug transactions over the course of a month in which large quantities of a pernicious drug were sold. Even in the absence of a prior criminal record I am satisfied that it is in the best interests of the administration of justice that an order for DNA sampling issue. The Orders for return or forfeiture properly account for the reasonable disposition of items seized by police during the course of the investigation.
19All of these aspects of the joint submission appear reasonable and appropriate, and they will form part of the sentence of the Court, and corollary Orders.
Fine in lieu of forfeiture
20The parties disagree concerning the Crown’s application under s. 462.37 of the Criminal Code, relating to forfeiture of the proceeds of crime. That provision provides as follows in its relevant portions:
Order of forfeiture of property on conviction
462.37 (1) Subject to this section and sections 462.39 to 462.41, where an offender is convicted, or discharged under section 730, of a designated offence and the court imposing sentence on the offender, on application of the Attorney General, is satisfied, on a balance of probabilities, that any property is proceeds of crime and that the designated offence was committed in relation to that property, the court shall order that the property be forfeited to Her Majesty to be disposed of as the Attorney General directs or otherwise dealt with in accordance with the law.
Fine instead of forfeiture
(3) If a court is satisfied that an order of forfeiture under subsection (1) or (2.01) should be made in respect of any property of an offender but that the property or any part of or interest in the property cannot be made subject to an order, the court may, instead of ordering the property or any part of or interest in the property to be forfeited, order the offender to pay a fine in an amount equal to the value of the property or the part of or interest in the property. In particular, a court may order the offender to pay a fine if the property or any part of or interest in the property
(a) cannot, on the exercise of due diligence, be located; (b) has been transferred to a third party; (c) is located outside Canada; (d) has been substantially diminished in value or rendered worthless; or (e) has been commingled with other property that cannot be divided without difficulty.
Imprisonment in default of payment of fine
(4) Where a court orders an offender to pay a fine pursuant to subsection (3), the court shall
(a) impose, in default of payment of that fine, a term of imprisonment
(i) not exceeding six months, where the amount of the fine does not exceed ten thousand dollars, (ii) of not less than six months and not exceeding twelve months, where the amount of the fine exceeds ten thousand dollars but does not exceed twenty thousand dollars, (iii) of not less than twelve months and not exceeding eighteen months, where the amount of the fine exceeds twenty thousand dollars but does not exceed fifty thousand dollars, (iv) of not less than eighteen months and not exceeding two years, where the amount of the fine exceeds fifty thousand dollars but does not exceed one hundred thousand dollars, (v) of not less than two years and not exceeding three years, where the amount of the fine exceeds one hundred thousand dollars but does not exceed two hundred and fifty thousand dollars, (vi) of not less than three years and not exceeding five years, where the amount of the fine exceeds two hundred and fifty thousand dollars but does not exceed one million dollars, or (vii) of not less than five years and not exceeding ten years, where the amount of the fine exceeds one million dollars[.]
21It is agreed that the agent paid Mr. Fleming a total of $64,850 in the four drug deals, to purchase cocaine. Section 462.37(1) provides for the forfeiture of that money, as proceeds of crime, if it could be located and seized by police. However, that money has not been seized by police although they searched for it diligently after the arrest of Mr. Fleming. Accordingly, it cannot be forfeited. In such circumstances, s. 462.37(3) dictates that a fine be imposed in the amount of an offender’s interest in the property.
22R. v. Lavigne, 2006 SCC 10 is the leading case in this area. It is clear from the decision of the Supreme Court in Lavigne that inability to pay is not to be taken into account in assigning a value to the fine in lieu of forfeiture. Rather, the fine, if imposed, must represent an amount equal to the accused’s interest in the property which could not be located for forfeiture: Lavigne, at paras. 10-21, 29-37, 44. Some moderation is provided to the severity of this position by the ability of the sentencing Court to permit an extended time for payment of the fine: Lavigne, at paras. 45-48.
23In the Crown’s submission, the fine should be $64,850, as that was the amount given to Mr. Fleming by the agent in the four transactions. In the defence submission, the s. 462.37(3) “interest” must take into account that Mr. Fleming was evidently brokering someone else’s drugs. The defence puts forward as proof a comment by Mr. Fleming to the agent that the agent was making more from the deals than Mr. Fleming, although the agent was only anticipating $2,000 profit from a very large anticipated transaction. The defence submits that such evidence should ground a lesser fine, perhaps in the nature of $10,000, as the property – the $64,850 – was not properly Mr. Fleming’s. Mr. Fleming’s “interest” should only be considered to be a small brokerage fee for his work.
24Provisions of the Criminal Code and jurisprudence tell against the defence argument.
25Section 2 of the Criminal Code offers a definition of “property” that includes mere present or past possession or control as sufficient for establishing something as someone’s property:
"property" includes
(a) real and personal property of every description and deeds and instruments relating to or evidencing the title or right to property, or giving a right to recover or receive money or goods,
(b) property originally in the possession or under the control of any person, and any property into or for which it has been converted or exchanged and anything acquired at any time by the conversion or exchange,…
26The Crown submits that “property originally in the possession or under the control of any person” precisely defines the situation of Mr. Fleming, in that he had possession and control of the $64,850 for some period of time after the agent gave him the money, even if he then transferred the money to his drug supplier. The defence, on the other hand, distinguishes between the definition in s. 2, and the wording in s. 462.37(3), “property of an offender”. In the defence submission, based on the different wording in s. 462.37(3), Parliament must have intended a different meaning in that section, and asserts that the wording in that section supports his interpretation.
27I do not agree. While s. 462.37(3) turns our attention to specific property, that of the offender, I see no reason to define property in that section as excluding from consideration simple possession or control, those elements from the s. 2 definition of “property” in the Criminal Code. And indeed, such an expansive definition of property, that combines s. 2 and s. 462.37(3), is supported by the jurisprudence.
28In R. v. Dwyer, 2013 ONCA 34, at paras. 21-24, the issue for the Court of Appeal’s determination was whether a fine should be made in lieu of forfeiture relating to a mortgage fraud. In delivering the judgment of the Court, Rosenberg J.A. discussed as follows, directly linking the definition of “property” in s. 2 with the wording in s. 462.37(3) of the Criminal Code:
21The appellant submits that the order should not be made because the Crown failed to establish that the missing funds were property “of an offender”. This submission turns on the interpretation of ss. 462.37, 462.3 and 2 of the Criminal Code. A pre-requisite to imposing a fine in lieu of forfeiture is that an order of forfeiture under s. 462.37(1) should be made. A pre-requisite to making a forfeiture order is that the court is satisfied on a balance of probabilities that “any property is proceeds of crime and that the designated offence was committed in relation to that property”. “Proceeds of crime” is broadly defined in s. 462.3(1) as “any property, benefit or advantage, within or outside Canada, obtained or derived directly or indirectly as a result of (a) the commission in Canada of a designated offence”.
22As is made clear in para. 12 of Lavigne, the term “property” in these sections has the meaning set out in s. 2:
(a) real and personal property of every description and deeds and instruments relating to or evidencing the title or right to property, or giving a right to recover or receive money or goods,
(b) property originally in the possession or under the control of any person, and any property into or for which it has been converted or exchanged and anything acquired at any time by the conversion or exchange, …
23The part of the definition that applies in this case is para. (b), being “property originally in the possession or under the control of any person”. I accept that the Crown proved that the designated offence of fraud was committed in relation to the entire $633,750. The difficulty is that the Crown failed to prove that the entire amount was originally in the possession or under the control of the appellant.
24In my view, an order for a fine in lieu of forfeiture can be made under s. 462.37(3) only where the offender has possession or control of the property in question or at least had possession of the property at some point. This conclusion flows from the use of the phrase “any property of an offender” in s. 462.37(3) and the definition of “property” in s. 2. Such an interpretation is consistent with the objectives of s. 462.37, which are to deprive offenders of the proceeds of crime and ensure that they do not benefit from those proceeds: see R. v. Appleby, 2009 NLCA 6, 242 C.C.C. (3d) 229, at paras. 26, 32-33. Those objectives would not be furthered by making orders in relation to property that was never in the possession of the offender, over which the offender never had control and from which the offender did not benefit: see also R. v. Mackenzie, [2002] O.J. No. 2512 (C.J.).
29In R. v. Piccinini, 2015 ONCA 446, the Court of Appeal appears specifically to have rejected the argument now advanced by the defence, in the following passage (para. 19):
19The “value of the property” as we have already discussed, is the value of the property that was possessed or controlled by the appellant. It is not the benefit received by the appellant: see R. v. Siddiqi, 2015 ONCA 374, where this court noted at para. 6, that the sentencing judge was not required to find “that [the accused] personally benefitted from the funds he transferred to [a] third party, on a dollar-for-dollar basis, to impose a fine in lieu of forfeiture that included the amount of the transferred funds”.
30As is made clear in R. v. A.S., 2010 ONCA 2532, at para. 14, a fine in the full amount of the buy money in a trafficking case is appropriate even in circumstances where an offender’s benefit from the property at issue is less than the whole value of the property, for the offender had to pay for the drugs that he himself then supplied to another:
14Having regard to Lavigne, we are satisfied that the sentencing judge erred in not imposing a fine in lieu of forfeiture. The respondent received $37,100 in drug buy money. He did not act alone and his actions extended over a considerable period of time. Receiving the money was a “benefit” in keeping with the purpose of the provisions. What the respondent then chose to do with the money (i.e. pay his supplier, purchase drugs, etc.) need not be the subject of inquiry by the sentencing judge as the Supreme Court’s decision in Lavigne illustrates.
31And indeed, such a strict interpretation accords with the severe policy that s. 462.37 represents. This policy was discussed by the Supreme Court of Canada in Lavigne, at paras. 15-16:
15The broad meaning of the expressions “proceeds of crime” and “in relation to”, combined with the fact that no discretion whatsoever is provided for in s. 462.37(1), is significant. Parliament has made this provision mandatory by requiring forfeiture and making the provision apply to the widest possible range of property.
16Parliament’s intention in enacting the forfeiture provisions was to give teeth to the general sentencing provisions. While the purpose of the latter provisions is to punish an offender for committing a particular offence, the objective of forfeiture is rather to deprive the offender and the criminal organization of the proceeds of their crime and to deter them from committing crimes in the future. The severity and broad scope of the provisions suggest that Parliament is seeking to avert crime by showing that the proceeds of crime themselves, or the equivalent thereof, may be forfeited.
32For the above reasons, I will impose on Mr. Fleming a fine in the amount of $64,850, as requested by the federal Crown. Mr. Fleming came into possession of that amount through the payments to him by the agent during the four drug transactions. While he may well have used the bulk of the money to pay for the drugs that he himself sold to the agent, he still had sufficient control over and possession of all the money as contemplated by ss. 2 and 462.37(3) of the Criminal Code.
33Given Mr. Fleming’s current inability to pay the fine, I will give him the fullest opportunity to pay it by granting his request for five years to pay, from the date of his release from jail. Upon release, Mr. Fleming will be able to devote himself to his business, and thereby earn money with which to pay the fine over that extended period of time. If he defaults, s. 462.37(4) of the Criminal Code provides for his reincarceration.
Conclusion
34Mr. Fleming has pleaded guilty to a charge of trafficking in cocaine. Although he has pleaded guilty to one Count, the facts relating to that Count detail four separate transactions within the span of a month. While the agent who purchased drugs was working with police, so that the cocaine did not find its way onto the streets, it could very easily have been otherwise, so far as the accused was concerned.
35Accordingly, this Court must impose a sentence that will serve to denounce such conduct, and attempt to deter Mr. Fleming and other like-minded persons from acting as traffickers in such substances for financial gain. The sentence imposed must be geared towards accomplishing that end, and the fine in lieu of forfeiture must seek to deter by taking away the expectation of the financial benefit that makes drug trafficking an attractive option for the criminal underworld.
36Accordingly, Mr. Fleming is sentenced to a term of imprisonment of two years less one day jail. In essence, in combination with the 23 months of pre-trial custody served already by Mr. Fleming, this amounts to a sentence of five years.
37Mr. Fleming will be prohibited from possessing firearms and the other items listed in section 109 of the Code for a period of ten years.
38Mr. Fleming will provide a sample of bodily substances for the purposes of the National DNA Databank on this conviction for a secondary designated offence.
39Pursuant to s. 462.37(3), Mr. Fleming will pay a fine in lieu of forfeiture in the amount of $64,850. That fine will be paid within five years of the anniversary of his statutory release date, which I calculate to be 16 months into his sentence. Mr. Fleming shall therefore be given 76 months to pay the fine in lieu.
40Pursuant to s. 462.37(4)(a)(iv), if at the end of the five-year period Mr. Fleming is in default of the payment of the $64,850 fine, he will be imprisoned for a term of 18 months.