Court File and Parties

COURT FILE NO.: CR-18-40000132-0000 DATE: 20181011 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – DORRIN CHANG Defendant

Counsel: Sophina James, for the Crown Defendant in absentia

HEARD: October 4, 2018 A.J. O’Marra J.

REASONS FOR SENTENCE

[1] Dorrin Chang was found guilty after trial by jury on May 3, 2018 of having committed two counts of trafficking of firearms, and three counts involving the trafficking, possession for the purpose of trafficking and possession of drugs. The specific offences on the multi-count indictment for which he was found guilty are as follows:

Count 2 – offering to traffic a firearm between March 11, 2015 and March 25, 2015 contrary to s. 99(1) of the Criminal Code.

Count 6 – offering to traffic a firearm on May 9, 2015 contrary to s. 99(1) of the Criminal Code.

Count 8 – trafficking heroin between April 21, 2015 and June 4, 2015 contrary to s. 5(1) of the Controlled Drugs and Substances Act.

Count 10 – possession for the purpose of trafficking, heroin on June 4, 2015 contrary to s. 5(1) of the Controlled Drugs and Substances Act.

Count 11 – possession of controlled substance, hydromorphone on June 4, 2015 contrary to s. 5(2) of the Controlled Drugs and Substances Act.

[2] After Mr. Chang was found guilty he was remanded to July 19, 2018 for the purpose of sentencing. A presentence report was ordered to be prepared for that date.

[3] On the return date Mr. Chang failed to attend. Trial counsel at his request was removed as counsel of record, having declared he had no contact with Mr. Chang from the date the verdict was rendered, May 3, 2018. The lawyer-client relationship had broken down.

[4] The Crown applied pursuant to s. 475(1) of the Criminal Code to have Mr. Chang sentenced in absentia. Information was provided that on May 7, 2018 Mr. Chang’s surety on his bail release had made an application for surety release, which was granted. On the cancellation of his bail, a warrant was issued for his arrest. Further, on the same date Mr. Chang failed to report, as required, pursuant to the terms of a release bond, to the Greater Toronto Area Region Enforcement and Intelligent Operations Division of the Canada Immigration Bond Reporting Centre. On failing to report the Immigration authorities issued a warrant for his arrest under s. 55 of the Immigration and Refugee Protection Act, May 10, 2018.

[5] For reasons given July 18, 2018 on the Crown’s application Mr. Chang was found to have absconded to avoid sentencing and the court would proceed to sentence, pursuant to s. 475(1) (a) and (b) of the Criminal Code. The continuation of the trial and the sentencing proceeding was adjourned to October 4, 2018. A bench warrant was issued for the arrest of Mr. Chang.

[6] On October 11, 2018 none of the outstanding warrants for the arrest of Mr. Chang had been executed. It was determined that it was no longer in the interest of justice to await the appearance of Mr. Chang and accordingly sentencing proceeded in his absence.

Background of the Offender

[7] As Mr. Chang had not attended to the Parole and Probation office as required, no presentence report was prepared in this matter. The information available relating to Mr. Chang is that he is 43 years old, born December 12, 1974 in Jamaica. He is a landed immigrant from Jamaica and currently he is unlawfully at large.

[8] Mr. Chang has a criminal record which consists of the following:

• November 21, 1991 Toronto (Youth Court), failed to attend court, failed to comply with reconnaissance and obstruct a peace officer, sentenced to thirty days open custody and probation 2 years on each count concurrent.
• November 22, 1991 Toronto (Youth Court), trafficking in a narcotic, sentenced 30 days open custody and probation 2 years.
• August 19, 1994 Toronto, unlawfully at large and failed to attend court, sentenced 45 days secure custody on each count concurrent.
• February 20, 2008 Toronto, possession of a loaded prohibited or restricted firearm, sentenced 4 years with credit for the equivalent of 8 months, trafficking in a scheduled substance, sentenced 1 year of each concurrent and mandatory section 109 firearms prohibition order for 10 years.
• April 18, 2008 Brampton, possession of a scheduled substance for the purpose of trafficking, sentenced 4 months concurrent with sentenced serving.

Nature of the Offences

[9] During a Toronto Guns and Gang unit project investigation, the police obtained a judicial authorization to intercept private communications. One of the named targets was Dorrin Chang. In the course of the investigation multiple intercepts were obtained that involved Mr. Chang speaking with others using what was described as coded or guarded language, discussing the sale of firearms, ammunition and drugs, such as heroin and hydromorphone. In addition, on June 4, 2015 search warrants were executed at the conclusion of the investigation at the residence occupied by Mr. Chang and his partner Tracy Johnson. The police uncovered quantities of heroin and hydromorphone, as well as various items of drug paraphilia or mixing, cutting and weighing and packaging materials in the kitchen area.

[10] With respect to guarded language used, references were made to firearms by use of such terms as “pizza”, “shoes”, “Jordans”, “Mack trucks”, “thirty-twos”, “forties”, and G-units. Ammunition was referred to variously as “laces”, “lula-lae” and “teeth”. Prices for the firearms referred to as 2 racks, “22”, “22 bucks”, “25”, “27” or “3” indicated denominations of $2,000.00, $2,200.00, $2,500.00, $2700.00 or 3,000.00 respectively.

[11] Heroin in the quality of 3.5 grams were referred to as a “B”, an “8-ball”, a soccer, for 3.5 grams of heroin, a “Q” for 7 grams of heroin, and a “bounce” for an ounce of heroin. Further, the descriptions of the drugs such as “hard”, or “crumpled”, which meant solid or crushed up heroin. Sometimes the heroin was referred to as “brown”.

Count 2 Trafficking Firearm

[12] Between March 11, 2015 and March 25, 2015 an individual named Matthew Joseph sought to buy a firearm for protection in a conversation with Mr. Chang. Chang advised Joseph that his “bredren” had a “g-unit” or a semi-automatic Glock firearm that was “brand brand”, meaning brand new and available. Joseph said he would not pay $3,000.00 being asked for the firearm. A few days later, Chang in another conversation told Joseph that the firearm was on its way and that the seller, his “little Somali” says he has some . . . the biggas . . . the mack-trucks”, which Joseph did not want. The next day Joseph asked what was going on and said he was worried because he was “naked”, meaning unarmed. The day after Joseph continued to complain to Chang that because he was “naked” he had to stay out-of-town until he was “well-suited up”.

[13] Two days later on March 25, 2015 Chang offered a 40 calibre firearm to Joseph stating that there was a 40 for sale and that its “mad mad”, very good. Chang arranged for Joseph to meet his contact named Fresh. In a subsequent conversation between Fresh and Joseph they agreed on a purchase price of $2,500.00 and arranged to meet to complete the sale.

Count 6 – Offer to transfer firearm

[14] On May 8, 2015 Mr. Ian Bullens contacted Mr. Chang to ask him to find someone so that he could sell his “shoes” or firearm he had shown previously Mr. Chang because he needed money. Mr. Chang agreed to look for a buyer and advised Bullens that he might be able to get $2,500.00 for it. Mr. Bullens told him that the firearm came with “shoe laces”, ammunition. There were subsequent exchanges between Mr. Bullens and unidentified males concerning the sale of the firearm. On May 9, 2015 Mr. Chang contacted another unidentified male and offered Mr. Bullens’ firearm for sale. Mr. Chang said that Bullens had a firearm for sale, asking $2,500.00 and that there is nothing wrong with it, it was “government”. He told the unknown male that Mr. Bullens was in the Brampton area and that they could meet up there. Later that day the unknown male met with Mr. Bullens in the area of Airport Road and Castlemore, north east of Brampton to inspect the firearm. After the meeting the unknown male called Mr. Chang and told him the firearm he had been shown was old and did not want it. To encourage the sale, Mr. Chang advised Mr. Bullens to lower the price to $2,000.00. In turn, Mr. Chang in a subsequent call counselled the unknown male to buy it for $2000.00 and then sell it himself to another buyer for $2,500.00 to make a profit. The unknown male said he did not want to buy it and get stuck with it if nobody would buy it from him. However, a little while later the unknown male called Mr. Chang back and advised him that someone did want the firearm. Mr. Chang said that he would contact Mr. Bullens so that they could meet up. Mr. Bullens contacted the unknown male. Mr. Bullens called Mr. Chang after and advised him that the unknown male had purchased the firearm.

Count 8 – Trafficking Heroin

[15] Intercepted communications between April 21, 2015 and June 4, 2015 indicated that Mr. Chang was trafficking various qualities of heroin, half ounce, three-quarter ounce to ounces, to and through a street dealer named Ash or Ashley. Ashley trafficked at the street level to customers and then provided the funds from the sales of the heroin back to Mr. Chang after keeping a portion of the sales as her profit. In intercepted calls on May 28, 2015 and May 29, 2015 Mr. Chang directed Ash/Ashley attend an apartment building to drop off the money for a “ball”, 3.5 grams of heroin to Mr. Chang’s supplier and to pick up another ball, or 3.5 grams of heroin to sell.

Counts 10 and 11 – Possession for the Purpose of Trafficking (Heroin) and Possession of Hydromorphone

[16] On June 4, 2015 the police executed a search warrant at the residence occupied by Mr. Chang and girlfriend Tracy Johnson. On a search of the kitchen area in the apartment the police located a grocery bag which contained a bag of red capsules, later tested and identified as hydromorphone (35.65 grams), a packet of heroin weighing 13.74 grams, a red handled knife with beige residue on the blade, a silver spoon with beige powdered residue on it and a digital weigh scale. They also located a mixing cup which contained the same beige residue and a blender.

[17] The 13.74 grams of heroin would generate approximately 137 points. If sold as “points” on street at $20 - $30 to users would produce $2,740.00 to $4,110.00 in sales. Sold as grams, the estimated value would be $180.00 to $240.00 per gram. Approximately14 grams of heroin would be worth $2,520.00 to $3,360.00.

Position of the Crown

[18] The Crown’s position is that Mr. Chang should be sentenced to a total period of incarceration of between 8 – 10 years.

[19] The Crown submits that as a subsequent offender involving firearms and being subject to a firearms prohibition at the time he was committing the offences, Mr. Chang should be sentenced to more than the five year minimum period of incarceration as required under s. 99(2)(b) for a subsequent offences.

[20] Similarly, as a subsequent offender involved in the trafficking of heroin Mr. Chang should be sentenced to a corresponding period of incarceration to be served concurrently to the offering to traffic firearm offences. The Crown further recommends a sentence of 12 months for the possession of hydromorphone to be served concurrently.

[21] The Crown submits that a collection order be made DNA analysis, as well as a s. 109 firearms prohibition for life.

[22] Further, the Crown seeks a forfeiture order for the property seized, specifically the cell phones and the Mercedes-Benz during the course of the investigation.

Principles of Sentence

[23] Section 718 of the Criminal Code states that the fundamental purpose of sentencing is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of a number of objectives.

[24] Those objectives include denunciation of unlawful conduct, deterrence of the offender and others who may be similarly inclined, separation of the offender from society where necessary, rehabilitation and the promotion of a sense of responsibility in the offender.

[25] Further, the sanction imposed must be proportionate to the gravity of the offence and the degree of the responsibility of the offender. The total sentence should not be unduly harsh. The court should also take into consideration that the sentence should be similar to sentences imposed for similar offences committed in similar circumstances.

[26] With respect to offences involving firearms our courts have stressed time and time again that such sentences imposed must further the sentencing goals of denunciation, deterrence and protection of the public. In R. v. Danvers, 2005, 199 CCC (3d) 490 (ONCA), a murder case involving the use of a firearm Armstrong J.A. stated that at para. 78 the following:

There is no question that our courts have to address the principles of denunciation and deterrence for gun related crimes in the strongest possible terms. The possession and use of illegal handguns in the Greater Toronto Area is a cause for major concern in the community and must be addressed.

[27] The concern expressed above continues unabated in this community. As noted by K.L. Campbell J. at para. 26 in R. v. Ellis, 2013 ONSC 2548, [2013] O.J. No. 2490:

. . . Parliament has decreed that when these types of inherently dangerous firearms offences are committed by repeat offenders, the mandatory minimum term of imprisonment is five years imprisonment. When those inclined to possess loaded illegal firearms are not discouraged from such perilous criminal activity by shorter terms of imprisonment, the striking need for a more effective measure of specific deterrence requires the imposition of a significantly longer term of incarceration in order to adequately protect the public. See: R. v. Dene and Telfer, 2010 ONSC 5192 at paras. 6-16, 19, 34-38; Affirmed: 2010 ONCA 796, at paras. 8-9; R. v. S.(I.) and M.(M.), 2011 ONSC 3303, [2011] O.J. No. 3052.

[28] In R. v. Brown 2010 ONCA 745, at para. 14 the Court stated:

Handguns are an all too prevalent menace in the Greater Toronto Area. First and foremost, the sentences imposed for firearms offences must further the sentencing goals of denunciation, deterrence and protection of the public.

[29] With respect to dealing with offences such as trafficking of heroin, even in small amounts, a penitentiary term should be imposed unless there are exceptional circumstances, see R. v. Farizeh and R. v. Bahari; R. v. Hogan at para. 3.

[30] In R. v. Tse at para. 8 the court stated “heroin is one of the most dangerous and insidious narcotics which generally has devastating consequences on the health, social relations and financial circumstances of users and their families.”

[31] In R. v. Sidhu, 2009 ONCA 81, [2009] 242 CCC (3d) 273 the Ontario Court of Appeal stated “time and again, this court and the Supreme Court of Canada had made it clear that heroin is the most pernicious of the hard drugs – it is the most addictive, the most destructive and the most dangerous. Heroin trafficking has been described as a “despicable” crime and one that “tears at the very fabric of our society”.”

[32] In R. v. Marcello (1973), 11 CCC (2d) 302, Evans J.A. in the Ontario Court of Appeal stated: “Heroin peddlers are a menace to society and that society requires protection from those who engage in this nefarious business” and their illicit drug business, “produces catastrophic results”.

[33] It was noted by Martin J.A. in R. v. Wood, at para 5: “The offence of trafficking in heroin at the commercial level is a crime of particular gravity, not only because of its destructive consequences, but because it involves the deliberate exploitation of the weakness of other solely for the purpose of making large profits without regard to the consequence to others.”

[34] Those tempted by commercial gain from the trafficking of heroin must expect severe sentences to be imposed to deter others, as well as to speak to the denunciation by society and protection of the community.

[35] I find the cases of R. v. Brown, supra and R. v. Chambers, 2013 ONCA 680 to be helpful in considering the appropriate range of sentence for the firearm offences.

[36] In Chambers at trial, the offender, 25 was convicted of several firearm offences, possession of stolen property and breaches of two firearm prohibition orders and a recognizance. He was a third time weapons offender. He was sentenced to eight years imprisonment, less credit for time served. On appeal against sentence, the court held that the overall sentence, while lenient, was not demonstrably unfit. His sentence did not materially deviate from sentences of similarly situated offenders.

[37] In Brown, the offender pleaded guilty to possession of a loaded restricted firearm and breach of a life time firearms prohibition order. He had a lengthy criminal record that included two firearm offences and at the time of his arrest he was subject to two firearm prohibition orders and a deportation order. The court sentenced him to a global sentence of six years less pre-trial custody credit of six months.

[38] The Court of Appeal held that the overall sentence was demonstrably unfit. It was outside the appropriate range, and inadequate to reflect the seriousness of the offences and the incorrigibility of the offender. The sentenced imposed on appeal was eight years, after credit for pre-trial custody.

[39] Dawson J. in R. v. Bains, 2013 ONSC 1583 at paras. 22 to 30 provides a careful review of sentences imposed in cases involving trafficking heroin offences. He concludes on the review that the cases involving quantities of heroin between one half to one kilogram establish a sentence range of six to twelve years imprisonment. While larger amounts were involved in these cases, I bear in mind in the instant case that Mr. Chang was buying and selling heroin as a business, albeit in smaller amounts, it was over time.

[40] The paramount objectives in fashioning sentences for both firearm offences and the trafficking of heroin are deterrence, denunciation and protection of the community. Although both type of offences required substantial periods of incarceration to give effect to those objectives, I am mindful that I must consider the principle of the totality of the sentenced imposed.

Aggravating and Mitigating Factors

[41] Mr. Chang has three prior convictions for drug offences, all of which involve the trafficking of a narcotic. He has a prior conviction for possession of a loaded prohibited or restricted firearm for which he received a substantial period of incarceration, 4 years for a first offence. At the time of these offences he was subject to a mandatory firearms prohibition order. Based on the contents of the conversations he was engaged as a middle man in facilitate the sale of firearms to those engaged in the illicit drug trade. He was engaged in selling drugs during the same period he was offering firearms for sale.

[42] With respect to the drug sales, based on the quantities involved, he was a mid-level dealer who purchased from others and passing them to his street sellers for distribution to their “custies”, customers. Mr. Chang was involved in the trade of heroin, an insidious narcotic for commercial gain. Further, he used women as his dealers such as Ash/Ashley to sell drugs in Toronto and to expand his territory in the north to Thunder Bay.

[43] There are no mitigating factors to consider as a result of Mr. Chang having absconded.

Sentence

[44] The sentence imposed in the instance must meet the objectives of denunciation, deterrence, the protection of society. The sentence must be exemplary in order to dissuade those who would act similarly to circulate illegal firearms in the community and sell drugs, both of which may result in the death or serious harm to others. Such offenders need to know that they shall pay dearly for their crimes by loss of liberty for very long periods of time.

[45] In my view in this case a fit sentence for the offences of offering to transfer firearms is one of 9 years, both counts to be served concurrently. With respect to the offence of trafficking heroin, count 8 Mr. Chang shall be sentenced to 4 years concurrent to counts 2 and 6. With respect to count 10 possession of heroin for the purpose of trafficking he shall be sentenced 4 years to be served consecutively to count 8 and concurrent to counts 2 and 6. With respect to count 11, possession of hydromorphone he is sentenced to 1 year consecutive to counts 8 and 10 and to be served concurrently to counts 2 and 6.

[46] In the result Mr. Chang is sentenced to a total period of incarceration of 9 years.

[47] In addition Mr. Chang is sentenced to a firearm prohibition order for life pursuant to s. 109 (2) (b) of the Criminal Code and an order for the collection of bodily fluid sample for DNA purposes pursuant to s. 487.051 of the Criminal Code. Further, I make the order for forfeiture of the property seized as requested.

[48] Dorrin Chang is unlawfully at large at the time of sentencing him, as noted above. Pursuant to s. 719 (1) and (2) of the Criminal Code his sentence of imprisonment shall commence on his apprehension and detention in Canada.

A. J. O’Marra J. Released: October 11, 2018