COURT FILE NO.: CR-20-90000273-0000
DATE: 20220830
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Bari Krackower and Renee Gregor, for the Crown
- and -
EDMOND KIM
Sandra Kimberg, for the Defendant
Defendant
HEARD: August 5, 2022, by Zoom Teleconference at Toronto, Ontario
Reasons For Sentence
Michael G. Quigley J.
[1] Edmond Kim was charged in July 2019 with three counts of possession of drugs for the purposes of trafficking, namely powdered cocaine, crack cocaine and "MDMA" (methylenedioxyamphetamine), contrary to ss. 5(2) of the Controlled Drugs and Substances Act (CDSA).
[2] He was also charged, during the same period, with possession of proceeds of property obtained by crime exceeding $5,000 in value, and two counts of unlicensed possession of a prohibited weapon, under ss. 355(a) and 92(2) of the Criminal Code of Canada, respectively (the "Code").
[3] Mr. Kim entered a plea of guilty before me on November 29, 2021, to one count of trafficking in cocaine and the matter was put over for a sentencing hearing. At the time of his plea, however, Mr. Kim advised the court that his mother, Young Sook Kim, was terminally ill. In consideration of his plea, and on the joint recommendation of Crown and defence counsel, I ordered that Mr. Kim would be permitted to remain out of custody for some months, to care for his father and his mother in palliative care, until she passed away.
[4] The need for Mr. Kim's assistance in the home was plain, evidenced in part by the records filed that show that he took his mother to more than 130 medical appointments from February of 2020 until her treatments evidently stopped in March of this year as her condition deteriorated. I learned from counsel that Mrs. Kim passed away two months later, on May 11, 2022.
[5] As such, the time has now come for Mr. Kim to be sentenced on the offence of trafficking in a substantial amount of cocaine, exceeding one kilo. Following my return in July from a medical leave, counsel agreed upon August 5 to hear submissions, and I then scheduled today, Tuesday August 30, for the imposition of sentence.
Circumstances of the Offences
[6] In July of 2019, Toronto Police Drug Squad commenced an investigation into an unknown male because of information obtained from a confidential informant. That person who was believed to be trafficking cocaine from 15 Zorra Street, Toronto, is this offender, Edmond Kim. He was described as a male of Asian origins, 40 years of age, 5'8-5'9, 170-180 lbs., medium build, bald, with glasses. The source advised the male lived on the sixth floor of the building and had a small black dog with a thick collar.
[7] Police subsequently conducted surveillance at that address, which corroborated information received from the source. More specifically, on July 18 and 19, 2019, police observed an Asian male matching the description provided by the source continually entering and exiting 15 Zorra Street and attending various vehicles for short durations. Over the course of these two days, the male was observed entering seven vehicles outside of 15 Zorra Street. He was also seen conducting at least one hand-to-hand drug transaction. Sometimes, he had a dog with a distinctive collar. Police also observed the male use a key to enter Unit 605 at 15 Zorra Street.
[8] On Monday, July 22, 2019, DC Rhone of the Toronto Drug Squad applied for and obtained a CDSA search warrant for 605-15 Zorra Street, Toronto. That same day, drug squad officers attended the area of 15 Zorra Street and observed the Asian male exiting the rear stairwell doors of that building. That male, now known to be Edmond Kim, proceeded to the sidewalk and was arrested pursuant to the warrant. At the time of his arrest, Mr. Kim was in possession of powdered cocaine (4.92 grams), a set of keys with a fob, and a cell phone.
[9] Following Mr. Kim's arrest, police executed the warrant. Inside his residence they located and seized 1.247 kilos of cocaine and 116.52 grams of MDMA. Police also located a cocaine press, a money counter, 2 stun guns and Cdn. $30,000.
Circumstances of the Offender
[10] Mr. Kim was born in Korea but moved with his parents to Canada when he was three years old. He is now a Canadian citizen. He is single, has no children, but has two siblings, a brother, and a sister. He is presently 47 years of age, turning 48 in a few weeks, though he was 44 at the time the crimes were committed.
[11] Mr. Kim did not graduate from high school. He left school in grade 12 and went to work in car dealerships and at a company called Golden Maintenance, which was his family's office cleaning business. That business was closed seven years ago, in 2015, when Mr. Kim's father retired.
[12] After the family business closed, the offender started to work in 2017 as a general labourer at Giewont Stucco Design but evidently his employer lost a lot of business during the pandemic, and Mr. Kim himself could never recover lost income because the health of his parents, both of whom had significant medical afflictions, caused him to focus on caring for them.
[13] Mr. Kim's mother was 72 years old when she was diagnosed in May 2021 with colon cancer. She underwent significant surgery to remove her intestines, which required her to use a lithotomy bag to expel bodily waste. It was the offender who provided the daily bag changing care that his mother required. She was told that she had three months to live. Evidently, she started to receive chemotherapy in May of 2021, but treatment was stopped in the spring of this year when it was discovered that her colon cancer had metastasized to the liver. At that point, sadly, Mrs. Kim's condition became terminal. She received the Last Rights of the Church and, as noted above, passed away on May 11, 2022.
[14] Mr. Kim's father remains alive, but he also has very challenging medical conditions. He is 81 years of age, almost totally blind, and suffers from congenital spinal stenosis. Evidently this condition required the removal of a portion of the spine several months ago which has now left him only able to walk in the house to the bathroom. He is incapable of walking significant distances so someone else, Mr. Kim to date, must go to buy his groceries, pick up his prescriptions, and attend to doctor's appointments, as he did for his late mother. He has also undertaken the tasks associated with the inevitable sale of the parent's condominium and the preparation of their final wills.
[15] I find it ironic that an offender like Mr. Kim who has diligently cared for his parents on a full-time basis on the one hand, would be so uncaring, obviously motivated entirely by commercial considerations, to be engaged in dealing the quantities of drugs involved in this case.
[16] Nevertheless, until now it has been the offender who has fulfilled the majority of his parent's health and daily living related needs, until his mother passed away, and continues to administer to the needs of his ailing father. His siblings evidently helped on occasion in the past, but unlike Mr. Kim, they have not resided with the parents and so have not been on site and available to regularly supplement their health care needs, and now only for Mr. Kim Sr. I note thankfully, however, that the offender's siblings, Ms. Linda Clarke and Mr. Danis Kim, understand that it will fall to them to attend to their father's care once their brother commences to serve his sentence.
[17] It was this background that caused me to take the extraordinary step of delaying Mr. Kim's sentencing after he entered a plea in November 2021. An offender normally will be sentenced as soon as possible after he or she has been found or pleaded guilty to offences, but here, as I noted above, the Crown generously acceded to the defence request to permit Mr. Kim to stay out of prison to comfort and attend to his mother's care until she passed. While unusual, I agreed to extend that accommodation to him under all the circumstances.
[18] Mr. Kim has a criminal record, but it is for very dated offences committed long before these offences, namely, theft under $5,000 and failure to comply with the terms of a recognizance dating back to 1996 and 1997. There is also an offence of possession of property obtained by crime dating to 2004, close to two decades ago. At his age, Mr. Kim cannot be regarded as youthful, but because of the antiquity of these offences, I do choose on this sentencing to regard Mr. Kim as a first-time offender, albeit having admitted to a very serious drug trafficking offence.
Position of the Parties
[19] Crown counsel takes the position that a sentence of four-years imprisonment is fit in the circumstances of this case. She notes that the appellate authority in this province establishes that the appropriate range of sentence for drug crimes of this severity is incarceration for five to seven years. In that light, Crown counsel considers her position to be as lenient as Crown counsel could reasonably take in these circumstances, but that also takes account of the unusual family background of the offender, and his effective absence of criminal antecedents.
[20] The defence refers to my sentencing decision in R. v. Truong, 2021 ONSC 5041, where a trafficker was sentenced to a conditional sentence, but, in fairness, both parties agreed that was a very different kind of case. That was indeed a unique case, but it will suffice to say I do not accept that this is the same kind of situation as was present there, factually or legally. In contrast, this is a case that plainly calls for a carceral sentence.
[21] Defence counsel acknowledges this reality in her request that the court consider a sentence of three years' incarceration. She differs from the Crown's position, based upon principles of restraint. However, in light of that being a full two years lower than the bottom of the range that has received appellate approval in this Province for offences of this seriousness, involving over a kilogram of cocaine, and also trafficking in other very serious drugs, even if no plea was sought to those other charges, it was not surprising to me that Crown counsel explained that the sentence sought by defence counsel was not adequate to permit them to join together on a joint sentencing submission.
[22] Crown counsel also seeks ancillary orders which are not opposed.
Sentencing Factors
[23] All the usual factors set out in ss. 718, 718.1, 718.2 as well as s. 742 apply on this sentencing. I have evaluated the adequacy of the proposed sentence having regard to these principles and others set out below.
[24] It is aggravating that the quantities of cocaine present in this case are very significant, exceeding the kilogram level. While I accept that there were possible triable Charter issues relating to search and seizure, equally, I accept that they would not likely have derailed this prosecution. It all would have depended on the veracity of the notes of one of the investigating officers.
[25] Regardless, rather than exercising his constitutional right to a trial and to make the Crown prove its case, Mr. Kim has accepted responsibility for his actions and saved considerable court time in these desperate times of impossible constraints on the availability of court resources. That is obviously an important mitigating factor. On the other hand, Mr. Kim was released on very limited minimally restrictive bail conditions, so that and the presence of the Covid pandemic will have no bearing on the appropriate sentence for this offender
[26] These are very serious offences. While he has only pleaded to one of the charges, the presence of the others cannot be forgotten, and principles of parity and proportionality require that Mr. Kim receive a sentence that is similar to sentences imposed on other similarly situated offenders. It must emphasize deterrence and denunciation. However, since the offence to which he pled is a CDSA offence, it is relevant, and the Code requires, that I consider Mr. Kim's prospects for rehabilitation, which I agree with counsel are very positive and promising.
Mitigating Factors
[27] The following are the factors I find to be mitigating in favour of Mr. Kim:
(i) There were certainly triable issues in this case. There was a Charter challenge proposed under ss. 8 and 10(a) and (b) relating to a strip search. One can never know whether such a challenge would have succeeded had Mr. Kim gone to trial, but knowing that, he instead chose to plead guilty to this offence, at a relatively early stage. This is a significant mitigating factor.
(ii) Mr. Kim's plea demonstrates the acceptance of responsibility for his conduct, and it also shows remorse.
(iii) Mr. Kim also has the obvious support of a loving and tightly knit family. They are close, and his siblings and others think very highly of Mr. Kim, while not hesitating to cast their opprobrium on him for having committed a serious crime. However, he has opened-up to them and seeks to restore the family's honour, which he regrets he sullied through his ill-gotten gains. The family will assist with the care of his father while he is serving his sentence, and I have no doubt they will strongly support him upon his ultimate release.
(iv) Correspondence filed on this hearing demonstrates that Mr. Kim does have excellent employment prospects and the strong likelihood of returning to a lawful and pro-social life upon his release. Indeed, his proposed employer, Stephen Lee of Triple A Food Trading Inc. provides great insight to his prospects. Mr. Lee has known Mr. Kim for over 20 years and confirms that Mr. Kim is a good man at heart, who gave him great assistance in establishing one of his business lines, and he confirms Mr. Kim will be employed in a full-time salaried position once he has served his sentence. He is an offender who we can reasonably expect will be rehabilitated.
(v) Letters from the Parkview Neighbourhood Garden show that Mr. Kim has done community service there in helping the garden to grow for the benefit of the residents of that community, and there are strong letters of support from Ms. Suzie Kim, a real estate executive who is first cousin to Mr. Kim, and from his siblings, Linda Clarke and Danis Kim.
(vi) Finally, there were no breaches of any bail conditions.
Aggravating Factors
[28] I find the following factors in this case to be aggravating:
(i) Mr. Kim has pled guilty to trafficking in a large quantity of cocaine, a quantity well over one kilogram. Although it was not part of the resolution, the presence of the MDMA is also an aggravating factor.
(ii) The reports of surveillance demonstrate that he was dealing out of his own home, but he also appears to have been engaged in a highly organized business, having regard to the numerous vehicles into which he was seen engaging in hand-to-hand transactions. His conduct was brazen and showed flagrant disregard for the law.
(iii) Finally, Mr. Kim is not himself a user nor does he have other substance dependency issues, thus demonstrating that his was entirely a commercial enterprise, undertaken solely for his own financial benefit and gain, even though there was no evidence that he needed the significant $30,000 proceeds derived from his crime, owing to financial hardship.
Analysis and Determination of Sentence
[29] Crown counsel advances six cases in support of the four-year sentence that she calls upon the court to impose, five of them being appellate authority: R. v. Byron, 2011 ONCA 273; R. v. Bajada, 2003 15687 (ON CA), [2003] O.J. No. 721 (C.A.); R. v. Brown, 2021 ONCA 35; R. v. Maone, 2020 ONCA 461; R. v. McGregor, 2017 ONCA 399; and finally, Di Luca J's very thorough decision in R. v. Lu, [2022] O.J. No. 1490 (S.C.J.).
[30] Defence counsel takes the position that the Crown's cases are distinguishable. She relies upon the principle of restraint as the basis for her request that the offender be sentenced to a lesser sentence. In furtherance of that submission, she advances four cases in support of the three-year sentence that she asks the court to consider: R. v. Truong, 2021 ONSC 5041; R. v. Mohammad Alam, 2021 Ontario Court of Justice, Court File No. 19-A36452 (unreported); R. v. Blake, 2008 Carswell Ont 3929, a decision of McWatt J., now A.C.J.S.C.; and R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089.
[31] Byron, a decision of the Court of Appeal establishes that the range of sentence for trafficking in these quantities of cocaine, for an offender without a record, is five to eight years. In Bajada, the court reduced a sentence from eight to six years, but there was less contraband involved, and it was a case where the offender was found guilty at trial: see R. v. Bajada at para. 13, and cases cited there. In Brown, a sentence of four to seven years was imposed following a guilty plea on possession of more than 2 kilos of cocaine for the purposes of trafficking.
[32] I note that defence counsel agrees with Crown counsel on the applicable range of sentence, but she argues that the sentence should be reduced to three years, rather than four, based upon the principle of restraint. She draws my attention to R. v. Priest referenced on page four and five of the decision of Rondinelli J. of the Ontario Court in R. v. Alam:
Thirdly, Mr. Alam is still a relatively young man at 27 years old. He was 24 years old at the time of the offence. Caselaw from our Court of Appeal since R. v. Priest, 1996 1381, has emphasized the need for restraint when sentencing a young first offender with good prospects for rehabilitation.
So, after considering the sentencing principles at play in this case, as well as the aggravating and mitigating factors present, and the various ranges suggested in the case law put forward by counsel, I have arrived at the conclusion that an appropriate sentence for Mr. Alam is 3 and a half years.
[33] However, while the quantity of cocaine was similar in that case to this one, the plain fact is that Mr. Kim was not a youthful offender at the time of these offences. He was and remains a middle-aged man, almost double Mr. Alam's age, who ought to have known better than to traffic in drugs to make quick money. Further, while I have chosen to treat Mr. Kim as a first-time offender, owing to the antiquity of his antecedents, the fact is that he does have a relatively insignificant prior record.
[34] Finally, reference was made to R. v. Blake where a sentence of four years was imposed following a plea of guilty, after police arrested the offender following three separate instances of trafficking in 1.25 kilos of cocaine, virtually the same amount as was present here. Like here, defence counsel in that case sought a sentence of three to four years, while the Crown asked for a sentence of five to seven years.
[35] There were also personal collateral circumstances advanced there as a factor in mitigation of sentence, namely, that the mother of Blake's young daughter had passed away, and it was said that he was needed to take care of her wellbeing. Moreover, Mr. Blake was ten years younger than this offender.
[36] However, even the presence of those two factors did not cause McWatt J. (now A.C.J.S.C.O.) to go below a sentence of four-years that defence counsel had agreed was appropriate. Further, in proposing a sentence of four years in this case it is evident that Crown Counsel has already taken account of the positive elements that weigh in Mr. Kim's favour.
[37] Finally, of course, it is also appropriate that I have again reminded myself of the extensive accommodation that was granted to Mr. Kim through the court's willingness to delay the imposition of sentence on him by eight months, to today's date. This was granted on entirely compassionate grounds, to permit him to comfort and attend to his dying mother's needs in her final days.
[38] Had it not been for the Crown's consent and my agreement that this unusual accommodation could be made in this case, Mr. Kim would certainly have been sentenced to and have started to serve his sentence long before now. Of necessity, that would have been and will be a penitentiary sentence. Had that sentence been imposed then, Mr. Kim would not have been at home and able to be at her side for his own benefit and hers, when his mother passed away.
[39] As in the case of all penitentiary inmates, the offender's incarceration necessarily means that there may be important life and family events that they will not be present for, that will pass them by as they serve out the sentence that has been imposed in cases of serious crime, like this one. That is a sad fact, but also the unavoidable result of a decision to engage in criminality for commercial gain.
[40] Crown counsel acknowledged that she is sympathetic to the family considerations that are present in this case, but I agree with her that cannot be a factor that can cause the appropriate fit sentence to be reduced.
[41] In this case, having considered all the factors and sentencing principles that apply, and noting that the Crown's position ensures that Mr. Kim's sentence is consistent and in line with sentences imposed on other similarly situated offenders, I find that the four year sentence proposed by Crown counsel is fair, indeed a full-year below the bottom of the range, and that it would not be appropriate for it to be lowered to a sentence of three years.
Disposition
[42] In the result, Mr. Kim, I sentence you to imprisonment for four years in the federal penitentiary. In addition, you will be subject to the mandatory weapons prohibition under s. 110 of the Code of ten years, and you will be prohibited from possessing any restricted or prohibited firearms for life. You will also provide a sample of your DNA to be entered into the National data registry. In addition, however, you will also be subject to a forfeiture order relative to the proceeds of crime found in your possession at the time of your arrest. The remaining charges are withdrawn.
[43] In my view, this is the fit sentence for this crime, but I would add that in my view, it does also recognize the positive and pro-social changes that you have embarked upon incorporating into your life, so that upon your release, with the support of a loving family and employed by persons who believe in you and know you can do better, you will be able to turn your back on this criminal conduct and proceed forward as a productive and law-abiding member of our community.
[44] Please accept my sincere good wishes that you will succeed in achieving those goals, for your late mother, your ailing father, and you're loving and supportive siblings. If you can adhere to those goals, Mr. Kim, then you will most certainly have achieved your desire to restore your family's honour. I wish you well in pursuing that goal.
Michael G. Quigley J.
Released: August 30, 2022
COURT FILE NO.: CR-20-90000273-0000
DATE: 20220830
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
EDMOND KIM
Defendant
REASONS FOR SENTENCE
Michael G. Quigley J.
Released: August 30, 2022