COURT FILE NO.: CR-22-90000515-0000 DATE: 20230426 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – BRIAN LUCKMAN
Counsel: J. Gevikoglu, for the Crown G. Lafontaine, for Mr. Luckman
Heard: 6 February 2023
S.A.Q. AKHTAR J.
Factual Background and Overview
Background Facts
[1] Brian Luckman was convicted by a jury of trafficking in methamphetamine, contrary to Section 5(1) of the Controlled Drugs and Substances Act.
[2] Mr. Luckman was arrested and charged as part of a police investigation into the drug trade known as Project Obermuder. Posing as potential drug dealers, the RCMP set up a fake warehouse at 1585 Brittania Road in Toronto to serve as a “base” for undercover officers in their fictitious roles.
[3] In late 2016, the police began to investigate Robert Collins, a delivery driver for a furniture company. An undercover officer met with Mr. Collins in October 2017. Mr. Collins indicated that he had access to a supply of cocaine through a contact in Columbia. Over the following nine months, Mr. Collins met with the undercover officer to discuss the drug trade.
[4] On 22 March 2018, Collins told the officer that he could ship a quantity of methamphetamine to Australia, a destination which would yield an increased profit. In response, the officer told Collins that he had a contact in Montreal who would arrange transportation of the drugs. Sometime in April 2018, Collins introduced the undercover officer to Lamar Burke who was also interested in a potential methamphetamine transaction.
[5] There were further meetings with Collins and Burke to discuss the shipment to Australia. Eventually, they agreed a financial deal to transport 2 kilograms of methamphetamine. As the deal reached its conclusory stage, the undercover officer arranged to meet Collins and Burke in July at the Island Mix restaurant in Pickering and was told by Collins that there would be “three of us” coming to the meeting. Collins described the third person as “the next partner”.
[6] When the undercover officer arrived at Island Mix on 3 July 2018, he found Burke waiting for him with Mr. Luckman, who called himself “Brooklyn”.
[7] All three got into the officer’s car. Mr. Burke sat in the back with Mr. Luckman taking the front passenger seat to accommodate his larger frame. Their conversation centred on the details of shipping methamphetamine to Australia and Burke told the officer that Mr. Luckman had some questions about the deal. The officer understood Mr. Luckman to be Burke’s partner and helping him provide methamphetamine. Mr. Luckman asked about fee percentages, how the funds were to be obtained from the Australian sales and wanted to know “about the risk I am taking here”. Plans were discussed for the methamphetamine to be delivered the next day.
[8] On 4 July 2018, Collins attended the fake warehouse at Brittania Road where the undercover officer and his colleague awaited the delivery of the drugs to be shipped out of the country. Collins called Burke asking him to bring the drugs to the warehouse. However, Burke explained that he did not have “the product”, but it was close by. Collins left the warehouse to collect Burke and both returned at 2:05 p.m. when Burke assured the officer that “the product” would be available between 4:30 and 5:00 p.m. that day. The officer next heard from Collins at 4:36 p.m. when he sent a text message saying that Burke was on his way.
[9] At 2:24 pm, Mr. Luckman was seen with Burke at a Mr. Sub on Britannia Road. The two men were observed leaving the area at 4:38 p.m. in Mr. Luckman’s Impala which drove eastbound on Britannia Road. They returned to the Mr. Sub at 4:42 p.m. Burke was dropped off and re-entered the Mr. Sub whilst Mr. Luckman departed. At 4:50 pm, a blue Lexus SUV drove into the area and parked next to Burke’s black BMW. Burke exited the Mr. Sub, and briefly entered the Lexus before getting into his own car. Both vehicles then made their way to the warehouse where Burke emerged from his BMW carrying a black bag.
[10] Burke entered the warehouse and presented the police with 4 kilos of methamphetamine. The undercover officers gave Burke $28,000 for the delivery of 2 kilos and $3000 was deducted as compensation for the “shipping fee” for the remaining 2 kilograms of drugs which were to be “sent” to Australia. The parties agreed that Burke would be paid the remainder of what was owed when the drugs were sold in Australia. The officers took all 4 kilograms of the drugs and Burke left with the money he had been given.
[11] On 16 July 2018, the officer met Collins, Burke, and Mr. Luckman to discuss logistics. All three sat in the officer’s car and wanted an update on the delivery status of the methamphetamine. They were assured that everything was running according to schedule. Mr. Luckman expressed his hopes for future transactions with larger amounts of drugs.
[12] A police expert was qualified at the trial to provide opinion evidence with respect to the production, distribution, supply, trafficking, pricing, importing, and exporting of methamphetamine. He testified that methamphetamine is the second-most consumed illicit drug in the world and that the approximate value of a kilogram of methamphetamine in 2018 in Toronto was between $23,000 and $30,000 and that the approximate value in Australia was between $78,000 to $275,000. The officer’s opinion was that the methamphetamine seized was of the highest purity and that purity was consistent with someone having access to a well set-up lab. The price the undercover officer paid, $14,000, was also, according to the expert, close to half-price compared to what his experience was regarding the going rate for methamphetamine in the Greater Toronto Area.
Positions of the Parties
[13] The Crown submits that a sentence of 8 years is appropriate considering the circumstances of the case and the sentencing principles enshrined in s. 718 of the Criminal Code and s. 10 of the Controlled Drugs and Substances Act.
[14] The defence seeks a conditional sentence of 2 years less one day with a three year probationary period, citing Mr. Luckman’s lack of a criminal record and his prospects for rehabilitation as set out described in the pre-sentence report.
The Sentence
Personal Circumstances
[15] Mr. Luckman is 53 years old and was born in New York. He moved to New Jersey when he was 7 and resided with both of his parents until he was 19. He met a Canadian woman and moved to Toronto in his early twenties. They married but are now separated. He has four children, three with his now ex-wife, and one born out of an extra-marital relationship, although all four were raised together by Mr. Luckman and his former wife. All are now adults.
[16] Mr. Luckman has a new partner and fiancée. He currently resides with her, his daughter and his fiancée’s two children who are aged 11 and eight years old. He told the author of the pre-sentence report that he had a close relationship with his fiancée’s children.
[17] Mr. Luckman completed elementary and high school education in the United States. He indicated in his pre-sentence report that he wanted to go to university in the United States, but was unable to do so because he lacked sufficient finances. He began working after leaving high school at 17 but also continued to study.
[18] When he moved to Ontario, he continued to work in the United States as a club manager and a "talent scout" for comedians. He has also owned a restaurant and a couple of clubs. He told the author of the pre-sentence report that he had previously worked as a "player agent rep” and also "owned a couple of basketball teams" in the United States and Ontario, although he explained that the leagues in which they played had folded.
[19] In 2008 and 2009, Mr. Luckman invested in a "Ponzi scheme" and lost almost everything. He remained self-employed until his arrest for these offences working in the housing market, security, online trading, and marketing areas.
[20] He is currently employed by a property management company for whom he has worked for two years.
[21] There is no doubt that Mr. Luckman has the support of his family: as part of the sentencing hearing, the defence filed a number of letters including messages of support from family and friends.
Aggravating and Mitigating Features
[22] The first question to be answered in relation to sentencing Mr. Luckman is his role in the events.
[23] Although the defence argued that it was open for the jury to find that Mr. Luckman was a party to the offence aiding Collins and Burke, I find that that the facts disclose beyond a reasonable doubt that Mr. Luckman was directly involved in the sale of drugs to the undercover officers as a principal offender.
[24] I say this for the following reasons.
[25] It is significant that the deal to sell and transport the drugs was completed after Mr. Luckman accompanied Collins and Burke to their meeting with the undercover officers. Even though Collins and Burke had been in negotiations with those officers, the specific details relating to quantities and price were established after the 3 July 2018 meeting attended by Mr. Luckman.
[26] Second, it is important to note that prior to this meeting, Collins had described Mr. Luckman as the “next partner”.
[27] Third, after Burke received Collins’ call notifying him that the officers were waiting for the drugs and Burke explained he did not have the drugs, he met with Mr. Luckman. Shortly afterwards, the drugs were delivered.
[28] Finally, on 16 July 2018 Mr. Luckman attended the meeting with the officers and sought assurances that the drugs had been delivered. He was involved in the discussion of both the quantity of the drug and the method of delivery to Australia. His interests and role in the transactions appear clear.
[29] For these reasons, I find beyond a reasonable doubt that Mr. Luckman was a principal in the commission of the offence.
[30] Turning next to the gravity of the offence, the subject matter of the charge constitutes a substantial amount of methamphetamine. The scheme to export came about as a result of a desire of the parties to maximise profit. Commercial drug trafficking offences are very serious and the price and quantity of the methamphetamine in this case demonstrates the high level trafficking at play in this case.
[31] Nor can the impact of the drug be understated: methamphetamine is a highly addictive, harmful drug. These qualities carry with them the recognition that a conviction for trafficking in methamphetamine requires a significant sentence.
[32] The following cases provide examples of how the range of sentence imposed following conviction:
- R. v. Oraha, 2014 ONCA 359 - The offender was convicted of possession for the purpose of trafficking three types of drugs (cocaine, methamphetamine, and MDMA), as well as conspiracy to traffic cocaine. The trial judge emphasised the principles of denunciation and deterrence and imposed a global sentence of nine years imprisonment less four months credit for pre-sentence custody. The Court of Appeal upheld the sentence.
- R. v. Mac, 2016 ONCA 379 - The offender was convicted of conspiracy to traffic 2 kilos of methamphetamine and received a 7 year sentence. On appeal, he argued his sentence was unfit submitting that it was unfair that he had received a similar sentence to a co-accused who possessed a worse criminal record. The Court of Appeal upheld the sentence finding that the co-accused’s lengthier antecedents did not render his sentence unfit. The Court also pointed to the fact that unlike one of the co-accused, the offender did not plead guilty.
- R. v. Loy, 2011 ONCA 340 - The offender received a 5 year sentence, upheld on appeal after being convicted of possessing a substantial amount of methamphetamine for the purpose of trafficking. The court found that even though the offender had prospects of rehabilitation, the sentence was not unreasonable in light of the fact that she had a child with her when in possession of the drugs.
- R. v. Luu, 2021 ONCA 311 - The offender was convicted of conspiracy to traffic a controlled substance, trafficking 523 grams of methamphetamine, and possession of proceeds of crime over $5,000. The offender transported and supplied drugs to his co-conspirators. He received a prison sentence of 6.5 years.
[33] I also take into account that Mr. Luckman’s co-accused, Lamar Burke, who pleaded guilty to the conspiracy to export methamphetamine, received a seven-year sentence. However, it should be noted that Mr. Burke, unlike Mr. Luckman, has a criminal record.
[34] The lack of a criminal record is a significant mitigating factor in this case. Although Mr. Luckman has not accepted responsibility for the offence, it is clear that his criminal conviction has had an impact. The pre-sentence report details his shame and his embarrassment as well as an acknowledgment that he has disappointed his friends and family.
[35] The letters of support show that prior to his criminal conduct, Mr. Luckman was seen as a positive and generous person who put his family at the forefront of his personal focus.
[36] Having reviewed the comments in both the pre-sentence report and the letters of support, I have some confidence that Mr. Luckman may make sincere attempts at rehabilitation.
What is the Appropriate Sentence?
[37] As is always the case when sentencing an offender, I am guided by the principles set out in s. 718.1 of the Criminal Code which require the court to balance denunciation and deterrence with the prospects of rehabilitation and the promotion of responsibility.
[38] Trafficking in methamphetamine is a very serious offence in which the principles of denunciation and deterrence play a significant role in sentencing after conviction. I do not agree that a sentence of less than two years is appropriate in this case, which rules out the imposition of a conditional sentence.
[39] In light of the factors set out above and the applicable case law, I am of the view that the appropriate sentence in this case is five years imprisonment.
[40] Although this may be seen at the low end, if not the lowest end of the range of imprisonment, I find there is some substance to the argument that Mr. Luckman has viable prospects for rehabilitation. His lack of criminal record and his acceptance of the trauma and shame caused to his family by his conviction gives me some hope that he will make efforts to turn his life around and avoid further criminal conduct.
[41] In addition, a disposition order requested by the Crown will issue as well as a DNA order under the secondary ground.
S.A.Q. Akhtar J. Released: 26 April 2023
COURT FILE NO.: CR-22-90000515-0000 DATE: 20230426 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – BRIAN LUCKMAN
REASONS FOR JUDGMENT S.A.Q. Akhtar J.