R. v. Loubissi-Morris, 2023 BCSC 455

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Loubissi-Morris, 2023 BCSC 455 Date: 20230310 Docket: 93751-1 Registry: Kelowna Rex v. Abd'l-Malik Ryhan Loubissi-Morris Tien Roy Mai Dang Noah Didhra Before: The Honourable Mr. Justice Wilson Oral Reasons for Sentence (Re the Accused Loubissi-Morris) Counsel for the Crown: T.V. Warren Counsel for the Accused: C. Muldoon Place and Date of Trial/Hearing: Kelowna, B.C. March 10, 2023 Place and Date of Judgment: Kelowna, B.C. March 10, 2023 [ 1 ] THE COURT: This is Mr. Loubissi-Morris' sentencing hearing.

He had previously pleaded guilty to two counts on a 15-count indictment: Count 1, which was conspiracy to traffic in controlled substances being fentanyl, cocaine, methamphetamine, and ketamine, and Count 8, which was a firearms offence. The circumstances involving Mr. Loubissi-Morris were set out in an agreed statement of facts and I will review some of those facts. [ 2 ] The RCMP was involved in investigating a shooting in Surrey where an innocent bystander was struck with a bullet in July of 2017. In the course of that investigation, the police became aware of Mr.

Loubissi-Morris’ possible involvement and, as part of their investigation of him, became aware of an apartment that he frequented in Kelowna. They searched that apartment on July 10th of 2018 and found 1.13 kilograms of fentanyl, 671.55 grams of cocaine, 1.552 kilograms of methamphetamine, and 20.51 grams of ketamine. Six firearms were also located in the apartment along with a substantial amount of cash and drug packaging paraphernalia. [ 3 ] The shooting that the police were initially investigating occurred in a residential neighbourhood in Surrey.

On a Sunday afternoon, the passenger of a red F-150 truck exited a vehicle and fired shots at the intended victim. At a separate sentencing proceeding, Mr. Loubissi-Morris admitted to being the driver of the red truck. [ 4 ] During their initial investigation, the police utilized a number of judicial authorizations including search warrants, tracking warrants, production orders, and transmission data recorder warrants. As a result of various interceptions and use of those warrants, the police obtained various information. There was a discussion between Mr. Loubissi-Morris and Mr.

Tran, who was named in Count 1 of the indictment, regarding cash in a freezer. There was discussion of the recruitment of young traffickers to further the business venture. There was a subsequent discussion on a similar topic and also a discussion with another male with regard to taking over another drug dealer's territory who was incarcerated.

In addition to that, there was a discussion with a further unknown male with regard to expanding the drug trafficking operation. [ 5 ] A search warrant was obtained with regard to the Academy Way, Kelowna, condominium that the police had become aware of in connection to Mr. Loubissi-Morris. As part of executing that warrant, which involved placing covert audio and video recording devices in accordance with the warrant in that condominium, the police essentially stumbled across the drugs and related paraphernalia which led to these charges. Several of the items were in plain view in the condominium.

The police then obtained a search warrant to seize the drugs and other evidence. As a result of the execution of the warrant, the large quantity of drugs that I referred to earlier and over $170,000 in cash and six firearms were recovered. [ 6 ] The quantities of drugs that were seized were obviously significant. Personal items belonging to all three co-accused in the underlying charge, Mr. Loubissi-Morris, Mr. Mai Dang, and Mr. Didhra were also seized from the apartment. Mr. Mai Dang was the registered tenant of the apartment. [ 7 ] Once in the apartment, the police found in various rooms, starting within Mr.

Didhra's room, cash, quantities of drugs, scales, scoresheets, and notebooks recording various transactions. In the second bedroom that belonged to Mr. Mai Dang significant amounts of cash and scoresheets were obtained. In a third bedroom which was unoccupied was where the majority of the drugs and all of the

weapons were located including the one weapon for which Mr. Loubissi-Morris has pleaded guilty. The other guns included shotguns, semiautomatic rifles, and additional ammunition. In the living room was located electronic airplane tickets for Mr. Loubissi-Morris flying to and from Vancouver, amongst other matters, and there was over $100,000 located in the freezer. [ 8 ] The agreed statement of facts include that Mr. Loubissi-Morris had knowledge of and control over the drugs, the drug- trafficking paraphernalia, money, and firearms stored in the unit. The value of the drugs was substantial.

The total value of the cocaine seized at a street level was $67,000; the value of the methamphetamine, $62,000; the total value of the fentanyl, $226,000, at street value; and $251 of ketamine. All told, the total value of the drugs seized at a street level value is approximately $357,000. [ 9 ] Mr. Loubissi-Morris acknowledges that he was directing a high-level drug trafficking operation and the drug distribution enterprise that he ran operated in the Okanagan and Kootenay areas of British Columbia. Mr.

Loubissi-Morris directed drugs to be delivered to different locations across the province and the co-accused, Mr. Mai Dang and Mr. Didhra, worked for Mr. Loubissi-Morris in relation to his drug enterprise. [ 10 ] The victim in a drug type of charge is society as a whole and our communities. This is not a victimless crime. There is a significant health crisis across British Columbia and Canada relating to illegal drugs, especially fentanyl. The matter was discussed in some detail by the Supreme Court of Canada in R. v.

Parranto , 2021 SCC 46 at paragraphs 93 and 94 as it relates to fentanyl: [93] As grave a threat as drugs such as heroin and cocaine pose, that threat pales in comparison to the one posed by fentanyl and its analogues. Indeed, over the past decade, fentanyl has altered the landscape of the substance abuse crisis in Canada, revealing itself as public enemy number one. [94] Synthetically produced and readily available on the illicit market, fentanyl is an extremely dangerous and powerful painkiller and sedative.

As with other opioids, such as heroin and morphine, it is a highly addictive substance, which, when taken outside of controlled medical environments, puts its users at risk of serious harm, including brain damage, organ damage, coma, and death. Fentanyl’s potential for harm is, however, significantly greater than other opioids. It is, for example, estimated to be 80 - 100 times more potent than morphine and 25 - 50 times more potent than pharmaceutical grade heroin.

Given its strength, a lethal dose will often be less than two milligrams, an amount as small as a single grain of salt … The risk of overdose and death from fentanyl is thus extremely high, particularly for naïve users or where it is taken in combination with other substances, such as alcohol or other opioids. The risk of overdose is also one that can be difficult to guard against, as traffickers often surreptitiously mix small amounts of fentanyl with other substances to create a cheaper product with the same effects, thereby drastically increasing their profitability … [ 11 ] Mr.

Loubissi-Morris is currently 25 years of age and was 21 years of age when this offence took place. He has a criminal record and his criminal record was admitted. The most significant aspect in the criminal record and one that I will refer to later was he was found or pleaded guilty to aggravated assault and use of a firearm committing an indictable offence. He received 46 months for the aggravated assault and use of a firearm. This was the offence that the police were investigating at the time they found the drugs in the apartment. Mr. Loubissi-Morris has now been in custody for a significant period of time.

The 46-month sentence for the aggravated assault was completed on July 1st of 2022. [ 12 ] By way of background, he dropped out of school in grade 10. His father, who was an Algerian citizen, left for Sweden when he was only five years of age. His mother was a single parent and there were at least three children with different fathers. His mother has had cancer as well as other illnesses and has been in and out of the hospital. I accept that he likely had a rudderless adolescence and that resulted in escalating behaviours which brings him to his current predicament. [ 13 ] This is a joint submission on sentence.

The parties seek the following: 11 years' jail on Count 1, three years concurrent on Count 8, but reduced to eight-and-a-half years by virtue of the totality principle. In addition, there are ancillary orders that are also agreed to. [ 14 ] The aggravating facts in this case are that Mr. Loubissi-Morris was the directing mind of a high-level drug trafficking operation throughout the Interior of British Columbia. It is motivated solely by greed, a financial motivation, in what is a lucrative business as evidenced by the amount of cash that was located.

When weapons and drugs are found together, it is often seen as an aggravating factor as it is a clear indication of the threat posed to society by people who have drugs and weapons. Fentanyl in these quantities is also clearly an aggravating factor in the context of the public health crisis. The fact that Mr. Loubissi-Morris has a criminal record, while it is less significant than many we see, is nonetheless an aggravating factor because it includes a weapons charge. [ 15 ] By way of mitigating circumstances, Mr.

Loubissi-Morris is still a relatively young man, only 25 years of age now and 21 when the offences took place. I have already mentioned his background. While I do not consider it to be a mitigating factor, it does nonetheless put his circumstances into some sort of context. [ 16 ] The biggest mitigating factor in this case is the guilty plea. Mr. Loubissi-Morris pleaded guilty in the middle of a voir dire process with other voir dires still to come.

The trial itself was going to be one that was a very complicated and lengthy trial and that was avoided as a result of his plea. [ 17 ] The sentencing principles that apply in cases of this nature are denunciation and deterrence, both general deterrence with regard to others in the community and specific deterrence as it relates to the accused. Those principles apply in all drug trafficking and weapons cases. [ 18 ] I turn now to the proposed sentence. In R. v.

Anthony-Cook , 2016 SCC 43 , the Supreme Court of Canada, at paragraph 5, said that a sentencing judge should only refuse to accept a joint submission if the proposed sentence would bring the administration of justice into disrepute or would otherwise be contrary to the public interest. Analysis of these considerations necessarily involves some consideration of what a fit sentence might be for the offences to which the accused pleaded guilty.

However, the judge must also be mindful of considerations that went into the joint submission and the fact that the accused pleaded guilty and, as a result, gave up possible defences, whether legal defences, factual defences, that if successful may have resulted in an acquittal. [ 19 ] So what is an appropriate sentence for these offences? In Parranto , which I referred to earlier, the Supreme Court of Canada

indicated a range of eight to 15 years in jail. [ 20 ] In R. v. Kim , 2022 BCSC 518 , the accused received a 10-year sentence. In that case, the quantities were lower than here and it was a mid, not a high, level operation. In the Kim case, there was no guilty plea. [ 21 ] In R. v. Harmes , 2022 BCSC 663 , there was a guilty plea after completion of all of the voir dires. Mr. Harmes received a 12-year sentence. In that case, there was also firearms present and there were substantially higher quantities, over double the quantities, than those present in this case.

Although there was a guilty plea, it is not uncommon in drug cases that once the voir dires have been completed and the evidence admitted, the outcome is often largely predictable. In other words, in Mr. Harmes' case, the guilty plea was not as early as it was in Mr. Loubissi-Morris' case. Also of relevance in the Harmes decision is that Mr. Harmes had already served a five-year jail sentence for a previous conviction also related to drugs. [ 22 ] I am satisfied that 11 years for Mr.

Loubissi-Morris is within the range of appropriate sentences; that is, the circumstances are more serious than they were in Kim and less so than they were in Harmes and, as such, an 11-year sentence being between the 10 years in Kim and 12 years in Harmes would be appropriate. [ 23 ] The aspect of the joint submission that I was initially troubled by was the applicability of the totality principle to the extent that the parties are asking me to take into account the 46-month sentence the accused received for the aggravated assault and use of the firearm which was what the police were investigating when they, essentially, stumbled upon Mr.

Loubissi-Morris' drug distribution operation. [ 24 ] The totality principle requires the sentencing judge in cases where consecutive sentences would normally apply to ensure that the cumulative sentence is not so great as to be unreasonable having regard for all of the circumstances. In other words, having first determined the appropriate sentence for each offence, the court must then go on to look at the sentence in the aggregate and determine whether it is just and appropriate. The fact that the charges are different and arise from different events is not determinative. [ 25 ] Since Mr.

Loubissi-Morris has already completed serving his sentence for the aggravated assault and use of the firearm, my concern was whether the totality principle should apply when the other sentence to be considered has already been served. Even though the accused has already served his sentence for the aggravated assault and use of a firearm, I can see no reason why it would not be appropriate here to consider the totality principle in Mr. Loubissi-Morris' circumstances. He was not released from jail after the earlier sentence was completed, but rather just started to accrue credit on these offences. [ 26 ] Mr.

Loubissi-Morris is a young man and he will be spending the vast majority of his 20s in jail. It is not too late for him to become a decent and productive member of society. He has told me that he regrets his behaviour and has plans to go on to college. He has taken steps in that direction already by completing his grade 12 while he is in custody. Mr. Loubissi-Morris has acknowledged the harm to the community that results from his previous behaviours. [ 27 ] I am prepared to assume that a lack of guidance growing up is perhaps what led him to believe a career as a criminal would be lucrative.

Young men often believe in their own invincibility. Mr. Loubissi-Morris tells me he is now wiser than he was then. Time will tell. Words are easy and it is the future actions that will ultimately determine whether he becomes a productive member of society leading a normal productive life. Fortunately, he still has time to do that. I have reviewed the materials that have been provided and have seen that both his girlfriend and brother continue to be supports for him. [ 28 ] In all of the circumstances, I am prepared to accept the joint submission with regard to sentence. [ 29 ] Mr.

Loubissi-Morris, if you could please stand? [ 30 ] I sentence you to 11 years' incarceration under Count 1 and three years concurrently under Count 8. I will reduce the sentence to 8.5 years based on the totality principle. You may be seated. [ 31 ] In terms of the other terms of the sentence order, there will be a mandatory lifetime firearms ban pursuant to s. 109 of the Criminal Code ; a DNA order pursuant to s. 487.051(3) (

b) of the Criminal Code ; and as requested, I will request that the sentence be served in an institution in the Mission, British Columbia, area where Mr. Loubissi-Morris will remain close to family and friends. [ 32 ] I am told that Mr. Loubissi-Morris has nine-and-a-half months of actual time served for which he is entitled to credit against that sentence which works out to 14 months of enhanced credit which, by my calculations, would leave seven years and four months to serve. [ 33 ] CNSL T. WARREN: Yes. [ 34 ] CNSL C. MULDOON: Yes. [ 35 ] CNSL T. WARREN: Mr.

Justice, one final thing to address is the Crown has prepared a consent return order with respect to two items that were seized from Mr. Loubissi-Morris. They were seized by the police on August 14, 2018, and October 10, 2018, and over the course of this investigation, they included, on August 14, 2018, approximately $7,000 in cash as well as, on October 10, a Louis Vuitton purse. So we had prepared a consent return order, my friend has reviewed it, and I am providing a copy to the court for review. [ 36 ] THE COURT: Thank you. [ 37 ] CNSL C.

MULDOON: And you'll note that we've just added in my name there on the next page, "Conor Muldoon." That's because, obviously, Mr. Loubissi-Morris is in custody. I'm going to have to be the one retrieving the property for him -- [ 38 ] THE COURT: Oh, I see. [ 39 ] CNSL C. MULDOON: -- hence the addition. Thank you.

[ 40 ] THE COURT: Right, I have signed the order. [ 41 ] CNSL T. WARREN: Mr. Justice, I have an extra copy if you wish -- [ 42 ] THE COURT: Sure. [ 43 ] CNSL T. WARREN: -- and the Crown directs a stay of proceedings with respect to all outstanding counts for Mr. Loubissi- Morris only. “Wilson J.”