R. v. Lee Date:, 2012 BCPC 169

Citation: R. v. Lee Date: 20120530 2012 BCPC 0169 File No: 153866 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ABRAHAM OLIVER LEE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E. C. BLAKE Counsel for the Crown: Ms. A. Macdonald Counsel for the Defendant: Mr. J. Green Place of Hearing: Victoria , B.C. Date of Hearing: May 22, 2012 Date of Judgment: May 30, 2012

INTRODUCTION [1] The accused person Abraham Oliver Lee has pled guilty to the offences of possession of heroin for the purpose of traffickingand possession of cocaine for the purpose of trafficking. Both offences arose out of a single incident which occurred on March 25, 2011. [2] The incident itself may be described briefly. On March 25, 2011 an undercover police officer, who had been givenincriminating drug-related information about the accused by an informant, contacted the accused by telephone and asked to buyrelatively small quantities of cocaine and heroin.

An agreement was reached for the purchase and sale of 3.5 grams of cocaine at a priceof $220.00 and .5 grams of heroin at a price of $80.00. The accused and the undercover officer agreed to meet in a Victoria parking lot. [3] When the accused arrived at the intended point of sale the police arrested him before the transaction occurred. A quantity ofcocaine (3.2 grams) and heroin (.44 grams) was found on the person of the accused, consistent with the terms of the proposedtransaction.

Two cell phones were also seized from the accused at the time of his arrest, as well as the sum of $200.00 in cash. [4] The accused was released soon after his arrest on a simple promise to appear. He has faithfully made all court appearancessince that time, has not been in any further difficulty with the law, and now enters pleas of guilty to the charges. [5] At the sentencing proceeding, the Crown has asked the Court to impose an actual jail term somewhere in the neighbourhoodof six months in length.

The accused does not argue with the general proposition that a jail sentence is called for in this case, nor does heargue with the length of the sentence proposed by the Crown. The point of dispute between the two sides concerns the question ofwhether the sentence may be served in the community as part of a conditional sentence order.

ANALYSIS [6] In determining an appropriate sentence it is axiomatic that a sentencing judge must consider the general seriousness of theoffences charged, the circumstances under which the offences were committed in the particular matter before the Court, and thecircumstances of the offender. All of these considerations must take place against the background of the sentencing provisions set forthin Sections 718 to 718.2 of the Criminal Code. Where the possibility of a conditional sentence is raised the Court must also consider theapplicability of

Section 742.1 of the Criminal Code. [7] There is no doubt that the offences of trafficking in heroin and trafficking in cocaine are both of the utmost seriousness. Thatis obvious from a consideration of the maximum penalties which Parliament has provided for each of these offences in the ControlledDrugs and Substances Act. In each case, the maximum penalty is life imprisonment, the most serious penal sanction provided inCanadian law.

In that respect, these offences rank similarly in seriousness with the offences of robbery and committing terrorist acts. [8] I need not belabour the reasons why the community views offences of trafficking in serious drugs so seriously. The reasonsare obvious. They are stated conveniently and succinctly in the decision of R. v. Ash, [2010] BCCA 604 which counsel have cited tome. At paragraph 25 of that case, Saunders, JA stated: The evils of the drug trade are well known and have often been described by the courts. A person engaging in the drug trade spreadsmisery.

The behaviour creates pockets in a community of low behaviour and addiction. It is destructive of community standards....Onewould be mistaken to say these offences are victimless crimes. It is well known such offences add to the volume of addiction that maybe lifelong, and life threatening. [9] In this Court, the position was well stated by my brother Judge Higinbotham, in the cocaine-trafficking case of R. v. Bains,2008 BCPC 261 , 2008 BCPC 0261: [The accused] contributed in an important way to the infliction of untold damage on human lives through his distribution of this harmfuldrug.

When I refer to this drug as harmful, I do not just refer to its impact upon individual users; I also refer to its impact upon society asa whole. Cocaine is not a purely “recreational” drug, as it was once thought to be. For many years now it has been capable oftransformation into crack, a cheap and highly addictive form of cocaine that renders the addict incapable of little else but the all-consuming drive to get more. It leads to property and other crimes which affect all of society. The crack addict is unlikely to afford tofeed this craving without resort to theft, breaking and entry, or robbery.

There is a trickle-down effect resulting from the accused’sconduct that hits the community as a whole. [10] It is precisely because of the many insidious ways in which trafficking in hard drugs undermines community life generallythat the courts have long taken the view that deterrence and denunciation are the primary factors to consider when imposing sentence ontransgressors of the law. [11] In the present case, the Crown also directs my attention specifically to the fact that the transaction involved the so-called“dial-a-dope” mechanism. [12] I must say that I find the use of the phrase “dial-a-dope” a trifle uncomfortable and misleading, if not offensive.

I suspect thatthe word “dope” when used in the phrase is intended to refer in a catchy sort of way to the substance of the intended transaction. But ifthe phrase is examined from a strictly grammatical point of view the word actually does not identify the substance at all, but rather pointsto the recipient of the phone call, the object of the “dialing”, who in many cases will be the accused person before the court. In anyevent, though, the phrase has become so ingrained in common usage that it may be mere pedantry to raise any meaningful objection now.

[13] The authorities are unanimous in suggesting that the use of the “dial-a-dope” mechanism adds a level of sophistication to thedrug trafficking process which must be treated as an aggravating feature for sentencing purposes. The most commonly-quoted referencefor that categorization is found in R. v.

Franklin, 2001 BCSC 706, at paragraphs 17 to 21 where Henderson, J. said: [17] Some explanation of Dial-A-Dope operations is relevant. [18] Traditionally, drugs were disseminated at the street level by purchasers going to certain areas of town and taking the initiative toseek out those who sold the drugs on street corners and in back alleys. This, to some extent, constrained the dissemination of theproduct. A Dial-A-Dope operation is different.

Anyone, anywhere in the Lower Mainland, can place a telephone call to a vendor ofnarcotics and, after establishing his or her credibility by satisfying the vendor that he or she is not an undercover officer, make anarrangement to have the drugs delivered within fifteen or twenty minutes and handed over in exchange for cash. [19] This has several significant results. [20] First, it makes these drugs, and I refer primarily to cocaine and heroin, more readily accessible throughout the Lower Mainland thanthey have been in the past. It makes them accessible with less effort on the particular of the purchasers.

Purchasers, and here I think ofadolescents, who might feel intimidated at the thought of seeking out a drug dealer in the recesses of the Main and Hastings area maynevertheless, in the relative comfort and safety of suburban locations, easily purchase cocaine and heroin as long as Dial-A-Dopeoperators are willing to oblige them. [21] I infer also that Dial-A-Dope operations are profitable.

There is no evidence before me as to how much a typical Dial-A-Dopedealer makes in the course of a day or week but, having sat as the trial judge on a number of these cases, I am aware that it is a profitableway to make easy money. [14] The observations made in the Franklin case have been adopted and refined in many courts in this province. See, for example,the comments in R. v. Sidhu, 2007 BCSC 876 , 2007BCSC 876, at para. 1 or R. v.

Ali, 2010 BCCA 4, at para. 11. [15] The use of this “pernicious” means of engaging in drug trafficking has caused the courts to emphasize even more strongly theelements of denunciation and deterrence in applicable sentencing proceedings. Thus, it is not difficult to find cases in this province inwhich it has been said that where the “dial-a-dope” method is used in cases involving trafficking in hard drugs it will only be anextraordinary fact pattern that can lead to any sentence other than actual jail.

See, for example, the sentencing judge's decision in R. v.Ash 2009 BCSC 1934 or the comments of Henderson, J. in R. v. Franklin, referred to above. [16] In my view, however, the weight of recent authority is against the notion that it is appropriate for judges to avoid full analysisby making the pre-determination that sentences of actual jail will invariably be imposed in cases of this sort unless some specific“unusual” factual element can be identified.

It seems preferable, I think, that a sentencing judge should be aware that, in general,sentences other than actual jail “have not been favoured” in the courts of this province (as was said in R. v. Rastigoei 2008 BCCA 242)but nonetheless proceed to undertake the rigorous and sometimes difficult analysis that is contemplated by the sentencing provisions inthe Criminal Code. That is the general approach adopted in the Sidhu case to which I have already made reference and, more recently, inmy colleague Judge Bagnall's decision in this Court in R. v.

Tsang, [2011] BCJ No. 1466. [17] In the present case, then, the nature of the drugs sold and the “dial-a-dope” mechanism that was used are both factors which,despite the relatively small size of the transaction, weigh heavily in favour of a sentence of actual incarceration. [18] So also does the fact that the motivation of the accused when engaging in this illegal behaviour. He does not claim to behimself a drug addict. He was not selling drugs to finance his own unfortunate habit.

Instead, I am left with no alternative to theconclusion that he acted out of a pure desire for financial gain, a motivation less charitably known simply as greed. [19] It is also important that I try to place the transaction of March 25, 2011 into context. The determination of whether thetrafficking incident before the Court has been proved to be just one event in a series of illegal transactions, as opposed to an isolatedevent in the life of the accused person, is of significance in a sentencing proceeding.

That would seem to be true as a matter of commonsense, and not surprisingly the authorities bear out the instinctive reasoning: See, for example, R. v. Chung, [2009] BCJ No. 895 (PC), atparagraph 6. [20] In the present case, undercover police officers had been given the name of the accused person and his telephone number froma drug informant some months before the actual date of the abortive drug sale.

It appears that the police did not make any attempt to usethe information provided until the offence date, however. [21] The accused submits that I should draw no inference that he was dealing in drugs throughout the intervening period, and,indeed, he denies that he was doing so. The Crown makes no attempt to introduce any incriminating evidence with respect to theintervening period in this case, and has not pressed upon me the inference which the accused submits I should avoid.

It is interesting tonote that in this case, as opposed to many of the cases cited to me by counsel, there is no evidence that either of the cell phones of theaccused rang at any time while he was in the presence of the police in such manner as to disclose a hyperactive trafficking business. Inall the circumstances I must accept the submission made by the accused that the incident of March 25, 2011 should not be considered aspart of an ongoing pattern of drug trafficking.

[ 22 ] Having reviewed both the favourable and unfavourable aspects of the offence itself, I must next consider the personal circumstances of the accused himself. Those circumstances are somewhat unusual. [ 23 ] The accused was born 30 years ago in Jamaica. His mother is a Canadian citizen, although she resides in Jamaica. His parents are separated and his father now normally lives in Jacksonville, Florida with the sister of the accused. [ 24 ] Mr. Lee, Sr. came to Victoria as soon as he heard that his son had been charged with the present criminal offences.

He remains here, fourteen months after the event, and attended court at the sentencing proceeding in support of his son. Mr. Lee, Sr. has glaucoma and I assume that, at least in part, the accused has assisted him to become familiarized with his new surroundings in Victoria over the past year or so. If so, the support between father and son would appear to have been both extensive and mutual over the past year. [ 25 ] The accused completed his high school education in Jamaica. He then entered military service in Jamaica, where he remained for a period of six years.

While still in Jamaica, he applied to join the Canadian navy. He was accepted and arrived in Canada in 2009. [ 26 ] Once in Canada, the accused learned his trade as a marine engineer and was eventually posted to the HMCS Protecteur , based in Esquimalt. He had a base salary of $43,000 and fully intended to make a lifelong career of his naval service. [ 27 ] Soon after his arrival in Esquimalt, the accused met Maritza Sanchez, who was to become his common-law spouse. In November 2010 she gave birth to their first child.

The accused then went on “parental leave”. [ 28 ] What should have been a happy and optimistic time in the accused's life quickly turned to disaster, however. With too much time on his hands on parental leave, he began to hang around a local night club. There he drifted into the sort of drug-related activity which ultimately led to the events of March 25, 2011 that now bring him to court. [ 29 ] The arrest and subsequent prosecution of these charges seem to have jolted the accused back to his senses and to his former self. He had long been a faithful churchgoer, but had ceased attending church while in the navy.

After the events of March 25, 2011 he returned to church and became a regular attendee at the Church of the Nazarene, along with Ms. Sanchez. [ 30 ] With Ms. Sanchez, the accused has also engaged in a twelve-step introspective program intended to help individuals understand the underlying reasons for their own unfortunate (or illegal) habits and how to break free from behavioural patterns.

I have been provided with a copy of a letter from the program director and I must say that the basic premise of the program bears at least passing resemblance to the technique referred to as “cognitive therapy” used so effectively by corrections programs in this province. The accused completed the program, after 11 months of study, in April 2012. [ 31 ] It is often said that for a first offender the humiliation of the prosecution process itself has a significant deterrent effect.

The deterrent message must have been made all the more clear to this particular accused by virtue of the fact that he has been sacked by the navy for “unsatisfactory conduct” arising out of these charges. His career is gone. To make matters worse, an expected pension payout of $13,000 has been withheld.

The military authorities are of the view that the pension payout must be set off against the funds which the accused received while on parental leave, with the result that he actually owes the military several thousand dollars. [ 32 ] To his credit, the accused has sought out new employment, squarely in the social mainstream. He began work as a furniture salesman last fall and gradually increased the income which he generated through commission sales, to the point where he earned about $3000 per month. Recently, he has secured alternate employment in car sales.

He is apparently happy in his work. [ 33 ] The accused has experienced significant negative consequences as a result of his illegal activity, and rightly so. The important point to note, it seems to me, is that he has responded in a positive and constructive fashion. He has sought out and obtained support in the community and from his family. He has attempted to understand his behaviour patterns and become a better man, and to some extent he has succeeded already.

Although such things are notoriously difficult to predict, I think it is safe to say that in this case there is reason for optimism that the accused, a person with no previous criminal record, will not return to unlawful activity in the future. [ 34 ] In view of all of the above, it does seem to me that the accused fits the criteria for the granting of a conditional sentence, having regard to the provisions of

Section 742.1 of the Criminal Code . The accused is not a danger to the community, so long as his behaviour is carefully monitored and he maintains his way on the path which he has lately chosen to follow. Nor do I think that any of the principles set forth in s. 718 to 718.2 of the Criminal Code would be offended by such a disposition.

On the contrary, I am satisfied that such a sentence would be entirely proportionate to the circumstances, once all factors are taken into account. [ 35 ] There will be a conditional sentence order and it will be 9 months in length. [ 36 ] I will now read in the terms of the conditional sentence order. I realize, Mr. Lee, that you will not memorize all of these conditions as I say them. They will all be written down for you afterwards, and they will be reviewed with you by both a justice of the peace and by the sentence supervisor. [ 37 ] First, the statutory conditions are these: 1.

You shall keep the peace and be of good behaviour; 2. You shall appear before the court when required to do so by the court; 3. You shall report in person to a conditional sentence supervisor no later than 4:00 p.m. on May 30, 2012 at 836 Courtney Street, Victoria, BC, and you shall thereafter report as and when directed by your supervisor and in the manner directed by your supervisor; 4. You shall remain within British Columbia unless written permission to go outside the jurisdiction is obtained from the court or your Supervisor;

5. You shall notify the court or your Supervisor in advance of any change of name or address, and promptly notify the court or your Supervisor of any change of employment or occupation. [ 38 ] In addition to the statutory conditions, Mr. Lee, you will be subject to the following terms, taken from the standard form commonly in use in this jurisdiction: 1 . For the first three months of this order, you will be subject to house arrest. You must remain within your residence at all times during that three month period, except in the following circumstances:

a) You may be outside your residence between the hours of 9 a.m. and 12 o'clock noon each day for the purpose of conducting your personal affairs;

b) You may be outside your residence at any time when travelling directly between your residence and your place of work, or while at work. You must provide your supervisor with any details of your employment which he or she may require from time to time;

c) You may be outside your residence at any time with the written permission of your supervisor, but such permission is to be given only for compelling personal, family or employment reasons. 2 . For the final six months of this order, you shall be subject to curfew, requiring you to be inside your residence between the hours of 10 p.m. and 6 a.m. each day, except in the following circumstances:

a) When travelling directly between your residence and your place of work, or while at work. You must provide your supervisor with any details of your employment which he or she may require from time to time; or

b) With the written permission of your supervisor, but such permission is to be given only for compelling personal, family or employment reasons. 3 . You shall promptly answer the door to your residence if the supervisor or a peace officer should attend there at any time for purposes of monitoring your compliance with either the house arrest or curfew condition of this order. 4 . You shall promptly respond to the telephone if the supervisor or a peace officer should telephone you at any time for purposes of monitoring your compliance with either the house arrest or curfew condition of this order. 5 .

You shall not possess or consume any alcohol or any controlled substance within the meaning of

Section 2 of the Controlled Drugs and Substances Act , except as prescribed for you by a physician. 6 . You shall not enter any liquor store, beer and wine store, bar, pub, lounge or night club. 7 . You shall not possess any pipes, syringes or other drug paraphernalia. 8 . Under the supervision and direction of the supervisor you shall satisfactorily complete 50 hours of community work, which shall be completed no later than November 30, 2012. [ 39 ] Mr. Lee, I must caution you that for the next nine months you are not merely on probation. You are serving a jail sentence.

You will be allowed the opportunity to serve that sentence in the community for only so long as you abide by the conditions which I have imposed. If you breach any of the conditions you can reasonably expect that you will be promptly arrested and brought to court, where the onus will fall on you to explain why you should not serve the balance of the terms behind real bars. With that in mind, you should pay the closest possible attention to the conditions which I have imposed. If you find that the conditions need to be adjusted for good reason, you can always apply to this Court to change the conditions.

But please do not imagine for a moment that it would be wise to just ignore the conditions and hope that they will go away. You will not be doing yourself any service if you take that approach. [ 40 ] I am not making any probation order to follow the conditional sentence. The conditional sentence order is quite restrictive, it seems to me, and quite sufficient to address public concerns. Nor do there appear to be any underlying problems which the accused is not already addressing on his own.

A probation order would, in the circumstances, merely burden the probation service with an unnecessary addition to its workload. [ 41 ] The victim fine surcharge will apply to this case and I will allow the accused until November 30, 2012 to pay that surcharge. [ 42 ] There are also certain ancillary orders which I am either required to make, or which I make by consent of the parties.

I am required to make an order under s. 109 of the Criminal Code prohibiting you from the possession of any firearm, other than a prohibited firearm or restricted firearm, and any cross-bow, restricted weapon, ammunition or explosive substance, for a period of 10 years after the completion of your conditional sentence. In addition, you are prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device or prohibited ammunition for life. If you would like a precise definition of any of those terms you will have to either refer to the Criminal Code or seek legal advice.

But it should be obvious to you that if you are found in possession of any of the items that I have referred to in the near future you could be subject to prosecution as a result. [ 43 ] I also make an order pursuant to s. 16 of the Controlled Drugs and Substances Act forfeiting to the Crown those items (cash and one of the cell phones) that were seized as part of the investigation and which counsel have agreed ought to be the subject of a forfeiture order. [ 44 ] Mr. Lee will accompany the sheriff into custody pending the preparation of the conditional sentence order. _____________________

E.C. Blake, Provincial Court Judge