R. v. Dinh, 2024 BCSC 109

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Dinh, 2024 BCSC 109 Date: 20240110 Docket: 177352 Registry: Victoria Rex v. Hong Dinh a.k.a. Carrie Dinh Before: The Honourable Justice G.C. Weatherill Oral Reasons for Sentence Counsel for the Crown: G.L. Angrove T. Johnson Counsel for the Accused appearing by videoconference: M. Beckett Place and Dates of Hearing: Victoria, B.C. July 21 and December 15, 2023 Place and Date of Judgment: Victoria, B.C. January 10, 2024 [ 1 ] THE COURT: On April 3, 2023, Ms.

Dinh was convicted on the one count set out in the Indictment Number 177352 of unlawfully possessing a controlled substance, to wit: Fentanyl, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 [ CDSA ]. [ 2 ] The fentanyl in question comprised a brick weighing approximately one kilogram, 994 grams to be precise, with purity of between 62 percent and 71 percent. Ms.

Dinh was arrested on May 3, 2019 after police surveillance observed her travelling by ferry from Swartz Bay to Tsawwassen, driving to a parking lot in Langley where she rendezvoused with another vehicle, exchanged bags with the driver of that other vehicle, and put the blue cloth bag she received in the trunk of her vehicle. She then drove back towards the Tsawwassen ferry terminal and was arrested prior to her arrival at the terminal. The fentanyl brick was found in the blue cloth bag in her vehicle's trunk. [ 3 ] After her conviction, Ms. Dinh's sentencing hearing was scheduled for July 21, 2023.

She retained new counsel on July 20, 2023, who, at the opening of the sentencing hearing, requested that the court both adjourn the hearing and order a presentence report with a risk assessment component. I reluctantly ordered both. The sentencing hearing was then rescheduled to and took place on December 15, 2023. [ 4 ] The presentence report was prepared by a probation officer, Gurpreet Dishu. It is dated October 2, 2023. Circumstances of Ms. Dinh [ 5 ] Ms. Dinh was born in Victoria, BC on March 11, 1988. She is now 35 years of age. She is not married and has no children or dependants.

She is currently in a relationship and resides with a man named Russ Harley in Mission, BC. She completed high school and some post-secondary education in the healthcare field. She carries some debt and does not own any assets of significance. [ 6 ] Ms. Dinh is in good health and has no physical disabilities, although she reports that she suffers from anxiety, depression, and post-traumatic stress disorder as a result of some childhood trauma.

She does not take any prescribed medications. [ 7 ] She reports having been the victim of sexual abuse at the age of eight as a result of which she entered the foster care system where she remained for ten years. She also reports having suffered verbal and physical abuse at the hands of at least one former intimate partner with whom she had a relationship for six years at around the age of 27. [ 8 ] Ms. Dinh is not addicted to any substance and claims to have never used methamphetamine, heroin, or fentanyl. She experimented with cocaine at age 25, but does not use it anymore. She uses marihuana for insomnia.

She has a history of some alcohol abuse, but states she is not addicted to it. [ 9 ] Ms. Dinh has no prior criminal record.

Letters of Reference [10] Ms. Dinh has a large and supportive social network. Her counsel provided the court with 15 glowing letters from close friends,relatives, and coworkers, current and former. They described her as kind, caring, compassionate, thoughtful, trustworthy, loyal, selfless,reliable, resilient, and a hardworking, driven person with a heart of gold who puts the needs of others ahead of her own and who has hada positive influence on the lives of many people in her life. [11] These letters attesting to Ms.

Dinh's character indicate that she is highly employable and has excellent prospects forrehabilitation. It appears that Ms. Dinh is a person who led a productive and law-abiding life, but made a mistake that was out ofcharacter and became involved in the drug-trafficking world. It appears that since her conviction, she has returned to a productive andlaw-abiding life. Principles of Sentencing [12]

Section 718 of the Criminal Code, R.S.C. 1985, c. C-46 provides that the fundamental purpose of sentencing is "to contribute,along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing justsanctions". This purpose is achieved by imposing sentences which have, among others, the following objectives:

a) denouncing unlawful conduct;

b) deterring the offender and others from committing offences;

c) separating offenders from society where necessary;

d) assisting in the rehabilitation of offenders;

e) providing reparations for harm done to victims or to the community; and

f) promoting a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community. [13] The last point, acknowledgment of the harm done to victims and to the community, is particularly apropos where the offenceinvolved is the trafficking of fentanyl. Drug trafficking is a scourge on our society, rooted in greed on the part of those who perpetrate it.Many vulnerable people are dying as a result of that greed. [14]

Section 718.1 of the Criminal Code provides that the sentence must be proportionate to both the gravity of the offence and thedegree of responsibility of the offender: R. v. Nasogaluak, 2010 SCC 6. [15]

Section 718.2 of the Criminal Code provides the following additional guidance for sentencing in circumstances such as this: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender […] […] (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; […] (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances […] should be considered for all offenders,[…] [16] Retribution is also a factor to consider in conjunction with the other sentencing principles: R. v. C.A.M., (SCC),[1996] 1 S.C.R. 500 at 554 to 559. In that case, the Supreme Court of Canada stated that retribution is an accepted and importantprinciple of sentence. Retribution, which is neither vengeance nor denunciation, requires a sentence to properly reflect the moralblameworthiness of the offender. [17] Section 10(1) of the CDSA sets out the following purpose of sentencing applicable to offences against its provisions: 10

(1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this

Part isto contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, andtreatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. [18] In the recent case of R. v. Parranto, 2021 SCC 46 at paras. 55 to 59 inclusive, and para. 68, the Supreme Court of Canadaendorsed a "new direction" for sentencing fentanyl traffickers, intended to reflect the contemporary understanding of the gravity of theoffence.

The Court made it clear that the appropriate sentencing range for wholesale fentanyl trafficking is between 8 and 15 years'imprisonment.

Although the Court did not define the term "wholesale trafficking", it indicated that the key factors for consideration werethe volume, nature, and price of the drugs, as well as the offender's level of commerciality and the local conditions in the community.Justice Moldaver described large-scale trafficking in fentanyl for personal gain as an "issue of overriding concern", and expressed theneed to impose severe penalties ranging from mid-level double-digit penitentiary terms up to and including life imprisonment for thosewho are convicted of such conduct.

[ 19 ] In addressing the impact of fentanyl in Canada, Moldaver J. emphasized in obiter at paras. 92 to 100 that:

a) trafficking in hard drugs is a crime “with such grievous consequences that it tears at the very fabric of society” and that “significant penitentiary sentences are regularly imposed for individuals who traffic in large quantities of such drugs, which […] are far less deadly than fentanyl”;

b) fentanyl and its analogues have altered the national landscape in relation to drug-related offences and the substance abuse crisis— fentanyl has become “public enemy number one”;

c) fentanyl is startlingly more potent than other opioids: 80-100 times more potent than morphine, and 25-50 times more potent than pharmaceutical grade heroin; a lethal dose will often be less than two milligrams. Fentanyl’s potency dramatically increases the risk of serious harm or death when taken outside of controlled medical environments. The risk is further exacerbated in the context of dial-a- dope and/or street-level trafficking, which often involves cutting raw fentanyl with cheaper substances. The “cutting” of fentanyl for illicit distribution increases profits as well as the risk of overdose;

d) there is a national crisis with respect to addressing the gravity of harm caused by illicit fentanyl distribution across Canada;

e) the “largescale trafficking in fentanyl” is a crime “marked by greed and the pursuit of profit at the expense of violence, death, and the perpetuation of a public health crisis previously unseen in Canadian society.” It is “a crime that can be expected to not only destroy lives, but to undermine the very foundations of our society”; and

f) heavy penitentiary sentences “will be appropriate” where “offenders have trafficked in large quantities of fentanyl and assumed leadership roles in the trafficking operation”. Further, in “largescale fentanyl trafficking operations, substantial sentences should be neither unusual nor reserved for exceptional circumstances”. [ 20 ] One of the accused in the Parranto decision, a Mr. Felix, had been in possession of 1,400 street doses of fentanyl. He had no criminal record, was 34 years old, had a positive presentence report, and was sentenced to ten years. [ 21 ] More recently in R. v.

McLean , 2022 MBCA 60 , the Manitoba Court of Appeal comprehensively reviewed the jurisprudence on the issue of the length of sentence for trafficking volumes of fentanyl characterized as "mid-level". In that case, the accused acted as a "mere courier", possessing 220 grams of fentanyl with a purity of 1.6 percent, which is equivalent to approximately 3.52 grams of pure fentanyl, as well as a 981-gram brick of cocaine, all for the purpose of trafficking. To put that quantity of fentanyl in context, it was equivalent to approximately 2,000 street doses. Mr.

McLean was described by the court as having been at the "upper end of mid-level trafficking." He had a difficult upbringing, learning disabilities, and had experienced constant racism during his life. [ 22 ] The Manitoba Court of Appeal in McLean stated at para. 118 that the appropriate range of sentence “for someone minimally involved in mid-level trafficking, such as a courier or custodian without decision-making authority […] is six to eight years’ imprisonment”.

It noted that the accused persons in Parranto were very prolific and sophisticated fentanyl traffickers whose roles were far more serious than that of a mere courier. While acknowledging that "mere couriers" are nevertheless committing serious crimes, the Manitoba Court of Appeal emphasized the "principled application of s. 718.1 of the Criminal Code in terms of ascertaining the 'degree of responsibility of the offender'": McLean at para. 110 . [ 23 ] However, in R. v. Nishikawa , 2011 ABCA 39 , the Alberta Court of Appeal noted the importance of a courier in the drug-trafficking operation.

It stated at para. 9: [9] But most important, the theory that someone who serves as a courier of large quantities of drugs is “not vital to the scheme”, and only serves a “peripheral” role must be rejected. The reality of the drug trade is that the supply chain depends on a wide variety of individuals, all of whom are indeed vital to the criminal enterprise as a whole. That certainly includes the couriers of the drugs, especially the couriers of large quantities of hard drugs.

These couriers are not on the periphery of drug trafficking; they are integral to it, constituting, as they do, an indispensable part of the illegal distribution and sale of drugs. It must be remembered that trafficking in a prohibited drug includes transport and delivery of that drug.

By including these activities in trafficking, Parliament signalled the high level of culpability that must attach to those carrying out these roles […] [Citations omitted]. [ 24 ] As already pointed out, the Manitoba Court of Appeal in McLean established the range of sentence for a courier trafficking in fentanyl at the "mid-level" to be six to eight years' imprisonment, stating: [118] The range of sentence for someone minimally involved in mid-level fentanyl trafficking, such as a courier or custodian without some decision-making authority or responsibility in the trafficking activity, is six to eight years’ imprisonment (leaving aside the effect of the aggravating and mitigating factors and, in the case of an Indigenous offender, a proper application of

section 718.2(

e) of the Code .) […] [ 25 ] The Manitoba Court of Appeal in McLean imposed a sentence of nine years' imprisonment, departing from the upper end of the range for fentanyl trafficking because the accused was also found to be in possession of a kilogram of cocaine. [ 26 ] Fentanyl deaths have skyrocketed in British Columbia since 2012. In April 2016, the Provincial Medical Officer declared a public health emergency in response to the increase in drug overdose deaths in this province, largely attributable to fentanyl: R. v. Leach , 2019 BCCA 451 at para. 16 . In its subsequent decision in R. v.

Gill , 2022 BCCA 127 , our Court of Appeal stated: [22] There is no question that the moral culpability of offenders who traffic in fentanyl and its analogue, carfentanil, is very high. This Court has recognized that general deterrence and denunciation must feature prominently in such cases in light of the serious, unabated public health crisis caused by the street sale of drugs containing fentanyl […]

[Citations omitted.] Position of the Parties The Crown [ 27 ] The Crown submits that the appropriate sentence in light of the facts found at trial, after taking into consideration the aggravating and mitigating factors and applying the principles of sentencing, is a term of imprisonment of nine years. The Crown submits that such a sentence is consistent with the sentencing imposed in similar cases and will reflect the severity of the offence and Ms.

Dinh's degree of responsibility in knowingly possessing a wholesale volume of fentanyl with high purity rates for the purpose of trafficking. [ 28 ] The Crown concedes that Ms. Dinh was a "mere courier", but points out she was clearly and knowingly engaged in a drug transaction. [ 29 ] The Crown points to the following aggravating factors:

a) the quantity and extraordinarily high purity of the fentanyl;

b) it had a potential street value of approximately $5 million to $9 million, depending on how the fentanyl was cut, buffed, and sold on the street. To put it in context, based on the expert evidence tendered at trial, the number of potential street-level doses in this case ranged from 200,000 to 600,000;

c) Ms. Dinh was engaged in a high-end trafficking operation, albeit at a lower end of moral culpability given her role as a courier; and

d) Ms. Dinh was working for personal financial gain. [ 30 ] Mitigating factors include that, although she did not plead guilty, she did invite a guilty plea after my rulings on the voir dires at trial. [ 31 ] In addition, the Crown submits that the court must impose a ten-year firearms prohibition order pursuant to s. 109 of the Criminal Code , that the accused provide a sample of her DNA pursuant to s. 487.051(3) (

b) of the Criminal Code , and that an order of forfeiture of all offence-related property in accordance with s. 16 of the CDSA and s. 490 of the Criminal Code be pronounced. The items sought to be forfeited include

a) Ms. Dinh's vehicle;

b) the cloth bag that contained the fentanyl brick;

c) the fentanyl brick itself; and

d) three cellphones that were in her possession at the time of her arrest. [ 32 ] The Crown relies on the following additional authorities in support of the sentence it seeks: • R. v. Choi , 2022 BCCA 90 ; • R. v. Smith , 2017 BCCA 112 ; and • R. v. Kim , 2022 BCSC 518 . The Accused [ 33 ] Ms. Dinh claims, through her counsel, that she had no knowledge of the specific substance she had in her possession when she was arrested on May 3, 2019. She maintains that she should have asked more questions and been more certain about what she was getting herself into.

She says that she is embarrassed and remorseful for having done what she did. [ 34 ] Counsel for Ms. Dinh points to the following, which he submits are mitigating factors that reduce Ms. Dinh's moral blameworthiness:

a) she has expressed remorse for her actions;

b) she has no prior criminal record and thus should be treated as a first-time offender;

c) she has had a stable employment history that demonstrates prosocial responsibility and conformity with community norms, and shows that she is redeemable with promising rehabilitative prospects, according greater weight to the principle of rehabilitation;

d) she has positive prosocial community support; and

e) her moral blameworthiness is attenuated by her being a mere courier rather than an organizing mind in the drug trafficking that took place, and therefore she has a lesser degree of responsibility than the "prolific and sophisticated" directing minds of trafficking operations: McLean at para. 110 .

[35] Ms. Dinh has authored an apology letter to the court which her counsel read into the record. She says her decision to becomeinvolved as a courier was a "grave mistake" that has already had an enormous denunciatory and specific deterrent effect on her. [36] Counsel for Ms. Dinh submits that a just, fit, and proportionate sentence is a federal term of imprisonment of between four andsix years. Defence counsel concedes that there will be a mandatory firearms or weapons prohibition pursuant to s. 109(1)(

c) of theCriminal Code. Defence counsel takes no position on the DNA and forfeiture orders sought by the Crown. [37] In support of his submissions for a term of imprisonment of between four and six years, counsel relies on the followingauthorities: • R. v. Shah, 2018 BCSC 2238, where a term of three years of imprisonment was imposed; • R. v. Chan, 2021 BCSC 1607, where a term of four years' imprisonment was imposed; • R. v. Cashman, 2022 BCSC 1836, where a term of six years' imprisonment was imposed; and • R. v. Lu, 2022 ONSC 1918, where a term of approximately nine years' imprisonment was imposed.

Analysis [38] Our Court of Appeal in R. v. Carrillo, 2015 BCCA 192, stated the following regarding the importance of individualizing eachsentence to the particular circumstances of the offence and offender, and the unique role of the trial judge in that process.

At para. 31, theCourt of Appeal wrote, and I am omitting citations: [31] As to whether the judge erred in finding exceptional circumstances justifying a departure from the range, I do not view itnecessary for present purposes to confirm a precise sentencing range because there is no question the sentence imposed is well outsidewhat would be a range of jail time for this type of offence. It is, however, important to acknowledge that deciding a fit sentence is not ascience; there may not be a “single appropriate sentence for a similar offender and a similar crime” […].

A judge may impose a sentenceoutside the identifiable range where there is a justifiable case-specific basis for doing so […]. Similarly, in R. v.

Samson, 2015 YKCA 7,the Court said this about sentencing ranges and individualized sentences: [18] In other words, “while the range of sentences emerging from earlier cases provides guidance, it is not conclusive of anappropriate sentence in a given case” […]. “Only substantial disparity that cannot be justified by reference to differences in offenders andthe circumstances of their offences will lead to appellate intervention” […] [Citations omitted.] [39] At para. 32 of Carrillo, the Court of Appeal went on to say: [32] Thus, sentencing is a “profoundly contextual” process particularly suited to the sentencing judge. […] [40] Ms.

Dinh's counsel acknowledged the aggravating factors relied upon by the Crown, but says they must be balanced against themitigating factors. [41] I accept the mitigating factors in this case: • that Ms. Dinh invited a finding of guilt; • that she has many strong and supportive social relationships; that she is genuinely remorseful; and • that she is highly unlikely to reoffend.

However, the concern I have with the cases relied upon by her counsel for the length of custodial sentence is that they either involvequantities or purity of fentanyl that were significantly lower and with substantially lower street value than the fentanyl in this case, orthey were decided before Parranto and/or McLean. [42] I accept that Ms.

Dinh's conduct was at a lower level of moral culpability as compared with that of the accused in Parranto.However, given the quantity and purity of the fentanyl in this case, she was nevertheless at the upper end of the courier spectrum ofintentional risk-taking and the consequential harm that would have been involved. Her role was integral to facilitating the placement offentanyl on the street.

Denunciation and deterrence are the primary considerations in cases like this that involve the trafficking of a largequantity of fentanyl. [43] I am not persuaded that the mitigating factors relied upon by defence counsel outweigh the aggravating factors in this case. Thereis no doubt in my mind that Ms. Dinh either knew, was wilfully blind to, or recklessly disregarded the obvious: she was engaged in thetrafficking of illegal drugs. Regardless, wilful blindness as to the nature or quantity of the drug cannot mitigate moral blameworthiness:R. v. Mann, 2018 BCCA 265 at paras. 75 and 78; R. v.

Sidhu (2009), 2009 ONCA 81 , 94 O.R. (3d) 609 (C.A.) at para. 17; andR. v. Davies, 2019 BCCA 359 at para. 34. [44] Ms. Dinh's moral blameworthiness is not attenuated by the fact that she was a mere courier. [45] In my view, there are no exceptional circumstances justifying a departure from the range stipulated by the Supreme Court ofCanada in Parranto and the Manitoba Court of Appeal in McLean.

[ 46 ] Ms. Dinh, will you please stand. Do you have anything further that you wish to say before I pronounce the sentence? [ 47 ] THE ACCUSED: I apologize for any wrongdoing and I just want [inaudible/not near microphone] that, but no, I haven't anything else to say. [ 48 ] THE COURT: All right, thank you.

You can be seated. [ 49 ] After having read and considered the case law that has been provided to me by counsel and the established principles of sentencing that I must apply, and having considered the submissions of counsel, I am imposing a sentence of imprisonment of eight years. [ 50 ] I am imposing a lifetime firearms prohibition order pursuant to s. 109 of the Criminal Code , and ordering that Ms.

Dinh provide a sample of DNA pursuant to s. 487.051 of the Criminal Code . [ 51 ] I am also ordering forfeiture of all offence-related property in accordance with s. 16 of the CDSA and s. 490 of the Criminal Code . [ 52 ] Ms. Dinh has credit for one day served. [ 53 ] As stipulated in s. 743.2 of the Criminal Code , my reasons for sentencing and the presentence report will be forwarded to the Correctional Services of Canada. “G.C. Weatherill J.”