R v Wong, 2023 ABCJ 156

In the Alberta Court of Justice Citation: R v Wong, 2023 ABCJ 156 Date: 20230706 Docket: 200315869P1 Registry: Calgary Between: His Majesty the King - and - Alex Chun-Yip Wong Decision of the Honourable Justice P.J. Mason This Court gave a

summary of the reasons for sentence in an oral decision on July 6, 2023. The Court indicated that full written reasons would follow shortly thereafter. These are those written reasons. INTRODUCTION [ 1 ] The Accused, Alex Wong, was charged with four offenses in early March 2020. Mr. Wong appeared before a Justice of the Peace and was released pending the outcome of the case. He pled not guilty to the charges in August 2020 and a trial date was set for May 25-28, 2021. [ 2 ] In March 2021 the file was brought forward, and the trial was adjourned until April 4-7, 2022. [ 3 ] On April 6, 2022, before this Court, Mr.

Wong changed his plea on counts 1 and 3, possession of cocaine for the purpose of trafficking pursuant to s.5(2) of the Controlled Drugs and Substances Act (CDSA), and possession of the proceeds of crime exceeding $5000 pursuant to s.355 (

a) of the Criminal Code (the Code ). [ 4 ] An Agreed Statement of Facts (ASF) was entered as Exhibit 1 to the Sentencing proceedings and Pre-Sentence Report (PSR) was ordered. The Sentencing was adjourned to allow the preparation of the PSR to November 4, 2022. [ 5 ] On that date, the parties agreed to adjourn the matter until March 6, 2023, to await the passage of, and Royal Assent to, Bill C-5 to amend the sentencing provisions of the CDSA and the Code that could possibly benefit Mr. Wong. At all relevant times, Mr.

Wong waived the delay to allow the case to proceed outside of the normal timelines set out by the SCC in R v Jordan 2016 SCC 27 . Some of the Jordan delay was due to COVID and some of the delay was to allow for the change in legislation.

[ 6 ] Sentencing submissions commenced before this Court on March 6, 2023. There was an agreement on the sentence duration, but no joint submission. The Crown conceded that the sentencing range could include a time of 2 years less a day, which could open the door to eligibility for Mr. Wong to seek a Conditional Sentence Order (CSO), but the Crown did not feel that a CSO was appropriate and was seeking custody in prison. The Defence sought a sentence of 2 years less a day and for that sentence to be served in the community pursuant to a CSO.

The case was adjourned to March 28, 2023 for the Court to consider its decision. [ 7 ] On that date, the Court had further questions for counsel, but Mr. Wong was only represented by an agent for Mr. Wong’s counsel. There is no criticism of Mr. Wong’s counsel. The Court had indicated it would be ready to render a decision on the prior appearance and the agent was instructed to appear for the decision only. The matter was adjourned to May 15, 2023 to allow counsel for Mr.

Wong to address the concerns of the Court. [ 8 ] The Court then heard further argument from counsel on that date, and the matter was adjourned to today’s date to consider the appropriate disposition in this case. FACTS [ 9 ] The Agreed Statement of Facts outlined the following: Paragraphs 2-15: 2. The investigation leading to this Information began in late 2019/early 2020 with Confidential Informant (“CI”) information that certain individuals were involved in a 24/7 dial-a-dope cocaine trafficking operation in the City of Calgary… 3.

The CI information originated from one source, dubbed Confidential Informant “A”. The information received from CI “A” included, inter alia , the following: a. A certain individual runs a dial-a-dope operation with several down liners. Using their experience, Police believed the term ‘down liner’ referred to the people conducting street level drug transaction. Associated to this individual and the trafficking of drugs was a black Volkswagen with license plate BWL4289; b. CI “A” provided details regarding four ‘down liners’, including the vehicles they drove and shifts that they worked; c.

The down liners used phone number (403) 616-0303; and d. There is a ‘drug stash’ somewhere around Calgary, and the person who runs the stash is Asian. Using their experience, Police believed the term ‘stash’ referred to a location where drugs and/or money is kept. 4. Using the information received from CI “A”, as well as their own database searches and surveillance, Police identified a number of individuals as being allegedly involved with the dial-a-dope operation, specifically Brandon LEYS (“LEYS”), Jason BALDWIN (“BALDWIN”), Andy CHAN (“CHAN”), Peter CHOW (“CHOW”), and the Accused, Alex Chun-Yip Wong (“WONG”).

The investigation linked the following vehicles and residences to these individuals: a. CHAN was observed driving a 2019 Hyundai Kona bearing license plate CDM0788 (the “Kona”); b. LEYS was observed driving a black 2013 Nissan Pathfinder bearing license plate BJM0162 (the “Pathfinder”), and accessing 127 Sage Bluff Green NW, Calgary, Alberta (the “Sage Bluff Residence”); c. BALDWIN was observed driving a white Chevrolet Malibu bearing licence plate BCX9622 (the “Malibu”); d. CHOW was observed accessing 41 Coville Crescent NE, Calgary, Alberta (the “Coville Residence”); and e.

WONG was observed driving a black Volkswagen Golf bearing Alberta license palette BWL4289 (the “Golf”), and accessing both 48 Panamount Terrance NW, Calgary, Alberta (the “Panamount Residence”) and 3 Covehaven Crescent NE, Calgary, Alberta (the “Covehaven Residence”). 5. Between February 13 and March 4, 2020, WONG was observed on five (5) occasions conducting what Police describe as activity consistent with drug trafficking (“ACWDT”). These observations of ACWDT included: a. February 14, 2020 : WONG left the Covehaven Residence carrying two bags, and left the area in the Golf (ACDWT 1).

WONG was seen later exiting the garage of the Coville Residence, and then driving back to the Panamount Residence carrying a black and white plastic bag (ACWDT 2). The Coville Residence was identified as the residence of CHOW, an individual who was observed conducting ACWDT on 18 occasions. b. March 4, 2020 : WONG left the Panamount Residence in the Golf, met with CHAN at a restaurant, and then conducted a short duration meet (7 minutes) with CHAN inside the Golf (ACDWT 3). CHAN is an individual who was observed on 10 occasions conducting ACWDT. c.

March 4, 2020 : WONG left the Covehaven Residence with a bag and returned to the Panamount Residence. He took multiple items into the residence. Subsequently, he left the Panamount Residence with a weighted bag, drove the Golf to the Sage Bluff Residence and brought into that residence a weighted bag. WONG left that residence with a bag and returned to the Panamount Residence with a weighted bag (ACWDT 4). The Sage Bluff Residence was identified as the residence of LEYS, an individual who was observed conducting ACWDT on 24 occasions.

WONG again left the Panamount Residence in the Golf, and attended a convenience store parking lot where he handed a white plastic bag to the occupant of a parked vehicle. The parked vehicle immediately left the area

(ACWDT 5). 6. On March 10, 2020 the investigation culminated in Police obtaining a judicial authorization for the search of multiple residences (the “CDSA Search Warrant”) including the Panamount Residence and the Golf. 7. On March 12, 2020 the CDSA Search Warrant was executed. WONG was located inside the Panamount Residence. The following items were located inside the Panamount Residence: a.

Keys to the Golf on the kitchen counter (AD 102); b. 7 cellphones, including a black LG flip phone on the master bedroom night table (the “LG Phone”, AD104/EX001), an Alcatel One Touch at the front entranceway in a jacket (the “Alcatel Phone 1”, AD 126/EX002), and another Alcatel Cell Phone on the kitchen counter (the “Alcatel Phone 2”, AD 110/EX003); c. $37,650 Canadian currency in various locations, including the master bedroom, kitchen, basement and front entrance way (AD 100/AD 106/AD 108/AD 109/AD 111/AD 112/AD 114/AD 115/AD 125); d. $8,597 American currency in the master bedroom (AD 107); e.

Within a black and white bag with a “Brown’s” logo (AD 118) in the front entrance: i. A plastic disposable bag containing: 1. 13.4 grams of powdered cocaine separated into 5 individually plastic wrapped baggies weighing an average of 2.7g per baggy (AD 119a); and 2. 43.2 grams of crack cocaine separated into 18 individually plastic wrapped baggies weighing an average of 2.4g per baggy (AD 119c). ii.

A cinnamon mints tin containing: 1. 6.7 grams of powdered cocaine separated into 4 individually wrapped plastic baggies weighing an average of 1.48g per baggy (AD 120a); and 2. 7.1 grams of crack cocaine separated into 8 individually wrapped plastic baggies weighing an average of 0.88g per baggy (AD 120c); iii. A notebook that contained scoresheets and drug debts (AD 121); and iv. A prescription pill bottle in the name of WONG (AD 124). 8.

A search incident to arrest of WONG’s person located $2,100 in Canadian currency in varying denominations (CG 400), $200 in American currency in varying denominations (CG 401), and a set of keys (CG 402). 9. The Golf was parked on the street in front of the Panamount Residence. The keys located on the kitchen counter (AD 102) were used to open the Golf. Within the Golf were: a. three taser cartridges in the driver’s door and centre console arm rest (AD 200); and b. a dial-a-dope

schedule on lined paper located in the console arm rest of the Golf (AD 202). 10. On March 19, 2020, a judicial authorization with Identifier #2020-34919 was granted by The Honorable Judge M.T.C. Tyndale to search and seize data from 6 cell phones seized during Operation Candidate. The judicial authorization authorizing the search and seizure of date from the LG Phone, Alcatel Phone 1 and Alcatel Phone 2 (designated as exhibit numbers AD104, AD 126 and AD 110) were given Identifiers #2020-34919(b), (

d) and (

c) respectively (the “Cell Phone Warrant”). 11. On April 2, 2020, Mr. Ossi Haataja, Forensic Examiner for the Calgary Police Service, performed an examination of the LG Phone pursuant to the Cell Phone Warrant. The LG Phone contained numerous messages that were indicative of drug trafficking. Attached as Appendix “A” to this Agreed Statement of Facts is an extract from the Drug Expert Opinion of Constable M. “James” Jean-Louis, authored January 20, 2021, containing photographs of the messages indicative of drug trafficking, as well as the expert opinion of Constable Jean-Louis regarding those messages. 12.

Further, Constable Jean-Louis reviewed Exhibits AD 121 and AD 202, and concluded that AD 121 was consistent with being a drug scoresheet, and that AD 202 was consistent with being a dial-a-dope schedule. Attached as Appendix “B” to this Agreed Statement of Facts is an extract from the Drug Expert Opinion of Constable M. “James” Jean-Louis, authored January 20, 2021, containing photographs of AD 121 and AD 202, as well as the expert opinion of Constable Jean-Louis regarding those exhibits. 13. Cocaine is a controlled substance included within

Schedule 1 of the Controlled Drugs and Substances Act . 14. WONG admits that he was in possession of the cocaine in the Panamount Residence (as outlined in paragraph 7 above) and possessed it with the intention of trafficking. 15. WONG also admits that he was in possession of all monies in the Panamount Residence and on his person (as outlined paragraphs 7

and 8 above), and knew that such monies were obtained/derived directly or indirectly by the commission in Canada of an offence punishable by indictment, specifically, derived from the sale of controlled substances. [ 10 ] At the sentencing hearing the Court was advised that a number of the co-accused involved in the trafficking operation have also been sentenced for their roles in the operation. One received a CSO. [ 11 ] As noted above the Accused was seeking a CSO of two years less a day. The Crown agreed that two years less a day was in the range but sought a custodial sentence in an institution due to Mr.

Wong’s elevated status as a manager of the dial-a-dope operation. ISSUE [ 12 ] What is the fit and appropriate sentence for Mr. Wong for trafficking in cocaine, and crack cocaine, and possession of the proceeds of crime. LAW [ 13 ]

Section 718 of the Code sets out the sentencing objectives for which trial courts should have regard including denunciation, deterrence, separation of offenders from society where necessary, rehabilitation, reparations for harm done to victims or to the community, promotion of a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community. [ 14 ] 718.1 of the Code sets out the Fundamental Principle of sentencing as [a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 15 ] 718.2 of the Code sets out Other Sentencing Principles directing: A court that imposes a sentence shall take into consideration the following principles: (

a) sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender and, without limiting the generality of the foregoing… (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or shall be deemed to be aggravating circumstances; (

b) the similarity principle (

c) the totality principle (

d) the restraint principle seeking the least restrictive sanctions available (

e) the indigenous persons’ additional restraint principle [ 16 ] s. 742.1 states where … “a court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed in

section 742.3, if”

a) the court is satisfied that the service of the sentence in the community would not endanger the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 (my emphasis); [ 17 ] Other aspects of

section 742.1 were changed by Parliament in late 2022. Those changes allowed for persons charged with drug trafficking offences to be eligible for CSO’s where they had previously been prohibited. ANALYSIS General Principles of Sentencing [ 18 ] It is useful to review some of the general principles of sentencing at this point. [ 19 ] Justice Lebel in R v Ipeelee , 2012 SCC 13 para 36-37 : The Criminal Code goes on to list a number of principles to guide sentencing judges.

The fundamental principle of sentencing is that the sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender. As this Court has previously indicated, this principle was not borne out of the 1996 amendments to the Code but, instead, has long been a central tenet of the sentencing process … It also has a constitutional dimension, in that s. 12 of the Canadian Charter of Rights and Freedoms forbids the imposition of a grossly disproportionate sentence that would outrage society’s standards of decency.

In a similar vein, proportionality in sentencing could aptly be described as a principle of fundamental justice under s. 7 of the Charter … The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing — the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code , the resulting sentence must respect the fundamental principle of

proportionality. Proportionality is the sine qua non of a just sanction … [20] In R v Lacasse, 2015 SCC 64: the Supreme Court said: Sentencing remains one of the most delicate stages of the criminal justice process in Canada. Although this task is governed by ss. 718 etseq. of the Criminal Code, R.S.C. 1985, c.

C-46, and although the objectives set out in those sections guide the courts and are clearlydefined, it nonetheless involves, by definition, the exercise of a broad discretion by the courts in balancing all the relevant factors inorder to meet the objectives being pursued in sentencing. [21] In R v Parranto, 2021 SCC 46 the Supreme Court said: [17] Sentencing ranges generally represent a

summary of the case law that reflects the minimum and maximum sentences imposed bytrial judges in the past (Lacasse, at para. 57; Friesen, at para. 36). They “provide structure and guidance and can prevent disparity”,while leaving judges space to “weigh mitigating and aggravating factors and arrive at proportional sentences” (R. v. Smith, 2019 SKCA100, 382 C.C.C. (3d) 455, at para. 126). The range, therefore, “reflects individual cases, but does not govern them” (C. C. Ruby,Sentencing (10th ed. 2020), at § 23.7, citing R. v.

Brennan and Jensen (1975), (NS CA), 11 N.S.R. (2d) 84 (C.A.)). [22] In R v Arcand, 2010 ABCA 363, our Court of Appeal stated at para 57-58 What is meant by “gravity of the offence”? This concept is directed to what the offender did wrong. It includes two components: (1) theharm or likely harm to the victim; and (2) the harm or likely harm to society and its values. What influences that analysis apart from thedegree of injuriousness inherent in the crime itself? The answer lies in s. 718.2.

Before exploring that section, though, we turn to theother half of the proportionality principle, the degree of responsibility of the offender, because it too leads to s. 718.2. The “degree of responsibility of the offender” as used in s. 718.1 certainly includes the mens rea level of intent, recklessness or wilfulblindness associated with the actus reus of the crime committed. For this assessment, courts are able to draw extensively on criminaljustice principles. The greater the harm intended or the greater the degree of recklessness or wilful blindness, the greater the moralculpability.

However, the reference in s. 718.1 is not simply to the “mens rea degree of responsibility of the offender” at the time ofcommission of the crime. Parliament evidently intended “degree of responsibility of the offender” to include other factors affectingculpability. These might relate, for example, to the offender’s personal circumstances, mental capacity or motive for committing thecrime. Where else does the Code provide for an offender’s degree of responsibility generally to be taken into account?

Here, too, theanswer takes us to s. 718.2. [23] They concluded at paragraph 65: But the sentencing objectives in s. 718, like the sentencing principles in s. 718.2, are not applied in a vacuum. Parliament did not intendsentencing to be an unguided missile. [24] In R v Hamlyn, 2016 ABCA 127 at paragraph 7, the Court of Appeal stated: R v Lacasse, [supra], is a recent reminder that “[t]he credibility of the criminal justice system in the eyes of the public depends on thefitness of sentences imposed on offenders.

A sentence that is unfit, whether because it is too harsh or too lenient, could cause the publicto question the credibility of the system in light of its objectives”, that “[o]ne of the main objectives of Canadian criminal law is therehabilitation of offenders”, and that “in all cases in which general or specific deterrence and denunciation must be emphasized, thecourts have very few options other than imprisonment for meeting these objectives, which are essential to the maintenance of a just,peaceful and law-abiding society.” [25] The Court went on to say at paragraph 34: Although Hamlyn’s post-sentencing pro-social behaviour is laudable, a primarily rehabilitative sentence is not sufficient societal censure,or punishment … Being a law-abiding citizen is not exceptional: Arcand, supra , at paras 132-136. [26] The case of R v Proulx, 2000 SCC 5 is the seminal case from the Supreme Court addressing the issues surrounding theimposition of CSO’s and in particular parts of paragraphs 58-60 are instructive: … Thus, the approach I suggest still requires the judge to proceed in two stages.

However, the judge need not impose a term ofimprisonment of a fixed duration at the first stage of the analysis. Rather, at this stage, the judge simply has to exclude two possibilities:(

a) probationary measures; and (

b) a penitentiary term. If either of these sentences is appropriate, then a conditional sentence should notbe imposed. In making this preliminary determination, the judge need only consider the fundamental purpose and principles of sentencing set out inss. 718 to 718.2 to the extent necessary to narrow the range of sentence for the offender. The submissions of the parties, although notbinding, may prove helpful in this regard. For example, both parties may agree that the appropriate range of sentence is a term ofimprisonment of less than two years.

Once that preliminary determination is made, and assuming the other statutory prerequisites are met, the judge should then proceed tothe second stage of the analysis: determining whether a conditional sentence would be consistent with the fundamental purpose andprinciples of sentencing set out in ss. 718 to 718.2. Unlike the first stage, the principles of sentencing are now consideredcomprehensively. Further, it is at the second stage that the duration and venue of the sentence should be determined, and, if aconditional sentence, the conditions to be imposed.

Drug Trafficking Sentences [27] It is also worth reviewing some of the case law on drug trafficking at this time.

[ 28 ] In R v Maskill , 1981 ABCA 50 the accused was given a three-year sentence for trafficking in cocaine. On an appeal of that sentence, the Alberta Court of Appeal stated at paragraph 16-17: Cocaine is a very powerful drug. It is a narcotic drug. Its non-medical use can lead to many undesirable results. The trafficking in it is highly undesirable. Trafficking in the drug must be deterred. It is a very expensive drug so that huge profits can be made from its illegal sale. It is our duty to deter people from using it and from trafficking in it.

Deterrence is and remains the most important element in the sentencing process. It calls for imprisonment and not for a short, nominal term. In favour of the appellant is the fact that he is young. Further, he has no record at all. He is a good student at the university in the faculty of commerce. He has the support of his family. He has produced many favourable letters. However, none of these things approach special circumstances. Weighing heavily against the appellant is the fact that he was found in possession of more than one prohibited drug. In addition, in a hollowed-out book, was found $1,790 in cash.

The appellant had a set of scales on which was observed a residue of white powder suspected to be cocaine. All of these things indicate that the operation had a commercial character to it. This is a far cry from a technical or social trafficking. Clearly, it is not a case for a minimum sentence. Further, the value of the 17 grams of cocaine was about $2,500 to $3,000 if sold by the gram or half gram. [ 29 ] The Court concluded at paragraph 20: However, these are not the facts here. This was clearly a commercial operation on something more than a minimal scale. It called for a penitentiary term.

We are not prepared to say that the sentence was unfit for the circumstances revealed in this case. Accordingly, the appeal is dismissed. [ 30 ] In R v Rahime , 2001 ABCA 203 , the Alberta Court of Appeal was dealing with several cases reviewing the sentences of individuals convicted of drug trafficking in a number of circumstances. A review of the factual constructs of those particular cases would be useful at this point: The case of Thomas Charles involved the two counts of trafficking for the sale of two grams of cocaine to an undercover officer for eighty dollars as part of a dial-a-doper operation. Mr.

Charles was 20 years old with no criminal record, was not a user, and was motivated by greed to commit the offences. He was remorseful and a pre-sentence report found him suitable for community service. The Crown had sought two years in a penitentiary. The sentencing judge decided a 20-month CSO was appropriate. The Court of Appeal upheld that sentence. The case of Said Rahime involved two counts of trafficking for selling three grams of cocaine to an undercover operator on two occasions. He too was twenty years old at the time. He was also found in possession of 10 grams of cocaine at the time of his arrest.

He had no criminal record and was addicted to cocaine. His addiction had “been rehabilitated by the time of sentencing.” The Crown sought a penitentiary sentence of 2-3 years. The sentencing judge had imposed two 18-month CSO’s to be served concurrently. The Court of Appeal upheld the sentence. For Brian Keller the facts were that he sold 10.5 grams of cocaine to an undercover operator over the course of two transactions. He was nineteen years old at the time, was addicted to the drug, and had sought treatment for the addiction before the offence dates. He had an unrelated youth record and was unemployed.

The pre-sentence report recommended community service. The Crown sought a penitentiary sentence, but the sentencing judge granted a 22-month CSO for the trafficking offence. The Court of Appeal upheld the sentence. In Husni Ismael’s case the accused pled guilty to one count of trafficking in cocaine. He was 19 years old and had sold an 1/8 th of an ounce of cocaine to an agent. He was 19, not a drug user, had a prior unrelated youth record, and was employed. The Crown sought a sentence of 24-30 months in custody.

There the sentencing judge found that he was in the process of being rehabilitated and did not want to sacrifice that rehabilitation on the altar of deterrence. The sentence was upheld. In the case of Samer Sayadi , the accused was 25 when he sold two ounces of cocaine to an undercover agent. He had a prior unrelated record. He was married with two children and was employed in his own business. There was evidence he had been influenced by an older brother to conduct the transaction. The sentencing judge imposed a sentence of 22-month CSO. That sentence was upheld.

The last case dealt with was that of Tuan Van Phan , a 37-year-old taxi driver who sold .74 grams of cocaine to an undercover officer. He had also attempted to dispose of an additional 3.4 grams of cocaine prior to his arrest. He was married with three young children and had spent some time in a refugee camp. He spoke little English, was not a drug user and was facing financial difficulties supporting his family. The Crown sought a 30-month sentence. The Court imposed a sentence of two years less a day CSO.

That sentence was maintained. [ 31 ] The Court was also directed to two other cases related to trafficking that this Court has found useful. [ 32 ] In R v Ismael , 2012 ABPC 284 , Judge Groves as she then was, conducted a sentence for trafficking in cocaine. Mr. Ismael sold cocaine four times to an undercover agent. After his arrest he was found in possession of a further 126.7 grams of powder cocaine with an estimated street value of $10,140 and 15.0 grams of crack cocaine with an estimated street value of $1,200. The Accused pled guilty to one count.

The Crown was seeking a 30-month sentence factoring in the early guilty plea and no prior criminal record. The defence sought a CSO. Judge Groves went through a review of prior case law and said at paragraph 13: In 2011 the Court in R. v. McCulloch , 2011 ABCA 124 again confirmed that three years was an appropriate starting point sentence “for commercial trafficking in cocaine in small quantities” (para. 8). In support of this position, the Court relied on the authorities of Maskell , Rahime and R. v. Marchesi , 2009 ABCA 304 , 460 A.R. 294. [ 33 ] Judge Groves went to state a paragraph 16-17: The Court in R. v.

Lau , 2004 ABCA 408 stated that it is wrong to emphasize the amount of cocaine as an aggravating factor; rather the

amount of the cocaine is embraced in the classification of the offence as being one of a commercial or wholesale operation (para. 37). While the quantity of drugs can assist in classifying an offender as one involved in a commercial enterprise versus wholesale trafficking, so too can the quantity of drugs assist in determining whether the offender is involved in low-level versus mid-level commercial trafficking.

Simon Armstrong, author of “ Sentencing Drug Offenders ” (May 2012), Canada Law Book, 2004 (loose-leaf), reviewed the different jurisdictions across Canada and concluded low-level trafficking generally involved drug sales not exceeding 28 grams (page 3- 8, para. 3:300.20.10), whereas mid-level trafficking usually ranged between 28 grams to one kilogram. [ 34 ] In that case, Mr. Ismael had no prior record. Further, he was found to have been “below average with respect to neuropsychological and cognitive measures and suffers from post-traumatic stress disorder. Despite these findings, the psychologist assessed Mr.

Ismael at the lower end of the spectrum to re-offend, and low-moderate risk to commit any violent offences.” [ 35 ] In R v Sharifi-Jamali 2022 ABCA 322 , the Alberta Court of Appeal was dealing with an accused who pled guilty to five offences including a charge of trafficking in cocaine. The Crown and Defence had put forward a joint submission of two years incarceration. The sentencing judge had rejected the joint submission and imposed a two-year CSO for weapons offence followed by three years of probation for the trafficking.

This case was decided before the change in legislation to allow for CSO’s on the trafficking charges but still has some useful comments on the need for a fit and appropriate sentence for the offence at paragraph 24: We also agree … that the sentencing judge overemphasized rehabilitation and collateral consequences.

Under the heading “Rehabilitation”, the sentencing judge addressed this Court’s decision in R v Spina , 1997 ABCA 235 where this Court described the offender’s rehabilitation as “remarkable” and observed that the offender had completely rehabilitated his life … But this Court has previously concluded that “it is an error in principle to regard the ordinary consequences of a custodial sentence as exceptional: R. v Zenari , 2012 ABCA 279 at para. 8 , 536 AR 224”: Godfrey at para 15.

Specifically, “[d]isruption of employment and family life is a normal consequence of imprisonment, and cannot ordinarily be considered exceptional”: Godfrey at para 16. A FIT AND PROPER SENTENCE FOR MR. WONG [ 36 ] Canada has seen a significant change in sentencing regimes for drug traffickers.

Parliament has decided to relax the sentencing regime to allow for CSO’s to be used for some convictions on offences of drug trafficking. [ 37 ] The Court has been directed to the case of Rahime as an example of what courts were doing before the use of CSO’s for drug trafficking on a minimal scale was banned by Parliament. [ 38 ] Maskill has long been the sentencing case that has guided courts in Alberta to impose a sentence that has a range around three years for trafficking in cocaine (powdered) on something more than a minimal scale. Wholesale trafficking merits a significantly more serious sentence.

In this case, the Defence and Crown have both suggested that the amounts involved are not wholesale. This Court agrees this is not wholesale trafficking but has concluded that the level of trafficking found here is orders of magnitude higher than a minimal scale. This is mid-level trafficking. [ 39 ] As the Crown and Defence have joined each other on the specific sentence duration of 2 years less a day, and there may have been a quid pro quo for that agreement, this Court was probably bound by the SCC decision in R v Anthony-Cook , 2016 SCC 43 .

With that being said, this Court would not have granted the Accused that favour on a contested sentencing. Apart from the guilty plea there was nothing about this case that would merit something approaching, or exceeding, a one third reduction of sentence.

Perhaps the pandemic has also contributed to a higher discount in sentence for early guilty pleas by forcing prosecution services across the country to engage in aggressive early case resolution processes to adequately reduce the caseloads to levels that avoid Jordan stays in an overburdened and underfunded legal system. [ 40 ] Pursuant to the agreement between Crown and Defence on the duration of the sentence at two years less a day, the Court moved directly to the second stage of the Proulx analysis to determine if Mr.

Wong was eligible for a CSO. [ 41 ] This was a guilty plea and that should be factored into the sentence for Mr. Wong. [ 42 ] His lack of a prior criminal record amounts to an absence of an aggravating factor in sentence. [ 43 ] Counsel for Mr. Wong has argued that the change in sentencing brought about by the recently passed Bill C-5 has returned the Courts to an earlier time and the cases that applied from that time are as good as new. Respectfully this Court disagrees.

The decision by Parliament to allow for CSO’s has opened the door for them to be used again in cases where it was previously barred, but that does not take away from the basic principles of sentencing that a fit sentence must be proportionate to gravity of the offence and the degree of responsibility of the offender. Not all cocaine drug traffickers should receive such a sentence. Conversely, all cocaine drug traffickers on more than a minimal scale should have the Courts at least assess whether or not they should be granted a CSO. [ 44 ] Mr. Wong was not trafficking on a minimal scale.

He had substantial amounts of powder and crack cocaine in his possession, approximately 71 grams. This would not be consistent with the amounts found on a typical street dealer. From the ASF it was seen that Mr. Wong engaged in only a small amount of activity that would be considered as activity consistent with drug trafficking. His other co- accused appear to be more involved in the street level activity. Nonetheless, the Court was not satisfied that Mr.

Wong was engaged in a management role in the organization. [ 45 ] Crack cocaine has been viewed by experts as a more serious version of the drug than powdered cocaine. It is more addictive and has greater adverse health effects than simple powdered cocaine. The process used to create crack cocaine increases potential profitability for trafficker while also increasing the toxicity of the drug for the end user. [ 46 ] Upon the execution of the search warrant, Mr. Wong also had a substantial sum of money, approximately $47,000, in the

residence hand that was admittedly from the trafficking. He was found to have an additional $2100, in Canadian currency and $200 in American currency on his person. [ 47 ] These amounts of drugs and cash could only come from an established connection with a criminal organization that would receive a significant benefit from Mr. Wong, and his group’s activities. Mr. Wong’s own organization was also a criminal organization. This was an aggravating factor. [ 48 ] There was evidence of weapons by way of three taser cartridges found in the Golf.

Perhaps it could be argued that this not as serious as a firearm, but, in my opinion, this was not a persuasive argument as the cartridges were still associated with a weapon that could be used on others to inflict harm. Armed drug dealers are fundamentally worse than unarmed drug dealers because they have the potential to inflict, or threaten to inflict, greater harm on victims of their crimes or competitors thereby making the community more dangerous. [ 49 ] The concept that drug dealers must arm themselves for protection, likewise, would not be a very persuasive argument.

The better option would be to not engage in drug trafficking. If one felt the need to arm oneself for carrying out a knowingly illegal act, by adding in an additional element of danger, then one must have calculated that acting this way was a cost of doing business. So was the increased penalty one would incur for having carried out your activity in a more dangerous fashion. Obviously, Mr. Wong did not plead to a weapons offence, but it was part of the factual construct to which he did admit.

This was an aggravating factor but a relatively minor one in the context of the offence. [ 50 ] It may be said that society has taken more empathetic view of drug addiction, with the introduction of a range of forms of assistance to drug users under the banner of harm reduction, but that does not equate to giving a stamp of approval to drug traffickers. In fact, because of the concept of harm reduction, the Courts should be taking a strong approach to force illicit drug dealers from the trade. [ 51 ] They are purveyors of misery, destruction and death.

Much of their work is targeted on the most vulnerable in our society – those mired in poverty, homelessness, addiction, and/or mental health challenges. They, literally and metaphorically, prey upon the vulnerable. [ 52 ] Additionally, they use their ill-gotten gains to enrich themselves with little regard for the misery they inflict on others. They pay no taxes on their filthy lucre, and as a result, they make no contribution towards the financial hardships imposed on our governments.

The very same governing authorities who struggle to fund the very things that might lead the vulnerable away from a drug addiction – health care systems, education systems and social welfare programs. Tragically, the drug dealers focus on their profitable work lays an even heavier financial and social burden on highly stressed health care, education, social welfare and justice systems. This is parasitic behaviour at it most obvious. [ 53 ] In many other countries, society seeks to execute drug dealers.

That is not an appropriate solution in a civilized system but allowing such predators to live at home and sleep in their own beds (while their victims spiral further and further into oblivion) is an unappealing approach too. [ 54 ] In a brazen demonstration of his lack of insight, Mr. Wong casually commented to the person preparing the PSR for this Court that he was annoyed that his lawyer could not “beat the charges” despite the fact that he had paid the lawyer a lot of money. His callous disregard for the plight of his victims was matched by his contempt for the legal system.

This was clearly an aggravating factor. [ 55 ] The PSR catalogued a challenging upbringing as an immigrant within a family that struggled with poverty and Mr. Wong experiencing some physical abuse at the hands of his father. Mr. Wong still identified his family as a positive source of support for him. He also has a wife and an 11-year-old son. Their relationship was seen as troubled, even before he was charged with the offences before the Court. Mr. Wong did not present as motivated to change this dynamic. If a sentence of incarceration was imposed Mr. Wong would be separated from his family.

This would not be an exceptional hardship. [ 56 ] The PSR also mentioned an outstanding issue with the Canada Revenue Agency (CRA) over previous income. It is a vague reference and discussion about a substantial debt owing to the CRA. It was not possible to determine what, if any, influence this may have had on his decision engage in trafficking. Suffice it to say that the most that can be taken from this part of the PSR is that Mr. Wong had some pressing financial challenges. [ 57 ] The writer of the PSR described Mr.

Wong as someone who “has some insight into his offending but demonstrates a tendency to minimize his role and lack accountability for his actions. There was little to no mitigation here. [ 58 ] Mr. Wong was not an addict selling to other addicts to feed his own habit. He was an able-bodied person who sought to get rich quick so he could fund a clothing company that sold casual wear. Rather than commit fully to the clothing company project and work diligently to bring the initiative to a productive and profitable outcome, he chose to use the money he made off the vulnerable to fund his personal activity.

It was a callous and calculating approach to harm others to fund his dreams and lifestyle. [ 59 ] To reduce the numbers of individuals, like Mr. Wong, who engage in this destructive activity for purely business reasons, do we really think that house arrest is the right answer? Many have argued that deterrence does not work as we still have increasing crime. There may well be some merit to that argument at first glance. However, what this argument fails to address is the unknowable. How do you track the people who were deterred, who did not engage in the behaviours because of the prospect of a real jail sentence?

If others see significant drug dealers – who engage in the business simply for profit – receiving house arrest, that may well encourage the next generation to jump into the business for the easy dollar. After all, what’s the downside? CSO’s may work for drug addicts who sell to others to feed their habits and who are looking to leave that lifestyle; but is that approach the best way to address the cold, calculating businessman who makes a cost benefit analysis of the threat of incarceration as part of his business planning?

Probably not… [ 60 ] The Court noted that at least one of his other co-accused did receive a CSO but the Court was not informed of much of his background, other than that he had a prior criminal record. Further there was no indication that the other accused had a lack of remorse, insight, into his behavior. Certainly there was not the disregard for the criminal justice system that Mr. Wong presented to the PSR

writer. Counsel for Mr. Wong attempted to minimize his client’s attitude but was unable to overcome the obvious problems his clienthad in that attitude. [61] Accordingly, while Mr. Wong was someone who may be eligible for a CSO based on the unique factors that have emergedhere – including the agreement between Crown and Defence on the duration of the sentence at two years less a day – he was not a personfor whom a CSO would meet all of the principles of sentencing.

The principles of denunciation and deterrence are paramount here andthe principle of rehabilitation maybe achieved with a probationary period following his incarceration to assist him in reintegrating intothe community. [62] As was said in R v JCK, 2013 ABCA 50 at para 31: “. . . The unhappy duty of the Courts on occasion is to impose sentences that may seem harsh for the individual, but are driven by theneed to reflect the degree of injury to our common values as well as to the victim of the offence.” This is one such occasion. [63] This Court sentences Mr.

Wong to a global sentence of two years less a day to be served in a provincial corrections facility. That incarceration is to be followed by a 1 year probation period. The terms and conditions of that probation include: 1. To report to probation on your release from custody, 2. To reside where approve 3. To have no contact directly or indirectly with his co-accused. 4. To attend for assessment, counselling and treatment as directed. 5. To provide proof of completion of such counselling and treatment. 6.

To provide a waiver of confidentiality to allow probation to monitor his progress through such counselling or treatment. 7. No weapons. Heard on the 6th day of July, 2023. Dated at the City of Calgary, Alberta this 6th day of July, 2023. P.J. Mason A Justice of the Alberta Court of Justice Appearances: Christopher Williams for the Crown G.R. Dunn for the Accused