R. v. Wong, 2019 BCPC 132

Citation: R. v. Wong 2019 BCPC 132 Date: 20190625 File No: 233999-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. ALEC CHUN HUNG WONG REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G. RIDEOUT Counsel for the Crown: Dave Peltier Counsel for the Defendant: Shelley Sugarman, QC Place of Hearing: Vancouver , B.C. Date of Hearing: March 20, 2019 Date of Judgment: June 25, 2019 A Corrigendum was released by the Court on July 2, 2019. The corrections have been made to the text and the Corrigendum is appended to this document.

I. INTRODUCTION [ 1 ] Alec Chun Hung Wong (the “accused”) has entered a guilty plea that on or about the 15 th and 24 th days of February, 2017, at Vancouver, British Columbia, he did unlawfully traffic in both heroin and fentanyl contrary to s. 5(1) of the Controlled Drugs and Substances Act (the “ CDSA ”). II. ISSUE [ 2 ] The sole issue to be determined is what is a fit and just sentence to be imposed having regard to the circumstances surrounding the accused’s criminal behaviour and his personal circumstances. III.

BACKGROUND [ 3 ] The accused was a suspect in a Vancouver Police Department (the “VPD”) dial-a-dope investigation that was launched in the fall of 2016. [ 4 ] The VPD investigation was able to identify a cellular telephone number attributed to the accused.

They utilized this cellular telephone number to arrange the purchase of drugs from the accused on two occasions in February of 2017. [ 5 ] On February 15, 2017, as a result of a telephone call from an undercover VPD member, the accused drove to the location of the undercover VDP member and sold him $60 worth of heroin. [ 6 ] On February 24, 2017, as a result of a telephone call from an undercover VPD member, the accused drove to the location of the undercover VPD member and sold him $40 worth of heroin. [ 7 ] On both occasions the accused was the driver and sole occupant of the motor vehicle. [ 8 ] The heroin that was sold on both occasions was analysed as containing heroin, fentanyl, and other ingredients. [ 9 ] In an unrelated police investigation, the accused was arrested on January 23, 2017, for the possession for the purpose of trafficking in cocaine.

He was released on a Promise to Appear. [ 10 ] On May 2, 2017, the accused pled guilty to the charge of possession for the purpose of trafficking and was sentenced to a prison sentence of four months. IV. POSITION OF THE PARTIES (

i) The Crown [ 11 ] The Crown submits that the principles of general deterrence and denunciation are paramount. Those principles require the imposition of a prison sentence of 22 months. [ 12 ] The Crown submits the following are aggravating factors: • The drug transactions involved a dial-a-dope scenario; • The accused was involved in an active and ongoing drug trafficking business for the purpose of profit; • He sold

Schedule I drugs on two occasions to the undercover VPD member; • The drugs sold to the undercover VPD member were laced with Fentanyl; • That he accused had been arrested for possession for the purpose of trafficking on January 23, 2017, and released on a Promise to Appear; and, • That trafficking in drugs containing fentanyl has created a health crisis in the City of Vancouver, and beyond, resulting in a significant loss of life. [ 13 ] The Crown has relied upon various authorities to support their position, in particular, the decision of the Court of Appeal in R. v.

Smith , 2017 BCCA 112 . (ii) The Accused [ 14 ] The accused submits that the principles of sentence can properly be addressed through the imposition of, either a Suspended Sentence with strict conditions of probation, or, in the alternative, a prison sentence at the lower end of the range. [ 15 ] The accused submits that his youth and his family background at the time he sold the drugs to the undercover VPD member militate against the imposition of the sentence proposed by the Crown. [ 16 ] He submits that his circumstances are exceptional and would support the imposition of a Suspended Sentence. [ 17 ] The accused’s other submissions are summarized as follows: • That he was 21 years old at the time he sold the drugs to the undercover VPD member and he is now 23 years old;

• That he had little, if any, parental guidance from his mother; • That his father had abandoned the family; • That he never developed any close social relationships; • That he started smoking and then selling marijuana in the grade 10; • That he returned to school at the age of 17 and soon began to traffic in cocaine which led to his expulsion from school in grade 12; • That two of his acquaintances involved in that the drug trade are dead; • That in October of 2017 he went to Hong Kong.

When he found out that there was a warrant for his arrest for the sale of drugs to the undercover VPD member that he returned to Vancouver to deal with the charges; • That he has returned to school and is one course short of completing his grade 12; • That it is his future plan to pursue a post-secondary education; • That he has secured occasional gainful employment after he abandoned his involvement in the drug trade; • That he has the support of his grandparents and his girlfriend; • That the character letters filed in his support establish that he has turned his life around and he has taken a “big step” forward in becoming a contributing member of society; and, • That he is truly remorseful as expressed in his letter of apology filed in these proceedings. [ 18 ] The accused relies upon various authorities to support his position on sentence, in particular, the decision of Judge J.

Challenger in R. v. Joon , 2017 BCPC 301 . V. ANALYSIS (

i) The Potential Penalty for Trafficking in a

Schedule I Substance [ 19 ] By application of s. 5(3) of the CDSA , persons who traffic in a

Schedule I substance are potentially liable to imprisonment for life. (ii) The Nature of the Health Crisis Associated with Fentanyl [ 20 ] Heroin and fentanyl are

Schedule I substances. Of particular concern is the health crisis that has evolved over recent years from the use of fentanyl. [ 21 ] The Crown filed a copy of the British Columbia Corners Service Bulletin (the “BCCSB”) posted February 7, 2019: [Ex. 2]. It is noted, in part, that there were 1,489 suspected drug overdose deaths in 2018.

Preliminary data suggests that of the illicit drug overdose deaths fentanyl was detected in 85 percent of the cases. [ 22 ] The BCCSB notes that there were more than 4.5 times as many illicit drug overdose deaths as motor vehicle accident deaths in 2018. [ 23 ] Additionally, the BCCSB notes that the Vancouver Coastal Health Authority has the highest rate of illicit drug overdose deaths (36 deaths per 100,000 individuals) in 2018. [ 24 ] The scale and scope of the health crisis is alarming. (iii) Judicial Response to the Fentanyl Heath Crisis [ 25 ] Smith , ibid , related to the appeal of a six-month prison sentence imposed on the accused who was found in possession of a fentanyl for the purpose of trafficking in the Downtown Eastside of Vancouver in January of 2015.

The sentencing starting range for a first offender in 2015 for trafficking in a

Schedule 1 narcotic, subject to exceptional circumstances, was a custodial sentence of six months. [ 26 ] The Court of Appeal parted ways on the sentence that was imposed at the trial level. The majority up-held the six-month sentence due to the level of public awareness of the fentanyl health crisis known in 2015.

Newbury J.A. would have increased the sentence to 18 months. [ 27 ] However, the majority, led by Harris J.A. and Willock J.A., noted that since 2015 the magnitude of the fentanyl health crisis increased dramatically resulting in a significant number of overdose deaths: paras. 54 – 64. [ 28 ] It is the scale and scope of the fentanyl health crisis that persuaded the majority that the risks posed by the illicit use of fentanyl, “… justify a recognition of a very substantial increase in the sentencing range applicable to street level dealing in fentanyl.” [ 29 ] Ultimately, the Court of Appeal was unanimous in finding that the sentencing principles of denunciation and deterrence were to be given primacy in cases involving fentanyl.

It was suggested that the starting point for a “ normal ” range of sentence for trafficking in

Fentanyl for a first offender was 18 months imprisonment: (emphasis added). [ 30 ] In establishing this range, the Court of Appeal did not restrict the discretion of a sentencing judge to impose a lower sentence than 18 months where there were exceptional circumstances: para. 46. [ 31 ] The test to establish exceptional circumstances in the context of drug trafficking is found in the Court of Appeal decision of R. v. Voong , 2015 BCCA 285 .

Voong involved an appeal of four sentences where trial judges had departed from the normal range of sentence and imposed a Suspended Sentence in circumstances which would otherwise have warranted a prison sentence. [ 32 ] It was in the context of the rehabilitation of a drug trafficking addict that Bennett J.A. defined “exceptional circumstances” as follows: 59 … Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed to harm done to the offender as a result of being caught.

This is a non-exhaustive list, but at the end of the day, there must be circumstances that are above and beyond the norm to justify a non-custodial sentence. There must be something that would lead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served by a non-custodial sentence... Thus, it will be the rare case (emphasis added) where the standard of exceptional circumstances is met. [ 33 ] The Voong decision was considered by the Court of Appeal in R. v.

Serov , 2017 BCCA 456 . [ 34 ] The Court of Appeal in Serov suggested that the imposition of a noncustodial sentence outside the typical range in a drug trafficking case would be rare: 59 In the passage just quoted, Bennett J.A. said that not only must there be "something that would lead a sentencing judge to conclude that the offender had truly turned his or her life around", there must also be something that would lead the sentencing judge to conclude "that the protection of the public was subsequently better served by a non-custodial sentence." In other words, it was expected that such a sentence would rarely be imposed . [ 35 ] It is also clear that the moral culpability of those who engage in the trafficking of fentanyl is high.

This factor was addressed by the Court of Appeal in R. v. Mann , 2018 BCCA 265 , at para. 98 : 98 As will inevitably be the case, all of the sentencing decisions cited by the Crown have distinguishing features from the case at bar. What these cases serve to establish, however, is that the moral culpability of offenders who traffic in fentanyl and its analogues is very high. The public health crisis that followed the introduction of synthetic opioids in the illicit drug trade continues unabated.

As Newbury J.A. observed in Smith (at para. 44 ), "fentanyl abuse continues to claim lives every day in our communities" and "British Columbia has one of the worst, if not the worst, problems of fentanyl abuse in Canada". General deterrence and denunciation must feature prominently in sentencing cases of this kind. VI.

SENTENCE TO BE IMPOSED [ 36 ] In determining what is a fit and a just sentence to be imposed upon the accused, I must be guided by the statutory principles and objectives of sentencing set out in s. 10 of the CDSA as well as the purposes and principles of sentencing set out in ss. 718 through 718.2 of the Criminal Code of Canada (the “ Code ”). [ 37 ] Of the sentencing principles contained in the Code , it is critical to the sentencing process that a proportionate sentence be imposed pursuant to s. 718.1 . [ 38 ] Additionally, if a jail sentence is to be imposed that restraint be exercised. [ 39 ] I have considered with care the cases provided to me by the accused.

In particular, I have considered the decision of Challenger P.C.J. in Joon , supra . [ 40 ] In Joon , the accused was a 19-year-old young man with no criminal record who engaged in trafficking fentanyl for profit. In the year and a half since his arrest, he had been living a pro-social and contributing life.

The court found that his rehabilitation was well- established. [ 41 ] In finding exceptional circumstances Challenger P.C.J. found that it was the accused’s “very young age” that carried greater weight: para. 43. [ 42 ] I agree with the submission of the accused that he was a young man of 21 years of age when he was engaged in the trafficking of heroin and fentanyl. However, he was not a stranger to the criminal justice process as he was charged with possession for the purpose of trafficking in cocaine in January of 2017.

He served a four month prison sentence after pleading guilty to that charge. [ 43 ] I adopt the submissions of the Crown in relation to the aggravating factors summarized at para. 12 of this ruling. [ 44 ] The mitigating circumstances can be summarized as follows: • That he has pled guilty; • That his letter of apology is sincere, in part, the accused had this to say in his letter of apology that would demonstrate both personal insight into his offending behaviour as well as positively promoting his future rehabilitation: I don’t have an excuse as to why I was selling fentanyl. There is no excuse.

I knew how harmful the drug is and yet I was still selling it. I

feel remorseful for my actions. I sincerely feel the remorse. It goes much further than just selling it and giving people a fix. It kills people, breaks apart families, and poisons the community we live in; • That he returned promptly from Hong Kong once he learned of the outstanding charges.

He could have stayed in Hong Kong with the hope that he would avoid extradition; • That he has abandoned his prior drug trafficking lifestyle and is on the road to establishing a pro-social lifestyle; • That the character letters of support filed in these proceedings would suggest that the accused is turning his life around; and, • That he has abided by strict bail conditions following his arrest when he returned from Hong Kong. [ 45 ] I take into account the personal circumstances of the accused that at the time he was selling heroin and fentanyl he was not a drug addict.

As noted in this ruling at para. 32, it was in the context of the rehabilitation of a drug trafficking addict that Bennett J.A. defined “exceptional circumstances.” [ 46 ] I also take into account that charges were not laid for approximately six and a half months after the accused trafficked in heroin and fentanyl. [ 47 ] With those considerations in mind, I do not find that the current personal circumstances of the accused, when balanced against the aggravating factors, establish highly exceptional circumstances that would justify the imposition of a Suspended Sentence in circumstances that would otherwise warrant a prison sentence. [ 48 ] I do give significant weight to the young age of the accused.

His future prospects of rehabilitation also appear to be good.

While Smith , supra, does “suggest” a prison sentence range beginning at 18 months for fentanyl trafficking cases, the mitigating circumstances in relation to this accused persuades me that a fit and just sentence in this case is one year in prison. [ 49 ] In recognition of the accused’s positive steps towards his personal rehabilitation and, taking into account that there were no breaches while he was on strict conditions of bail, there will be no probation order to follow. [ 50 ] Pursuant to s. 487.051(3) of the Code , the accused shall be required to provide a sample of his DNA. [ 51 ] Pursuant to s. 109(3) of the Code , the accused is prohibited from possessing any firearm, crossbow, restricted weapon, ammunition and explosive substance for life. _____________________________ The Honourable Judge G.

Rideout Provincial Court of British Columbia CORRIGENDUM – Released July 2, 2019 [1] Paragraph 17, second bullet, should read: • That he had little, if any, parental guidance from his mother; [2] Paragraph 51 should read: Pursuant to s. 109(3) of the Code , the accused is prohibited from possessing any firearm, crossbow, restricted weapon, ammunition and explosive substance for life. _____________________________ The Honourable Judge G. Rideout Provincial Court of British Columbia