R. v. Shane Williams, 2019 NBPC 1

PROVINCIAL COURT OF NEW BRUNSWICK 2019 NBPC 01 R. v. Shane Williams Before Judge Alfred H. Brien At: Saint John , N.B. On: January 11,2019 Counsel: Crown - Lee-Ann Conrod and Suhanya Edwards Defence Accused: Charles Bryant Tarah Williams and 670865 NB Ltd: Peter Teed Reasons on Sentence Charges: [ 1 ] The accused has pled guilty to two charges: 1. Possession of proceeds of crime contrary to s 354 in violation of s 355(

a) Criminal Code 2. Money laundering contrary to s 462.31(1)(

a) in violation of s 462.31(2)(

a) Criminal Code [ 2 ] The offences were committed between January 1, 2010 and September 10, 2014 at or near Smithtown, N.B. [ 3 ] A contested sentencing hearing was held on December 14, 2018. At that time there was a joint recommendation on the issue of forfeiture of certain items. While not part of the sentence which the Court will impose in this matter, I will deal with the requested orders of forfeiture at this time as well. Background: [ 4 ] An agreed statement of facts was submitted to the Court.

For the purposes it would serve it is attached as an appendix “A” . [ 5 ] It incorporates the decisions on the accused’s convictions on the predicate offences ( set out in Justice Grant’s decisions in R. v. Williams et al 2016 NBQB dated Sept 19/16 (conviction) and 2016 NBQB 231 (sentencing) on the predicate offences and the appeal decision ( 2018 NBCA 70 ) which detail the investigative steps followed and the results of those steps. Further the agreed statement sets out those facts which support the guilty pleas in this matter.

I will refer to parts of that statement. [ 6 ] The charges flow from a lengthy major drug and organized crime investigation with a proceeds of crime and money laundering component and involving the use of a police agent, legally intercepted communications and the use of a qualified forensic accountant.

Germain to the offences which are the subject of this sentencing is the production of a net worth analysis of the accused. [ 7 ] During the 4-year time period in question, it is to be noted that - the accused and his wife’s lifestyle was principally funded by the proceeds of crime, specifically his trafficking in cocaine.

Cash from cocaine sales in the amount of $ 204,505 was deposited into their joint bank account for payment of bills and expenses. - Based upon the forensic accountant’s findings, the accused spent at least $ 266,079 from the proceeds of crime, specifically proceeds from trafficking in cocaine to fund their lifestyle. - Illustrative of that lifestyle the accused went on 7 international vacations to Mexico and the Caribbean, accumulated real and personal assets which included residential properties, trucks, recreational vehicles and accessories and jewelry, details of which are set out in the statement. - To launder this drug money the accused used methods which involved false documentation and third parties. - To conceal his drug proceeds the accused utilized tactics including obtaining false employment records and converting his cash into cheques and bank drafts using third parties. - To appear to others to be legitimately operating in the community, he used false documents to substantiate an income. - The accused mislead and abused public agencies established for employment and income tax purposes.

He collected employment insurance and substantially underreported income to Canada Revenue Agency. Position of the Parties [ 8 ] On sentencing the Crown contends that a sentence of 3 years consecutive to any sentence currently being served is appropriate. [ 9 ] The Accused’ s position is that given the sentence he received on the predicate offences, a further custodial sentence is inappropriate and any custodial sentence should be concurrent to his present sentence. Principles and Purposes of Sentencing

[ 10 ]

Section 718 of the Criminal Code sets out the objectives of sentencing as including: - denunciation of unlawful conduct; - deterrence of the offender and other persons from committing offences; - separation of offenders from society, where necessary; - assistance in rehabilitating offenders; - provision of reparations for harm done to victims or to the community; and - promotion of a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [ 11 ] In addition to the proportionality principle outlined in s. 718.1 of the Criminal Code , which requires that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender, s. 718.2 sets out additional principles to be considered.

The Court will address the arguments presented as to consecutive versus concurrent sentences and consider the totality principal. It will, as well , highlight the mitigating and aggravating factors in this case. Proper Analytical approach to be undertaken when sentencing individuals for multiple offences: [ 12 ] In R. v . Peterson 2017 NBCA 29 , Quigg J.A. adopted the approach taken be the Newfoundland and Labrador C.A.in R. v.

Hutchings 2012 NLCA 2 as the proper analysis for sentences for multiple offences, setting out at para 27: The foregoing analysis, as well as the fact that the Ruby formulation which was referred to in M.(C.A.), pre-dated ss. 718.1 and 718.2(c), requires a restatement of the applicable approach. I would state the following as guidelines for the analytical approach to be taken henceforth: 1. When sentencing for multiple offences, the sentencing judge should commence by identifying a proper sentence for each offence, applying proper sentencing principles. 2.

The judge should then consider whether any of the individual sentences should be made consecutive or concurrent on the ground that they constitute a single criminal adventure, without consideration of the totality principle at this stage. 3. Whenever, following the determinations in steps 1 and 2, the imposition of two or more sentences, to be served consecutively, is indicated, the application of the totality principle is potentially engaged. The sentencing judge must therefore turn his or her mind to its application. 4.

The approach is to take one last look at the combined sentence to determine whether it is unduly long or harsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility of the offender. 5. In determining whether the combined sentence is unduly long or harsh and not proportionate to the gravity of the offence and the degree of responsibility of the offender, the sentencing court should, to the extent of their relevance in the particular circumstances of the case, take into account, and balance, the following factors: (

a) the length of the combined sentence in relation to the normal level of sentence for the most serious of the individual offences involved; (

b) the number and gravity of the offences involved; (

c) the offender's criminal record; (

d) the impact of the combined sentence on the offender's prospects for rehabilitation, in the sense that it may be harsh or crushing; (

e) such other factors as may be appropriate to consider to ensure that the combined sentence is proportionate to the gravity of the offences and the offender's degree of responsibility. 6. Where the sentencing judge concludes, in light of the application of those factors identified in Step 5 that are deemed to be relevant, that the combined sentence is unduly long or harsh and not proportionate to the gravity of the offences and the offender's degree of responsibility, the judge should proceed to determine the extent to which the combined sentence should be reduced to achieve a proper totality.

If, on the other hand, the judge concludes that the combined sentence is not unduly long or harsh, the sentence must stand. 7. Where the sentencing court determines that it is appropriate to reduce the combined sentence to achieve a proper totality, it should first attempt to adjust one or more of the sentences by making it or them concurrent with other sentences, but if that does not achieve the proper result, the court may in addition, or instead, reduce the length of an individual sentence below what it would otherwise have been. 8.

In imposing individual sentences adjusted for totality, the judge should be careful to identify: (

a) the sentences that are regarded as appropriate for each individual offence applying proper sentencing principles, without considerations of totality; (

b) the degree to which sentences have been made concurrent on the basis that they constitute a single criminal adventure; and (

c) the methodology employed to achieve the proper totality that is indicated, identifying which individual sentences are, for this

purpose, to be made concurrent or to be otherwise reduced. 9. Finally, the sentencing judge should indicate whether one or more of the resulting sentences should be further reduced to reflect anycredit for pre-trial custody and if so, by how much. [para. 84] Circumstances of the Accused. [13] A pre-sentence report had been prepared for the sentencing of the accused on the predicate offences.

Counsel agree that this may beused for this sentencing. [14] In his decision on sentencing Justice Grant precisely summed up the accused’s circumstances at para 24-25 which I accept as: [24] Shane Williams is 34 years old, married and has two children. He has no criminal record of any relevance to thiscase.

Despite his parents’ separation when he was three, and their subsequent divorce he maintained a close relationship with both,although his relationship with his mother has deteriorated since his arrest on these charges. [25] He has a high school education and appears to have been a hard worker, a good husband and a loving father. He has nosubstance abuse or gambling problems.

His involvement in drug trafficking appears to solely motivated by profit although it appearsfrom his pre-sentence report that it has wreaked havoc on his family’s financial stability.” [15] There has not been an update of that report which was prepared in 2016, except the court would note that the accused is now 36years old. Further, following that sentencing, he was released on strict conditions pending his appeal and then returned to jail inNovember of this year when his appeal of conviction and sentence was denied by our Court of Appeal.

He is now serving his sentenceon the predicate offences. [16] No additional material has been submitted by the accused at this sentencing. Principles of Sentencing: [17] Deterrence and denunciation are clearly the paramount principles of sentencing in crafting a sentence in these charges. (see R. v.Bonnyman and Lussier-Young 2017 NBQB 113; R. v. Black August 25, 2009 NBPC (Miramichi) 13548013 at para 5-6)) Mitigating Factors: Guilty Plea [18] A guilty plea is considered a significant mitigating factor.

It is an admission of responsibility and normally viewed as relieving thestate of the time and expense of having to present its evidence. However, the Crown argues that such plea was only entered at a timewhen the Crown had marshalled all of its evidence, necessitating a significant amount of time and expense. It asks the court to considerthe lateness thereof as diminishing the significance. [19] In my opinion the lateness of the plea does diminish its significance as a mitigating factor. Presentence Report: [20] As noted above, there are positive circumstances noted by Justice Grant, which I accept.

Absence of prior record [21] Counsel agreed that the accused had no prior related criminal record Prospects for rehabilitation: [22] As noted in Justice Grant’s reasons for sentence, the accused has a high school education and appears to have been a hard worker, agood husband and a loving father. He has no substance abuse or gambling problems. Further he observed that the accused had ‘goodpotential for rehabilitation’. Further consideration of rehabilitation will be undertaken.

Aggravating Factors: Nature of the offences: [23] By virtue of the nature of the activity underpinning these offences, such are difficult and time consuming to investigate. Given thechallenges in tracing cash and the tactics which perpetrators employ to prevent any detection, additional resources must be employed. Inthis case it required a forensic accounting analysis resulting in a net worth analysis to support the charges. As noted in R. v.

Graves (NB KB), 1996 177 NBR (2d) 50, the court must not overlook the “considerable expense that the public authoritiesare put to in the investigation and detection of this type of lucrative activity” Maximum Sentence [24] Parliament has indicated the seriousness of these offences in setting a maximum sentence of 10 years Motive

[ 25 ] Motive is a significant aggravating factor in this case. It was clearly greed, and greed with no regard for the significant negative impact on the community. While never an acceptable excuse for such, this case is clearly distinguishable from those cases were an accused used the illegally obtained funds for the benefit of others or in personal desperate circumstances. Impact [ 26 ] The offence of possession of proceeds of crime does negatively impact the community. It does so in a number of ways.

Proceeds obtained in a manner which preys on “the misery of an untold numbers of users, addicts, families and the community -at-large” such as in this case obviously negatively impacts the community. The use of these proceeds in a way which is meant to be noticed, such as the purchase of expensive items, real properties, jewelry, vehicles, recreational vehicles and frequent international vacations, offends a community which knows the perpetrators don’t have legitimate sources of income to support such lifestyle.

As referred to by the Crown, a lifestyle of extravagances from cocaine trafficking is “an affront to the hard-working law-abiding people who can only dream of living that way.” As well there is the potential impact of attracting persons who might be inclined to see this as an acceptable path to the ‘easy life’ becoming unable or unwilling to obtain such through lawful means. [ 27 ] The offence of laundering equally impacts the community negatively. It is a deliberate and deceitful activity to provide a cover to illegality.

It also carries the potential to tempt others in the community to consider this less tainted aspect of the drug trade. Duration: [ 28 ] These offences were committed spanning a lengthy period. Over that period there were many transactions. Likewise, it is distinguishable from those cases involving a “momentary lapse of judgement”, being “caught in a moment of weakness”, or “ wilfully blind” as noted in R. v. Rosenfeld 2009 ONCA 307 .

It is about 4 years of the accused living off illegally obtained funds from consistent trafficking in, what could be considered by many as a “poison”, on a scale large enough to support an above-average lifestyle.

Degree of Involvement: [ 29 ] The accused was not only an active participant, but overall the person directing the criminal activity and principally benefitting therefrom. [ 30 ] His attitude towards the aspect of laundering, can be found in an intercepted conversation he was having about being audited wherein he bragged that “ you can hide so much cash” The Crown points to that conversation noting the accused’s apparent indignation that the authorities were ‘auditing” businesses such as his, referred to by him as a ‘cash business” . [ 31 ] It was the accused who was personally involved in false reporting to authorities and collection of employment insurance all to avoid detection of his illegal activities.

Extent of the Activity [ 32 ] As noted the accused was the operating principal for these offences. He utilized various methods to avoid detection including false documentation and third parties to launder the drug money. He converted his cash into cheques and bank drafts using third parties, and such appeared to become routine as evidenced in a text to a drug associate: “Could u lend me 10K til next week? Or u just keep the next 10 that comes in. Whatever comes first. I need a bank draft.

I’m out of legit $ for a week or is y I ask” [ 33 ] To avoid the risk of interest from authorities as to his source of wealth, he used false employment records. He collected employment insurance at the same time as he was accumulating his wealth and enjoying a lifestyle to which he was not entitled. [ 34 ] From the forensic accountant’s findings, the accused spent at least $ 266,079 from the proceeds of crime, specifically proceeds from trafficking drugs to fund his lifestyle.

The other findings are set out in the agreed statement of facts, all of which identify an extensive, sophisticated operation by the accused to commit these offences. Appropriate Range of Sentence : [ 35 ]Both counsel submitted that there are relatively few comparable cases to assist the court in determining an appropriate sentence in this case. [ 36 ] In its written submission the Crown summarized seven cases involving net worth proceeds of crime and money laundering offences. In five of these cases, the sentence imposed followed a joint recommendation.

In this group of 7 the sentences ranged from 1 to 3 years consecutive to the drug offences. In 4 of the cases the sentence was 2 years consecutive. The

summary is as follows: R. v. Decker [unreported] NSSC Oct 2015. Offence period of over 8 years; net worth analysis found between $336,735.02 and $ 725,515.02 from unknown sources; money laundering through cash purchases and nominee for one asset; high level trafficker; assets included luxury condominium, an Acura, a Harley Davidson, expensive road bicycle, jewelry; drug related criminal record. Sentence: Joint recommendation 2 years consecutive to 7 years for drug offences R. v. Pittman [unreported] NSPC July 18,2013.

Offence period near 5 years with forensic analysis found $ 132,724 from unknown sources; money laundering through cash purchases; accused was 61 years old retired Air Canada employee; marihuana trafficker; assets included 3 real properties, 20 items of personal property, Hummer, motorcycle, vintage Corvette, cash; prior record for simple possession. Sentence: (Joint recommendation) 1 year consecutive to 1 year for drug offences.

R. v. Black and Black 2009 NBPC 27, aff’d 2010 NBCA 65. Offence period of 10 years; forensic accounting analysis for last 5 yearsfound $ 86,796- 162,429 from unknown sources; money laundering through cash purchases, a sham corporation and nominees (real andpersonal property); marihuana trafficker; assets included Harley Davidson motorcycle, Camaro, a residential property, residential rentalproperties, hydroponics store and bar; drug related record. Sentence: 2 years consecutive to 4.5 years for drug offences. R. v. Lynds, Christopher [unreported] NS Prov. Ct. December, 2012.

Offence period of 7 years; forensic accounting analysis found $443,929 from unknown sources; money laundering through cash purchases, 2 businesses, and nominees (real and personal property);trafficker in cocaine, crack cocaine, ecstasy, marihuana and cigarettes; assets included main residence, 8 vehicles, 34 items of personalproperty and cash; prior related record. Sentence: (Joint Recommendation) 2 years consecutive to 6 years for drug offences. R. v. Lynds, Curtis [unreported] N.S. Prov. Ct.

August 2013 Offence period of 7 years; forensic accounting analysis found $414,746 from unknown sources; money laundering through cash purchases and nominees (real and personal property); high leveltrafficker in cocaine, crack cocaine, ecstasy, marihuana and cigarettes; assets included 7 real properties, 7 motor vehicles ( including aHarley Davidson, Camaro, BMW) and 25 items of personal property; fine in lieu of $ 300,000; significant prior related drug record. Sentence: (Joint Recommendation) 3 years consecutive to 4 years for drug offences R. v. Burgoyne [unreported] N.S.Prov.Ct. September 2012.

Offence period of 7 years; forensic accounting analysis found $ 352,753from unknown sources; money laundering through cash purchases; trafficker in cocaine, crack cocaine, ecstasy, marihuana andcigarettes; assets included 3 real properties, 9 vehicles and cash; fine in lieu of $ 160,000; prior related record. Sentence: (Jointrecommendation) 2 years consecutive to 2.5 years for drug offences R. v.

MacLean (1996) (NB KB), 175 NBR (2d) 168 (QB) aff’d on sentence (1996) (NB CA),184 NBR (2d) 26 (CA.) Offence period of 4 months; forensic accounting analysis found $ 48,703 from unknown sources; moneylaundering through cash purchases and nominees; assets included 1 real property, a Corvette, Harley Davidson and a pick-up truck: noprior record. Sentence 1 year consecutive to 6 years for drug offences. [37] In all of these cases the Crown noted that the principal of totality was in play.

The accused had either already been sentenced forthe predicate drug offences or was being sentenced for such at the same time as the proceeds of crime and laundering offences. [38] The Crown position with respect to these cases is that those involving a joint recommendation should receive less weight as being atthe lower end of the range, citing the comments of the Newfoundland and Labrador Court of Appeal in R. v.

Kane 2012 NLCA 53 atpara 28-29: 28 Underlying these comments is the fact that, in a sentencing decision based on a joint submission, the judge is presented with aconclusion that he or she must assess for acceptability, applying considerations related to the administration of justice and the publicinterest. This is a different focus from the ordinary case where the judge, with the assistance of counsel, determines a fit sentence. 29 However, this is not to say that a decision based on a joint submission is of no value for particular purposes.

For example, a jointsubmission may be indicative of an appropriate range of sentence (R. v. Johnson, 2010 ABQB 546 (Alta. Q.B.), at paragraph 28, appealdismissed, (2010), 2010 ABCA 392, 265 C.C.C. (3d) 443 (Alta. C.A.), referenced in the Johnston decision at paragraph 58). Most often,the sentence will indicate the lower end of the range since the defendant would have no reason to accept a sentence that did not providehim with a quid pro quo for his agreement to forego a trial, plead guilty, and agree to a particular sentence. (See: R. v. Druken, 2006NLCA 67, 261 Nfld. & P.E.I.R. 271 (N.L.

C.A.), at paragraph 19.) Indeed, for this reason, a joint submission may, depending on thecircumstances, fall below the lower end of the ordinary range. Such a sentence would be of little assistance. Nonetheless, sentences basedon a joint submission may prove useful where the trial judge has provided reasons for accepting the submission, and in so doing givesvaluable guidance for future courts. (See, for example, R. v. Bremner, 2005 NSSC 163, 234 N.S.R. (2d) 95 (N.S. S.C.).) [39] The Crown also references R. v.

LeBlanc 2003 NBCA 75 at paras 22-24 where the Court noted that the attribution of precedentialvalue to a case of a sentence imposed as a result of a joint submission can constitute a reversible error of law. [40] On review of the cases referred to by the Crown and giving allowance for the specific differences in some of the factors, such asduration, prior record, age, net worth analysis, and timing of sentence, I am prepared to consider those based upon a jointrecommendation as indicating a lower range. [41] The Court has also been referred to decisions in cases involving cash couriers charged with laundering.

In R. v. Bonnyman andLussier-Young (supra) the two accused were sentenced to terms of 2 years and 34 months respectively for possession of proceeds ofcrime in an amount of over $ 300,000. They were couriers for a large scale drug trafficking crime group. The duration of the crime wasvery short. In R. v. Pavao ( supra) the accused was sentenced to 20 months. He received $ 80,000 from his brother to convert intomoney orders and bring it to the brother in Portugal, a place to which he had fled while awaiting trial for cocaine trafficking.

He had nocriminal record, was a productive citizen and did not intend to profit from the transaction. [42] Just as with cases dealing with proceeds directly connected to specific transactions, these cases do not reflect the situation in thiscase.

They do however confirm the seriousness with which proceeds of crime cases are considered and that they can attract penitentiarysentences. [43] I now turn to consider whether there are sentences imposed for other types of crimes which could provide some general assistance,if those other types of crimes bore similar characteristics, and the circumstances of the cases and the offender were similar.

In this I amreferring to such matters as nature, length and extent of offence, maximum sentence, motivation, culpability of offender, circumstances ofoffender, and impact on the community. [44] Some property offences, such as theft and fraud, carrying a similar maximum penalty, come to mind.

[45] There are numerous cases where offenders have illegally taken large amounts of funds from the public, in some form, over longperiods of time, using devious means to avoid detection, living extravagant lifestyles on such funds and causing great harm to the public,all with a motive of greed. The sentences vary, depending on the circumstances, including breach of trust, but generally attractpenitentiary terms, even for first time offenders. [46] At the higher end might be cases such as found in R. v. Dieckmann, 2017 ONCA 575 where the appellant faced seven charges offraud over $5,000.

Along with co-conspirators, she operated a scheme to divert millions of dollars from the Canadian Revenue Agencyto their personal use. In confirming the sentence on this first-time offender, the Court

summary note reads: “The four-year sentence imposed on Dieckmann was not interfered with. She played a central role in a large-scale, long-term fraud onthe public purse. Greed was her motivator. The case law was clear that individuals like Dieckmann who choose to do what she did couldexpect significant penitentiary sentences, even in the face of strong mitigating factors. “ [47] Following in R. v. Plange, 2018 ONSC 1657, the Court considered the appropriate range noting at para 57: “In assessing those factors, I am mindful of the range of sentences given for large scale frauds.

Significant penitentiary terms of 2 to 6years have been imposed: see Dobis, (ON CA), [2002] O.J. No. 646 ; Bogart, (ON CA), [2002]O.J. No. 3039 ; R. v. Bertram, [1990] O.J. 2013 (C.A.); R. v. D'Andrea, [2004] O.J. No. 2330 (C.A.); R. v. Khan, 2002 BCCA 703; R. v.Pouchkina, 2016 ONCJ 384; R. v. Diekmann, 2014 ONSC 717”. [48] Severe harm to the public from criminal activity can come in various ways. Another parallel with the subject offenses and certainfraud cases is that they both target the public and cause severe harm to the public. The harm to the public in the subject offenses hasbeen addressed.

With respect to fraud on the public, a clear illustration can be found in R. v. Dunkers 2018 BCCA 263 where theaccused was convicted of defrauding a community organization of over $204,000 and sentenced to five years' imprisonment. Theaccused was bookkeeper for the non-profit organization that provided valuable social services to youth and seniors for 30 years. Over atwo-year period, the accused deceitfully prepared 270 cheques made payable to herself from organization's bank account.

To conceal heractivities, she altered the accounting records to make it look like cheques had been issued by other employees or contractors. Theaccused was considered a first-time offender, a mother of 3 children. On appeal the BCCA noted the heavy negative impact on thecommunity.

The fraud advanced a financial crisis that forced the organization to cease operating. which was devastating for those whoworked and volunteered for the organization and for the members of the community who had relied on the organization for socialservices. [49] While clearly these cases are not sentencing precedents for the subject offences, they do illustrate how courts have viewed some ofthe aggravating factors in crimes which have similarities to the subject case. [50] Lastly the Court is mindful of the comments of the Ont.C.A. in R. v. Rosenfeld 2009 ONCA 307.

On appeal by the Crown, theCourt increased from 3 to 5 years a sentence for money laundering. The accused, a lawyer, over a 4 month period laundered funds of acartel’s cocaine trade of around $ 440,000 for which he received a commission of $43,000. The Court observation, which has someapplication here, is at para 39: 39 Money was the appellant's only motive. While the value to both individual and general deterrence of longer jail sentences can bequestioned in many contexts, I think it has value for offenders like the appellant.

If any offender engages in a "risk/benefit" analysisbefore engaging in criminal activity, it is an offender like the appellant. The appellant had choices. He did not stumble into this criminalactivity. Nor did circumstances push him into this criminal activity.

The only reasonable inference is that the appellant chose criminalactivity over legitimate ways of pursuing a living because the criminal activity offered the possibility of quicker, easier and larger profits.Persons like the appellant who measure success by the size of their monetary gain, must understand that the potential for quick, largegains through criminal conduct comes at the risk of detection and the imposition of a long jail term. [51] Considering all of the above, for the purposes it will serve at this point, I consider the appropriate range of sentence for each of thesubject offences to be 2 to 5 years Analysis: [52] Returning now to the proper analytical approach to be undertaken for sentencing on multiple charges, the following is the court’sposition: 1.

Considering the principles of sentencing with the paramountcy of deterrence and denunciation, and the circumstances of both theoffence and the offender, as well as the serious aggravating factors identified above, the court considers that a sentence of 3 years oneach charge is a proper sentence. 2. As noted above counsel for both parties addressed the issue of consecutive vs concurrent sentences and totality. This is a case ofthe accused being sentenced for more than one charge, which engages the issue. As well, he has already been sentenced on the predicateoffences.

It might serve at this point to detail the predicate offences. They spanned a period of 4 months, namely May 12 – September 10, 2014. They include two counts under the CDSA, namely trafficking in cocaine and possession of a controlled substance for the purpose oftrafficking, and five counts under the Criminal Code namely conspiracy to traffic cocaine, conspiracy to possess cocaine for the purposeof trafficking, criminal organization, and possession of proceeds of crime.

As noted above, in December 2016 he was sentenced to a total of 9 years and 11 months less time served leaving a net sentence goingforward of 78.5 months. He was ordered to pay a fine of $ 43,940 in lieu of a forfeiture for the “buy money” and in default to serve 15months imprisonment consecutive.

With respect to the latter noted fine in lieu of forfeiture, as well as the forfeiture orders sought by the Crown and jointly agreed to in thiscase, it is clear, and the court accepts, that these are not considered part of the primary sentence punishing the commission of theoffences with which this court is now dealing. (see R. v. Lavigne 2006 SCR 762 para 26). They are to deprive the accused of theproceeds of his crimes and provide an enforcement mechanism. They do not factor into the issue of totality. (see R. v. Dritsas 2015MBCA 19).

Now with respect to the two charges here, consecutive sentences are to be imposed unless there is a reasonably close nexus between theoffences in time and place as part of one continuing criminal operation or transaction. (see also R. v. Daye 2010 NBCA 53). The Crownconcedes that with respect to these two charges such a nexus does exist and that any sentence on one charge should be concurrent to theother. The Accused does not argue this point. However, the real issue here is whether such should be consecutive to the predicate offences. Is there a “reasonably close nexus.”?

The Crown advances the argument that s. 718(4)(b)(

i) of the Criminal Code provides that when a court sentences an accused, it mustconsider whether to impose a consecutive sentence when the offences do not arise out of the same event or series of events. Where theproceeds of crime are not directly related to the drug charges or the proceeds of crime are accumulated over a period of time that extendsbeyond the period of the drug convictions, consecutive sentences are appropriate. (see R. v. Hicks (1988) (NL CA),69 Nfld & PEIR 309; R v. Cartier [1994] OJ No 4361; R. v.

Hoyt (1995) (NB KB), 175 NBR (2d) 161; R. v.Graves (1996) (NB KB), 177 NBR (2d) 50) As noted the subject charges span a period of 4 years., namely January 1, 2010 to September 10, 2014. What they have in common withthe predicate offences is that they were both results of a police investigation of the accused and others regarding drug trafficking andproceeds of such crimes and that they overlap for a period of 4 months.

One major difference however, is that the subject offences deal with a long period of accumulated proceeds of crime, laundered and used,over that period which extends well beyond the period of the drug convictions. Another is that these offences make it unlawful toknowingly profit from crime, not simply the commission of another crime. While the source of these proceeds was admitted to be from drug trafficking, it is the use to which the accused put those proceeds that isbeing punished. In essence the accused had illegally obtained crime proceeds which he laundered and used for his personal benefit.

Heacquired considerable real and personal property items and other goods. As noted in R. v. Hicks (supra) the acquisition of goods doesnot arise out of or flow from the predicate offences. The same can be said for the use of proceeds to acquire services. While admittedly achallenge to quantify, this was established under a net worth analysis and assessment of the accused’s transactions with respect to theproceeds. On the other hand, and with respect to the predicate offences it is principally the drug trafficking and the means to accomplish suchwhich took place in the 4 month period which was being punished.

The proceeds of crime charge included in the predicate offencesdealt with the possession of such directly tied to specific incidents or drug transactions. In R. v. MacLean (supra) the Court, in considering whether a sentence for a proceeds of crime charge should be concurrent to a drugcharge, concluded that a concurrent sentence in such case would be ‘meaningless’. The court stated at paras 19-20: 19 However, this is my view: With the offence of trafficking, and I cannot be as eloquent perhaps as Mr.

Justice Tallis, the crimehurts society collectively because it hurts individual members of society who buy and use drugs or who become addicted to them. 20 With this offence, proceeds of crime, the accused profits from the first and the penalty must be imposed for it which is separate toshow that it is a separate and distinct crime. It is my view that if a consecutive sentence were not imposed in this particular case, it wouldmake the section, or the crime as set out in

Section 19.1 meaningless. When considering the major differences noted and the caselaw cited, in my opinion, there does not appear to be a “relatively closenexus” between the subject charges and those predicate offences warranting concurrent sentencing concurrent and that in thecircumstances of this case such would not be appropriate.

3. Keeping in mind the predicate drug and drug-related offences for which the accused has already been sentenced, and the argumentof counsel with respect to whether the sentences here should be concurrent or consecutive, the court now will turn its mind to the totalityprinciple. The accused argues that the evidence upon which the Crown relies was obtained in the course of the investigation leading to thatprevious prosecution. Further he argues that the information so obtained was used as an evidentiary foundation for securing judicialauthorizations required to facilitate the investigation.

However, the Crown rightly points out that notwithstanding these facts, that the investigation for these offences continued long after thepredicate offences were committed and that these offences were committed long before the predicate offences. It must be rememberedthat this prosecution is primarily based upon the net worth analysis and that the predicate offences confirm the obvious source of suchfunds. Accordingly, the time periods, while overlapping for a short period, are quite distinct.

The accused also argues that while these offences are serious, they are nevertheless subordinate to the predicate drug offences. Thecourt is not in agreement with this argument if by subordinate, the accused means of less significance. These offences may attract alesser sentence, but they are distinct, separate offences and part of that ‘paradigmatic shift” referred to in R. v. Lavigne 2006 SCC 10, [2006] 1 SCR 392 in shifting the structure of criminal law to “one that is both property-driven and premised upon multipletransactions perpetrated by criminal organizations.

The objective is combatting drug trafficking by striking at the driving force behind it,namely profit. Further the accused argues that these offences are “part of a bundle of conduct” already considered by Justice Grant in the lengthysentence imposed upon the accused. Such is to suggest these offences have already been dealt with in that global sentence for thepredicate drug offences. I do not accept this argument. These offences were not before Justice Grant, nor would it be proper or assumedthat he took them in consideration when imposing sentence. 4.

Considering the combined sentence for the predicate drug offences and these offences, if made consecutive, would such be undulylong or harsh and not proportionate to the gravity of the offence and the degree of responsibility of the offender? On the drug offences the accused was sentenced to a total of 9 years 11 months less credit for pre-sentence custody, for a net sentence of78.5 months. In as much as there is no pre-sentence custody to be taken into consideration on the subject offences, a consecutivesentence would result in a 12 year 11 month sentence.

These are serious crimes, four years in duration, driven be greed and in which he was the principal director, actor and beneficiary. Hisdegree of culpability is high. The negative impact of his crimes on the community and harm to the public is significant. The accused hasno related criminal record. His crimes and resultant custody to date have reportedly ‘wreaked havoc on his family’ and he has a healthissue requiring medication. Notwithstanding observations as to his rehabilitation, this Court saw no indication that a combined sentence would impact on theaccused’s prospects for rehabilitation.

There appears to be no indication of remorse or acceptance of responsibility other than his lateguilty plea. He appears to have been an opportunist and quite adept at, and comfortable in, the criminal activities he undertook and hisrole therein. He showed no signs of discontinuing same on his own, an indication that the greed and profit motivation remained strong,regardless of the negative impact on his activities.

Taking all of the above into consideration and balance, mindful of the strong messages of deterrence and denunciation which must besent to both the accused and any likeminded individual and the community affected, the court finds that the combined sentence would beproportionate to the gravity of the offences and the accused’s degree of responsibility. Conclusion: [53] Accordingly, the accused is sentenced to 3 years Federal Penitentiary on the proceeds of crime charge under

section 355(a)consecutive to any sentence currently being served and 3 years concurrent on the money laundering charge under

section 462.31(2)(a) [54] The following consent orders are granted: 1. Forfeiture Order for a Concord Watch seized for the Accused’s residence 2. Fine in Lieu of Forfeiture Order in the amount of $ 611,200 for the proceeds of crime to be paid by July 11,2019 and in default a

period of imprisonment of 3 years consecutive to any other sentence 3. Order for Moneys found in the possession of the accused in the amount of $ 18,542 CDN and $ 230 USD to be applied to the fine in Lieu of Forfeiture. 4. Order for the Return of Things Seized, namely $ 11,308 to Atlantic Lottery Corporation Inc 5.

Order for the Return of Things Seized from certain properties as detailed in the Order [ 55 ] With respect to the remaining counts in the information in which the Accused is charged, the Crown’s motion to withdraw such is granted. [ 56 ] The Accused was charged jointly with his wife Tarah Williams and the Numbered company.

With respect to those charges against Tarah Williams and the Numbered company, counsel move for trial, the Crown offers no evidence and those charges are dismissed for want of prosecution. ____________________________________________________________________________________ Appendix “A” Agreed Statement of Facts PROVINCIAL COURT OF NEW BRUNSWICK CANADA NEW BRUNSWICK JUDICIAL DISTRICT OF SAINT JOHN B E T W E E N : HER MAJESTY THE QUEEN - and - SHANE STEPHEN WILLIAMS, TARAH MARIE WILLIAMS, 670865 NB LTD.

AGREED STATEMENT OF FACTS The accused, Shane Stephen Williams, agrees to and admits the following facts without the need for further proof: 1. Operation J-Tornado was a major drug and organized crime investigation with a proceeds of crime and money laundering component. It involved the use of a police agent and lawfully intercepted communications. 2. Shane Stephen Williams and Tarah Marie Williams were married to each other and cohabiting throughout January 1, 2010 to September 10, 2014 (the “offence period”). They have two children who resided with them. 3. On June 7, 2013 Mr.

Williams incorporated 670865 NB Ltd. He is the sole shareholder. Mrs. Williams is the sole registered director. That same month, 670865 NB Ltd. purchased and began operating Big Shots Sports Bar. Net worth 4. During the offence period, Mr. Williams’ reported income was as follows: 2010 2011 2012 2013 Total $19,268 $29,325 $30,600 $24,903 5. Mr. Williams falsely reported over $70,000 in employment income during the offence period. He deliberately used false documents to substantiate his income claims so as to appear to have legitimate income. 6. In 2010 and 2013, Mr.

Williams collected employment insurance income of $8,121.00. 7. During the period in issue, Mrs. Williams’ reported income was as follows:

2010 2011 2012 2013 Universal Child Care Benefit $1,200 $1,200 $1,200 $1,200 Employment 670865 NB Ltd $8,400 Business $15,312 Total $1,200 $1,200 $1,200 $24,912 8. For the 2013 taxation year, 670865 NB Ltd. reported a loss. 9. Mr. and Mrs. Williams and 670865 NB Ltd. have not filed their 2014 income tax returns. Both Mr. and Mrs. Williams received $12,306.12 in 2014 as employment income from 670865 NB Ltd. 10. Mr. and Mrs. Williams’ lifestyle was principally funded by the proceeds of crime, specifically his trafficking in cocaine contrary to the Controlled Drugs and Substances Act. During the offence period, Mr.

Williams deposited $204,505 in cash from cocaine sales into their joint bank account to pay bills and cover other expenses. 11. In addition to the assets noted below, Mr. and Mrs. Williams accumulated the following assets during the offence period which were taken into account by a forensic accountant in assessing their net worth: a. Residential property at 55 Mount Prospect Road; b. Residential property at 120 Kennebecasis Drive; c.

Real property at 540 Golden Grove; d. 2011 GMC Sierra Denali; e. 2007 GMC Yukon; f. 2010 Can-Am mini ATV; g. 2010 Can-Am mini ATV; h. 2005 Skidoo snowmobile; i. 2012 Bombardier Seadoo; j. 2012 Karavan Boat Trailer; k. 2006 Ford F150; l. Diamond ring; and m. Platinum wedding band. 12. Mr. and Mrs. Williams went on seven international vacations during the offence period to the following places: Cancun, Turk and Caicos Islands, Punta Cana, Bahamas (twice) and Jamaica (twice). 13. A qualified forensic accountant examined the records obtained by investigators.

Only transactions for which records were created, retained and obtained by police were taken into account. The majority of Mr. and Mrs. Williams daily expenses were paid in cash without using a credit card or bank account. The Williams’ did not retain receipts for the majority of these purchases. For example, based on the records available, over the full period, only $1,046 was spent at grocery stores using the Williams’ main bank account and Mrs. Williams’ Visa. Clearly, as a family of four, the Williams’ spent more than that amount on food and groceries over the four years.

Any food purchases made in cash are not accounted for by the forensic accountant. 14. Based on the forensic accountant’s findings, during the offence period the funds from known sources believed to be legitimate was $88,562; the increase in their net worth was $132,110; their known expenses totaled $222,531; and the total captured spending was $354,641. Mr. Williams spent at least $266,079 from the proceeds of crime, specifically proceeds from trafficking in cocaine contrary to the Controlled Drugs and Substances Act, to fund their lifestyle. Cash seized 15.

On September 10, 2014 the police searched the primary residence of Mr. and Mrs. Williams and seized $7,000 in Canadian currency and $230 USD from the bedside table in their bedroom. The $7,000 is already subject to an order of Justice Grant. 16. On September 10, 2014, the police searched Big Shots Sports Bar Ltd. and seized $29,853.25 from the Video Lottery Terminals (VLT) and the safe in the office. The cash is currently in the custody of the police. Big Shots Sports Bar 17. In June 2012, 670865 NB Ltd. purchased Jake’s Sports Bra Bar located at 533 Westmoreland Road, Saint John New Brunswick.

The police are unable to determine the true purchase price of the bar which exceeds the recorded price. The Purchase of Business Agreement provides that it was purchased for $50,000 split between a $30,000 cash deposit and $20,000 on closing. In addition, Mr. Williams opened a business account for 670865 NB Ltd. and deposited $20,000 in cash into the account. This $70,000 was the proceeds of crime, specifically proceeds from trafficking in cocaine contrary to the Controlled Drugs and Substances Act. Sometime after his arrest on September 10, 2014, Mr. Williams sold Big Shots Sports Bar. Real Property 18.

Mr. and Mrs. Williams accumulated the following real property during the offence period: A. 55 Mount Prospect Road i. In July, 2010, Mr. Williams converted cash from his drug sales into a $15,000 bank draft from a third party. He then deposited the bank draft into his bank account and purchased another bank draft for $12,083.60 payable to Loughery Law Office in trust. ii. On July 12, 2010, Mr. and Mrs.

Williams purchased from Bonney Construction Ltd. a 7850 square metre parcel of land Parcel Identification Number 30257562 located at 55 Mount Prospect Road, Smithtown New Brunswick for a recorded purchase price of $11,300.00. The purchase price was paid from the money held in trust by Loughery Law Office. iii. In August 2010, Mr. Williams began construction on the family residence at 55 Mount Prospect Road. iv. On six occasions between July 2010 and December 2011, Mr. Williams converted cash from his drug sales into bank drafts or cheques, each time involving a third party, totaling $125,000. Mr.

Williams used at least $40,000 of this money to contribute to the construction of his home at 55 Mount Prospect Road. v. Mr. Williams used bank drafts and cheques as described above to make the funds appear as if they were from a legitimate source and ultimately to avoid detection by police. Structuring payments in this way is money laundering. vi. The construction of the residence at 55 Mount Prospect Road was completed in September 2011. It is a 1.5 storey, 2250 square foot residence with three bedrooms, 2.5 bathrooms, an attached two car garage and a two level outdoor deck. vii.

In 2012, TD Bank assessed the property’s market value as between $290,000 to $315,000; its 2015 tax assessment value was $281,800. On November 16, 2011, Mrs. Williams transferred the property to Mr. Williams, solely, for $1.00. viii. The property at 55 Mount Prospect Road was acquired, and the residence was constructed and thereafter maintained using the proceeds of crime, specifically proceeds from trafficking in cocaine contrary to the Controlled Drugs and Substances Act. ix. The residence was substantially encumbered after Mr. Williams was arrested on September 10, 2014 such that Mr.

Williams’ equity in it has substantially diminished. B. 120 Kennebecasis Drive i. On January 31, 2012, Mrs. Williams purchased a residence at 120 Kennebecasis Drive, Saint John, New Brunswick for $128,504.67 using a bank draft from Mr. and Mrs. Williams’ joint account. A few weeks prior, Mr. Williams converted cash from his drug sales into a bank draft from a third party for $29,000 which Mr. Williams deposited into his account. The house was purchased with the proceeds of crime, specifically proceeds from trafficking in cocaine contrary to the Controlled Drugs and Substances Act. ii. Mr.

Williams arranged for significant renovations to the house which were paid for with the proceeds of crime. iii. On April 17, 2013, Mrs. Williams sold the house for $228,000. Personal Property 19. Mr. and Mrs. Williams accumulated the following personal property during the offence period: A. Concord Watch i. On December 9, 2011, Mr. Williams purchased a Concord mens watch for $7,500 from W. Smith & Co. Fine Jewelry Store. The watch was paid for with the proceeds of crime, specifically proceeds from trafficking in cocaine contrary to the Controlled Drugs and Substances Act. ii.

On September 10, 2014, the police seized the watch from the kitchen counter in Mr. and Mrs. Williams’ residence at 55 Mount Prospect Road. It is currently in police custody. B. 2011 Harley Davidson FLHX i. On May 22, 2013, Mr. Williams deposited $20,000 in cash to Mr. and Mrs. Williams’ joint account. Mr. Williams then purchased a bank draft payable to Central Maine Harley Davidson for $18,694 USD ($19,737.15 CAD). He imported the vehicle from the United States of America. The motorcycle was purchased with the proceeds of crime, specifically proceeds from trafficking in

cocaine contrary to the Controlled Drugs and Substances Act. C. 2011 GMC Sierra 1500 Denali i. On June 28, 2013, Mr. Williams purchased a 2011 GMC Sierra 1500 Denali vehicle from Lounsbury Automotive Ltd for $43,008.97 of which $5,000 he paid as a deposit in cash. The purchase was financed through TD Financing Services. The deposit and regular payments were made with the proceeds of crime, specifically proceeds from trafficking in cocaine contrary to the Controlled Drugs and Substances Act. D. 2012 Bombardier Sea Doo and Trailer i. On May 29, 2012, Mr.

Williams purchased a 2012 Bombardier Sea Doo for $15,800 from the Power Store in Saint John which was financed for a total amount of $21,687.66 over 48 months. The next day, Mr. Williams purchased a 2012 Karavan Boat Trailer also from the Power Store for $1,163.90 which he paid for in cash. Both items were paid for with the proceeds of crime, specifically proceeds from trafficking in cocaine contrary to the Controlled Drugs and Substances Act. 20. The following decisions in relation to Shane Williams’ convictions are admitted: a. Decision of Justice Grant dated September 19, 2016, on conviction; b.

Decision of Justice Grant dated December 9, 2016, on sentence; and c. Decision of the New Brunswick Court of Appeal, 2018 NBCA 70 . 21. The intercepted communications are admitted. The times, dates, and the parties to each communication are accurately identified and admitted. 22. The facts stated herein support Mr. Williams’ guilty plea to counts 1 and 2 on the Information. ALL OF WHICH IS ADMITTED WITHOUT NEED FOR FURTHER PROOF.