R. v. Yang Date:, 2016 BCPC 381

Citation: R. v. Yang Date: 20161129 2016 BCPC 381 File Nos: 233015-7-C 80895-1 Registry: Vancouver Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CHIH SHUH YANG REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: I. Sattarzadeh Counsel for the Defendant: Z. Myers Place of Hearing: Vancouver , B.C. Date of Hearing: October 7, 2016 Date of Judgment: November 29, 2016

A Introduction [ 1 ] Mr. Yang entered guilty pleas to possessing cocaine for the purpose of trafficking and trafficking in cocaine. A sentencing hearing was held and the matter was adjourned for sentencing. [ 2 ] The Crown seeks a custodial sentence whereas counsel for Mr. Yang argues the protection of the public is better served by imposing a non-custodial sentence. [ 3 ] The issue for the Court is to identify a fit and appropriate sentence. B Circumstances of the offences I Information 233015-7-C [ 4 ] On April 27, 2014, the police were observing the Unit block of East Hastings. At that time they saw Mr.

Yang hand something to a female and then stand 10 feet away. The female then made two hand to hand transactions where she gave small items to unknown persons and received cash in exchange. [ 5 ] After the hand-to-hand transactions, the female motioned to Mr. Yang and he stepped forward and gave the female a white object. In return the female gave Mr. Yang some cash. Believing that the two were trafficking in narcotics the police arrested the pair. [ 6 ] Mr. Yang was searched incidental to his arrest and the police located 4.46 grams of crack cocaine and $311.06. After his arrest Mr.

Yang was released on a recognizance with several conditions including; keep the peace and be of good behaviour, and not to possess drugs. II Information 80895 [ 7 ] On September 9, 2014, an under-cover police officer met a male identified as Cameron. The officer asked Cameron if he could help her out. Cameron told her that he would introduce her to his dealer so she would not have to wait to make future purchases. [ 8 ] Cameron then took the officer to the under-ground parking lot of a nearby apartment building. A male later identified as Mr.

Yang emerged from the building and introduced himself as, “Reggie”. [ 9 ] Mr. Yang asked the officer if she wanted 40 and she said a 20. Mr. Yang produced two rocks of cocaine giving one to the officer who gave him $20. Mr. Yang then gave the officer his phone number and told her she could call him directly. [ 10 ] After the above transaction, the undercover officer and Cameron had another meeting with Mr. Yang where there was another drug transaction. [ 11 ] On September 11, 2014, the undercover officer called the number that Mr. Yang had given her. A meet location was arranged and Mr.

Yang said that he would pick her up as the area was “heaty”. [ 12 ] Mr. Yang arrived at the meet location and the officer entered the vehicle that he was driving. The officer told Mr. Yang she wanted a 20 and he produced a pill bottle and placed a large rock of crack cocaine into the officer’s hand. Once the transaction was done Mr. Yang introduced himself as Derick and dropped the officer off. [ 13 ] On October 16, 2014, Mr Yang was arrested for the September offence. C Mr. Yang’s background [ 14 ] Mr. Yang is 28 years old. He was born in Taiwan and moved to Canada when he was eight years old.

As a new immigrant Mr. Yang had limited English skills which resulted in him being bullied throughout his school years. [ 15 ] When Mr. Yang was a young teenager his father was diagnosed with cancer. The family was disrupted and financially struggling as his father underwent multiple chemotherapy treatments. Mr. Yang was 13 years old when his father passed away. [ 16 ] The loss of her husband caused Mr. Yang’s mother to become depressed and she suffered a breakdown. As a result, Mr. Yang and his younger sister had little supervision. Mr. Yang and his mother frequently argued and Mr. Yang would run away from home.

When he was 15 his mother announced she was selling the family home and moving to Montreal with his sister. This resulted in Mr. Yang being homeless and wandering the streets. Thereafter, Mr. Yang became entrenched in a street lifestyle. [ 17 ] As for his substance use, Mr. Yang started using marijuana, alcohol and ecstasy at 14. By 16 he was using cocaine, ketamine, and GHB. According to Mr. Yang, his offences were committed to fund his addiction. [ 18 ] By his own reporting, Mr. Yang suffers from depression and anxiety. In 2012, Mr. Yang was hospitalized after a suicide attempt.

At that time, and according to Mr. Yang, he was diagnosed with depression, post-traumatic stress, and obsessive-compulsive disorder. [ 19 ] Mr. Yang has a Grade 8 education. As for employment, Mr. Yang has occasionally worked as an unskilled labourer in construction and landscaping. He is currently working for a construction company and a letter filed on his behalf describes him as, “a young, smart, motivated, outgoing, enthusiastic, quick learning, enduring, responsible young man that displays excellent attributes.” [ 20 ] For years leading up to his October 2014 arrest, Mr.

Yang was homeless, addicted to drugs, suffering from mental health issues

and committing criminal offences for survival. [ 21 ] Mr.

Yang’s criminal record is as follows: April 19, 2010 - Breach of a recognizance - Probation 1 year April 19, 2010 - Obstruction of a peace officer- Probation 1 year May 26, 2010 - Obstruction of a peace officer - Fine $600 Sept. 14, 2010 - Possession for the purpose of trafficking - 12 month CSO Sept. 21, 2010 - Breach of a recognizance - Probation 6 months Dec. 29, 2010 - Breach of an undertaking, Breach of probation, Obstruction of a peace officer - 1 day jail [each offence] Mar. 03, 2011 - Breach of CSO - Suspended (166 days jail) Jul. 06 2011 - Personation with intent - Probation 1 year Sept. 09, 2011 - Possession for the purpose of trafficking - Jail 11 months [ 22 ] Mr.

Yang’s criminal record shows he regularly breached court orders and he committed offences while bound by probation orders. His criminal record is also noteworthy for the gaps. In this regard, Mr. Yang’s record has a gap during the period, September 2011 - April 2014 (the current offences), and between September 2014 and now (November 25, 2016). [ 23 ] On October 16, 2014, Mr. Yang was arrested on the instant matter and he remained in custody until January 13, 2015. Once released, Mr. Yang started living at a Vision Quest recovery home.

He then moved to a residence operated by the Reaching Out Supportive Recovery Society (“ROSRS”) and although he changed residences, he still lived at a residence operated by ROSRS. As I understand ROSRS assists those who wish to deal with their addictions. [ 24 ] With respect to Mr. Yang’s addiction, he has not used illicit substances since October 16, 2014. He has completed stage 2 of recovery; he regularly attends addictions related meetings; he is involved in his church; he has the support of friends, and he regularly meets with addiction counsellor, Josh Baxter. [ 25 ] The author of Mr.

Yang’s pre-sentence report, Candice Martell, spoke with Mr. Baxter and Ms. Martell noted: Mr. Baxter confirms that the subject is doing well in recovery and has noticed a significant improvement in Mr. Yang’s attitude and behaviour towards others. Mr. Baxter has observed positive changes in the subject and is proud of the progress he has made. [ 26 ] Further evidence of how Mr. Yang has done in his recovery is found in a letter written by Mr.

Stan Mingo, a representative of ROSRS, portions of the letter read as follows: After 3 months in our first stage, Dereks progressed impressively and became not only a proud client of ours but a role model for his fellow brothers. We transferred Derek to Stage 2 at Josh’s house in the downtown east side to further test Derek’s road sobriety in the toughest neighborhood with the highest chance of relapse, just to see how Derek would respond. Derek continued his daily group counselling and was given daily chores and tasks, such as attending NA and AA on a daily basis.

Derek did very well and had gotten himself a sponsor at his home group at the recovery club where they met every week for person one on ones Derek explained that the DTES was a very bad place for him because of all the temptations to relapse but he comes to us whenever he felt the pressure and we were there for him. Through and through Derek’s road to recovery was not remotely easy to say the very least and after all the tests and trials and all the hardship, all the challenges we put him through, he endured, with nothing but commitment and willingness, motivation and true heart.

He continues to be our model and top client as well as a role model to all the others around him, we often compliment his relentlessness and success and we continue to support him through his journey. … I personally and professionally think Derek would benefit greatly if he continued the program and continue his road to recovery with us, not only for his addictions but his mental health. Derek has never done such a great job with his life until now. Derek has made outstanding changes in his life but he still has ways to go and we are going to continue to challenge him.

Derek is also benefiting from his mental health counselling while continuing with us because we monitor both his progress with us and all the other programs he’s in and they go hand to hand with recovering. I am one of many proud supporters of Derek. [ 27 ] Further evidence of Mr. Yang’s rehabilitation is contained in the many letters that have been filed. One letter is from Reverend McLaren, and he advises that he has known Mr. Yang since Mr. Yang had been in Grade 9. He confirmed Mr. Yang has volunteered at the church, and that he is aware of Mr. Yang’s history. He also commented that he has observed that Mr.

Yang has settled down. It is his view that Mr. Yang can be a valuable person in society. [ 28 ] Letters were received from people who volunteer with Mr. Yang and their letters speak to Mr. Yang being trustworthy, smart and compassionate. In a letter written, by fellow volunteer, Rachel Whitfield, she commented: That Derek had a great heart back then, definitely a good man with a good heart now.

He realizes that life was never for him and he regrets how long he took for him to finally to accept the fact that the life he was in wasn’t for him and he had to change or go further down that dark road until its (sic) too late to turn around. I can see Dereks ( sic) shame and regret from speaking to him. … I am more than proud of everything he has accomplished this year, it was more than he had ever accomplished in his past years ever.

Reverend, Dr Dickau wrote: Derek Yang has been part of our church for about 2 years. During that time, Derek has been very up front and honest about some of the wrongs in his past, so much so that Derek was willing to publically share his personal story to the community a few months back when I asked him. Derek has also been consistently resolute in his commitment to chart a good future, both for himself and his family. [ 29 ] Mr. Yang also provided a letter to the Court where he discussed his decision to place himself in drug treatment. In this regard, he wrote: I was arrested and charged on Oct. 16 th 2014.

After spending a few months in custody, I realized I was so sick and tired of the life that I was in and the cycle that I was in, I realized that I was getting into trouble almost every single year of my life since I was 18 years old even tho (sic) I was doing it for survival and addiction rather than greed like most others. I voluntarily put myself in a drug treatment program not only to have a better chance securing bail but also for a new chance in life and ever since than I was completely done with my previous life.

D Position of the parties [ 30 ] The Crown argues a fit and appropriate sentence is a global sentence of 21 months custody less the pre-sentence credit of 138 days. In support the Crown highlights Mr. Yang’s criminal record; the drugs involved; the dial-a-dope context, and that Mr. Yang committed the September offences while bound by a court order. [ 31 ] Counsel for Mr. Yang argues a fit and appropriate sentence should be as follows: for the April offence,1 day of custody with the record showing time served of 138 days and suspending the passing of sentence and placing Mr.

Yang on probation for the September 2014 offence. [ 32 ] In support, counsel for Mr. Yang agues his client has made substantial steps towards rehabilitation and that incarcerating him at this stage would undermine his progress with the result of potentially compromising any protection of the public that may be derived from a custodial sentence. E Relevant sentencing provisions I Controlled Drugs and Substances Act [ 33 ] With respect to the maximum penalty available for trafficking offences involving

Schedule 1 substances. s. 5 (3)(

a) states: Punishment Section 5 (3) Every person who contravenes subsection (1) or (2) (

a) subject to paragraph (a.1), if the subject matter of the offence is a substance included in

Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life, … [ 34 ] Section 10(1) of the CDSA , sets out the following principles of sentencing:

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

Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. II Criminal Code [ 35 ] The purpose and principles of sentencing are found in ss. 718 - 718.2 of the Criminal Code .

Section 718 of the Criminal Code states: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

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

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [ 36 ]

Section 718.1 of the Criminal Code establishes that the fundamental principle of sentencing is proportionality. Specifically, any sentence imposed must be “proportionate to the gravity of the offence and the degree of responsibility of the offender.” [ 37 ]

Section 718.2 of the Criminal Code provides: 718.2 A court that imposes a sentence shall also take into consideration the following principles:

(

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; (

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

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

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

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. F General considerations [ 38 ] Generally, the primary sentencing objectives for drug trafficking offences are denunciation and deterrence. This principle is found in R. v. Voong, 2015 BCCA 285 where Madam Justice Bennett stated at paragraph 18: [18] This Court has repeatedly said that general deterrence and denunciation are the main principles to consider when sentencing drug traffickers.

While no one principle "trumps" the other, there are offences and circumstances where one or more principles come to the forefront and generally will be given more weight than others. Similarly, in R. v. Currie, 2016 BCCA 404 , Mr. Justice Fitch stated at paragraph 47: … This Court repeatedly stressed that, in the absence of exceptional circumstances, the weight to be given to the sentencing objectives of general deterrence and denunciation is such that dial-a-dope traffickers could expect to receive custodial sentences. For example, in R. v.

Gill , 2013 BCCA 320 at paras. 22-24 , the Court said: It is well known that dial-a-dope operations enable a pervasive and rapid dissemination of illicit narcotics that wreak destruction to both the individuals who use them and to our community. The proliferation of these operations has significantly increased accessibility to these drugs, and their harmful effects. As a result, the courts have routinely recognized that the primary objectives in imposing sentences for trafficking in this manner must be deterrence and denunciation.

In Proulx , the Court was clear that a conditional sentence may satisfy those objectives. Nevertheless, as the problems and tragedies associated with narcotic use have multiplied, this Court has repeatedly indicated that a fit sentence for a dial-a-dope trafficker will generally be a custodial term of six to 12 months. In R. v.

Tran , 2007 BCCA 613 , a case in which the appellant argued the trial judge wrongly imposed a sentence of 9 months’ incarceration instead of a conditional sentence for a conviction arising from a dial-a-dope scenario, this Court captured the approach it has generally taken in such cases at para. 6: … There is a line, fairly long now, of cases from this Court in which, absent an out of the ordinary circumstance, a custodial sentence has been found to be a fit sentence on a conviction of trafficking in a hard drug in what is referred to as a “dial-a-dope” scheme, where the offender is not an addict and has participated simply for profit.

Subsequent decisions of this Court dealing with similar circumstances reveal that approach has not changed: R. v. Rastgoei , 2008 BCCA 242 at paras. 38-43 ; R. v. Ali , 2010 BCCA 4 at para. 12 ; R. v. Laurila , 2010 BCCA 535 at paras. 6-7 ; R. v. Ash , 2010 BCCA 604 at para. 22 ; R. v. Barrick , 2012 BCCA 83 at para. 13 ; and R. v. Ladret , 2012 BCCA 401 at paras. 5-8 .

These cases generally support the view that, in the absence of special circumstances, a dial-a-dope trafficker should expect a custodial sentence. [ 39 ] The comments above echo Madam Justice Bennett’s observation as found in Voong , where at paragraph 1 , she stated: [1] Those who embark in drug trafficking engage in serious criminal conduct. Absent exceptional circumstances, in British Columbia, they should expect to be sent to prison. [ 40 ] As to the harm caused by drug trafficking, Mr. Justice Cory noted in Pushpanathan v .

Canada, [1999] 1 S.C.R. 982, at paragraphs. 89 - 91 : [89] The costs to society of drug abuse and trafficking in illicit drugs are at least significant if not staggering. They include direct costs such as health care and law enforcement, and indirect costs of lost productivity. [90] In Canada, the total cost to society of substance abuse has been estimated to be $18.45 billion annually (Canadian Centre on Substance Abuse, The Costs of Substance Abuse in Canada: Highlights (1996), at p. 2). Of this amount, the cost flowing from illicit drugs is $1.4 billion (McKenzie, supra , at p. 227).

In 1992 there were 732 deaths, 7,095 hospitalizations and 58,571 hospital days in Canada attributable to illicit drugs ( ibid. , p. 91).

Mortality from illicit drugs is less than for alcohol and tobacco, but tends to involve younger victims ( Costs of Substance Abuse in Canada , supra , at p. 6). [ 91] These significant and often tragic consequences serve to emphasize that the harm caused by trafficking in illicit drugs is very properly a matter of grave concern in Canada, as it is throughout the world. [ 41 ] Despite drug trafficking being a serious criminal offence, there are circumstances where denunciation and deterrence assumes a lesser role.

For this to occur there must be exceptional circumstances that overcome the objectives of denunciation and deterrence: Currie, 2016 BCCA 404 and Voong, 2015 BCCA 285 . [ 42 ] With respect to sentencing for drug trafficking and exceptional circumstances Madam Justice Bennett in Voong provided a comprehensive

summary and at paragraph 59 she stated:

[59] In

summary, absent exceptional circumstances, the sentence for a first offence or with a minimal criminal record, dial-a-dope drug seller will be in the range of six to eighteen months imprisonment, depending on the aggravating circumstances. 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. However, Parliament, while not removing a non-custodial sentence for this type of offence, has concluded that CSO sentences are not available. Thus, it will be the rare case where the standard of exceptional circumstances is met.

G Aggravating and mitigating factors [ 43 ] I find the following to be aggravating: Mr. Yang comes before the court with a related criminal record; Mr. Yang committed the September offences while bound by a court order; Mr. Yang’s September offences were committed in the context of a dial-a-dope operation; and Mr. Yang trafficked in cocaine which is an addictive

Schedule I drug. [ 44 ] I find the following to be mitigating: Mr. Yang entered guilty pleas; Mr. Yang has displayed remorse and insight; Mr. Yang has the support of friends and church; and Mr. Yang has taken substantial rehabilitative steps. H Analysis [ 45 ] In determining a sentence, I observe that trafficking in drugs is a serious criminal offence.

I also note, absent exceptional circumstances that denunciation and deterrence are the primary objectives, thus, a first time offender or one with a minimal criminal record, absent exceptional circumstances, can expect a custodial sentence in the range of 6 - 18 months. [ 46 ] With respect to exceptional circumstances, some factors to consider include: gainful employment, remorse, acknowledgement of the harm done, and significant and objectively identified steps towards rehabilitation for the drug addict. These factors must be such that the court is satisfied that Mr.

Yang has turned his life around, hence the protection of the public is better served by imposing a non- custodial sentence. [ 47 ] Turning to Mr. Yang’s circumstances, I am satisfied at the time that he committed the offences in issue that he was homeless, drug addicted and suffering from unresolved mental health issues. I am also satisfied that, since October 2014, Mr. Yang has substantially turned his life around. [ 48 ] With respect to the above, the materials filed, the pre-sentence report and Mr. Yang’s letter to the court shows he has taken substantial and sustained steps towards his rehabilitation.

In this regard, Mr. Yang has stopped using drugs and he is well entrenched in a recovery program. I also note Mr. Yang is employed and he enjoys support from mental health workers and those in his community. [ 49 ] After considering all of the above, I am satisfied that Mr. Yang’s circumstances are exceptional and that the protection of the public is better served by imposing a non-custodial sentence. I am also satisfied that the sentence imposed will have some measure of denunciation and deterrence while promoting and supporting Mr.

Yang’s continued rehabilitation. [ 50 ] Accordingly, I impose the following sentences: Information 233015 - I impose a sentence of 139 days with the record showing 1 day in custody, 92 days time served and a credit of 138 days. Information 80895-1 - Pursuant to s 731 (1) (

a) of the Criminal Code , I suspend the passing of sentence and place Mr Yang on probation for 3 years with the following terms and conditions: You must keep the peace and be of good behavior; You must appear before the court when required to do so by the court; You must notify the court or your probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation; You must report on or before 4:00 p.m.

Wednesday, November 30, 2016, to a probation officer located at 275 East Cordova Street Vancouver, BC and thereafter as and when directed by the probation officer; You must reside at a residence operated by Reaching Out Supportive Recovery Society and not change your residence without the prior permission of your probation officer; You must obey all rules and regulations of your residence; At the direction of and to the satisfaction of your probation officer you must attend and participate in and successfully complete any counselling that you may be directed to.

This can include but is not limited to psychological counselling and substance abuse counselling; You must not possess or consume those drugs as defined by the Controlled Drugs and Substances Act, except those drugs for which you have a medical prescription;

You must complete 75 hours of community service work. This work must be completed at the direction and to the satisfaction of your probation officer. Such work must be completed on or before September 2, 2018; While outside your place of residence you must carry a copy of this order on your person at all times. I Ancillary orders [ 51 ] Pursuant to s. 109 of the Criminal Code , you are prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for life. [ 52 ] Pursuant to s. 487.051 of the Criminal Code , and after considering Mr.

Yang’s background, the offence that he is being sentenced for, and the circumstances of the offence, as well as his privacy rights and his right to security of his person, all balanced against the best interests of the administration of justice, I make an order in Form 5.03 authorizing the taking of a DNA sample. [ 53 ] Victim fine surcharge is payable on or before October 26, 2018. ____________________________ The Honourable Judge R. Harris Provincial Court of British Columbia