R. v. Fong, 2022 BCPC 321

Citation: R. v. Fong 2022 BCPC 321 Date: 20220307 File No: 81478-1 Registry: New Westminster IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CHEW HONG CHRISTOPHER FONG ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE T. ALEXANDER Federal Crown Counsel: T.J. Cook Counsel for the Accused: C. Johnson, QC Place of Hearing: New Westminster , B.C. Dates of Hearing: October 12, 13, 2021, February 28, 2022, March 7, 2022 Date of Sentence: March 7, 2022

[1] THE COURT: I reserved from last week because I did want an opportunity to reflect. Counsel made some very thoughtfulsubmissions and I wanted to consider them and read the case law provided. [2] The court convicted the defendant of one count of possession of cocaine for the purpose of trafficking after a trial of this matter.

The defendant was involved in three separate transactions in Burnaby and New Westminster on September 4th of 2020. [3] The joint Admission of Facts filed in these proceedings provides further detail about the drugs seized from the defendant at thetime of arrest, approximately $450 worth of cocaine, neatly packaged for immediate sale and distribution. The defendant was involved inwhat is colloquially known as a “dial-a-dope operation”, using his own vehicle and a cell phone.

The matter is now before the court forsentencing. [4] Until recently, a conditional sentence order pursuant to s. 742.1 of the Criminal Code of Canada was not an available option fora conviction under s. 5(2) of the Controlled Drugs and Substances Act (“CDSA”). The sentencing landscape has recently changed sincethe decision of the B.C. Supreme Court in R. v. Chen, 2021 BCSC 697, last fall.

Counsel agree that a CSO is now an available option inthis case, provided that it meets the goals of sentencing as set out in the Criminal Code and the Controlled Drugs and Substances Act . [5] I note that the decision in Chen is recent. It is under appeal. There are a handful of cases in the last few months where courtshave applied Chen and imposed a conditional sentence in cases of drug trafficking. The law continues to develop. [6] The Crown submits that cocaine is a

Schedule I substance under the CDSA and its seriousness is recognized by a potentialmaximum penalty of life imprisonment for trafficking. The Crown seeks a prison sentence of six to nine months, followed by 12months’ probation. [7] It argues that the defendant was trafficking in a lethal drug and that only a traditional custodial sentence can address theprinciples set out in s. 718 to 718.2 of the Criminal Code and s. 10 of the CDSA. The Crown argues that denunciation and deterrence arethe primary considerations in this type of case.

It submits that the trend of authorities supports the imposition of a traditional jailsentence to address those principles. [8] Counsel for the defendant seeks a conditional sentence order.

He argues that the defendant meets the statutory prerequisitesprescribed in s. 742.1 of the Criminal Code, that being: (1) the proposed sentence is less than two years; (2) there is no danger inpermitting the defendant to serve his sentence in the community; and (3) that with the imposition of appropriate terms, a conditionalsentence order can effectively address the goals and principles of sentencing set out in the legislation. [9] Defence counsel concedes that the defendant does not meet the requisite threshold of special and extraordinary circumstancesfor a suspended sentence, as in the British Columbia Court of Appeal decision in R. v.

Voong, 2015 BCCA 285, and he does not seek thatremedy. He submits that no such requirement exists for a conditional sentence order. He submits that the courts are governed by thestatutory requirements set out in s. 742.1, as indicated above. [10] The defendant has been ably represented by senior criminal counsel throughout these proceedings. [11] Mr. Fong is 51 years old. He has no criminal record. He has a Grade 12 education and other vocational training. He has a longemployment history. He currently works full-time in the field of fire prevention.

He earns a steady income. [12] Counsel submits that the defendant had financial difficulties at the time of the offence. The pandemic had reduced his workhours and he needed money. Counsel submits that the defendant became involved in this operation through a friend of a friend. Hisinvolvement was brief, only a couple of weeks. [13] The defendant acknowledges that his actions were a mistake. He is both ashamed and remorseful. He has suffered a number ofconsequences.

He lost his vehicle valued at about $16,000, and over $3,000 seized at the time of his arrest, all through forfeiture. [14] The defendant has a supportive partner and circle of friends. They have provided letters attesting to the defendant's kindness,generosity and otherwise good character. All said they were shocked at the defendant's involvement in this operation. [15] The principles of sentencing are set out in the Criminal Code at s. 718 and 718.2 and s. 10 of the CDSA and for brevity, I will notreproduce those provisions here. [16] The Crown relies on the following cases: R. v. Voong, 2015 BCCA 285; R. v.

Oates, 2015 BCCA 259; R. v. McKibbin, 2020BCCA 337; R. v. McWhirter, 2018 BCSC 358; R. v. Malt, 2016 BCPC 322 , 2016 BCPC 0322; R. v. Hayes, 2017 BCSC 235; R.v. Hendrickson, 2017 BCSC 176. All of these decisions reflect a trend toward incarceration for trafficking in cocaine as part of adial-a-dope operation. It is noteworthy that all these authorities predate the decision of the British Columbia Supreme Court in Chen. They do offer helpful guidance as to the general principles in sentencing offenders involved in dial-a-dope trafficking operations. [17] The defence cites: R. v. Chen, 2021 BCSC 697; R. v.

Sehn, 2021 BCSC 2292; R. v. Mykell, 2021 BCPC 253; and R. v. Proulx,2000 SCC 5. [18] Defence counsel distinguished each of the Crown authorities on the basis that either the offender had a criminal record, in someinstances faced more than one count of possession for the purpose of trafficking, or that their involvement in the drug trade was morelongstanding and significant than in the instant case. [19] The defence submits that a conditional sentence order is not only available but that it is the appropriate method to address theprinciples of sentencing for this first time, non-dangerous offender.

It relies primarily on the principles set out in Proulx and the tworecent decisions that post-date Chen, Sehn and Mykell, where the courts have imposed conditional sentence orders for trafficking in

cocaine. [ 20 ] I am grateful to counsel for their thoroughness in providing case law to the court and I have read and considered all of the authorities cited. [ 21 ] I consider the following factors in imposing sentence. Mitigating Factors [ 22 ] The defendant has no record. He is gainfully employed and otherwise a productive member of society. There is no evidence of longstanding involvement in the drug trade. He appears to be a lower-end player in the dial-a-dope operation. He has been compliant with bail conditions. He trafficked in a relatively small quantity of cocaine.

He has family and community support and he is remorseful for his actions. Aggravating Factors [ 23 ] Cocaine is a serious

Schedule I substance under the CDSA . The defendant was involved in an aggressive form of drug trafficking, making lethal drugs easily accessible to the larger community. Dial-a-dope operations and the general availability of lethal drugs has a serious and negative impact on the community. The defendant’s motivation was profit and financial gain. He was involved in multiple transactions within a period of hours. The defendant's participation involved planning and resources, securing a supplier, a vehicle, and a phone to carry out his role in this operation. [ 24 ] The Supreme Court of Canada decision in R. v.

Proulx is the seminal authority on the legislative purpose and factors governing the imposition of conditional sentence orders. Paragraphs 82 to 85 are particularly instructive. I quote from paragraph 85: It is possible to interpret these comments as implying that once the judge has found that the prerequisites to a conditional sentence are met, a conditional sentence would presumably be consistent with the fundamental purpose and principles of sentencing.

Assuming that Helper J.A. intended to suggest that there ought to be a presumption in favour of a conditional sentence once the prerequisites are met, I respectfully disagree with her. For the same reasons that I rejected the use of presumptions against conditional sentences, I also reject presumptions in favour of them. The particular circumstances of the offender and the offence must be considered in each case. [ 25 ] Even though there is no presumption in favour or against the imposition of a conditional sentence order , if the option is available the court must consider it ( see R. v.

Proulx at para. 90 ). [ 26 ] In Proulx , the Supreme Court of Canada also sets out that there are also circumstances where a traditional custodial sentence may be required to address denunciation and deterrence (see para. 114 of that decision). [ 27 ] Courts have long identified the serious impact of dial-a-dope operations on local communities. The British Columbia Court of Appeal in Voong cited its earlier decision in R. v.

Oates at paragraphs 19 and 20 which incorporated the decision of Henderson J., as he then was, in Franklin , a 2001 decision and I quote: It may be useful at this juncture to remember how the jurisprudence in respect to dial-a-dope trafficking developed. In what is often taken as the most succinct description of the reason general deterrence generally plays such a high role in determining an appropriate sentence for dial-a-dope trafficking in hard drugs. Mr. Justice Henderson said in R. v.

Franklin: [45] On the other hand, it must be said that the Lower Mainland of British Columbia is overrun with cocaine and heroin. Those who are willing to disseminate drugs through the community by Dial-A-Dope operations are responsible for the ready availability of these drugs. People such as Mr. Franklin, who engage in Dial-A-Dope operations, are lured into them by the high profits available with little effort. It is easy money. [46] The destructive potential of these drugs is so well known as not to require comment. [47] It is my view that this is the sort of offence where general deterrence has an impact.

One does not enter into a Dial-A-Dope operation impulsively or spontaneously. It is necessary to obtain a supplier, to outfit oneself with a pager and a cell phone and a vehicle, and to make sure the word gets around. It is a calculated decision to engage in a particular type of business. It is reasonable to think that those who are considering that decision will take into account the likely penalty they would receive upon conviction.

In other words, general deterrence is a genuine consideration in cases of this sort. [48] It is also my view that general deterrence is entitled to very considerable weight when imposing sentence for trafficking in hard drugs.

When I weigh the need for general and specific deterrence, the need to protect the public, the need to rehabilitate this offender, and the need to denounce his conduct; and when I take into account the injunction in the Criminal Code that incarceration should not be imposed unless and until all other alternate forms of sentencing have been considered, I find myself of the view that a term of true imprisonment is necessary in this case. [ 28 ] It is noteworthy that the decision in Franklin is from 2001.

Society and local communities are still dealing with the scourge of trafficking in hard drugs some 20 years later, made even more accessible through widespread electronic and digital communications. These operations make the availability of dangerous drugs akin to ordering takeout food. [ 29 ] Courts have ruled that denunciation and deterrence are the primary principles of sentencing on dial-a-dope operations ( see R. v.

Oates , at para. 20 and Voong , at para. 18 ). [ 30 ] The Supreme Court of Canada in Proulx made the following comments about the principle of denunciation at paragraph 102: Denunciation is the communication of society's condemnation of the offender's conduct. In M. (C.A.), supra, at para. 81, I wrote:

In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law. As Lord Justice Lawton stated in R. v. Sargeant ... “society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass”.

Incarceration will usually provide more denunciation than a conditional sentence, as a conditional sentence is generally a more lenient sentence than a jail term of equivalent duration. That said, a conditional sentence can still provide a significant amount of denunciation. This is particularly so when onerous conditions are imposed and the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances.

I will discuss each point in turn. and further at paragraph 106: The amount of denunciation provided by a conditional sentence will be heavily dependent on the circumstances of the offender, the nature of the conditions imposed, and the community in which the sentence is to be served. As a general matter, the more serious the offence and the greater the need for denunciation, the longer and more onerous the conditional sentence should be.

However, there may be certain circumstances in where the need for denunciation is so pressing that full incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct. (see also the Supreme Court of Canada's comments at paragraph 114 of that decision). [ 31 ] British Columbia courts have found that dial-a-dope operations are particularly insidious as they expand the reach of harmful substances into the local community ( see R. v.

Malt . at paras. 26 - 30). [ 32 ] In sentencing the defendant, I am further guided by the emphatic language of the British Columbia Court of Appeal in R. v. Voong , at paragraph 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. [ 33 ] In that case, the Court of Appeal imposed a suspended sentence for trafficking, finding special and extraordinary circumstances on the part of the offenders. [ 34 ] In R. v.

Hendrickson , the British Columbia Supreme Court found at paragraph 31: The clear direction from our Court of Appeal is that when considering a fit and proper sentence for someone found guilty of being involved in a dial-a-dope operation, denunciation and deterrence are the major considerations. Barring exceptional circumstances, the normal range for sentencing, as I have mentioned, for a first-time drug offender in a dial-a-dope operation in hard drugs includes a jail sentence starting in the six-month range. Trafficking in hard drugs is a scourge on our society, there can be no doubt.

One need only turn on the news or read the newspaper for a glimpse on how drugs are affecting people's lives and society in general. Indeed, in the last few years, trafficking in hard drugs, including cocaine, has become a crisis in our province. [ 35 ] The defence cites two recent cases where the courts imposed a conditional sentence order for drug trafficking. As stated earlier, that is an option open to this court and I have considered it. [ 36 ] In R. v. Sehn , the British Columbia Supreme Court sentenced a drug addicted offender who had made genuine strides toward recovery.

The defendant in that case pled guilty to trafficking in heroin and fentanyl. He had a longstanding drug addiction. [ 37 ] The court found that the offender had made a substantial effort to turn his life around. In that case, rehabilitation and the relative youth of the offender were factors in the court's decision. The court found that the imposition of a custodial sentence would undermine the offender's genuine attempts at recovery and rehabilitation. It imposed a 24-month conditional sentence order . [ 38 ] In R. v.

Mykell , the British Columbia Supreme Court attempted to formulate a meaningful response to serious Charter breaches impacting a frail, 71-year-old defendant suffering from HIV, chronic kidney disease, MRSA, and other serious afflictions. The court found that the defendant was subjected to an unreasonable arrest and detention. This was a significant factor in the ultimate sentence of a three-month conditional sentence order . [ 39 ] I note that both those decisions involve unique circumstances, which are not present in the instant case.

They are distinguishable. [ 40 ] Turning to this matter, I find that the defendant meets the statutory prerequisites for a conditional sentence order , as set out in s. 742.1 of the Criminal Code . I find his personal circumstances are unremarkable. He is healthy, educated, employed. He has a supportive circle of friends and is otherwise a productive member of society. As set out in Proulx , even though a conditional sentence order may be available, it may not always be an appropriate option, depending on the circumstances of the case. [ 41 ] There is no evidence that the defendant is an addict or drug user.

His sole motivation for trafficking in cocaine was to access quick cash through the sale of a toxic substance in the community. He made a poor choice to involve himself in the drug trade for which he is sorry. The defendant's actions were not a reckless or youthful mistake. They were premeditated and organized for the purpose of making a profit. He has a high degree of moral blameworthiness. [ 42 ] In R. v. Hayes , Justice Verhoeven of the British Columbia Supreme Court characterizes dial-a-dope operations in this community in a similar fashion and I quote at paragraph 19:

There are several aggravating factors. This was a dial-a-dope operation. Numerous authorities of this court and the Court of Appeal have commented upon the pernicious nature of such enterprises, and the fact that they cause substantial harm to persons who use drugs, who are victimized by their use of drugs, that they take advantage of those persons, and conveniently facilitate those persons in continuing harmful behaviour. This offence took place over a number of months and was therefore sustained and prolonged. The criminal activity was certainly planned, deliberate, and intentional in all respects. Mr.

Hayes was not a drug addict. He pursued the activity solely for economic gain, or in other words for profit. The money seized indicates that profit was made for a considerable period of time, no doubt. So Mr. Hayes knowingly chose to pursue the lure of easy money earned illegally instead of attempting to earn money through hard work in a legitimate occupation or enterprise.

His conduct must be denounced, and others must be deterred from making similar choices. [ 43 ] The last six lines of the above quotation apply equally to the defendant in this case and I adopt them. [ 44 ] Though the defendant is remorseful and regrets his actions, any sentence imposed must also deter like-minded individuals who see the sale of dangerous substances as a means to acquire quick cash. [ 45 ] I accept that the defendant was on the lower rung of the ladder in this drug-trafficking operation. That being said, such operations cannot function absent willing foot soldiers like the defendant.

I find that though a conditional sentence order is an option in sentencing this defendant, I am not satisfied that it would adequately address general deterrence as effectively as a traditional jail sentence. It would be contrary to the explicit language of appellate and superior courts ( see Voong and Oates ) and nor would it adequately reflect the community's condemnation of this conduct ( see R. v. Malt , at para. 35 ). [ 46 ] I take into account the defendant's lack of record and otherwise prosocial lifestyle in imposing a custodial sentence at the lower end of the range.

I sentence the defendant to six months in custody. [ 47 ] I am open to counsels' submissions on the necessity of a probation order. On the evidence I have heard, I do not see any rehabilitative purpose. The defendant is not an addict, there is no suggestion that he suffers from any mental health issues, rather only a lapse in judgment. [ 48 ] There will be the ancillary orders that have been sought by the prosecution; the DNA sample and a s. 109 firearms prohibition for 10 years. [ 49 ] Any submissions on a probation order?

It is supposed to be rehabilitative. [PROCEEDINGS] [ 50 ] THE COURT: He has been compliant while on bail conditions. I am not going to impose a probation order in these circumstances, and there are other decisions where the courts have declined to do so as well. This is not the first. [ 51 ] Any submissions on the victim fine surcharge? [ 52 ] CNSL C. JOHNSON: No, thank you, Your Honour. [ 53 ] THE COURT: All right. Very well. Thank you. (REASONS FOR SENTENCE CONCLUDED)