IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           William Carrol Orr (“Orr”) and David Lai (“Lai”) were charged in a two count Information that on October 23, 2013, at Burnaby, British Columbia they trafficked in cocaine and heroin.

[2]           Orr was also charged in a separate count of operating a motor vehicle while pursued by a police officer, and without reasonable excuse, in order to evade the police officer, failed to stop as soon as reasonable.

[3]           Lai entered a guilty plea to trafficking in cocaine on the first day of the scheduled trial on November 26, 2014.

[4]           Orr, as was his right, proceeded with his trial in relation to all charges. On February 27, 2015, Orr was found guilty of aiding and abetting Lai in the trafficking of cocaine and heroin. He was acquitted in relation to evading a police officer.  Those reasons can be found at 2015 BCPC 39 (CanLll).

[5]           The sole issue to be determined is what is a fit and proper sentence to be imposed having regard to the personal circumstances of each accused and the circumstances relating to their criminal conduct.

[6]           An undercover investigation was put into play on October 23, 2013, after the RCMP in Burnaby received information that a certain cellular telephone number was being used in a dial-a-dope operation.  One of the RCMP members acting in an undercover capacity called the target cellular telephone number at around 2:37 PM and spoke to a person identified as “Vince”. The undercover police officer asked if Vince was working, and if he could do a “half ball for $100”, and also if he could “grab a point for my old lady”.  Vince told the police officer that he could do the deal.

[7]           Arrangements were made to meet at an intersection of Alpha Avenue and Dawson Street in Burnaby. At approximately 2:50 PM, the undercover police officer observed an Acura approaching the intersection.  Orr was the driver of the Acura with Lai in the front passenger seat. Orr’s girlfriend was in the backseat. 

[8]           There was a brief contact between Lai and the undercover police officer at that intersection. The undercover police officer passed marked bills to Lai. Lai handed some heroin and cocaine to the undercover police officer. The marked bills were later located in the console of the Acura.

[9]           The Acura left the area and proceeded to a Staples retail parking lot. Other police officers assigned to this investigation covertly followed the Acura.  From CCTV footage, when the Acura enters the parking lot, a person on a bicycle came immediately to the driver side of the Acura.  There appeared to be a brief encounter between Orr and the person on the bicycle. That person that then left the Staples parking lot.

[10]        The Acura then began to exit the parking stall when police officers involved in this undercover operation came into the parking lot and apprehended Orr and Lai by ramming one of the police cars into the Acura to prevent the Acura from fleeing the parking lot.

[11]        In relation to the interior of the Acura, $930, which included the marked buy money, was noted to be in plain view in the center console. There were two cellular phones also located in plain view in the console with two other cellular phones located on the front passenger seat.

[12]        One of the seized cellular phones had the assigned cellular phone number that triggered the police investigation.  Ownership of that cellular phone was unknown.

[13]        Orr testified that he was unaware that he was involved in a dial-a-dope operation with Lai. It was his evidence that he had borrowed a friend’s Acura to take his girlfriend to a shop in Coquitlam to get a costume for her to wear to a rave concert.  He also believed the money in the centre console of the Acura was money to purchase rave concert tickets.

[14]        I did not find that Orr was a reliable or credible witness. His evidence did not establish a reasonable doubt in relation to the drug offences, but did establish a reasonable doubt in relation to the Criminal Code offence relating to evading a peace officer.

[15]        ORR is now 24 years of age. At the time of it these offences, he was 22 years of age. He has no criminal record. He is working on a full-time basis and is living in a common-law relationship with his girlfriend. In the past he abused alcohol and marijuana but is now clean and sober.

[16]        Orr denied that he was involved in an ongoing dial-a-dope operation.  He submitted this was an isolated incident in which he was engaged with Lai.

[17]        In his pre-sentence report, the probation officer described Orr’s offending behaviour was in part as a result of “his negative peer associations, lack of insight and poor decision-making skills.” Since he was arrested in 2013, Orr has changed his peer group associations and was staying in physical shape by going to the gym regularly and spending more time doing things with his girlfriend and his family.

[18]        The pre-sentence report also confirmed that in 2014 Orr completed a Certified Operator’s Certificate for different types of forklifts.  This certification would not expire until 2017.

[19]        The probation officer supported the imposition of a probation order in addition to any other sentence that the Court may impose.

[20]        Lai was 21 at the time he trafficked in cocaine. He is now 23 years of age. He is single and currently employed on a part time basis.  He has no criminal record.

[21]        Lai submitted that he was experiencing financial difficulties at the time that he trafficked in cocaine. In large measure those financial difficulties related to his mother who required financial assistance. It would appear that his mother continues to require financial assistance along with continuing care giving due to health issues. Lai would be described as a principal caregiver for her.

[22]        A psychological report was prepared by Dr. Manfred Kuchenmuller. In that report, the psychologist described Lai as an, “unsophisticated heavyset youth …” The psychological report also revealed that:  “Lai stated that he was involved in drug trafficking between 2011 and October 2013 when he was apprehended. He said that he became involved in trafficking through friends at a time when he only had temporary part-time jobs paying minimum wages and his mother struggled financially paying for their rent and food. He said that he used all of the money that he received from trafficking to help pay household bills. He stated that his mother knew that he was obtaining money from selling drugs, that she told him to stop and nevertheless accepted the money that he gave her. He said that he was always afraid of getting caught but that the extent of their financial problems helped him to suppress this fear.”

[23]        Lai completed the Personality Assessment Inventory (“PAI”) with the psychologist. In part, the PAI revealed that Lai’s “clinical profile suggests that he is someone with a history of acting out behaviour, most notably with regard to the difficulties which he experienced in his family and his involvement with drugs.”

[24]        In his concluding opinion the psychologist noted: “Mr. Lai is a young man who grew up in a marginalized immigrant family that was troubled by significant parental conflict. His parents had experienced significant trauma in their lives and because of language and education barriers had difficulty giving their sons the support they required in a culture that was very different from the one in which they grew up. With this context it is remarkable that Mr. Lai has managed to complete his high school education, work at a number of part-time jobs during his high school years and assumed the responsibility of supporting his mother and re-engaging with his father.”

[25]        Crown Counsel takes the position that the case law would support a custodial sentence in the range of six to nine months.

[26]        In relation to the aggravating circumstances, Crown Counsel submitted that both Orr and Lai were involved in a dial-a-dope operation. Both accused were involved in the dial-a-dope operation for financial reasons. In addition, it was submitted that the drugs involved were Schedule 1 drugs as defined by the Controlled Drugs and Substances Act (“CDSA”) and, therefore, their criminal actions would attract a high degree of moral culpability.

[27]        In addition, Crown Counsel submitted that there were dual roles performed by Lai and Orr. It was this dual role where one acts as a driver and the other as the trafficker, which enhances and facilitates a dial-a-dope operation.

[28]        In mitigation Crown Counsel noted the guilty plea entered by Lai. In addition, neither accused had a criminal record.

[29]        Crown Counsel submitted that there were no circumstances that would be described as exceptional circumstances that would take the sentencing range out of the six to nine month custodial range suggested by our Court of Appeal. Several cases were filed by Crown Counsel to support their position.

[30]        Both Lai and Orr submitted that a suspension of sentence would be a fit and proper sentence in addressing general and specific deterrence, denunciation and rehabilitation.  Both Lai and Orr submitted their circumstances would be described as exceptional.

[31]        Both Lai and Orr submitted that they were young at the time of the offending behavior and made bad judgment calls. Over the last two years they have reconfigured their lives, are now employed and have positive peer associations.

[32]        Orr submitted that there was no evidence to suggest that he was involved in an ongoing dial-a-dope operation and that his involvement was isolated.  Orr submitted that it should also be a consideration on sentence that he was found to be a party and not a principal to the trafficking on October 23 of 2013.

[33]        In R. v. Voong, Taylor, Charlton and Galang, 2015 BCCA 285, the Court of Appeal dealt with four appeals in which sentencing judges imposed suspended sentences coupled with probation orders in a dial-a-dope context. In those appeals the Crown argued that suspended sentences did not sufficiently address the principles of deterrence and denunciation and that the sentencing judges were simply using suspended sentences as an unlawful substitute for a Conditional Sentence Order.

[34]        In speaking for the Court, Madam Justice Bennett, at paragraph 1 stated, “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”.

[35]        Each of the appeals involved the entry of a guilty plea.  In addition, the drugs being trafficked were Schedule 1 drugs.

[36]        The Court in Voong et al, confirmed at paragraphs 6 and 7 that numerous factors must be taken into account in imposing a fit and proper sentence. In particular, the sentencing process is an individualized process in which the personal circumstances of the offender along with the circumstances of the offence, degree of moral blameworthiness, other principles of sentencing, and proportionality must be considered.

[37]        As was noted at paragraph 12, the Court emphasized the importance of the role of the sentencing judge by reference to the Supreme Court of Canada decision in R. v. Nasogaluak, 2010 SCC 6, where at paragraph 43 the Supreme Court of Canada, in part, had this to say:

[38]        The Court in Voong et al noted the serious nature of the dial-a-dope offence and that dial-a-dope trafficking is “particularly insidious, and permits the drug trade to infiltrate communities to a greater degree.”

[39]        At paragraph 18 of the Voong et al decision, the Court had this to say:

[40]        The Court went on to note at paragraph 37 the potential deterrent effect of a probation order in protecting society and reintegrating an individual back into the community.  At paragraphs 39 through 43 the Court discussed how a suspended sentence can have a deterrent effect in some cases.

[41]        In relation to range of sentence for offenders involved in a dial-a-dope operation, the Court noted that the statutory range is from a suspended sentence to life imprisonment. The normal range for a first offence dial-a-dope trafficker was between 6 to 9 months and up to 18 months in some cases.

[42]        At paragraph 45 the Court had this to say about the impact of exceptional circumstances:

[43]        The Court went on to review various historical dial-a-dope trafficking sentence cases ajudicated by the Court of Appeal. That case review revealed the importance of the individualization of the sentencing process. Each of the cases reviewed by the Court demonstrated a multiplicity of factors which come into play when sentencing an individual involved in a dial-a-dope operation.

[44]        At paragraph 59 the Court summarized the factors which should be considered by a court in the sentencing process for a drug trafficker involved in a dial-a-dope operation:

[45]        Ultimately, the Court of Appeal upheld Voong’s suspension of sentence but varied probation to three years and added a curfew of 18 months. In relation to Galang, the Court upheld his suspension of sentence but varied probation to three years and added a curfew of 18 months. In relation to Charlton, the Court upheld her suspension of sentence without any variation. In relation to Taylor, the Court found that he did not demonstrate the degree of “exceptional circumstances” in terms of rehabilitation that would justify a non-custodial sentence. The appeal was allowed and a sentence of six months in prison was imposed in substitution of the suspended sentence

[46]        It is mitigating that Lai entered a guilty plea to trafficking in cocaine. Though that plea was entered on the day of trial there had been ongoing discussions between Crown Counsel and Lai leading up to the trial respecting a guilty plea.

[47]        It is mitigating that Lai does not have a criminal record. He is also working part-time and is endeavoring to secure full-time employment.

[48]        Lai is a principal caregiver for his mother. I accept the comment in the psychological report that Lai’s mother needs him. I also accept the opinion of the psychologist in his report where he stated: “Mr. Lai is very committed to doing whatever he can to be available and help his mother. He understands that he cannot be involved in illegal activities as this will jeopardize and probably prevent his ability to support his mother. Despite his difficulties in obtaining more lucrative and stable employment, Mr. Lai has had a number of short-term low-paying jobs and supported his mother for one and a half years since his commission of this offence. This is a substantial period of time and is indicative of his desire to pursue legitimate goals for himself.”

[49]        It is aggravating that Lai was involved in a dial-a-dope operation. While it was not established beyond a reasonable doubt that the operation was either sophisticated or extensive, it was aggravating that Lai had been trafficking drugs between 2011 until he was apprehended in 2013 as reported by the psychologist.  The Court had no information as to the extent and frequency of Lai’s past trafficking dealings.

[50]        However, greed was not the motivation for his drug trafficking behavior. As was noted in the psychological report, Lai used the money to help pay household bills as he only had temporary part-time jobs paying a minimum wage. There was no indication in the psychological report that Lai was not forthcoming with the psychologist.

[51]        Lai’s offending behavior has some similarity to the circumstances involving John Galang (“Galang”).  At paragraph 76, the Court in Voong et al had this to say about Galang’s motivation to traffic in drugs:

[52]        I draw from that paragraph that the trial judge did not find that greed played into Galang’s motivation to traffic drugs.

[53]        I conclude that Lai’s prospects of rehabilitation are ultimately good.

[54]        While Orr did not enter a guilty plea to any of the three charges, he was acquitted of the charge of evading a peace officer, thus there was merit to a trial. The trial was conducted efficiently by both Crown Counsel and by Orr.

[55]        While I did not believe Orr in relation to his involvement with the drug trafficking by Lai, the Crown has not established beyond a reasonable doubt that Orr was more extensively involved over and above his criminal conduct on October 23, 2013. I found Orr guilty by aiding and abetting Lai on one occasion. I certainly suspect that Orr was more extensively involved, but suspicion alone does not meet any appropriate evidentiary threshold as a sentencing principle.

[56]        It is mitigating that Orr does not have any criminal record. He is gainfully employed and his prospects for ongoing full-time employment remain positive.  Orr was 22 years of age at the time he was involved in drug trafficking.  Two years have passed by without any suggestion that Orr was involved in any criminal activity.

[57]        Orr is now involved in a positive common-law relationship. I accept Orr’s submission that this relationship has resulted in a change in peer associations and brought him closer to his family.

[58]        At paragraph 5 of the pre-sentence report, in relation to Orr’s “Attitude and Understanding Regarding Offence”, the probation officer noted in part:  “… William accepts responsibility for the current offences before the court and realizes it was wrong… William does regret what has happened and is working on making some changes however he was going through a very rough time because his father had left the family and moved to Belize. He states he will do whatever the court requests including a no contact with the co-accused and substance abuse counseling.”

[59]        There was nothing in the pre-sentence report to suggest that the probation officer was either concerned or questioning with respect to Orr’s attitude regarding his criminal offending.

[60]        It was aggravating that Orr was a party to drug trafficking in a dial-a-dope context. However, as noted earlier, the Crown has not established beyond a reasonable doubt that Orr was more extensively involved in the dial-a-dope operation. The Crown has not established beyond a reasonable doubt that greed was a motivating factor.

[61]        Of the four appeals in Voong et al, Galang, again bears some similarities. As I have found there was merit to a trial, the absence of a guilty plea is a neutral factor. Otherwise, Orr, like Galang, was in his early 20s, had steady work, had no criminal record and his trafficking behavior was at the low end.

[62]        I conclude that Orr’s prospects for rehabilitation are ultimately good.

[63]        Both Orr and Lai now carry the stigma of a criminal record for serious drug offences. This criminal record will likely have a significant impact on their ability to travel internationally or to pursue some employment opportunities. It is to be hoped that both Orr and Lai have learned their lesson from being arrested, charged and convicted of drug trafficking offences.  (See similarly R. v. Chang, 2002 BCCA 644, at paragraph 14.)

[64]        I find that there are sufficient exceptional circumstances in relation to both Orr and Lai that would justify the imposition of a suspended sentence coupled with a significant period of probation.  The probation orders for both accused will carry significant conditions which will not only have a rehabilitative objective, but also achieve the objective of protecting society and to facilitate the reintegration of both Orr and Lai back into the community at large. 

[65]        In relation to Orr, he shall be bound by a probation order for two years. The statutory conditions shall apply. In addition:

[66]        The victim fine surcharge shall apply to both drug convictions. You shall have time to pay the victim fine surcharge to November 30, 2015. Should payment of the surcharge pose a personal financial hardship you may apply under s. 737(5) of the Criminal Code to seek relief.

[67]        In relation to Lai, I find that he was the principal in relation to the drug trafficking on October 23, 2013. I also take into account that he was involved in drug trafficking prior to his apprehension in October 2013.

[68]        Accordingly, his probationary period will be for three years. The statutory conditions shall apply. In addition:

[69]        The victim fine surcharge shall apply in relation to your guilty plea to trafficking in cocaine. You shall have time to pay the victim fine surcharge to November 30, 2015. Should payment of the victim fine surcharge pose a personal financial hardship you may apply under s. 737(5) of the Criminal Code to seek relief.

[70]        Both Orr and Lai shall be subject to a prohibition for 10 years for those items enumerated in s. 109 of the Criminal Code.

[71]        DNA is ordered pursuant to s. 487.051 of the Criminal Code.

[72]        Forfeiture is ordered in relation to all items seized except for money located in the wallet of Orr.