IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Ajay Joon pleaded guilty to one count of trafficking in fentanyl and heroin arising January 13^th, 2016 in North Vancouver contrary to s. 5(1) of the Controlled Drugs and Substances Act.  The circumstances of three other incidents involving trafficking heroin and the possession of heroin and cocaine for the purpose of trafficking which arose in February and gave rise to the other counts on the Information were before the court for consideration with respect to the extent of the offender’s involvement in the operation.

[2]           The plea was entered on March 9^th, 2017 and the matter was adjourned for the preparation of a pre-sentence report.  The Crown proceeded by indictment.  The maximum sentence is life in prison.  A conditional sentence is not available.

[3]           The police commenced an undercover operation targeting a telephone number associated to a suspected dial-a-dope operation.  The first meet was on January 7^th_, 2016 at a McDonald’s restaurant in Lynn Valley.  A dark grey Honda arrived with two males inside.  The passenger got out and identified himself as “Danny”.  He exchanged 3 flaps of what was analyzed as heroin, fentanyl and a fentanyl derivative for $60.00 with undercover officers.  The driver was a South Asian male who was not identified.

[4]           On January 13^th, another meet was arranged at the same place.  The same grey Honda arrived with Mr. Joon driving.  The officers recognized him to have been the driver at the earlier meet.  “Danny” was the passenger and again exchanged 2 baggies of drugs, which also analyzed as heroin, fentanyl and a fentanyl derivative, for $60.00.  The exchange was done over the lap of Mr. Joon. 

[5]           The police began to surveil Mr. Joon’s vehicle.  Over the next hour they observed four transactions in different locations on the North Shore consistent with drug trafficking.  Mr. Joon was then stopped for a traffic check and confirmed the car was his. 

[6]           On February 4^th, the police called “Danny” and were given a new number.  They called that number, spoke to Mr. Joon and arranged a meet.  Mr. Joon arrived in his Honda and identified himself as “Bobby”.  He exchanged .30 grams of heroin for money.  On February 11^th, a similar meet and transaction took place.  At that time the police inquired if Mr Joon could supply them with “Beans”, a street term for fake OxyContin which is produced illicitly using fentanyl.  Mr. Joon said he would make an inquiry about this.  He was then surveilled and engaged in 8 further transactions consistent with trafficking. 

[7]           On February 17^th, Mr. Joon was surveilled from his home in Vancouver to the home of a Wilton Luu who is known to the police as someone involved in the drug trade.  He carried a bag with him, entered the home for a brief period of time, and then returned to his vehicle without the bag.  He proceeded to North Vancouver where he was observed to engage in 4 transactions consistent with drug trafficking in an hour.  The undercover officers then called the dial-a-dope number and spoke to someone who said they were dispatching for “Bobby”.  A meet was arranged and the police met with Mr. Joon and conducted another drug transaction.  Mr. Joon was arrested later that day.

[8]           Mr. Joon was in possession of two cell phones.  He had drugs in his underwear which consisted of 7.32 grams of crack and cocaine and 12 baggies, each containing .88 grams of heroin.  He also had $390.00 in cash including the money given to him earlier that day by the undercover officers.  The vehicle was determined to belong to Mr. Joon’s father.  Mr. Joon’s recent pay slips were found in the glove box. 

[9]           Mr. Joon was interviewed and initially denied being involved in drug transactions.  He then admitted his involvement and said he had become involved just as the police had begun to make contact with the dial-a-dope operation.  The reason “Danny” was with him at the early meets was because he was being trained.  He also admitted he was unaware if the drugs he was selling contained fentanyl but was aware that fentanyl was killing people and that was why he would not use drugs. 

[10]        Mr. Joon was 19 at the time of the offences and is now 21.  He graduated from Grade 12.  He lives at home with his parents and sister.  His upbringing was positive and he was well provided for.  After completing high school, Mr. Joon engaged in various forms of unskilled employment.  His counsel submitted that his client was uncertain about his future and lacking in direction at the time of the offence which likely made him more vulnerable to influence.  More recently, including at the time of the offence, Mr. Joon has been employed as a lot boy at a car dealership.  He took on a second job as a lot boy but had to give that up due to the demands of his current course work.  In January of 2017, he began an educational program to become an electrician and is now in his second year of training. 

[11]        The offender has no criminal history.  He does not use street drugs and is a social drinker.  He does not have any physical or mental health concerns.  It is clear that Mr. Joon became involved in trafficking solely for the purpose of monetary gain.

[12]        Mr. Joon reports that he became involved in the offence before the court as a result of associating with negative peers from high school.  He now realizes he was immature, easily influenced by these people, and did not think about the consequences of his actions.  He has distanced himself from them and socializes only with pro-social peers and new friends he has met through his schooling.  He has also focused his energy on fitness and sports.  A number of letters were filed which support that, aside from his involvement in this offence, Mr. Joon is a pro-social, well-adjusted and kind person who is well liked and respected by his friends, family and colleagues at his work and school.  It is clear this offence was out of character for him.

[13]        Mr. Joon is understandably experiencing anxiety about the potential consequences of his criminal conduct.  His father is aware of his criminal matter but his mother is unaware as Mr. Joon has not wanted her to worry about him.  He appreciates he has caused his father and younger sister stress.  He also caused his family significant financial loss due to the confiscation of his father’s vehicle following his arrest.  He plans to repay his father for the value of the vehicle and the costs of his legal representation in this matter.  He is remorseful and understands the errors of his ways.  He says he has matured and is focused on his education and his future.  He now wishes only to “right my wrongs”.

[14]        Counsel for the Crown submits that the court should consider imposing a sentence of two years less a day.  This range is supported by the decision of R. v. Smith, 2017 BCCA 112, which found that due to the opioid crisis the range of 6 to 18 months for a first time offender involved in dial-a-dope trafficking of heroin, cocaine and marijuana must be elevated to address the heightened need for denunciation and general deterrence where the substance trafficked contains fentanyl.  The Court of Appeal found that sentences for such offences should be in the 18 to 36 month range.  The Crown says that there are no exceptional circumstances justifying a sentence outside the Smith range.

[15]        Counsel for Mr. Joon submits that even if the court finds that the Smith range is applicable due to the timing of this offence, the Smith decision does not limit the discretion of the court to consider whether Mr Joon’s circumstances are exceptional as set out in R. v. Voong, 2015 BCCA 285.  The defence submits that this offender’s circumstances are exceptional and justify a sentence outside of the range and a suspended sentence is an appropriate disposition.

[16]        The aggravating factors are that this offence arose from a dial-a-dope operation.  Mr. Joon was trafficking in a variety of Schedule 1 substances specifically heroin, cocaine, and fentanyl.  His sole motivation for engaging in trafficking was greed.

[17]        The mitigating factors are Mr. Joon’s youth, lack of criminal history, and otherwise good character.  He entered a guilty plea although not at the earliest opportunity.

[18]        In Smith at paragraph 54, Mr. Justice Harris observed that “material facts about the public health crisis associated with fentanyl have been evolving rapidly in recent years” and specifically, from January 2015, the date of the offence in that matter, to the time the appeal was heard in January of 2017.  Further, at paragraphs 61 to 64, he concludes that there was “a dramatic and rapid increase escalation in illicit drug deaths in 2015 and 2016…”

[19]        The Crown provided a book of secondary sources which would appear to be similar to those considered by the Court of Appeal in Smith.  The majority of these materials pre-date Mr. Joon’s involvement in this offence.  Coroners Service documents relating to illicit drug overdose deaths in BC from 2007 to April 30^th, 2017 show a marked spike, indeed a doubling in number, as of late 2015 into early 2016.  Had it been necessary for me to decide this issue based on these materials alone, I would have found that for trafficking offences occurring as of January of 2016 the Smith range should be applied. 

[20]        In mid-December of 2015, just two to three weeks before Mr. Joon commenced his involvement in the dial-a-dope operation on the North Shore, a young couple with a two year old child, who lived an otherwise middle class and law abiding life on the North Shore, died in their home after inhaling fake OxyContin or “Beans”.  This tragedy dominated the news during that period of time.  It also caused the police to begin to focus on those trafficking in fentanyl and explains their request of Mr. Joon to sell them “Beans”.  There is no evidence that Mr. Joon knew of the tragic deaths of these young parents.  However, Mr. Joon admitted to the police he was aware of the deadly dangers of fentanyl and was unaware whether he was trafficking in that substance.  In my view this admission alone justifies the application of the Smith range. 

[21]        In Smith, the reasons of Madam Justice Newbury at paragraphs 26 to 31 clearly state that ignorance or willful blindness about whether the substance being trafficked is fentanyl or contains fentanyl is not mitigating and does not impact whether the elevated range should apply. 

[22]        In Smith, the Court of Appeal did not suggest that their decision restricted the discretion of sentencing courts to impose sentences “lower than the bottom of the normal range for trafficking in fentanyl” where there are exceptional circumstances (paragraph 46).

[23]        I must determine whether a non-custodial sentence or a sentence below the range in Smith should be imposed based on what are argued to be the exceptional circumstances of this offender (see also Rutter, infra, at paragraphs 4 and 5).  If I find a sentence below the range is not justified, I must then go on to determine what the appropriate period of incarceration is within the Smith range.

[24]        In Voong, our Court of Appeal re-affirmed that, even when addressing serious offences such as dial-a-dope trafficking in illicit substances, in exceptional circumstances the protection of the public can be better served by the imposition of a non-custodial sentence.  The acceptance and application of this concept is fundamental to Canada’s approach to sentencing which requires that the court treat each offender and each offence on an individualized basis.  The courts must always consider the realities of the human condition and it is especially important to do so when dealing with youthful first time offenders. 

[25]        At paragraph 59 of Voong, the Court addressed exceptional circumstances:

[26]        In R. v. Lui, 2014 BCSC 1929, at paragraphs 25 to 29, the court set out the importance the principles of sentence ascribe to the reformation and rehabilitation of young people of previous good character who commit offences:

[27]        There is no evidence on this point before me but we are now aware that brain development carries on well past adolescence and as a result, during the late teen years and into the early 20’s, the “executive function” being the ability to exercise sound and considered judgement, of young people is impaired.  The courts have long recognized, without the benefit of the science behind it, the impact this has on behavior and the immense capacity for change during the early years of adulthood.  It is important to keep in mind that Mr. Joon will always bear the stigma of having been convicted of a crime of moral turpitude and will face limitations on his employment and travel opportunities.

[28]        In R. v. Nesbitt, 2012 BCCA 243, the court was dealing with a 20 year old with no criminal history who had been duped into acting as a courier in the drug trade.  His involvement was brief.  On one occasion he delivered 17 kilograms of cocaine.  He had no criminal history and was not an addict.  Six years passed between the time of the offence and the imposition of sentence during which time he had completely turned his life around.  He received a two year conditional sentence which was upheld on appeal.  At paragraph 43, the court said:

[29]        The Crown and defense each argued a number of authorities with respect to the issue of exceptional circumstances which have justified sentences below the usual range.  I will focus on recent decisions which dealt with first time offenders or those with minimal or unrelated records.

[30]        The decision of R. v. Naccarato, 2017 BCSC 645 was rendered after Smith but relates to offences from 2014 and so the elevated range of sentence was not in issue.  The offender was a courier of 58.3 grams of heroin laced with fentanyl.  She had been engaged in ongoing street level trafficking to support an addiction to methamphetamines.  She was 24 years old at the time of the offence and had no criminal history.  As a child she had experienced abuse at the hands of her father.  During the 2 years between the time of the offence and the time of the sentencing hearing, she had turned her life around and her rehabilitation was well established.  Mr. Justice Pearlman’s analysis is found at paragraphs 88 to 93 where he concludes that there were exceptional circumstances justifying a suspended sentence with probation for three years.

[31]        The matters of R. v. Rutter and R. v. Ramstead, 2017 BCCA 193 were dealt with by the Court of Appeal together.  The Smith range did not apply given the dates of the offences.  Mr. Rutter was a partner in a dial-a-dope operation which had been ongoing for four to five months ending in June 2015 with his arrest.  He pleaded guilty to trafficking in fentanyl and cocaine.  He was 20 years old at the time of the offences and had no criminal history.  He was an addict but his income from the operation exceeded his need for drugs.  He had gone into a rehabilitation program in late 2015 and had remained clean up to the time of sentence in October of 2016.  The sentencing judge did not make an express finding of exceptional circumstances.  The court found the judge erred on other matters and, recognizing the efforts at rehabilitation identified, substituted a sentence of six months custody for the three year suspended sentence imposed by the trial judge.

[32]        In Ramstead, the offender was involved in a dial-a-dope operation for one month ending in April of 2014.  He trafficked in fentanyl on one occasion.  His involvement in the drug trade ceased six months before he was arrested.  He was 21 at the time of the offence, had no criminal history, was not an addict, and had taken steps to prevent reoffending in the two and a half years between his offending and the imposition of sentence.  The trial judge was found to have erred in concluding that Mr. Ramstead’s use of the profits from his trafficking to fund his post-secondary education was a proper consideration in finding there were exceptional circumstances.  The court did not provide further guidance as to whether the remaining circumstances could properly be found to be exceptional circumstances.  However, taking those factors into consideration, a six month jail sentence, being the low end of the range, was substituted for an 18 month suspended sentence.

[33]        In R. v. Henderson, 2017 BCSC 176 the offender was involved in a dial-a-dope operation trafficking cocaine and marijuana.  It is not clear how long he was involved up to his arrest in 2013.  He was 24 at the time of the offences, had no criminal history, and was an addict but was profiting above the amount needed to satisfy his addiction.  He had been clean from drug use for only nine months prior to the sentencing hearing in January of 2017.  A six month jail sentence was imposed. 

[34]        In R. v. Van Der Walt, 2017 BCSC 557 the offender was involved in a dial-a-dope operation for four months in late 2012 and early 2013 during which she trafficked in cocaine.  The charges were not laid until January of 2014 and the offender had withdrawn from involvement in trafficking long before her arrest.  She was 25 at the time of the offences, had no criminal history, had abused substances in the past but had successfully achieved her rehabilitation.  She suffered from a number of serious health issues including chronic pain.  She received an 18 month suspended sentence.

[35]        In R. v. Wong, 2016 BCSC 1568 the offender was involved in a dial-a-dope operation for a month during which he trafficked in cocaine.  He was 18 at the time of the offence, had no criminal record, and was not an addict.  He had begun associating with negative peers and eventually dropped out of school and became involved in trafficking.  In the three years between his arrest and the time of sentencing, he had turned his life around and was leading a pro-social and contributing life.  Mr. Justice Johnson’s analysis of Voong and the circumstances before him is found at paragraphs 27 to 34 where he concludes that there were exceptional circumstances justifying a suspended sentence with probation for three years.  In doing so he said “I do not see that addiction as an explanation for an offence is a precondition for the application of Voong”.

[36]        In R. v. Voong, the Court of Appeal dealt with four offenders, two of whom had criminal histories:

[37]        In R. v. Lo, 2015 BCSC 1821 the offender was involved in a dial-a-dope operation for an unstated period of time.  He was trafficking heroin and cocaine.  He was 26, had no criminal history, and was not an addict.  In the two years between his offences and the imposition of sentence, he had turned his life around and was living a pro-social and contributing life.  After considering Voong, the court found there were exceptional circumstances and imposed a suspended sentence with probation for three years.

[38]        In R. v. Pepper, 2015 BCCA 476 the offender was involved in a dial-a-dope operation on a single evening during which he conducted 15 sales of cocaine.  He was 40 years of age at the time sentence was imposed.  There is no offence date set out in the judgement.  There is no suggestion he had a criminal history.  After losing his job, he began abusing substances and ended up involved in the offence to pay off a small drug debt.  He was married with children and by the time sentence was imposed he had achieved his rehabilitation and was again employed and assisting with the support of his family.  A six month jail sentence was imposed.  The date of the sentencing hearing in Provincial Court was one day before Voong was rendered.  The Court of Appeal found the judge had erred in applying a standard of “highly” exceptional circumstances and following the reasoning in Voong imposed a 90 day intermittent sentence.

[39]        In R. v. Gill, 2015 BCSC 1556 the offender was briefly involved in what was described as a “boutique” dial-a-dope operation meaning that a variety of substances were on offer including heroin, crack, and marijuana.  He was 19 years of age, had no criminal history, and was not an addict.  In the two years which had elapsed since his arrest, he had turned his life around and was living a pro-social and contributing life.  A 90 day intermittent sentence was imposed.  This decision was given one day after Voong was rendered and Voong was not considered.  

[40]        This review of the authorities illustrates that there are many combinations of circumstances which have been found to constitute exceptional circumstances.  An offender need not meet all the criteria which have been identified.  As illustrated in Voong, a criminal history does not preclude a finding of exceptional circumstances and Pepper illustrates that an offender need not be a youthful adult.  There are no particular criteria which appear to me to be determinative except for rehabilitative efforts which are found to be well established.  As Madam Justice Bennet said in Voong “…at the end of the day, 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 protection of the public was subsequently better served by a non-custodial sentence”.

[41]        Mr. Joon was just 19, a very young adult, at the time of his offending conduct.  He has no criminal history.  In the year and a half since his arrest, he has been living a pro-social and contributing life and I find his rehabilitation is well established.  There is no need to specifically deter him or to protect the public.  He has undertaken a training program which will provide him with long term gainful employment and in the meantime has continued to work part time.

[42]        On the other hand, Mr. Joon was not an addict who was involved in trafficking to support that addiction.  His sole motivation for trafficking was greed.  He has not had to face the challenge of overcoming an addiction in the course of his rehabilitation.  There are no unfortunate circumstances in his background which serve to explain his conduct.

[43]        I find that Mr. Joon’s very young age must carry greater weight than his lack of any pressing need for drugs or money or the absence of emotional or psychological afflictions in his life.

[44]        The Crown argues that Mr. Joon has failed to fully accept responsibility for the consequences of his actions and has not expressed true remorse.  They point to the fact that in his letter to the court, Mr. Joon does not refer to the potential that he may have contributed to any deaths which may have resulted from his trafficking.  They say that Mr. Joon’s letter to the court and those filed in support of him focus on the negative consequences to him and not on the lethal nature of the substance he was trafficking.  I do not agree there is a lack of remorse or understanding demonstrated such that it should impact my consideration of whether there are exceptional circumstances justifying a non-custodial disposition.  The offender speaks of his overwhelming guilt and shame.  He says he recognizes that what he did was wrong and that he feels terrible for what he has done to the community.  His actions since his arrest should carry the greatest weight rather than the words he has used to attempt to express his state of mind. 

[45]        When members of the public consider the sentence which will be imposed in this matter, the court should not be seen to be minimizing the very grave consequences flowing from the presence of fentanyl in our communities and the continuing tragic loss of life it is causing.  The courts are also fully conscious of the toll fentanyl is taking of our first responders, medical system, and community based support services.  People who manufacture and distribute fentanyl are utterly lacking in morals.  As was said in Smith, it is a scourge.  Those who traffic in opiates, cocaine, and synthetic drugs such as methamphetamines have long been described by the courts as “Merchants of Misery”.  I think it is now apt to describe those who traffic in fentanyl as “Merchants of Death”. 

[46]        Despite this courts’ awareness of the above issues and the pressing need for sentences which will serve to denounce and deter those introducing fentanyl into our society, the court must still carefully weigh and consider all the principles of sentence as set out in the Criminal Code and CDSA, the case law which has interpreted those principles, the circumstances of the offence and the offender and impose a sentence which will best serve the overarching fundamental purpose of sentencing which is “to protect society and contribute…to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions…”

[47]        It is the view of this court that Mr. Joon’s circumstances should be considered, at law, to be exceptional.  I find these exceptional circumstances justify a sentence outside the range of 18 to 36 months and that a period of incarceration is not appropriate.  I find the principles of denunciation and general deterrence can be met through the imposition of a lengthy suspended sentence with terms which will address the protection of the public and assure this offender continued reintegration into society.

[48]        There will be a suspended sentence with probation for three years.  The ancillary orders for a DNA sample, a s. 109 prohibition, and forfeiture of the items seized save for the vehicle are granted.  The application for the forfeiture of the vehicle will be adjourned.