COURT OF QUEEN'S BENCH OF MANITOBA

Transcription

1 Date: Docket: CR (Winnipeg Centre) Indexed as: R. v. Devloo and Ong Cited as: 2018 MBQB 140 COURT OF QUEEN'S BENCH OF MANITOBA B E T W E E N: HER MAJESTY THE QUEEN ) Counsel: ) - and - ) JUDY S. KLIEWER and ) VICTORIA P. CORNICK JARED ROMEO DEVLOO and ) for the Crown JASON MORRIS ONG, ) ) SAUL B. SIMMONDS and accused ) KRISTOFER J. ADVENT ) for the accused Devloo ) ) KRISTIN L. JONES ) for the accused Ong ) ) JUDGMENT DELIVERED: ) AUGUST 24, 2018 SUCHE J. Reasons for Sentence [1] Following a trial, I found Jared Devloo and Jason Ong guilty of a series of offences relating to drug transactions on March 31, April 24 and May 9, 2014, wherein a total of four kilograms of cocaine was exchanged for $212,000 cash. They are now before me for sentencing.

2 Page: 2 [2] These charges arise out of Project Distress, a year-long investigation conducted by the Manitoba Integrated Organized Crime Task Force that used a police agent (the Agent ) to target high-level drug dealers. The Agent made purchases of large quantities of drugs from numerous targets. Deliveries were received and payment was made by undercover operators posing as the Agent's couriers. The operation resulted in charges against 14 people. The circumstances of the offence are further described in R. v. Devloo and Ong, 2017 MBQB 180. BACKGROUND OF THE OFFENDERS Jason Ong [3] Ong is 32 years old. He has a grade 12 education. He has no prior record. He and his family immigrated to Canada from the Philippines in He is married with three children and is part of a very tight-knit family. Two of his three children were born in Canada. His wife and children, parents and siblings all reside here. His wife, parents, in-laws, siblings and children all filed letters of support, revealing their pain and anguish over this situation. His employer, a co-worker and the head of a church group where he volunteers also provided letters, showing that since he has been on bail he has demonstrated himself to be a hardworking, reliable and committed individual. A pre-sentence report assessed him at very low risk to reoffend. [4] Following his arrest, Ong spent 231 days in pre-trial custody. He was released on bail to the John Howard Society where he attended programming,

3 Page: 3 including for substance abuse. On their recommendation, he also attended a residential treatment program at the Addictions Foundation of Manitoba. During this time, he followed rules, met expectations and was cooperative and pleasant. Very clearly, Ong has worked hard to demonstrate he has been rehabilitated. His bail supervisor observed that Ong s primary motivation is his family. [5] When given the opportunity to speak at the sentencing hearing he said he realizes his wrongdoing. He regrets his choices and his unlawful activity, and is embarrassed and ashamed at the heartbreak he has caused his family. He says he is grateful for his time at the John Howard Society, in part because he has come to understand the impact that drugs have on people, having observed some of the other residents in the program. Although he himself was using cocaine and partying during his involvement in these offences, he did not seek to blame his choices on his drug use. [6] Ong is a permanent resident of Canada. Under s. 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ( IRPA ), a noncitizen convicted of an offence with a maximum sentence of more than 10 years imprisonment, or of an offence for which they have been sentenced to more than six months imprisonment, is inadmissible to Canada on the grounds of serious criminality. There is no right of appeal from this designation. The result is that these convictions will result in Ong being deported to the Philippines.

4 Page: 4 Jared Devloo [7] Devloo is 38 years old. He recently married his partner of 11 years. He has an eight-year-old son to whom, by all accounts, he is devoted. His early years were marred by instability. His parents suffered from alcohol and mental health issues. However, he did have the benefit of an aunt and uncle who stepped in when his mother was unable to care for him and provided a supportive and loving home for several years. The defence filed reports from a counsellor, Mr. Gerry Goertzen, and Dr. Jeffrey Waldman, a psychiatrist. Both suggest Devloo is low risk to reoffend. [8] Devloo has a dated and unrelated criminal record. In addition, in 2011, he was charged in Alberta with possession for the purposes of trafficking methamphetamine. He was on bail for that charge at the time of this offence. I was told the Alberta charge was ultimately dismissed or stayed. [9] Devloo s history, as recounted by Mr. Goertzen, reveals him to be hardworking, resourceful and disciplined. He has been successful in business, and at the time of these offences he was involved in a condominium development, which he apparently lost once these charges were reported (in a most unfair way, says the defence) by local media. Mr. Goertzen says in their meeting Devloo expressed regret for his involvement and indicated he was sorry for what he had done. [10] Many letters of support from people who know Devloo as a parent, businessman and member of the community speak of him glowingly, and

5 Page: 5 express shock at his involvement. They describe him as honest, hardworking and generous. One or two even cite his ethical business practices. Many of the writers were present in court to support him. [11] When given the opportunity to speak, Devloo expressed selfdisappointment and embarrassment in letting people down, his wish to be a good father to his son and to gain back the trust of people in the community who believed in him. [12] The letters of support, and even the reports, paint a very different picture of Devloo than that revealed by the evidence in this case. Devloo minimizes his involvement, suggesting to Mr. Goertzen that he became involved in the offences to help someone he thought was a friend. The defence suggests Devloo s connection to the drug world was only that he knew people involved, from socializing with them in bars and clubs. [13] Neither of these statements could be further from the truth. Devloo was knowledgeable and experienced in the practices of the drug trade, employing sophisticated and expensive counter surveillance techniques. He was obviously very well connected with other drug dealers: he was well informed about the availability and price of cocaine across the country; he knew when the Agent made purchases from other targets; and he was aware of the details of various prior police operations. He was also effectively in charge of the transactions that formed the basis for these charges, and was pursuing the Agent to set up a marihuana grow operation with him. As for his business practices, I note that he

6 Page: 6 wanted the Agent to find him some muscle to deal with uncooperative debtors on his condominium project. SENTENCING CONSIDERATIONS [14] Other than situations of an addict selling drugs to support their habit, denunciation and deterrence are the paramount and overwhelming considerations when sentencing those who traffic in hard drugs. Drugs such as cocaine wreak devastation in our community: on those who are addicted, on their families and on the wider community. Other crimes are committed by people who are addicted. The moral culpability of those involved in selling drugs as a business activity is very high and they must be treated severely. [15] The Manitoba Court of Appeal in R. v. Grant, 2009 MBCA 9, and R. v. Rocha, 2009 MBCA 26, established ranges for kilogram-level trafficking of hard drugs, as follows: mere couriers, three to six years imprisonment; those trusted beyond a mere courier, five to eight years imprisonment; those who are suppliers or at the top of the drug distribution network, eight to 12 years imprisonment (Grant, paras ). [16] Sentencing ranges or starting points are only guidelines of course, not hard and fast rules. There can be occasions when a fit and proper sentence in a particular case is not within the range.

7 Page: 7 [17] Devloo and Ong both fall within the category of high-level dealers. They were involved in the sale of multiple kilogram purchases of cocaine. They worked together playing slightly different roles; Ong claims Devloo and the 12 others charged were unknown to him. This suggests a high level of caution in organizing these transactions. While both have been predictably silent about the operation they were part of, the evidence reveals Devloo was effectively overseeing the transactions. Ong provided Devloo with another layer of insulation and appeared to be responsible for logistics, although after Devloo ceased contact with the Agent, and Ong had been suspended by head office, he offered to supply the Agent with cocaine through a franchise operation. [18] The Crown seeks a sentence of 12 years imprisonment for both Devloo and Ong. In addition to the amount and nature of the drugs, the Crown cites the number of transactions and the very sophisticated operation and use of antidetection techniques. [19] The 12 other individuals arrested as a result of this Project were sentenced to periods of imprisonment for up to as long as nine years. All pled guilty. Parity is a sentencing principle, so these are comparisons to keep in mind. To a lesser extent, so are the other cases referred to by Crown and defence. In the end though, the individualized process of sentencing, keeping in mind the range set by the Manitoba Court of Appeal, governs the outcome.

8 Page: 8 DECISION Jason Ong [20] I found Ong guilty of conspiracy to traffic cocaine, three counts of trafficking cocaine and three counts of possession of proceeds of crime in connection with the three transactions. [21] I disagree with certain of the defence arguments regarding mitigating factors. I do not agree that Ong s bail conditions were terribly onerous. As to his involvement with drugs, his addiction, as he described it, I accept that during the relevant time he was using drugs and alcohol, was partying and going to bars, and this was a factor in his becoming involved in these offences. He obviously needed a means to pay for this lifestyle, as he was unemployed. At the same time, Ong does not fit the profile of a person whose life has been taken over by an addiction, living day to day to find a way to support their habit. After all, none of his family members were even aware that he used drugs. He seemed to function well enough that he could look after his children and maintain his family activities. Importantly, he was engaged in a very sophisticated commercial activity in which, by his account, he was a member of the management team. This required him to travel, including to the organization s head office in Manila. He was responsible for hundreds of thousands of dollars of product. He engaged in planning and execution of activities using complex anti-detection techniques.

9 Page: 9 [22] A significant issue is the fact that he will be deported on completion of his sentence. The leading authority regarding the role of immigration consequences in sentencing is R. v. Pham, 2013 SCC 15 (CanLII). There, the non-citizen offender was sentenced to two years imprisonment at a time when the IRPA threshold was two years imprisonment. His immigration status was not raised initially. On appeal, he asked that it be taken into account and his sentence be varied to two years less a day to avoid deportation. [23] The Supreme Court of Canada held that immigration consequences, like any collateral consequences, can be taken into account to reduce a sentence, specifically to avoid deportation. This is provided, however, that the sentence imposed is still within the range of a fit and proper sentence. This consideration cannot skew the process, nor lead to a separate sentencing scheme with a de facto if not a de jure special range of sentencing options where deportation is a risk (para. 16). [24] Here, Ong does not seek a sentence of less than six months imprisonment in order to avoid deportation. He acknowledges a lengthy penitentiary term awaits him. He argues that deportation will be devastating to him given his family circumstances, and should be seen as a mitigating factor. [25] I was not provided with any authorities where this aspect of the immigration consequences of a conviction were considered. However, in Pham, Wagner J. (as he then was) discussed the role of collateral consequences in the sentencing process:

10 Page: In light of these principles [in s of the Code], the collateral consequences of a sentence are any consequences for the impact of the sentence on the particular offender. They may be taken into account in sentencing as personal circumstances of the offender. However, they are not, strictly speaking, aggravating or mitigating factors, since such factors are by definition related only to the gravity of the offence or to the degree of responsibility of the offender (s (a) of the Criminal Code). Their relevance flows from the application of the principles of individualization and parity. The relevance of collateral consequences may also flow from the sentencing objective of assisting in rehabilitating offenders (s. 718(d) of the Criminal Code). Thus, when two possible sentences are both appropriate as regards the gravity of the offence and the responsibility of the offenders, the most suitable one may be the one that better contributes to the offender's rehabilitation. 12 However, the weight to be given to collateral consequences varies from case to case and should be determined having regard to the type and seriousness of the offence. Professor Manson explains this as follows: As a result of the commission of an offence, the offender may suffer physical, emotional, social, or financial consequences. While not punishment in the true sense of pains or burdens imposed by the state after a finding of guilt, they are often considered in mitigation.... The mitigating effect of indirect consequences must be considered in relation both to future re-integration and to the nature of the offence. Burdens and hardships flowing from a conviction are relevant if they make the rehabilitative path harder to travel. Here, one can include loss of financial or social support. People lose jobs; families are disrupted; sources of assistance disappear. Notwithstanding a need for denunciation, indirect consequences which arise from stigmatization cannot be isolated from the sentencing matrix if they will have bearing on the offender's ability to live productively in the community. The mitigation will depend on weighing these obstacles against the degree of denunciation appropriate to the offence. [Emphasis added.] (The Law of Sentencing (2001), at pp ) [26] The collateral consequences of a conviction such as loss of job, family or the respect an offender enjoyed in the community are also considered to

11 Page: 11 mitigate the need for specific deterrence. See R. v. J.J.W., 2012 NSCA 96, and R. v. Jaikaran, 2007 ABCA 98. [27] Here, the impact of being removed from Canada, and thus his family, will create an enormous hardship for Ong. It is one of several factors to be considered, including the fact that his substance abuse played some role in his becoming involved in criminal activity for the first time, his rehabilitative potential and his strong community supports. The weight I can give to these, of course, pales in comparison to the primary focus of denunciation and deterrence, and do not justify a sentence below the range. [28] In conclusion then, when all of the circumstances are considered, I am of the view that a fit and proper sentence is eight years imprisonment. [29] Ong will be credited for pre-trial custody at a rate of 1.5 days per day served. Possession of Proceeds of Crime [30] Ong is guilty of three counts of proceeds of crime, the total value of which is $212,000. I impose a sentence of eight years imprisonment to be served concurrently. Jared Devloo [31] I found Devloo guilty of conspiracy to traffic cocaine and trafficking two kilograms of cocaine on March 31, 2014.

12 Page: 12 [32] In my view, there really are no significant mitigating factors at play. I do not consider the conditions of his bail to be onerous. His attempts to minimize his involvement do not suggest he has accepted responsibility for his actions. [33] I also cannot give any weight to the assertion that unfair and inaccurate media reporting caused him to lose his business. The fact of being charged with these offences and/or being held in pre-trial custody for 262 days would likely have had the same result. In any event, absent extreme or unusual cases, media coverage generally is not a mitigating factor. I was told that the single report in issue was published on CBC s website. As for the allegation that the reporting was improper, inaccurate or in some way demonized Devloo, the report apparently said Devloo and three others arrested sell more cocaine and meth in a week than the entire Manitoba Chapter of the Hells Angels can sell in a month. [34] Well, the evidence in this case does reveal that in the space of six weeks Devloo was directing the sale of four kilograms of cocaine. The report did not identify the three other individuals, but looking at the list of those charged in Project Distress and the amount of cocaine and methamphetamine recovered, this statement might not be off the mark, depending on whom the writer had in mind. [35] I do recognize that Devloo has a committed wife and strong support in the community from people who say they will stand by him despite these

13 Page: 13 convictions. This will be important when he is released and will have to reintegrate into the community. [36] An important consideration in determining the appropriate sentence is, of course, the role that Devloo played in these transactions. As I said, the evidence demonstrated that he was effectively in charge. The sales were carried out by Ong and those who reported to him. Ong s involvement provided an additional layer of insulation to Devloo. [37] An aggravating factor is that Devloo was on bail for a similar offence when he committed these offences. His use of the PGP device, by his own admission to the Agent, was also a violation of his bail. [38] I have paid specific mind to the other individuals involved in this Project and the sentences imposed on each of them. Of course, other than Ong and Devloo, all individuals pled guilty. Given the nature of the Project, this was a significant factor in those cases. [39] Michael Hidalgo may be as close a comparator as any of the other individuals in that he trafficked a total of six kilograms of drugs. He did have a related record, but it was dated and occurred while he was a youth. [40] In light of all the circumstances, I am of the view that a fit and just sentence for Devloo is 10 years imprisonment. He will be credited for his pretrial custody at 1.5 days per day served.

14 Page: 14 FINE IN LIEU OF FORFEITURE [41] Undercover officers paid a total of $212,000 to couriers in exchange for the four kilograms of cocaine involved in these transactions. The money was obviously not recovered given that the transactions occurred early in the operation of this Project. The Crown asks me to impose a fine in lieu of forfeiture, pursuant to s (3) of the Criminal Code. This allows a court to require an offender to pay a fine in an amount equal to the value of property of an offender where the property, or any part thereof or interest therein, cannot be made subject to an order of forfeiture. Given my findings, the entire $212,000 was Devloo s property within the meaning of the section. [42] Devloo argues that since I found his comments to the Agent amounted to an acknowledgement he was receiving $1,000 for every kilogram of cocaine sold, the fine should be limited to $4,000. [43] The leading case in this area is the Supreme Court of Canada decision in R. v. Lavigne, 2006 SCC 10 (CanLII). The trial judge found that the respondent had received $150,000, which was proceeds of crime. At issue was whether an offender s ability to pay was a factor to be considered in deciding to impose a fine in lieu of forfeiture. [44] Deschamps J., for the court, reviewed the purpose and scope of the proceeds of crime section (Part XII.2) of the Criminal Code, which includes the sections in issue, pointing out that both offenders and their organizations are targeted. She stated:

15 Page: 15 9 Great importance is thus attached to the proceeds of crime, and one of the stated goals is to neutralize criminal organizations by depriving them of the profits of their activities Parliament's intention in enacting the forfeiture provisions was to give teeth to the general sentencing provisions. While the purpose of the latter provisions is to punish an offender for committing a particular offence, the objective of forfeiture is rather to deprive the offender and the criminal organization of the proceeds of their crime and to deter them from committing crimes in the future. The severity and broad scope of the provisions suggest that Parliament is seeking to avert crime by showing that the proceeds of crime themselves, or the equivalent thereof, may be forfeited. [Emphasis added] [45] Devloo relies on a series of cases, including R. v. Gordon, 2015 MBQB 196, R. v. Dieckmann, 2017 ONCA 575, and R. v. Dwyer, 2013 ONCA 34, in support of his position that since there is specific evidence before the court as to the amount actually received by the accused, the fine should be limited to that amount. [46] In my view, these cases do not assist Devloo. In Gordon, Martin J. found that the offender did not profit from two of the three transactions that were the basis for the charges and that he was acting alone. The circumstances in Lavigne were precisely what Deschamps J. identified as being outside the objectives of the legislation, and would not call for a fine to be imposed. She stated: a court may face circumstances in which the objectives of the provisions do not call for a fine to be imposed. An example of this would be if the offender did not profit from the crime and if it was an isolated crime committed by an offender acting alone. In such a case, none of the objectives would be furthered or frustrated by a decision not to impose a fine instead of forfeiture. The word "may" allows for an

16 Page: 16 exercise of discretion that is consistent with the spirit of the whole of the provisions in question. [47] Similarly, in Dwyer, the Ontario Court of Appeal held that a fine in lieu of forfeiture can be made under s (3) only where the offender had possession or control of the property in question. The evidence before the court revealed that Dwyer only had control over $10,700 more than the complainant bank recovered. The fine was therefore set at that amount. [48] Finally, in Dieckmann, the Ontario Court of Appeal concluded that it was open to the trial judge to impose a fine less than the total value of the $5.1 million Dieckmann was found to have controlled based on the particular facts of that case. This included an acknowledgement by the Crown that had Dieckmann s two co-conspirators not died before trial, the Crown would have apportioned the $5.1 million between them, because it was ridiculous to imagine that Dieckmann kept the entire $5.1 million for herself (para. 99). Importantly, there was evidence before the trial judge that the two deceased coconspirators received a sizeable portion of the $5.1 million. The court went on to note that while there was no onus on the Crown to establish that an offender received a benefit, if the evidence does establish an allocation of benefit between or among offenders, the judge has the discretion to adjust the quantum of the fine. [49] Here, the only evidence concerning the distribution of the proceeds from these transactions comes from Devloo. Where the balance of the money went and who else benefitted and in what amounts is unknown.

17 Page: 17 [50] The organization of which Devloo and Ong were a part is precisely what is targeted by the legislation. In the absence of evidence establishing an allocation of benefits with other accused persons, I do not agree that this situation gives rise to discretion in setting the amount. Even if it does, I do not find it appropriate to exercise that discretion to reduce the amount of the fine in lieu of forfeiture. [51] Accordingly, in the circumstances, I impose a fine of $212,000. This is a substantial amount, particularly in light of the fact that Devloo will be in prison for a very long time. I have no information regarding his ability to pay. In the circumstances, I order the fine to be paid within five years of his release from prison. As required by s (4), a period of three years imprisonment will be imposed in default. [52] The Crown did not seek an order of forfeiture against Ong. CONSPIRACY [53] I convicted both Ong and Devloo of conspiracy to traffic cocaine. The evidence established that the conspiracy was in existence, in the case of Devloo, from mid-march to May 2014, the latter being the point at which he stopped communicating with the Agent, and, seemingly, Ong as well. In the case of Ong, the conspiracy lasted much longer at least until October [54] The Crown asks that I impose the same sentence on the conspiracy charge as on the substantive charges, to be served concurrently. The defence

18 Page: 18 maintains a sentence of four to six years concurrent imprisonment is appropriate. No authorities were provided to support either position. [55] The primary sentencing objective for conspiracy is denunciation and deterrence, in part because planning and premeditation is the essence of the offence. The case of R. v. McLean, Legge and Saunders (1980), 29 Nfld. & P.E.I.R. 194 (Nfld. S.C.-C.A.), offers a summary of the approach to sentence for conspiracy to traffic drugs: 3 The gist of the crime of conspiracy is the agreement and the offence is completed as soon as the parties have agreed on the unlawful purpose. Conspiracy to do acts which, if done, would constitute a single specific offence would normally attract the same punishment as would be given for the commission of that specific offence. Where, however, the conspiracy is aimed at the commission of a number of crimes, the sentence imposed will be relatively high because of the possibility of aggregation. 4 The gravity of the offence, and hence the appropriate sentence, must be determined in all cases by, among other things, the amount of narcotics involved, the extent of the involvement of the person charged, the nature of the narcotics, the motive of the offender, his antecedents and the extent to which the agreement has been carried into effect. [56] The conspiracy in this case was highly sophisticated. It resulted in the commission of the offence that was its object, on three occasions involving a very large amount of high-grade cocaine. Devloo was more highly placed. In all of the circumstances, it is appropriate that the sentence for conspiracy be the same as that for the substantive offences. Accordingly, I sentence Ong to eight years imprisonment, and Devloo to 10 years imprisonment. These sentences are to be served concurrently.

19 Page: 19 [57] I also make the following orders with respect to both Devloo and Ong: under s. 109 of the Criminal Code, an order prohibiting them from possessing any weapons for 10 years; the victim fine surcharge is set at a total of $400 in the case of Devloo, and $1,400 for Ong; forfeiture of any items seized by the police; DNA order. Counsel can advise me as to whether they wish the victim fine surcharge to be payable forthwith and default noted, or, alternatively, payable within a specific period of time. [58] A final comment. This situation is an example of the devastation individuals bring to their lives and those of their families when they choose to participate in the illegal drug trade. Devloo and Ong both had lives that offered them much to be content with. While superficially different in their motivations, fundamentally greed and the lure of money perhaps big money was the attraction. But the illegal drug trade is a risky business. The consequences of their decisions were, if not inevitable, at least not surprising. They, and the other 12 people involved in this Project, serve as telling reminders of the truth of this statement. J.