





COURT
OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Ali,









2010 BCCA 4




Date: 20100107

Docket:
CA035817

Between:

Regina

Respondent

And

Mohammad Sayiad Ali

Appellant






Before:



The Honourable Madam Justice Newbury





The Honourable Mr. Justice Chiasson





The Honourable Mr. Justice Frankel




On
appeal from: British Columbia Supreme Court, February 15, 2008, (
R. v. Ali
, 2008 BCSC 657, X068917)




Counsel for the Appellant:



P. M.
  Bolton Q.C., A. Samarasekera





Counsel for the Respondent:



R.
  Prior





Place and Date of Hearing:



Vancouver
, British Columbia





December 18, 2009





Place and Date of Judgment:



Vancouver
, British Columbia





January
  7, 2010









Written Reasons by
:





The Honourable Mr. Justice Chiasson





Concurred in by:





The Honourable Madam Justice Newbury
The Honourable Mr. Justice Frankel






Reasons for
Judgment of the Honourable Mr. Justice Chiasson:

Introduction

[1]

Mr. Ali appeals his sentence of six months
incarceration upon his conviction for trafficking and possession of cocaine for
the purpose of trafficking.  He was apprehended in an undercover investigation
of a dial-a-dope operation.  Mr. Alis conviction was affirmed by this Court
(2009 BCCA 464).  The conviction and sentencing reasons are indexed
respectively at 2007 BCSC 1942 and 2008 BCSC 657.

Positions of the appellant

[2]

The appellant alleges the sentencing judge did
not give consideration to imposing a conditional sentence and erred in treating
the fact that he pleaded not guilty, resulting in the need for a trial, as
indicating a lack of remorse. He also seeks to introduce fresh evidence.

[3]

Mr. Ali contends the fresh evidence, which
consists of a psychologists report and two letters of reference, sheds light
on the effect of separation from his family, and on his good character.  The
last paragraph of the report states:

While Mr. Ali
has been convicted of a serious offence, this assessment would indicate that he
does not demonstrate anti-social tendencies.  He is someone who is rather naive
in dealing with interpersonal demands.  Whether from his personal and/or
religious background, he behaves in ways that are overly generous.  This is a
characteristic he admired of his father and demonstrates with his own family in
this assessment.  He gives every indication of wanting to be a productive
member of the Canadian society.  His family is highly dependent on him for both
financial and emotional support.  Given that he is not anti-social, the
positive family dynamics, his obvious ability to financially and emotionally
support his family, and that he is now five years post offense without any
further transgressions, he would appear to have a low risk to re-offend.  He is
considered a good candidate for house arrest rather than further incarceration.

It is asserted that this information may
have persuaded the sentencing judge not to incarcerate Mr. Ali if it had been
presented to her.

[4]

Mr. Ali also contends his sentence is not
comparable to that of his co-offender in the dial-a-dope operation.

Discussion

[5]

The second allegation can be disposed of
summarily.  In para. 43 the judge stated:

[43]      The
age of the accused Mr. Ali is also a factor, because he is not a youth of 19 or
22.  He is an adult with very adult responsibilities.  Finally, there has been
no remorse that I can detect.

This is the only reference in the reasons
to remorse.

[6]

There is no reference in para. 43 to a not
guilty plea or to the need for a trial.  I see nothing in the reasons to
substantiate Mr. Alis contention and would reject it.

[7]

Mr. Ali contends he is a good candidate for a
conditional sentence.  He is a devoted family man on whom a number of people
depend.  He has adhered scrupulously to terms imposed on him in the context of
immigration proceedings.  He is active in the community and in his religion. 
It is asserted the judge did not give adequate consideration to the risk he
might reoffend, to his rehabilitation or to the effect of incarceration on his
family.

[8]

The Crown notes that defence counsel at the
sentencing hearing, who was not counsel on the appeal, made extensive
submissions calling for a conditional sentence.  In para. 48 the judge noted
the defence position observing: [t]he defence encourages this court to follow
their authorities and impose a conditional sentence.....  She reviewed each of
the authorities presented noting they differ a great deal from the case before
me.

[9]

As to the Crowns authorities, the judge
observed that they involved dial-a-dope operations ... and nine months
imprisonment has been a typical sentence ...  The courts have rejected
conditional sentences in most of those cases.  In para. 52 she concluded I
agree with the submissions by the Crown that a term of imprisonment is
appropriate in this case and a conditional sentence is not.

[10]

Mr. Ali contends the judge failed to undertake
the analysis mandated by the Supreme Court of Canada in
R. v. Proulx
,
[2001] 1 S.C.R. 61.  It is apparent from her reasons that the judge weighed the
relevant mitigating and aggravating factors and was alive to circumstances
relevant to a conditional sentence.  She stated in para. 52, [t]aking all of
the sentencing factors into consideration, I believe that deterrence both
general and individual is paramount here.  She went on to state:

[52]      ... I
would ordinarily impose a term of imprisonment of 9 to 12 months as an
appropriate sentence in such circumstances, but I am taking Mr. Alis family
obligations, his lack of criminal record, and other mitigating factors into
account, and therefore imposing a sentence of six months imprisonment, on each
charge, to be served concurrently.

[11]

The sentencing judge referred to
R. v.
Franklin
, 2001 BCSC 706, and stated:

[46]      In
Franklin
, at paragraphs
17 to 21, the dial-a-dope procedure was addressed.  I will repeat those
paragraphs, as I think it is important that the courts recognize fully what
dial-a-dope operations mean.  Paragraphs 17 to 21 of the
Franklin
decision state as follows:

[17]      Some explanation of Dial-A-Dope
operations is relevant.

[18]      Traditionally, drugs were
disseminated at the street level by purchasers going to certain areas of town
and taking the initiative to seek out those who sold the drugs on street
corners and in back alleys.  This, to some extent, constrained the
dissemination of the product. A Dial-A-Dope operation is different.  Anyone,
anywhere in the Lower Mainland, can place a telephone call to a vendor of
narcotics and, after establishing his or her credibility by satisfying the
vendor that he or she is not an undercover officer, make an arrangement to have
the drugs delivered to wherever the purchaser happens to be.  Typically, the
drugs are delivered within fifteen or twenty minutes and handed over in exchange
for cash.

[19]      This has several significant
results.

[20]      First, it makes these drugs, and
I refer primarily to cocaine and heroin, more readily accessible throughout the
Lower Mainland than they have been in the past.  It makes them accessible with
less effort on the part of the purchasers.  Purchasers, and here I think of
adolescents, who might feel intimidated at the thought of seeking out a drug
dealer in the recesses of the Main and Hastings area may nevertheless, in the
relative comfort and safety of suburban locations, easily purchase cocaine and
heroin as long as Dial-A-Dope operators are willing to oblige them.

[21]      I infer also that Dial-A-Dope
operations are profitable.  There is no evidence before me as to how much a
typical Dial-A-Dope dealer makes in the course of a day or a week but, having
sat as the trial judge on a number of these cases, I am aware that it is a
profitable way to make easy money.

I agree with these observations.

[12]

This Court addressed sentencing for dial-a-dope
operations in
R. v. Rastgoei
, 2008 BCCA 242, noting conditional
sentences have been imposed in some cocaine trafficking cases, but especially
in dial-a-dope trafficking operations, conditional sentence orders have not
been favoured.

[13]

In my view, the sentencing judge made no error
in principle in her refusal to impose a conditional sentence.

[14]

The judge commented on the fact Mr. Ali is from Fiji and is subject to a removal order.  She reviewed the history of his coming to Canada,
both legally and illegally, and his efforts to obtain refugee status in this
country.  Details of her considerations are in paras. 34-38 of the reasons:

[34]      There are a number of mitigating
factors with regard to Mr. Ali which I must take into consideration.  He has no
criminal record whatsoever.  He appears to be a respected businessman and
hardworking.  He began his own business in car sales and repairs of vehicles.

[35]      He is clearly a family man.  He
has the support of his mother and his wife and children.  He supports his four
children, two stepdaughters who are age 19 and 13, and a son age five and a
daughter age three whom he has with his present wife.  He is the sole financial
support of this family, and he supports them emotionally as well.  His
19-year-old stepdaughter has written a compelling letter on his behalf to the
court.

[36]      He is active in his Muslim faith. 
He has chosen life in Canada for better opportunities and living standards,
rather than staying in his native Fiji.  Two Muslim priests from the mosque
that Mr. Ali attends have been in attendance in court, and two letters have
been filed in this sentencing, one from an Imam, another from a Muslim priest. 
His mother and his wife have been in court in support of him.

[37]      His mother has been a widow for
eight years.  She is diabetic and has written also a letter to the court.  Her
son Mr. Ali is her sole support.

[38]      Mr. Ali
has an impressive record of reporting almost every second week since January
2002 to Immigration, and that record has now been filed in these sentencing
proceedings.

[15]

The judge then turned to aggravating factors
stating:

[39]      With regard to the aggravating
factors, this is trafficking in cocaine.  In my view, very serious charges.  Possession
for the purpose of trafficking in a substance that is a drug that can only be
described as poison, poison particularly to our youth and certainly for
anybody.

[40]      It was a dial-a-dope form of
trafficking.  It involved a cell phone.  It involved a rental car, and that is
significant, because according to the police evidence before me, those engaged
in dial-a-dope operations significantly use rental cars to avoid forfeiture of
their own vehicles.  The dial-a-dope operations spread the drug problem.  It is
harder to detect and more accessible for those who seek those drugs. 
Motivation here was greed.  There is no indication whatsoever that Mr. Ali is a
user, and certainly no indication he is an addict.  He is an entrepreneur with
his own business.

...

[42]      Following the deal going down,
there was the driving and an attempt to apprehend the two accused; the manner
of driving by Mr. Ali was such as to evade police.  There were seven RCMP
officers in this operation and also involved in the court appearance.  All
seven gave evidence.  This was a time-consuming and costly operation.

[43]      The
age of the accused Mr. Ali is also a factor, because he is not a youth of 19 or
22.  He is an adult with very adult responsibilities.  Finally, there has been
no remorse that I can detect.

[16]

I am satisfied the judge fully and properly
weighed the factors relevant to Mr. Ali.  She made no error concluding in this
case that a period of incarceration was warranted.  I also am satisfied that
the fresh evidence would add nothing to the analysis.

[17]

In
R. v. Lévesque
,

[2000] 2 S.C.R.
487, the Court stated the criteria relevant to the admission of fresh evidence
in para. 35:

(1)        The evidence should generally not be admitted if, by
due diligence, it could have been adduced at trial provided that this general
principle will not be applied as strictly in a criminal case as in civil cases.

(2)        The evidence must be relevant in the sense that it
bears upon a decisive or potentially decisive issue relating to the sentence.

(3)        The evidence must be credible in the sense that it is
reasonably capable of belief.

(4)        The evidence must be such that if believed it could
reasonably, when taken with the other evidence adduced at trial, be expected to
have affected the result.

[18]

In my view, the tendered fresh evidence in this
case does not meet the first and last criteria.  There is no explanation why
this material could not have been obtained and placed before the sentencing
judge.  The material adds very little to the information that was before the
sentencing judge.

[19]

In para. 41, the judge dealt with the
relationship between Mr. Ali and his co-offender:

[41]      His
co-accused, Mr. Osborne, was clearly an addict.  There was evidence of active
and heavy trafficking by the number of telephone calls that came to the cell phone
after the two were apprehended by the police.  The money was found on Mr. Ali. 
There was no money found on Mr. Osborne.  The $30 in marked bills was found on
Mr. Ali.  There was a significant amount of drugs found on Mr. Osborne, 20
grams of cocaine in 54 small packages.  There is an inference that this was not
an isolated transaction, as I say, because of the telephone calls that kept
coming in to the apprehended cell phone.  This type of operation, a dial-a-dope
operation, is to avoid detection and forfeiture.

[20]

In my view, the judge made no error in her
consideration of the positions of Mr. Ali and his co-offender who was given a
conditional sentence.

Conclusion

[21]

I would dismiss this appeal.

The
Honourable Mr. Justice Chiasson

I agree:

The Honourable Madam
Justice Newbury

I agree:

The Honourable Mr. Justice Frankel


