Christopher Tarach

This decision concerns the sentencing of two individuals, Adam Luangphasi and Alexander Le, following their convictions for multiple drug-related conspiracies arising from "Project Southam." Luangphasi was found guilty of conspiracy to traffic cocaine (Carpet Conspiracy) and two counts of conspiracy to import cocaine (Guyana Conspiracy and Plane Conspiracy), where he was identified as a top principal.

Le was found guilty of conspiracy to export cannabis (Cannabis Conspiracy) and also conspiracy to traffic cocaine (Carpet Conspiracy) and conspiracy to import cocaine (Guyana Conspiracy), acting as a close colleague to Luangphasi.

The court applied sentencing principles of denunciation, deterrence, proportionality, and parity, emphasizing the severe societal harm caused by drug importation and trafficking.

It rejected the argument that a "dry conspiracy" (where drugs were not actually imported) warrants a significant sentence reduction if the conspiracy was not abandoned.

Luangphasi received a global sentence of 18 years imprisonment, while Le received a global sentence of 9 years imprisonment, with specific concurrent terms for each count.

Ancillary orders for DNA and firearms prohibitions were also imposed.

Brian Aguiar pleaded guilty to possession of cocaine for trafficking and unauthorized possession of a prohibited firearm.

Police found significant quantities of drugs and a Glock handgun in hidden compartments in vehicles registered to him.

The Crown sought a 9-year consecutive sentence, while the defence proposed a conditional sentence or a maximum of 3 years further imprisonment.

The court considered aggravating factors such as the sophisticated nature of the trafficking, the dangerous combination of drugs and a firearm, and greed as a motive.

Mitigating factors included the offender's difficult past, positive character references, and guilty pleas, which were particularly mitigating due to serious police violations of solicitor-client privilege during wiretap interceptions.

The court credited 397 days of pre-sentence custody at 2:1 due to harsh conditions, and also applied "Downes credit" for strict bail conditions.

The court imposed a global sentence of 5 years imprisonment for the cocaine conviction and 2 years concurrent for the firearm conviction, resulting in a net sentence of 950 days (approximately 2.6 years) from the date of sentencing, after accounting for pre-sentence custody and Downes credit.

The court declined a conditional sentence, emphasizing denunciation and general deterrence for the serious nature of the offences.

The Applicant, Billy Persaud-Hearns, sought a recusal order against Justice Shannon L. Pollock, alleging a reasonable apprehension of bias.

The Applicant's position was that the judge's prior authorization of a DNA warrant in an ex parte application related to a separate but similar set of allegations against the Applicant created a perception of bias.

The Crown opposed the recusal, arguing that judges are presumed impartial and capable of disabusing themselves of prior knowledge.

The court, applying the test for reasonable apprehension of bias, found that the Applicant had not met the high threshold required.

The judge's prior involvement was limited to an ex parte authorization on a separate matter, with no findings of fact or credibility made against the Applicant.

The application for recusal was dismissed.

The applicants sought a stay of proceedings under s. 24(1) of the Charter, alleging a breach of their s. 11(b) right to be tried within a reasonable time.

The court found the total delay exceeded the 18-month presumptive ceiling for provincial court matters.

The Crown failed to rebut the presumption of unreasonableness by establishing exceptional circumstances, as the delay was primarily due to the Crown's failure to properly assess and streamline the co-accused prosecution, rather than case complexity or the COVID-19 pandemic.

Consequently, all charges against the applicants were stayed.

The applicant, Landyn Delaney, sought a review of his detention order under s. 520 of the Criminal Code.

The original Justice of the Peace had found detention justified on tertiary grounds.

The Superior Court found no error of law in the Justice of the Peace's application of the tertiary ground test but identified a material change in circumstances based on new evidence, including a more stringent release plan with two sureties (father and brother) and electronic monitoring.

The court concluded that, with the new plan, a reasonable member of the public would not lose confidence in the administration of justice if the applicant were released, considering his lack of prior record, youth, and the principle of restraint.

The application was allowed, and the applicant was released on strict conditions.

The offender pleaded guilty to possession of a loaded prohibited firearm, possession of methamphetamine, and failure to comply with a recognizance.

The court considered the offender's lengthy criminal record, substance abuse disorder, and ADHD diagnosis, alongside his guilty plea and prospects for rehabilitation.

The court imposed a total sentence of 35.5 months, granting standard pre-sentence credit at 1.5:1 and enhanced credit at 2:1 for days spent in lockdown due to harsh conditions, leaving 4 months to serve followed by 2 years of probation.

The accused, charged with attempted murder and discharging a firearm, applied for a pre-trial ruling to admit his prior consistent statements made to police during and after his arrest.

He argued the statements were spontaneous and probative of his state of mind at the time of the offence under the Edgar exception.

The Crown opposed, arguing the statements lacked spontaneity because the accused had already spoken to friends and a crisis negotiator before being confronted by police.

The court agreed with the Crown, finding the statements were not genuine reactions to the accusation but expressions of hope regarding the case's outcome.

The application was dismissed.

The applicant brought a section 11(b) Charter application seeking a stay of proceedings based on delay.

The applicant was arrested on August 28, 2018, and his trial was scheduled to conclude on February 24, 2020, just four days before the Jordan 18-month presumptive ceiling.

The applicant was in custody awaiting trial.

The court found that while the applicant demonstrated no defence delay and that the case took markedly longer than it reasonably should have, the applicant failed to establish that he took meaningful and sustained steps to expedite the proceedings.

Specifically, the applicant did not bring a severance application after learning that co-counsel scheduling issues would delay trial by almost one year, and took no proactive steps after trial dates were set.

The application was dismissed.

The defendants brought applications under section 8 of the Canadian Charter of Rights and Freedoms to challenge the lawfulness of search warrants executed on three apartment units.

Thanh Nguyen lacked standing to challenge the search of the Sherway location as he had no reasonable expectation of privacy in a unit he was merely permitted to use as a guest.

Catherine Vu and Kevin Tran challenged the search of the Lakeshore location where Vu was the tenant.

The court found the warrant for the Lakeshore location was issued without reasonable grounds to believe evidence would be found there, as the connection between Tran and the residence was insufficient to establish more than occasional guest status.

The search violated section 8 rights.

However, under the R. v. Grant analysis, the evidence was admitted as the police acted in good faith, the state conduct was not improper, and society's interest in adjudication on the merits outweighed the privacy breach.

Three defendants applied for orders staying criminal proceedings on the grounds that their right to be tried within a constitutionally tolerable time had been breached.

The applicable ceiling for Ontario Court of Justice cases is 18 months.

The Crown argued that when defence delay periods were subtracted, the total delay did not exceed the ceiling.

The court found that two applicants' delay did not exceed the 18-month threshold after deducting defence delay caused by their decision to change counsel.

For the third applicant, although the delay exceeded the Jordan guidelines by nine days, the court found exceptional circumstances existed that rebutted the presumption of unreasonable delay.

All three applications were dismissed.

The applicant sought leave to cross-examine the affiant and sub-affiant regarding an Information to Obtain a search warrant for his residence.

The search warrant, issued on October 20, 2016, led to the seizure of eight computer devices and the discovery of child pornography.

The applicant was charged with possession of child pornography and accessing child pornography.

The applicant argued that the ITO lacked information about the investigative process linking the computer user at a suspected IP address to the possession of child pornography, and that cross-examination was necessary to remedy these informational shortcomings.

The Crown opposed the application, arguing that the applicant had not demonstrated that cross-examination would elicit testimony tending to discredit a pre-condition to the warrant's authorization.

The court refused leave to cross-examine, finding that the applicant had not established an evidentiary basis for the proposed cross-examination and that the areas sought were too broad and speculative.

The accused was charged with operating a motor vehicle with a blood alcohol level exceeding 80 mg per 100 ml of blood contrary to section 253(1)(b) of the Criminal Code, and with failing to stop and provide his name and address at the scene of an accident contrary to section 252 of the Criminal Code.

The Crown called evidence from a civilian witness, three police officers, and an expert toxicologist.

The accused testified and raised Charter violations.

The court found no Charter breaches, rejected the accused's evidence regarding post-accident drinking as fabricated, and found the Crown proved the over 80 charge beyond a reasonable doubt.

However, the court acquitted on the section 252 charge, finding the accused provided his cell phone number and did not intend to escape liability.

The defendant, Jacqueline Simone, faced charges including attempting to export cocaine and conspiracy.

During the trial, the defence brought two applications: to exclude telephone records from a co-conspirator's cell phone and to prevent the testimony of an officer regarding retrieved deleted messages from the defendant's phone.

The court dismissed both applications.

The first application was dismissed as the defence failed to establish that the co-conspirator hearsay evidence lacked necessity and reliability, applying the "rare cases" exception from R. v. Mapara.

The second application was dismissed, finding the officer's testimony factual, not expert opinion, and the evidence of deleted messages was probative as post-offence conduct, outweighing any potential prejudice.

The defendant, Jacqueline Simone, was charged with attempting to export cocaine, possession for the purpose of exporting, and conspiracy to export cocaine.

The Crown sought a ruling on the admissibility of statements made by Ms. Simone to the police following her arrest.

The Defence sought to exclude these statements, alleging violations of Ms. Simone's Charter rights.

The court conducted a blended *voir dire* and ultimately ruled that Ms. Simone's statements were voluntary and admissible, finding no Charter breaches.