Court File and Parties
Court File No.: CR-22-9-000102-0000; CR-22-0000103-000 Date: 2022-04-26 Superior Court of Justice – Ontario
Re: R v. Duc Tung Hoang
Before: S.F. Dunphy J.
Counsel: Xenia Proestos, for the Public Prosecution Service of Canada Alan D. Gold and Ellen C. Williams, for the Defendant Duc Tung Hoang
Heard at Toronto: April 11, 2022
Reasons for Decision - Sentencing
[1] Mr. Hoang is before me today for sentencing. Following a judge-alone trial, he was convicted by me on five counts of possession for purposes of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 of various compounds containing heroin, fentanyl, carfentanil and cocaine as well as two counts of possession of proceeds of crime contrary to s. 354(1)(a) of the Criminal Code: R. v. Hoang, 2022 ONSC 1412. In addition, he was convicted on two counts of unsafe storage of a firearm and ammunition contrary to s. 86(1) of the Criminal Code. He was acquitted on three further counts of possession for the purpose of trafficking.
[2] The sentencing hearing was held on April 11, 2022, and my decision was reserved until this day.
[3] The charges arose from an investigation lasting several months by a multi-jurisdictional police task force culminating in the execution of various search warrants and the arrest of Mr. Hoang on July 18, 2018. A search of Mr. Hoang’s 2013 Acura hatchback sedan disclosed over 16 kilograms of controlled substances – cocaine, heroin, fentanyl and carfentanil – stored in containers in the rear of the vehicle or in a custom-built “trap” built into the console. The vehicle was also found to contain a semi-automatic shotgun in the rear cargo area and a magazine with two shells located in the middle row of passenger seats. Bundles of cash were found inside the vehicle ($118,000) and concealed inside his home (US$1,040 and $142,200). Further funds - $8,000 - were found on his person when he was arrested.
[4] A preliminary matter arose at the sentencing hearing. Mr. Hoang filed an application seeking an adjournment of the hearing for a period of approximately 90 days in order to permit him to be present and participate with his spouse for a course of fertility treatments. In addition to providing support for his spouse, Mr. Hoang’s application materials state that he is required to be present at various appointments over the coming several months in order to act as a donor.
[5] The Crown opposed this application.
[6] I rejected the application for an adjournment. While I do not question the sincerity of Mr. Hoang’s desire to participate in the course of treatment described, that course of treatment is essentially an elective one. Mr. Hoang has been at liberty since shortly after his arrest in July 2018 even if subject to a reasonably strict set of house-arrest conditions (that I shall refer to in greater detail below). He has had the capacity to participate in medical appointments during that time or to have sought reasonable amendments to his release conditions if required. The trial was adjourned on two occasions at the request of the defence. There is nothing in the record before me pointing to any efforts made to consider reasonable alternatives to his in-person participation in the process at the very time that he is expected to step into custody for what will be a lengthy period of time on any view of the matter. I delivered this aspect of my decision from the bench and Mr. Hoang has thus had the benefit of a further two weeks prior to receiving his sentence in order to make such arrangements as can be made in connection with the desired course of treatment.
Nature and circumstances of the offences
[7] Mr. Hoang was found guilty of possessing a very significant quantity of some of the most toxic and destructive controlled substances on the street today: cocaine, fentanyl, carfentanil and heroin. All of these were found in a vehicle belonging to Mr. Hoang that was parked in an underground parking space rented by him through a friend in a condominium building a short drive from his Mississauga home.
[8] The following is a summary of the volumes of the compounds containing controlled substances seized: a. Heroin: 5.1 kg b. Heroin and Fentanyl: 2.2 kg c. Heroin, Carfentanil and Fentanyl: 994 g d. Carfentanil: 494 g e. Cocaine/crack cocaine: 7.5 kg
[9] The compounds of heroin, fentanyl and carfentanil were variously cut with caffeine, dimethyl sulfone or both. Most of the controlled substances seized were compressed into brick or puck form although some were found loose in Ziplock bags or Tupperware containers. Not all of the pucks or bricks were sampled and sent to Health Canada for testing. Where several similar looking compressed compounds were found stored in the same place and manner, generally only samples from one or two were sent for testing. In my reasons for judgment, I made findings as to the contents of the untested bricks and the totals above incorporate those findings.
[10] Health Canada provided purity analysis of only some of the samples submitted whether by design or by reason of issues associated with the sample sizes sent is not clear. Three of the seven compressed bricks found by me to contain cocaine were tested for purity and none of the three compressed cocaine/crack pucks were so tested. The purity of the cocaine samples tested ranged from 80% to 93% in the three samples where purity figures were given. Two of the seven loose or compressed compounds found to contain heroin cut with caffeine and dimethyl sulfone tested at 30% and 45% heroin respectively. No purity figures were given for any of the five loose or compressed compounds found to contain compounds of fentanyl or carfentanil.
[11] In total, approximately 7.5 kg of cocaine and 8.8 kg of opioid compounds (heroin, fentanyl or carfentanil alone or in combination) were seized. These amounts are very significant by any measure and plainly place the disrupted operation at the level of a wholesale trafficking operation.
[12] Mr. Hoang testified that he generally made three or four deliveries a week. I rejected his evidence that he did so as a simple deliveryman with little more than his suspicions as to the contents of what it was that he was delivering. He testified that the $118,000 in cash found inside his vehicle upon its seizure arose from proceeds of deliveries made only the evening prior to his arrest (which evidence is corroborated by the evidence from the police surveillance operation prior to his arrest). That volume of cash from a single day’s transactions viewed in combination with the huge volumes of “product inventory” on hand at the time of his arrest gives a valid if necessarily approximate idea of the scope and scale of the operation in which Mr. Hoang was intimately involved. While I obviously cannot blindly extrapolate that figure by three or four similar transactions per week over the two years that he admitted to being in this business, the relative scope and volume of the business is clear if its precise dimensions cannot be delimited.
[13] Digital scales, money counting devices, multiple cell phones, latex surgical-style gloves (both new in boxes and numerous discarded used), new and used respirator-style masks, Ziplock bags of various sizes, vacuum sealing equipment, blending and mixing equipment and bulk cutting agents were found in the garage of his home and in his car. While only part of a narcotics press was found at the time of his arrest, all of the other equipment needed to cut, mix, package, weigh and store dangerous narcotics in a safe manner and to count the proceeds of sale thereof were present in his vehicle, garage and home. The state of the controlled substances seized from his car reflected different stages of processing from bags of cutting agent in tablet form (caffeine) to compounds in loose powder to pellets to compressed bricks or disks.
[14] Finally, a semi-automatic shotgun was found in a gun case in the cargo area of the Acura containing the money and narcotics. A magazine loaded with two shells was found only a few feet away on the middle passenger seat. The location of this gun in this vehicle (Mr. Hoang drove three vehicles with some frequency although a special storage compartment or “trap” was built into only one of them) leaves no doubt that the gun served in at least an auxiliary role in the trafficking operation. Mr. Hoang has firearms expertise. He legally and safely stored numerous firearms in a locked gun room inside his home. The location of this firearm and related ammunition - in a vehicle containing significant volumes of cash and narcotics and in a condition where a knowledgeable user such as Mr. Hoang could assemble it in a matter of seconds if desired - was no accident.
[15] The police raid on July 18, 2018 brought an abrupt end to what was without doubt a large-scale wholesale narcotics operation.
[16] During the investigation phase of the police operation, Mr. Hoang was seen driving to locations in Markham, Kitchener and the Mississauga area meeting people in parking lots and in their vehicles. He admitted that at least some of these observed interactions were instances of his delivering narcotics. I find that the instances witnessed by police surveillance witnesses in Markham and in the Square One area on July 16, 2018 were two such instances of narcotics being delivered by Mr. Hoang in connection with the trafficking business in which he played a central role.
[17] While I cannot make precise findings of Mr. Hoang’s exact role in the business, I find the Crown has proved beyond a reasonable doubt that Mr. Hoang played an important, central and knowing role in a relatively sophisticated wholesale-level opioid and cocaine trafficking operation at the multiple-kilogram level. Whether his status in the business was as CEO or executive vice-president cannot be determined with certainty. However, there can be no doubt that he was no mere order-taking flunky told only what he needed to know. The possession and storage of cutting agents, the evidence of packaging and mixing equipment found in his car and the garage of his home and the significant cash proceeds found in his possession utterly belie any contention that his role in this large-scale operation was merely peripheral or low-level. Mr. Hoang was a knowing, central participant in a sophisticated but illegal business operation of some scale.
[18] By his own admission, Mr. Hoang had been in this business for approximately two years prior to his arrest. Indeed, his evidence established that his participation in that business extended somewhat beyond two years as he said that the Acura vehicle in question was acquired by him for the purpose of the business in late 2015 or in 2016. Given an arrest in mid-July 2018, that would put two years at the extreme low end of the lifespan of his illicit venture.
Nature and circumstances of the offender
[19] Mr. Hoang is 38 years of age. He has attended various courses at Conestoga College in Kitchener but has not completed a post-secondary degree. I do not have his complete work history before me but he worked for a time in the payroll department of an autobody shop and has been employed as a golf pro in various capacities since 2013. He has no prior record and is thus a first-time offender. During the bulk of the time his narcotics business was in operation, his “legitimate” business interests were primarily his seasonal employment as a golf pro. By all external appearances, he was enjoying some success in that career.
[20] Mr. Hoang’s father died in 2019. His 74-year-old mother lives with her currently unemployed son (Mr. Hoang’s older brother) in Kitchener. She is retired and diabetic and relies upon Mr. Hoang to assist her with medical appointments and the like. Mr. Hoang considers his mother and older brother as his dependents.
[21] Mr. Hoang was recently (August 2021) married to Ms. M.K. As noted in my reasons for judgment, he is a one-third (undivided) owner of the family home in Mississauga along with Ms. M.K. and her father. I do not have precise fair market value evidence of the value of the family home. To the extent it is material for the purposes of this decision, I am satisfied from the photographs of the home viewed at trial, the MPAC assessed value of the home that Mr. Gold relayed to me ($869,000) and the general knowledge common to judges who happen to be homeowners in the GTA region that the house is worth considerably more than a million dollars at the present time against which Mr. Gold advises that there is a mortgage being serviced at the rate of $2,800 per month. The amount of that mortgage is not in evidence before me but Mr. Gold advised that it is somewhat below the MPAC assessed value and there is no evidence as to what portion of the mortgage pre-dates or post-dates his arrest.
[22] While I do not fully endorse the Crown’s contention that Mr. Hoang lived a lavish lifestyle fueled by the proceeds of crime, it was certainly a comfortable one. His suburban home was equipped with a pool, modern kitchen and home theatre. He had a new pick-up truck as well as the Acura sedan seized by police while his spouse had her own late-model vehicle as well. Three expensive luxury watches (two of which Mr. Hoang said were gifts from his father) were found in the search of his home.
[23] What does emerge clearly from the evidence is a portrait of an offender for whom neither necessity nor extenuating circumstances can fairly bear any material portion of the responsibility for his decision to engage in this illicit enterprise.
[24] Mr. Hoang’s description of how it is he came to be involved in this business is remarkable for its simplicity. He was presented with an opportunity to make some additional cash and his lack of a criminal record recommended him. With apparent alacrity, he decided to jump in. Greed and opportunism, entirely unconstrained by the presence of any scruples, is the only description that aptly describes this ethically challenged decision-making process.
[25] Mr. Hoang’s income earning capacity has certainly been reduced during these past four years while he has been at large waiting for his trial. His release conditions bear only some of the responsibility for that – the challenges of the pandemic definitely limited options available to a golf pro whose already seasonal industry was periodically shut down. He has secured such other employment as he has been able. Mr. Gold estimated his average income in the range of approximately $60,000 per year for the past three years.
Aggravating circumstances
[26] I find that the presence of a firearm and ammunition in ready proximity to the storage of such significant quantities of narcotics and in evident connection with this large-scale narcotic trafficking operation is an aggravating factor.
[27] The nature and scale of the trafficking operation in which Mr. Hoang played an important role is an aggravating circumstance. The state of processing and volume and variety of the narcotics found when Mr. Hoang was arrested attests to the scale of this enterprise. A reasonably expensive vehicle was acquired in late 2015 or early 2016 and customized to operate in effect as a mobile trafficking warehouse. I rejected Mr. Hoang’s evidence that he was not responsible for this modification and unaware of its existence. A parking spot unconnected to his name and a distance away from his home was rented to house it. The significant volumes of some of the most highly dangerous opioids involved – heroin, fentanyl and carfentanil - is particularly troubling, the latter two opioids in particular having played such a prominent role in the spike of opioid-related deaths in this community in recent years.
[28] Mr. Gold suggested that I should attach great weight to the lack of evidence concerning the degree of purity of the seized amounts of fentanyl and carfentanil in particular but also the untested bricks, disks or bags of heroin or caffeine. It is possible, he suggested, that the samples without purity data associated contained only tiny trace amounts of the relevant controlled substance. I do not agree. The compounds for which purity information was provided by Health Canada more than confirms the scale of the operation. Further, the toxicity of fentanyl and carfentanil in even minute quantities renders the debate somewhat moot. The danger posed by these compounds is particularly evident given the variability in purity data appearing from one test to another of visually similar if not identical compounds.
[29] The admitted duration of this trafficking operation and the evidence of the sale of volumes of narcotics in the past for which no charges have been laid is a further aggravating factor. I accept the Crown’s submission in this regard based on the Supreme Court of Canada’s decision in R. v. Larche, 2006 SCC 56 and s.725(1)(c) of the Criminal Code.
[30] The conditions for applying this aggravating circumstance laid down by Larche are that (i) the uncharged offences must themselves be proved beyond a reasonable doubt; (ii) that there is a close connection between such offences and the ones for which the accused is being sentenced; and (iii) the lack of any unfairness in considering this circumstance. All of these conditions are satisfied here.
[31] Mr. Hoang admitted to engaging in this illicit business since late 2015 or early 2016 when the Acura was acquired by him for the purpose of carrying on this business. He admitted that the cash found in his vehicle and in his house arose from prior sales of narcotics completed by him – whether the night before in the one case or an unspecified period of time in the past in the other – for which he has faced no specific charges. I accepted Mr. Hoang’s evidence generally as to the number and nature of the deliveries that he made. On his own evidence, he was making deliveries three or four times per week. He admitted that many of the transactions observed by police over the three and a half months that he was under surveillance and described by witnesses as probable drug transactions were instances of him dropping off drugs or picking up money from sales. I accepted his evidence of the general frequency of transactions, the scope of the business and its general nature (narcotics) even if I rejected his attempts to minimize his own role in and degree of knowledge of the true nature of what he was doing.
[32] It is by no means necessary for me to make specific findings of what volume of what type of narcotics he sold for what proceeds over precisely what that time period. I do find that the evidence establishes beyond reasonable doubt that he was knowingly engaged in the business of trafficking in Schedule 1 narcotics, including cocaine, at a wholesale level for multiple times per week for the much of the time frame. For how long and to what degree the “harder” drugs of heroin, fentanyl and carfentanil entered the product mix handled by him over that time frame cannot be determined with certainty but the evidence supports the inference beyond a reasonable doubt that these harder drugs were a well-established part of his business and not one introduced only just prior to his arrest. The presence of bulk cutting agent in his garage delivered months earlier, the grinding and mixing infrastructure in place in his garage and the differing state of processing of the bulk products found in the back of the vehicle as opposed to inside the trap all lead to the inference of this particular aspect of his business being developed and mature.
[33] I am satisfied that the prior offences as I have described them have been proved beyond a reasonable doubt and their close connection to the offences charged here is plain and obvious. The vehicle in which the controlled substances were found is the same vehicle that Mr. Hoang said was acquired for the purpose of engaging in this business. The proceeds of crime which he has admitted to possession of arise from the very uncharged offences in question. He admitted that proceeds of that business were used to acquire luxury items and even to help pay for his home.
[34] There is no unfairness worked here by my reliance in part upon the admissions made by him simply because those admissions were made in the context of other evidence that I rejected (and by which he sought to deflect his own responsibility). This follows from the decision of the Court of Appeal in R. v. Shin, 2015 ONCA 189 at paras. 96-97.
[35] As in Shin, Mr. Hoang elected to testify in an effort to distance himself from the more blameworthy aspects of the case he faced (esp. the possession of the very large quantities of hard drugs) while admitting to the comparatively lesser offences of possession of proceeds of crime. His evidence once tendered is evidence even if it fails to deliver all of the benefits he may have hoped when he elected to tender it. As trial judge, my role was to consider how much if any of his evidence I would accept. I accepted some aspects and rejected others. This was not a voir dire and there is no concept of a provisional or conditional tender of evidence at trial.
Mitigating circumstances
[36] I find that the following mitigating circumstances are present in this case and must be given appropriate weight in fashioning a fit and proper sentence: a. Mr. Hoang is a first-time offender; b. Mr. Hoang has a strong pro-social network of family, friends, community and religious temple support to assist in his rehabilitation efforts; and c. The lengthy period of time during which Mr. Hoang has lived under what would generally be considered somewhat restrictive “house-arrest”-type conditions (see R. v. Downes at para. 37).
[37] The impressive list of support letters amassed by Mr. Hoang from family, friends, community members and members of his religious community speaks well of his general potential for rehabilitation and to the strength of the network upon which he might eventually rely in pursuing that goal.
[38] I would assess Mr. Hoang’s rehabilitation potential as being guardedly optimistic by reason of the presence of a strong prosocial network being available to help sustain and supplement his efforts. I temper that observation by the realization that (i) Mr. Hoang has shown himself quite adept at concealing his criminal alter ego from that same strong network these past several years; and (ii) the desire for easy gain that appears to have driven him into the arms of such a harmful occupation in the past could once again displace any resolve to seek rehabilitation.
Position of the parties
[39] The Crown proposed a sentence of eighteen years given the large quantities seized, the preponderance of “hard drugs” in the amounts seized and the presence of aggravating factors including the exceptionally harmful nature of the substances seized, the prior uncharged offences admitted to by Mr. Hoang and the circumstances of Mr. Hoang whose financial gain motive indicates a high degree of personal responsibility.
[40] Also sought were a fine of $156,000 reflecting a conservative estimate of profits earned by him over the two years he admitted to being in the business, a half-parole order under s. 743.6(1) of the Criminal Code, and forfeiture of both cash and the vehicle seized. The Crown requested a two-year sentence for the two proceeds charges and six months for the firearms charges, all sentences to be concurrent with the sentence imposed under Count Three (possession for the purpose of trafficking of heroin and fentanyl). Other ancillary orders including a DNA order and a ten-year firearms prohibition order were also sought.
[41] The Crown agreed that all sentences should run concurrently.
[42] For the defence, Mr. Gold noted Mr. Hoang’s lack of a prior record and the strong indications of support evidenced by the eloquent support letters filed from friends, family and community members. Mr. Hoang is a newlywed who is hoping to start a family with his wife. He is a support for his retired mother and unemployed brother. His work record suggests diligence and resourcefulness. He referred to his brief of authorities, most of which were importing narcotics cases selected, he submitted, because importing cases generally result in higher rather than lower sentences when compared to cases involving possession for the purpose of trafficking of similar quantities of the same substances. He cautioned that care must be taken in applying sentencing policies emerging from more recent cases that post-date Mr. Hoang’s arrest. He suggested that my ruling on Mr. Hoang’s responsibility for possession of the substances found in the vehicle does not extend to a finding that he knew of the presence or volume of “hard drugs” such as heroin, fentanyl and carfentanil. Finally he referenced the failure of the Crown to obtain purity analysis for all of the substances seized as opposed to just a few of them. He suggested that the Court cannot infer anything about the absolute amount of the controlled substances seized which could well be only trace amounts.
[43] Mr. Gold urged me to impose a sentence of seven years less pre-trial custody of 32 days and Downes credit of 447 days calculated at the rate of 1:3. He urged me to reject the Crown’s request for a half-parole order. Such an order, he suggested, ought to be extraordinary and the evidence does not support a finding given Mr. Hoang’s level of involvement. He also rejected any suggestion that a fine might be imposed describing the house as “mortgaged to the hilt” and there being no evidence of ability to pay. He indicated that Mr. Hoang does not oppose the requested forfeiture orders in light of the convictions entered but that he ought to have returned to him the other items seized including the watches given to him by his father.
Issues for decision
[44] The following are the principal sentencing issues raised in this case: a. What pre-sentence custody and Downes credit ought to be granted? b. What is the appropriate sentence for each of the five possession for the purpose of trafficking offences? c. What is the appropriate sentence for each of the two possession of the proceeds of crime offences? d. What is the appropriate sentence for the two dangerous storage of firearm and ammunition offences? e. Is half parole warranted on the facts of this case? f. What ancillary orders ought to be made?
Analysis and discussion
(a) What pre-sentence custody and Downes credit ought to be granted?
[45] The parties are in agreement that Mr. Hoang should receive 32 days of credit in respect of pre-sentence custody. I shall so order.
[46] There was considerable disagreement about what amount of Downes credit Mr. Hoang ought to receive by reason of the relatively harsh release conditions under which he has been living for most of these past four years. What is agreed is that Mr. Hoang spent 925 days living under what the defence characterizes as restrictive bail conditions and 417 days under somewhat less restrictive conditions.
[47] The cases are somewhat divided as to whether Downes credit ought to be applied on a formula basis (eg. one day credit for each three, four or five days under house arrest, etc.) or whether restrictive release conditions ought to be considered more broadly as mitigating circumstances to be taken into account along with other mitigating circumstances in formulating a fit and proper sentence.
[48] In Downes the Court of Appeal directed that credit must be considered as a mitigating factor while the amount of credit to be given is in the discretion of the trial judge for which no formula is required to be applied. I do not find it helpful to reduce this particular mitigating factor to an artificially precise formula as I find that it can mischaracterize and distort the process of considering all of the mitigating circumstances in the process of arriving at a fit and proper sentence. Sentencing is a quintessentially individualized process that simply cannot be reduced to the mechanical application of a formula – this is true of the sentence as a whole and logically is also true of the weight to be attached to the applicable sentencing principles, and the aggravating and mitigating circumstances that are weighed in the balance when making that determination. While the application of mitigating circumstances means that the resulting sentence is logically milder than it would be absent those circumstances, a sentence is not simply the mathematical sum of discrete and precise parts separately determined. It is the fitness of the overall sentence in light of all of the circumstances of the offender and the offence – both mitigating and aggravating – that must be considered.
[49] The foregoing being understood, one has to start somewhere and a sense of the magnitude of this particular mitigating factor is required in order to assess its weight. The defence offered its own breakdown of the Downes credit to be applied and I asked the Crown to respond to that breakdown in a numerical fashion for comparison purposes at least.
[50] The defence broke Mr. Hoang’s time under release conditions into four separate time frames based on the changing release conditions.
[51] For the first time period – 426 days from July 2018 until September 2019 – Mr. Hoang was required to live with his surety outside of the family home he formerly shared with Ms. K.V. (now his wife). She was then a co-accused with him. The strict house-arrest conditions were relaxed in November 2018 on a consent variation to allow him to travel to and from work for lawful employment. He was not then subject to a driving prohibition. During this time frame, Mr. Hoang said that he was unable to attend the memorial service in Kitchener following the death of his father.
[52] From September 24, 2019 until October 7, 2019 Mr. Hoang was returned to custody for failure to comply with the terms of his recognizance. Mr. Gold characterizes the breach – for which Mr. Hoang was found guilty – as a “technical breach” because he stopped off at his spouse’s residence to change his clothes after work instead of proceeding directly home as his bail conditions required. I am in no position to second-guess the finding that was made in that other proceeding and decline to do so. On the other hand, I do take note of the degree of severity of the offence implicit in the relatively mild penalty imposed. Mr. Hoang’s liberty pending trial was restored after a relatively brief interlude in custody but subject to somewhat harsher conditions described below.
[53] The second time period follows his release from custody in October 2019 until April 15, 2020. Mr. Hoang’s release conditions during this time frame required him to wear a GPS ankle bracelet at his own expense, to report to the Scarborough police station weekly, to reside at the family home in Mississauga and to remain in the residence at all times unless travelling to work, for authorized legal or medical purposes or if in the presence of one of his sureties. He was also prohibited from driving himself to work which somewhat blunted the degree of additional freedom otherwise conceded given his suburban home.
[54] The third time period is from April 2020 until February 2021 during which time the ankle bracelet was removed but the driving prohibition remained in place subject to a provision allowing him to travel in the company of a surety to seek employment.
[55] The fourth and last time period is from February 2021 to the present time. There were further relaxation of his release conditions made. The prohibition against driving was removed, the frequency of reporting visits to the police station was reduced. Additional changes in August 2021 allowed him to attend his own wedding in Toronto and to travel to Quebec with a surety prior to his wedding.
[56] The Crown urges me to temper any assessment of the relative severity of the release conditions imposed upon Mr. Hoang at these different times with the following observations: a. There is no evidence as to why Mr. Hoang was unable to make the necessary arrangements to attend the memorial service for his father in 2019 as many other accommodations were made over the four-year time period on a consent basis; b. Mr. Hoang was in part the author of his own misfortune in that some of the more severe conditions imposed after October 8, 2019 – especially the driving prohibition - were a result of his breach of release conditions while driving himself; c. Mr. Hoang was able to make application to seek reasonable accommodations in his release conditions to accommodate changing circumstances and did so from time to time; d. A significant element of the hardship experienced by him during the March 2020 through March 2022 time frame must be viewed in the context of the various province-wide restrictions imposed upon the population at large as a consequence of the pandemic which impacted, among other things, the availability of opportunities to act as a golf pro, to travel outside of his home to go to restaurants and attend social outings, etc.; and e. Two adjournments of trial dates were requested by the defence to accommodate his own request to change counsel and to attend his own wedding – these added considerably to the period of time spent out of custody prior to sentencing.
[57] Mr. Gold noted the financial hardship on the family caused by the restrictions which impacted Mr. Hoang’s ability to work and earn a living, the cost of the ankle bracelet, the cost of the legal work needed to obtain the various consent variations he had to obtain, the inconvenience of being deprived of access to a motor vehicle for much of the time and the time required to travel to and from the Scarborough police station by transit for reporting purposes without the ability to drive.
[58] I find that there is considerable merit to each of the objections made by the Crown each of which highlights for me the artificial certainty implicit in applying cut-and-dried formulae to the Downes process. The position of both sides on this issue has considerable merit and all of these are matters to be taken into account in fixing an appropriate sentence.
[59] The defence urged me to apply an across-the-board credit of 1 for 3 to the entire time period of 1,342 days for a suggested credit of 447 days or just under fifteen months citing the hardships summarized above.
[60] At my request, the Crown prepared its own calculation in response, suggesting a Downes credit at the rate of 1:5 for the 725 day period from April 16, 2020 until April 11, 2022 (the date of the sentencing hearing) or a credit of 145 days. A further 154 days was calculated at the rate of 1:4 for the 617 remaining “house arrest” days. The principal reason suggested for the different rate proposed by the Crown was the advent of community-wide pandemic restrictions that considerably narrowed the gap between the degree of freedom available to Mr. Hoang and members of the general public in the latter period. The total suggested credit by the Crown would thus be approximately 299 days or just under ten months.
[61] The Crown did not suggest that its requested 18-year sentence failed to take Downes into account. In other words, the Crown’s submission as to sentence was net of all mitigating circumstances including Downes and the Crown did not suggest further reductions to that requested sentence should be made.
[62] While I decline to engage in a precise formulaic calculation of the sort I have just outlined, these calculations are a useful starting point. I find that the mitigating factor attributable to the severity of the release conditions experienced by Mr. Hoang having regard to: a. the relative severity and length of duration of those conditions; but also b. the relative paucity of hard evidence of real hardship of release conditions upon him; and c. a consideration of the countervailing impact of the five factors highlighted by the Crown results in a Downes credit as a mitigating factor that is substantially within the range suggested by the Crown’s calculation for the reasons given and is thus below that proposed by the defence. Downes credit is fully accounted for as a mitigating circumstance in the overall sentence I have applied.
(b) What is the appropriate sentence for the five possession for the purpose of trafficking offences?
[63] The five counts of possession for the purpose of trafficking contrary to s. 5(2) of the CDSA all arise from the same search and seizure and should receive sentences that will run concurrently with each other. I would propose to address the fit and proper sentence to be imposed for these five related offences on a global basis initially. As shall be seen, I have arrived at a different sentence for the charge in relation to cocaine reflecting the materially greater degree of social harms inflicted upon society by the trafficking of opioids (heroin, fentanyl and carfentanil) even if my general sentencing observations apply to each of the charges.
[64] The overall purpose and principles of sentencing to be applied in sentencing are set forth in s. 718 and following of the Criminal Code. These include both aggravating and mitigating factors and naturally have the result of pushing and pulling in opposite directions on occasion. What is required is a balancing which is why the process is so quintessentially individualized and fact-driven in nature.
[65] I have reviewed in a general way the circumstances of the offences and of the offender before me for sentencing in the preceding sections and shall not repeat that discussion here. I shall dive somewhat deeper here into the degree of responsibility of the offender, the weight to be afforded denunciation and deterrence, the parity principle and proportionality and explain how I have applied these principles in conjunction with the mitigating factors I have found to arrive at sentences in respect of each of the five trafficking offences that I consider to be fit and proper.
(i) Degree of responsibility of the offender
[66] I would assess the degree of responsibility of Mr. Hoang for these offences as being at the high end of the scale for the reasons already noted. There were no extenuating circumstances that explain his decision to embark on the trafficking venture that police brought to an end on July 18, 2018. He was not feeding an overpowering addiction; neither necessity nor environment played a major role. His was an opportunistic decision, entered into with apparent alacrity devoid of scruples and motivated by greed. He had choices. His role in the operation was both knowing and central.
[67] The degree of moral culpability is also impacted by the nature of these offences. The business of trafficking in hard drugs generally and opioids in particular reflects at its core a willingness of the offender to exploit at-risk communities and an indifference to the horrific toll of this activity upon human life. The fact that the harm worked by this trade falls upon some of the most marginalized members of our community is also a relevant sentencing consideration: R. v. Parranto, 2021 SCC 46 at para. 70-71.
[68] All of the substances at issue here – cocaine, heroin, fentanyl and carfentanil - are highly addictive substances. Significant numbers of those who fall prey to addiction to these substances soon find themselves unable to control their addictions. In many cases, addiction leads to loss of work, family and all that previously bound them to their communities. Homelessness and desperation are common among addicts. The highly addictive nature of these controlled substances means the path to rehabilitation is that much more subject to failures requiring the painful struggle to begin anew.
[69] There is another risk associated with fentanyl and carfentanil in particular. These substances are so highly toxic that even very small amounts can bring about accidental death by overdose. These risks are aggravated by the inability of users to know whether or how much of either of these compounds is actually present in a given dose due to “hot spots” brought about by uneven mixing and the prevalence of fentanyl or its derivatives in a variety of street drugs.
[70] It cannot be said how many people have died or how many lives were foreshortened or destroyed by the toxic trade carried on by Mr. Hoang. Nobody can trace the route the narcotics sold by him took before they landed in the arms or lungs of the end user. Their names and faces will never be known. Nameless though these victims may be, it can be said with certainty that given the scope and longevity of the operation shut down on July 18, 2018 and the tragic trail of death and destruction that the trade in heroin, fentanyl and carfentanil in particular has been blazing in the community these past several years, those names and faces do exist.
[71] Mr. Hoang may never have confronted his victims face to face. He may never have soiled his hands with the nitty-gritty retail end of trafficking. His relative distance from the tragic outcome of the trade he participated in does not diminish his degree of moral blame – in some ways it enhances it.
(ii) Gravity of offences and weight of denunciation and deterrence
[72] I must preface my consideration of this sentencing consideration by the observation that all of the controlled substances possessed by Mr. Hoang for trafficking purposes are toxic and dangerous substances. This being said, cocaine and crack cocaine are generally considered to be somewhat lesser social evils when compared to the evils associated with the highly toxic and dangerous opioid compounds which comprised the bulk of the narcotics seized. That judgment is reflected in a generally lower range of sentences imposed for trafficking in cocaine relative to those meted out for trafficking in comparable quantities of heroin, fentanyl or carfentanil. These latter three opioids have played the starring role in a veritable opioid epidemic that has been of particular concern in recent years – both before and since Mr. Hoang was arrested.
[73] The devastating degree of social harm this epidemic has wreaked and continues to wreak on our community has been commented upon by numerous courts.
[74] In R. v. Sidhu, 2009 ONCA 81, 94 O.R. (3d) 609 the Court of Appeal rejected the trial judge’s assessment that heroin was only “marginally” more dangerous than cocaine, commenting that “heroin is the most pernicious of the hard drugs – it is the most addictive, the most destructive and the most dangerous. Heroin trafficking has been described as a “despicable” crime and one that “tears at the very fabric of our society”: Sidhu at para. 12. The Court also noted that: “as a general rule, absent exceptional or extenuating circumstances, first offender couriers who import large amounts of high-grade heroin into Canada for personal gain should expect to receive sentences consistent with the 12-to-17-year range suggested by the Crown. To be clear, when we refer to "large amounts" of high-grade heroin, we are not referring solely to multiple kilograms; as authorities from this court and other courts show, lesser amounts will often attract similar, if slightly lower, penalties”: Sidhu at para. 14.
[75] In R. v. Olvedi, 2021 ONCA 518 the court re-iterated the guidance expressed in Sidhu in the case of a courier importing approximately 500 g of fentanyl where the evidence confirmed that fentanyl is 20 times stronger than heroin and that there has been a dramatic rise in fentanyl-related opioid deaths since the 2000’s. As in Olvedi and R. v. Lacasse, 2015 SCC 64, [2015] 3 SCR 1089 at para. 48, I as sentencing judge am entitled to take into account the degree of harm attributable to a particular crime in the local community. This is certainly true of the opioid crisis that has hit the GTA region particularly hard in recent years and become a leading cause of death among younger people in particular – their relative youth amplifying the tragedy in terms of the number of years of life taken away.
[76] In Parranto, Moldaver J. felt compelled to write a concurring judgment to “focus on the gravity of large-scale trafficking in fentanyl and the need to impose severe penalties, ranging from mid-level double digit penitentiary terms up to and including life imprisonment for those who do so”: at para. 86. In the paragraphs that followed, he catalogued the dangers posed by trafficking in hard drugs such as heroin and cocaine and the growing awareness over the past few decades of the true gravity of trafficking in these drugs. These impacts include addiction, adverse health effects and death by overdose. They also include collateral impacts on families and intergenerational trauma. He observed (at para. 93) that, “[a]s grave a threat as drugs such as heroin and cocaine pose, that threat pales in comparison to the one posed by fentanyl and its analogues” and noted that over the past decade “fentanyl has altered the landscape of the substance abuse crisis in Canada, revealing itself as public enemy number one”. He described carfentanil as being “so toxic that it has no safe or beneficial human use” (at para. 95) and noted that fentanyl deaths have exploded to the point of far exceeding homicide deaths in Canada.
[77] I do not view the conclusions reached in Parranto in relation to this issue as any kind of departure from past sentencing practices or our understanding of the issue. To the contrary, Parranto is a synthesis of jurisprudential developments over the past decade. It is hard to overstate the dimensions of this crisis. It did not occur yesterday but has been a problem that reached crisis proportions many years ago.
[78] Denunciation and deterrence are without doubt the paramount sentencing considerations to be considered in the case of possession for the purpose of trafficking of the compounds possessed by Mr. Hoang. If it is possible to be “more paramount” in the case of the opioid-related charges, then these principles carry still greater weight in the case of those highly toxic and dangerous substances.
[79] The application of these principles in the context of trafficking in heroin, fentanyl and carfentanil in particular call for the imposition of exemplary, lengthy sentences.
(iii) Parity principle and proportionality considerations
[80] The parity principle considers sentences imposed in similar cases with similarly situate offenders while the proportionality principle examines the offender on an individual basis in relation to the offender and his or her degree of responsibility but also in the broader context of the gravity of the offences committed and a comparison to similar offences committed in similar circumstances. The two concepts are thus closely related parts of the process of arriving at a fit and proper sentence in the unique circumstances of every case.
[81] Mr. Gold urged me to consider the cases cited by him in support of his proposed global sentence of seven years. All but two of the cases he cited considered sentencing in the context of charges of importing and/or possession for the purpose of trafficking of cocaine or cocaine and methamphetamine and/or MDMA. Many of these cases involved first time offenders. The amounts of cocaine involved in these cases ranged from 3 kg to 100 kg and the resulting sentences ranged from 4.5 years to 12 years. The two cases at the lower end of the range were a pre-2000 case where the offender was a mere courier with a lower level of responsibility and pleaded guilty: R. v. Cunningham and a case where the offender played a passive role in allowing the cocaine to be stored in his home while the main players received stiffer sentences: R. v. Thiessen, 2017 ONSC 3925. Barring those two cases, the range for possession for the purpose of trafficking of multiple kilograms of cocaine that arises from the cases cited by Mr. Gold is between seven and twelve years.
[82] The Crown’s requested sentence in respect of Count Four (trafficking cocaine) was ten years, well within the range suggested by the cases cited by the defence.
[83] Only two of the cases cited by Mr. Gold referred to heroin and none involved fentanyl or carfentanil. Of the heroin cases, R. v. Huang, [1995] O.J. No. 2991 (O.N.S.C.) involved an accused who was convicted of conspiracy to import and conspiracy to traffic seven kilograms of heroin for which a sentence of 15 years was handed down. In R. v. Nriakame, 2010 QCCQ 7583 the accused pleaded guilty to possession of approximately 6 kg of heroin for the purpose of trafficking for which a sentence of 10.5 years less pre-sentence custody credit was handed down.
[84] The Crown’s requested sentence in respect of Count One (trafficking heroin, 5 kg) is fifteen years which is similarly well within the range of the sentencing range arising from a consideration of both of the foregoing cases.
[85] The counts involving fentanyl and carfentanil with or without heroin are the most significant of the charges for which Mr. Hoang has been convicted. These are the deadliest drugs which have been responsible for such a high proportion of the deaths that this crisis has exacted in our community over the past decade.
[86] In Olvedi, a fifteen-year sentence was upheld for importing along with a concurrent twelve-year sentence for possession for the purpose of trafficking of 500 g of fentanyl. In R. v. Fuller, 2019 ONCJ 643, an offender who pleaded guilty and with a prior record of trafficking in other drugs received a 15-year sentence for conspiracy to traffic involving three kilograms of what the court described as “poor quality” fentanyl before credit for pre-sentence custody. In R. v. Lodge, O.C.J. (Kitchener), October 9, 2019, (unreported), an offender who pleaded guilty to trafficking in 7.3 kg of a fentanyl compound received a sentence of 17 years after a joint submission. In R. v. Vezina, 2017 ONCJ 775 an offender who pled guilty to possession for the purpose of trafficking of 45g of cocaine and 205 g of a heroin fentanyl compound received a sentence of 11 years.
[87] Application of the proportionality and parity principles points towards a sentence in excess of the range of the sentences handed down in the four cases cited in the preceding paragraph. Olvedi involved a vastly smaller quantity of narcotics than is present in this case; the other three cases all involved guilty pleas and generally smaller quantities as well. The scale, volume and variety of dangerous narcotics handled by Mr. Hoang and his significant degree of personal responsibility all point towards a sentencing range above the fifteen to seventeen year range arising from those cases.
(iv) Application of sentencing factors and conclusions
[88] Olvedi recognized that due to the dangerous nature of fentanyl, sentences should be longer than those cases involving cocaine or heroin and that “offenders – even first offenders – who traffic in significant amounts of fentanyl should expect to receive significant penitentiary sentences”. Parranto and the line of fentanyl cases preceding it has emphasized the necessity for lengthy sentences for large scale trafficking in these toxic substances.
[89] Mr. Hoang is entitled to receive due consideration of the mitigating circumstance of his status as a first-time offender, his reasonably positive rehabilitation prospects and credit for Downes considerations. However, the weight that can be afforded these mitigating factors must be weighed against the very significant aggravating factors present, the gravity of these offences, his high degree of personal responsibility and moral blameworthiness for them, the paramount weight that must be afforded denunciation and deterrence in this case and the application of the parity principle.
[90] Having given careful consideration to all of these factors, I conclude that 18 years is an entirely fit and proper sentence for the most serious of the offences for which Mr. Hoang has been convicted having regard to the substances and the amounts seized in respect of Count Two (trafficking heroin and fentanyl; 2.4 kg) and Count Three (trafficking heroin, fentanyl and carfentanil; ~1 kg). These sentences give appropriate recognition to the gravity of the offences, Mr. Hoang’s degree of responsibility, the necessity of denunciation and deterrence both general and specific and sentences handed down in similar cases. These sentences also give what I consider to be a proper weighting to the aggravating circumstances identified as well as each of the mitigating circumstances including the matter of Downes credit.
[91] In the case of the two other opioid counts and having regard to my conclusion that all sentences arising from the seizures made on July 17 and 18, 2018 should be served concurrently, I find that fifteen years is a fit and proper sentence for Count One (trafficking heroin, 5 kg) and fourteen years for Count Five (trafficking carfentanil; 500 g). In the case of the trafficking cocaine charge (cocaine: 6.5 kg; crack cocaine:1 kg) in Count Four, I find that a global sentence of ten years is fit and proper.
[92] Counts One, Three, Four and Five shall each be served concurrently with the sentence imposed on Count Two.
[93] These are indeed heavy and lengthy sentences for a first-time offender of the age and having the rehabilitation potential of Mr. Hoang. Such a sentence is never an easy thing for any judge to pronounce. However, the sentences I am imposing remain well below the maximum sentence available and fairly reflect the condemnation that is the rightful due of a knowing and large-scale participant in feeding a plague that exacts a daily toll in terms of lost years of life in this community far, far in excess of the sentence I am meting out today. The sentence is proportional to the harm and degree of responsibility for causing it.
(c) What is the appropriate sentence for the two possession of the proceeds of crime offences?
[94] The Crown agreed that the sentences to be imposed for possession of proceeds of drug trafficking for which the offender has also been convicted ought to run concurrently. The amounts seized in this case and proven to be proceeds of crime amounts to just under $270,000. That is a significant sum reflective of the scale of the operations generating those proceeds. I am satisfied that Crown’s recommendation of a sentence of eighteen months to run concurrently with the other sentences imposed is a fit and proper sentence having regard to the degree of responsibility of this offender, the sentences handed down in similar cases, the need for deterrence and denunciation and the nature of the offence. Appropriate recognition for the mitigating circumstances present have been reflected in the longer sentences imposed for the CDSA offences which will be served by Mr. Hoang concurrently with these two sentences.
[95] Mr. Hoang shall be sentenced to 1.5 years imprisonment on each of Counts Six and Ten, such sentences to run concurrently with the sentences imposed under Count Two of the first indictment.
(d) What is the appropriate sentence for the two dangerous storage of firearm and ammunition offences?
[96] The Crown proposed a six-month sentence for the unsafe storage of firearms charges (s 86(1) Criminal Code). Mr. Hoang was a licensed owner of firearms and the search of his home clearly demonstrated that he well knew how properly to store his licensed firearms. Handguns were equipped with trigger locks; guns were stored in a gun safe itself kept in a secure room in the basement to which others did not have access. The firearm and ammunition that were the subject of this conviction were kept available and only lightly concealed in a vehicle that Mr. Hoang candidly admitted had been acquired for the purpose of carrying on the trafficking business even if he admitted to only a very subsidiary role in that business. I did not accept his evidence that the presence of the firearm and ammunition in close proximity to such a large quantity of illegal narcotics was a mere oversight or accident. The ammunition magazine and the foam cut-out from the case in the shape of the gun were in the passenger seat in plain sight; the gun itself was in a gun case that he could not have failed to notice when adding or removing items from the cargo area of the vehicle as he was seen to do in surveillance videos from only the day prior to his arrest.
[97] The requested sentence is within the range found appropriate by the Court of Appeal in the case of a similarly knowledgeable offender in R. v. Gouliaeff, 2012 ONCA 690. In the circumstances I accept the Crown’s submission that two six-month sentences running concurrently to the other sentences is appropriate and I so order.
(e) Is half parole warranted on the facts of this case?
[98] The Crown asks me to exercise my discretion under Section 743.6(1) of the Criminal Code to order a delay of parole eligibility until Mr. Hoang has served half of his sentence. The jurisdictional conditions for the exercise of this discretion are met in that I have imposed a sentence longer than two years and Mr. Hoang has been sentenced by me for possession for the purpose of trafficking pursuant to s. 5(2) of the CDSA which is a listed Schedule II offence.
[99] The criteria to be considered by me in exercising this discretion are (i) the circumstances of the commission of the offence, (ii) the character and circumstances of the offender and (iii) whether the expression of society’s denunciation of the offences or the object of specific or general deterrence so requires.
[100] The relatively small amount of appellate guidance in this province governing the application of this provision underscores the relative rarity of its application and the need for circumstances that are somewhat out of the ordinary to be present. This is not a routine order and ought not to be routinely granted. In R. v. Auclair, the Court of Appeal attached significance to the fact that this provision of the Code places denunciation and deterrence ahead of the rehabilitation of the offender but set aside the order in that case due to the successful appeal of one of the foundational charges. In R. v. Jageshur, 2017 ONCA 15 an appeal and sentence appeal of a sentence involving a reverse sting purchase of 18 kg of cocaine was dismissed without comment on the s. 743.6(1) aspect of the sentence. In R v. Dennis the Court of Appeal granted a Crown sentence appeal and imposed a longer sentence and a half-parole order in the case of a career criminal.
[101] In the more recent case of R. v. Shin, 2015 ONCA 189 the Court of Appeal upheld an order made under s. 743.6(1) in the context of a six-year global sentence where, as here, the Crown relied upon the aggravating circumstance of prior uncharged offences in respect of an admitted long-term trafficker in cannabis concluding (at para. 107) that “[i]n light of the magnitude of the uncharged criminal acts of trafficking and the extensive quantities involved, in my view, the trial judge made no error in imposing a delayed parole order.” The offender in Shin was convicted of possession for the purpose of trafficking of 7.4 kg of marijuana found in his car. He was acquitted of other charges in relation to narcotics found in an alleged “stash house” in part on the strength of his testimony of his long-term involvement in marijuana trafficking.
[102] The circumstances of the offences and the character and circumstances and degree of responsibility of the offender have both been examined in some depth in the preceding sections of these reasons and I shall not repeat my findings at length here.
[103] In my view, society’s interest in the denunciation of these offences and in their deterrence requires the requested half-parole order be made. The total volume of narcotics that happened to be swept up in the seizures made on July 17, 2018, was simply staggering; the harm potential of the business thereby disrupted doubly so.
[104] The degree of horror the community rightfully holds for this trade is well-deserved. His was a responsible operational role in a harmful and devastating business that erodes the very foundations of our society just as surely as guns and violence do if not more so. The community interest in denunciation and deterrence strongly calls for an order that this offender not be subject to early release as far and as long as the law allows.
[105] For the foregoing reasons, I find that the grounds for an order pursuant to s. 743.6(1) of the Criminal Code are present here and that society’s interests of denunciation and general deterrence require such an order to be made. Since none of the sentences imposed by me under the CDSA charges exceeds twenty years, the ten-year eligibility cap in s. 743.6(1) of the Criminal Code is inapplicable with the result that Mr. Hoang shall not be eligible to be released on full parole until he has served one-half of the sentence imposed for each of the trafficking charges (Counts One through Five).
(f) What ancillary orders ought to be made?
[106] The Crown seeks a forfeiture order pursuant to s. 462.37 of the Criminal Code of the cash seized namely the $118,000 seized inside the Adidas bag inside the Acura, the $142,200 and US$1,044 seized from inside the house and the $8,000 seized on the person of Mr. Hoang at the time of his arrest. The Crown also seeks forfeiture of the 2013 Acura automobile as offence related property under s. 16 of the CDSA.
[107] The defence candidly admitted that it had no basis to oppose the forfeiture of this property. I am satisfied from the evidence led at trial that the cash amounts are proceeds of crime and that the vehicle is offence related property as such term is defined in the CDSA. My figures for seized cash are from my own notes and appear to have been rounded to the nearest thousand. The forfeiture order to be signed will be for the actual amounts seized and not the rounded figures that I recorded if there is a discrepancy between the two. An order shall issue forfeiting such proceeds and offence-related property to the Crown as asked.
[108] Mr. Gold advises that three watches were also seized from Mr. Hoang, two of which were gifts from his father. The Crown did not seek an order of forfeiture of any of these items and agreed that these shall be returned to Mr. Hoang.
[109] The Crown also sought the imposition of a fine in the amount of $156,000 pursuant to s. 734(1) of the Criminal Code. The Crown premised its request on the evidence of Mr. Hoang regarding his role as what he described as a deliveryman for his employers who, on his telling, were the real controlling mind and will of the trafficking business in which he claimed to be a mere cog. Mr. Hoang testified that he received $500 per delivery accomplished and that he accomplished three or four such deliveries per week. He said that he had been acting in this capacity for about two years. I have earlier stated my reasons for concluding that this time estimate is at the low end.
[110] The Crown calculated its fine request based on $1,500 per week (assuming the lower figure of 3 deliveries per week x $500 per delivery) x 104 weeks = $156,000. This calculation, the Crown indicated, is a conservative estimate of the profits Mr. Hoang has admitted to deriving from the illicit business that I have found he knowingly participated in.
[111] I concur that the Crown’s profit calculation is indeed a conservative one. As indicated, Mr. Hoang’s evidence supports a longer period of operation – three to six months longer based on his evidence of when the vehicle was acquired and its purpose. While the Crown’s calculation assumes no hiatus in activities for such things as holidays, the Crown also applied the lower weekly activity figure rather than an average of the two figures (i.e. 3.5 x $500 or $1,750 per week instead of $1,500).
[112] I did not accept Mr. Hoang’s evidence that he was a mere deliveryman. I do however accept his evidence as to the level of activity and the duration of it. It seems unlikely that he would have exaggerated the level of his activities, particularly since he knew (by the time he testified) that he was under close observation by police for the last three months he was in operation. It seems highly unlikely to the point of implausible that his profits were as trivial as the amounts he admitted to. His gross revenue from deliveries on his last day of operations amounted to $118,000. I do not of course assume that this size of transaction can be extrapolated over the full two-year time frame nor do I fail to appreciate that net revenue is not the same thing as gross revenue. However, I am fully satisfied that the $156,000 figure requested by the Crown represents an exceptionally conservative estimate of the profits Mr. Hoang can reasonably be supposed to have derived from his operations. In all probability his profits over that time frame would have been several multiples of the requested amount.
[113] Section 734(2) of the Criminal Code requires the court to be satisfied that the offender is able to pay the fine or able to discharge it in the manner prescribed by s. 736 of the Criminal Code. I am satisfied as to Mr. Hoang’s ability to pay the requested fine for two reasons.
[114] First, Mr. Hoang admitted that he used his profits to do such things as buying luxuries (such as the Rolex watch referenced in evidence) and paying for his home. While Mr. Hoang’s legal title extends only to a one-third undivided interest, legal avenues to extract his equity in the home do exist even if they may take some time to be completed. The evidence before me provides a very incomplete portrait of the level of his share of home equity, but I am satisfied that on a conservative view that his level of equity is at or near the amount of the requested fine and very possibly exceeds it.
[115] Second, the fact that the Crown has not located all of the places where Mr. Hoang has invested or stored the profits from his illicit trade does not mean that such stored or invested profits do not exist. The assets thus far identified do not appear to represent anything like the aggregate of the profits it is likely he derived over the two plus years of activity that he has admitted to. Traffickers generally use a variety of techniques to park their profits. More than a quarter million dollars was found hidden in his home. Other techniques frequently include money stored in safety deposit boxes, assets put in the name of third parties or in the purchase of easily sold luxury items such as jewelry or high-end watches.
[116] I find that the requested fine represents a very conservative, low-end estimate of the level of profits accrued by Mr. Hoang from his role in the operation of this illicit business. I find that Mr. Hoang has the ability to pay the fine in the amount proposed from his home equity if indeed he does not have other sources not yet known or admitted to. In my view it would be appropriate to impose such a fine and I so order.
[117] A fine in the amount of $156,000 is imposed pursuant to s. 734(1) of the Criminal Code. The parties shall address the court upon the delivery of this sentence as to the precise terms to be imposed pursuant to s. 734.1 of the Criminal Code including whether the term of imprisonment in default of payment, if any, shall be served consecutively to the other terms of imprisonment imposed today.
Disposition
[118] In the result, I sentence Mr. Hoang as follows in respect of the First Indictment (CR-19-9-0000102-0000) as follows: a. Count One (p for p trafficking Heroin): a sentence of fifteen years; b. Count Two (p for p trafficking Heroin and Fentanyl): a sentence of eighteen years; c. Count Three (p for p trafficking Heroin, Fentanyl, Carfentanil): a sentence of eighteen years; d. Count Four (p for p trafficking Cocaine): a sentence of ten years; e. Count Five (p for p trafficking Carfentanil): a sentence of fourteen years; f. Count Six (possess proceeds July 17): a sentence of 1.5 years; g. Count Ten (possess proceeds July 18): a sentence of 1.5 years.
[119] The sentences to be served in respect of Count One, Three, Four, Five, Six and Ten shall be served concurrent to the sentence to be served in respect of Count Two.
[120] The sentences in Count One, Count Two, Count Three, Count Four and Count Five shall be subject to an order pursuant to s. 743.6(1) of the Criminal Code that the portion of the sentence that must be served before the offender may be released on full parole shall be ONE-HALF of the sentence imposed.
[121] Pre-sentence credit in the amount of 32 days shall be granted. As noted earlier in my reasons, the sentences determined fully account for the mitigating circumstance of restrictive pre-sentence release conditions.
[122] I sentence Mr. Hoang as follows in respect of the Second Indictment (CR-22-9-0000103-000) as follows: a. Count One (unsafe storage firearm): six months concurrent to the sentence imposed in respect of Count Two of the First Indictment; and b. Count Two (unsafe storage ammunition): six months concurrent to the sentence imposed in respect of Count Two to the First Indictment.
[123] The following ancillary orders shall also issue: a. A forfeiture order substantially in the form of the draft “Order for Disposition of Property” submitted by the Crown as part of its Sentencing Record forfeiting to the Crown $118,000, US$1,044, $142,200; $8,000 and the 2013 Acura MDX therein mentioned (all currency amounts to be corrected to actual seized amounts if I have rounded them here); b. A fine in the amount of $156,000 shall be levied pursuant to s. 734(1) of the Criminal Code. The parties shall address the court regarding finalization of the conditions to be applied to such fine pursuant to s. 734.1 of the Criminal Code at the time this sentence is handed down; c. An order providing for the taking of a DNA sample pursuant to s. 487.051(3) of the Criminal Code; and d. A ten-year firearms prohibition order pursuant to s. 109 of the Criminal Code.
[124] The victim surcharge shall be calculated and levied as required by the Criminal Code.
S.F. Dunphy J. Date: April 26, 2022
