Court of Appeal for Ontario

Date: 2021-05-12 Docket: C66161

Judges: Fairburn A.C.J.O., Trotter and Coroza JJ.A.

Between: Her Majesty the Queen Respondent

And: Van Phuc Luu Appellant

Counsel: Mindy Caterina, for the appellant Moray Welch and Surinder Aujla, for the respondent

Heard: October 29, 2020 by video conference

On appeal from the conviction entered on August 13, 2018, and the sentence imposed on October 23, 2018, by Justice Stephen J. Hunter of the Ontario Court of Justice.

Coroza J.A.:

Overview

[1] After a trial in the Ontario Court of Justice, the appellant was convicted of conspiracy to traffic in a controlled substance, trafficking in methamphetamine, and possession of the proceeds of crime exceeding $5,000.

[2] The appellant was one of the targets of a lengthy Ontario Provincial Police (“OPP”) drug trafficking investigation. On May 11, 2015, the OPP saw the appellant and Kristopher Jerome complete a drug deal in a carpool lot in Port Hope, Ontario. The two men were arrested following an exchange of bags. The police seized 523 grams of methamphetamine from one bag in Jerome’s car and $12,240 from another bag in the appellant’s car. Two phones belonging to Jerome were also seized. These phones were searched, and the police seized text conversations between the appellant and Jerome suggesting that the appellant was Jerome’s drug supplier. Some of the conversations referenced Jerome’s offer to sell the appellant a firearm. Other conversations referenced a variety of drugs, including fentanyl.

[3] The appellant brought a pre-trial application seeking the exclusion of evidence based on alleged violations of his rights under ss. 8, 9, and 10 of the Canadian Charter of Rights and Freedoms. The trial judge dismissed the application. As a result of the trial judge’s ruling, the appellant conceded that he was in possession of the proceeds of crime but argued that the Crown could not prove the conspiracy and trafficking charges beyond a reasonable doubt.

[4] The Crown relied on a report tendered by a police officer who analyzed the text messages exchanged between the appellant and Jerome. The Crown argued that the text messages revealed that the appellant was supplying Jerome with methamphetamine so that Jerome could sell the drug in the Napanee area.

[5] The appellant testified that he was not a drug dealer and that on May 11, 2015 he met Jerome to purchase a pistol from him. He testified that the true owner of the car he was driving asked him to exchange bags with Jerome. He had no knowledge of the drugs found in Jerome’s car. The trial judge rejected the appellant’s evidence, stating that it was “fraught with inconsistencies” and that it “bordered on fantasy”. He convicted the appellant of conspiracy to traffic in a controlled substance, trafficking in methamphetamine, and possession of proceeds of crime over $5,000. The appellant was sentenced to a global sentence of six years and six months’ incarceration. The appellant appeals his convictions and sentence.

The Grounds of Appeal

[6] On the conviction appeal, the appellant argues that the trial judge erred in dismissing his s. 10(b) claim. The appellant submits that the police did not fulfill their duty to ensure he understood his right to counsel. He also claims the trial judge’s reasons for dismissing his s. 10(b) claim were confusing and insufficient. Additionally, and for the first time on appeal, the appellant raises an argument that the police failed to implement his right to counsel without delay, since he did not speak to duty counsel for more than seven hours after his arrest.

[7] The appellant claims that if this court finds that his s. 10(b) rights were breached, we should perform the required analysis under s. 24(2) of the Charter. He argues that we should exclude the money seized from the appellant’s car and the observational evidence of the officers who watched the exchange between the appellant and Jerome on May 11, 2015. He seeks an acquittal on the proceeds count and a new trial on the drug charges.

[8] As to sentence, the appellant contends that in his reasons for sentence, the trial judge improperly considered factors that were irrelevant and not aggravating. The appellant argues that the sentence imposed should be set aside and replaced by a global sentence of four and one-half years’ to five years’ incarceration. In support of that submission, the appellant asks this court to admit and consider fresh evidence.

[9] For the following reasons, I would dismiss the conviction appeal. While I would grant the appellant leave to appeal sentence and admit the fresh evidence, I would also dismiss the sentence appeal.

Summary of the Facts

[10] Beginning in January of 2015, the OPP began an investigation into Kristopher Jerome and Travis Dennis—both known drug dealers in the Napanee area. The investigation revealed that the appellant was supplying Jerome drugs, and specifically methamphetamine from Toronto. Surveillance revealed that the appellant met Jerome on February 26 and May 7, 2015. He was driving a car registered to a Randolph Lynch.

[11] On May 11, 2015, the police saw the appellant and Jerome meeting in a carpool lot in Port Hope, Ontario. It was raining heavily. The police saw Jerome get out of his car and enter the appellant’s car. After spending some time in the appellant’s car, Jerome returned to his car carrying an orange bag. The police believed that a transaction was taking place and arrested both men. The orange bag in Jerome’s car contained methamphetamine. A bag in the appellant’s car contained $12,240.

[12] During his arrest, Cst. Price of the OPP read the appellant his rights to counsel and caution. The rights were read outside in the heavy rain. Cst. Price initially informed the appellant that he was under arrest for drug trafficking and asked him to spell his name. According to Cst. Price, the appellant spelled his name out in English and provided him with a date of birth. Cst. Price then read the appellant his right to counsel from a card and asked him if he understood. The appellant replied “yes” in English. When he was asked if he wanted to speak to a lawyer, the appellant replied, “I don’t know”.

[13] Cst. Price decided that, because of this response and the fact that the appellant spoke with an accent, he should explain the rights to the appellant in simple English. He explained each of the points on the card. According to Cst. Price, the appellant confirmed that he understood because he made eye contact and nodded. He also confirmed that he understood English when he was asked by Cst. Price. According to Cst. Price, the appellant confirmed a second time that he understood his right to counsel. When asked a second time if he wanted to speak to a lawyer, the appellant again replied, “I don’t know”.

[14] After reading the appellant his rights and caution, Cst. Price then turned him over to the Port Hope Police Service. Cst. Price believed that he told the officers that the appellant had not specified a lawyer that he wanted to talk to, and that they may wish to follow up with the appellant about providing him with duty counsel or a lawyer of his choice.

[15] The appellant testified during the voir dire that he believed that Cst. Price was speaking English, but that he could only hear parts of what Cst. Price was saying. He testified that he nodded at Cst. Price because it was cold, raining, and he wanted to get to a warmer place, not because he understood what Cst. Price was saying. He also testified that he spoke to duty counsel during the early morning hours without the assistance of an interpreter and did not understand duty counsel’s advice.

Discussion

(1) Issue 1: Did the Trial Judge Err in Dismissing the s. 10(b) Application?

[16] In his ruling dismissing the appellant’s Charter application, the trial judge found that Cst. Price was direct and careful about the rights that he communicated to the appellant. He noted that Cst. Price recognized that there may have been some difficulty in communicating with the appellant and that, as a result, the officer decided to repeat the rights to counsel in simple language. He noted that the appellant acknowledged that his rights had been read twice and that he told Cst. Price that he understood his rights twice. The trial judge then went on to find that:

There was nothing that was articulated by Mr. Luu to the Officer Constable Price at the time the rights to counsel and caution and arrest were described to him that would lead Detective Constable Price to believe that there was any difficulty in the understanding capacity of Mr. Luu.

[17] The trial judge concluded:

He did, of course, indicate problems with understanding the English language but it’s quite clear throughout that he did not communicate that to anyone. If, in fact, the Crown went further, after he spoke to duty counsel to suggest that it was appropriate to take a statement from him in the absence of the interpreter I would agree with [counsel for the appellant] that certainly that may be questionable. But they did not. They made sure that Mr. Luu had communication with duty counsel and went no further in terms of attempting to obtain, nor did they obtain, any further evidence from him by way of statement or otherwise after the takedown itself had occurred.

[18] On appeal, the appellant renews his claim that his s. 10(b) rights were infringed. First, with respect to the informational component of s. 10(b), the appellant argues that the trial judge erred by finding that there was “nothing” that would have led Cst. Price to believe that the appellant had difficulty understanding English. The appellant points to Cst. Price’s testimony that after he finished reading the appellant his rights, he turned him over to the Port Hope police and advised them that the appellant had not indicated he wanted to speak to a lawyer, so they may want to follow up in terms of providing him with access to duty counsel or a lawyer of his choice.

[19] I see no error in the trial judge’s analysis and I would not give effect to this argument. In my view, the trial judge’s findings that Cst. Price carefully recited the appellant’s rights to counsel, and that the appellant understood his rights when they were read to him, are fully supported by the evidence led on the voir dire. The appellant testified on the voir dire and claimed he did not understand his rights. The trial judge was entitled to reject that claim and find that the informational component of s. 10(b) had not been infringed. On the trial judge’s findings, Cst. Price properly conveyed the required information and the appellant understood what Cst. Price told him. Those findings were firmly anchored in the evidence. That evidence included the following:

• The appellant verbally confirmed he understood English;
• The appellant nodded and made eye contact with Cst. Price when he was asked if he understood his rights;
• The rights to counsel were read twice by Cst. Price;
• Cst. Price—who noticed the appellant’s accent and his response: “I don’t know” to whether he wanted counsel—decided to repeat the rights to counsel in simple language. The appellant confirmed he understood.

[20] Nor am I persuaded that Cst. Price’s comments to the Port Hope police suggested that he had difficulty understanding the appellant. I view Cst. Price’s comments as a direction to the Port Hope police that the appellant had not invoked the right to counsel.

[21] Second, the appellant claims that the trial judge’s reasons were confusing and insufficient. The appellant argues that the trial judge appears to have held that it would have been “questionable” if the Crown argued that it was appropriate, after the appellant spoke to duty counsel, for the police to take a statement from him in the absence of an interpreter. The appellant states that the reasons can be interpreted to mean that the trial judge found that the police would have infringed the appellant’s s. 10(b) right by taking a statement, and that such a finding necessarily means the trial judge concluded that the appellant did assert his s. 10(b) right. The appellant points to this alleged inconsistency, among others, to argue that the reasons give rise to conflicting theories as to why the trial judge decided the application in the way that he did, representing an error of law.

[22] I do not agree with these submissions. My view of the issue is that the trial judge was addressing a very cursory submission on this point made by defence counsel. These comments did not factor into the court’s reasoning process in relation to whether s. 10(b) had been violated. On the trial judge’s findings, the appellant understood English and was not under any misapprehension of what was being said to him about his rights.

[23] Third, the appellant argues the police failed to discharge their implementational duties under s. 10(b), because the appellant did not receive access to duty counsel until more than seven hours after his arrest. With respect, it is not appropriate for this court to address this argument. It was not advanced in the court below and there is a lack of evidence as to what occurred after the appellant was turned over to the Port Hope police. Even if it were proper for this court to entertain this argument for the first time on appeal, the appellant faces an uphill climb, as there is no evidence on this record that the appellant expressed a wish to exercise his rights to counsel that would trigger the police’s implementational obligations: see R. v. Fuller, 2012 ONCA 565, 295 O.A.C. 309, at para. 17.

[24] In light of my conclusion that the trial judge did not err in dismissing the s. 10(b) application, it is not necessary to address the appellant’s s. 24(2) arguments. The appeal against conviction is dismissed.

(2) Issue 2: Did the Trial Judge Err by Considering Irrelevant or Unproven Aggravating Factors?

[25] On the sentence appeal, the appellant takes issue with some of the trial judge’s findings.

[26] First, he contends that the trial judge erred in finding that he had a “higher involvement” in the drug distribution hierarchy than Jerome or Dennis. I do not accept this argument. There was overwhelming evidence that the appellant was higher in the drug chain than Jerome and Dennis. The appellant was responsible for transporting drugs and supplying Jerome with drugs in the Napanee area. It stands to reason that he was one of Jerome’s main suppliers and, without the appellant, Jerome could not traffic drugs in Napanee. Furthermore, the evidence indicated that Jerome and Dennis were similarly situated in the drug distribution hierarchy. Accordingly, I see no basis to interfere with the trial judge’s common sense finding.

[27] Second, the appellant argues that the trial judge erred in his treatment of text messages between the appellant and Jerome in which they converse about the potential transfer of fentanyl and firearms. The trial judge held that this was an aggravating factor. The appellant submits that this was an error because there was no evidence that the transfers ever materialized.

[28] I recognize that the trial judge provided cursory reasons as to why the open discussions of fentanyl and firearms were an aggravating factor in the circumstances of this case. However, after carefully considering the evidence that was before him, I conclude that it was open to the trial judge to reason that these discussions were relevant as an aggravating factor.

[29] There was no dispute that the text messages referencing fentanyl and firearms were admissible at trial and sentencing. Generally, the text messages revealed that the appellant was involved in a conspiracy to traffic different drugs, including large amounts of methamphetamine. In text messages dated February 7, 2015, Jerome and the appellant discussed purchasing fentanyl patches for $5,000 to $10,000. In text messages dated approximately January 25-27, March 12, April 28, and April 30, 2015, Jerome and the appellant also discussed the sale of a gun to the appellant. In these messages, the appellant requested pictures of a firearm and the pair discussed prices between $2,500 and $3,000. In a message dated April 30, 2015, the appellant specifically requested a .40 calibre firearm.

[30] I do not agree that these discussions were irrelevant in determining a fit sentence for the appellant. Facts tending to establish the commission of other offences of which an accused has not been charged or convicted can be admitted to enable a court to determine a just and appropriate sentence: s. 725(1)(c) of the Criminal Code, R.S.C., 1985, c. C-46; R. v. Angelillo, 2006 SCC 55, [2006] 2 S.C.R. 728, at paras. 22-27; and R. v. Edwards (2001), 155 C.C.C. (3d) 473 (Ont. C.A.), at paras. 63-65. The text messages revealed that the appellant was a drug trafficker operating at a high level. He was also interested in purchasing a firearm from his co-conspirator. This evidence was relevant to show the appellant’s background and the seriousness of the criminal conspiracy in which he entered. It is true that the appellant was specifically charged with a conspiracy to traffic in methamphetamine. However, I read the trial judge’s reasons as stating that, since the appellant was also prepared to participate in fentanyl trafficking and to purchase a gun from his co-conspirator, this conspiracy was one that involved serious criminality. It was open to the trial judge to find that this was an aggravating factor.

[31] There was no objection by defence counsel to the admission of these text messages. Indeed, the appellant gave evidence of his drug dealing activities and his interest in purchasing firearms when he testified on his own behalf at trial. He sought to use this evidence in an exculpatory way. As this court observed in R. v. Chanmany, 2016 ONCA 576, 338 C.C.C. (3d) 578, at para. 54, leave to appeal refused, [2017] S.C.C.A. No. 88, “it ill lies in [the appellant’s] mouth now to deny the relevance of the evidence he himself adduced to his character for the purpose of sentencing”.

[32] Nor do I accept the appellant’s argument that, since there was no evidence that the discussions of firearms and fentanyl ever materialized, they should not have been considered by the trial judge. There is one simple answer to the appellant’s submission: the appellant and Jerome were arrested, putting an end to their conspiracy. A review of the text messages reveals that the discussions about fentanyl and the firearm were not just idle talk. The appellant and Jerome contemplated the transfer of fentanyl and firearms as part of their conspiracy. They discussed specifics, including the price of fentanyl, the price of a firearm, obtaining a photo of a firearm, and acquiring a particular type of firearm. The text messages do not suggest that the appellant withdrew or abandoned his interest in fentanyl or the pursuit of the firearm prior to the date of arrest. Accordingly, it was open to the trial judge to give weight to the magnitude of the crime contemplated by the conspirators’ agreement: R. v. Russo et al. (1998), 130 C.C.C. (3d) 339 (Ont. C.A.), at paras. 12-16.

[33] Finally, the appellant seeks leave to introduce fresh evidence, consisting of three letters from the appellant’s family. The documents provide this court with an update on the appellant’s behaviour while on bail pending appeal. The appellant has been assisting his family members with their financial and living expenses and has clearly taken positive strides to improve his life. The Crown does not oppose the introduction of this evidence.

[34] The appellant’s rehabilitative strides are encouraging. However, the seriousness of the appellant’s crimes cannot be understated. He was involved in a serious conspiracy that escalated the trafficking of methamphetamine in the Napanee area, over a period of months. The fresh evidence does not provide a basis for this court to interfere with the sentence, which was fit when it was imposed. [1]

Disposition

[35] I would dismiss the appeal from conviction. I would also admit the fresh evidence and grant leave to appeal sentence, but would dismiss the appeal from sentence.

Released: May 12, 2021 “J.M.F.” “S. Coroza J.A.” “I agree. Fairburn A.C.J.O.” “I agree. Gary Trotter J.A.”

Footnotes

[1] The sentence imposed here falls within the loose range of five to eight years’ incarceration identified by Durno J. in R. v. Hien and Ly, (10 February 2016), Brampton, 450/14 (Ont. S.C.). In Hien and Ly, the offenders received custodial sentences of four and one-half years, and four years and three months, respectively, for the offence of possessing one kilogram of methamphetamine for the purpose of trafficking. The trial judge relied on this decision in concluding that six and one-half years’ imprisonment was the appropriate sentence.