Court of Appeal for Ontario
Date: 2024-05-07 Docket: C70570
Before: Trotter, Zarnett and Sossin JJ.A.
Between: His Majesty the King, Respondent And: Duc Tung Hoang, Appellant
Counsel: Alan D. Gold and Ellen C. Williams, for the appellant Kerry Benzakein, for the respondent
Heard: February 28, 2024
On appeal from the convictions entered on March 4, 2022 and the sentence imposed on April 26, 2022 by Justice Sean F. Dunphy of the Superior Court of Justice, with reasons reported at 2022 ONSC 1412 and 2022 ONSC 2534.
Sossin J.A.:
[1] The appellant was convicted of five counts of possession for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”), two counts of possession of proceeds of crime over $5,000, contrary to ss. 354(1)(a) and 355(a) of the Criminal Code, R.S.C., 1985, c. C-46, and two counts of unsafe storage of a firearm and ammunition, contrary to s. 86(1) of the Criminal Code. The trafficking charges related to over 16 kg of narcotics found in the appellant’s vehicle.
[2] The appellant was acquitted of three further charges of possession for the purposes of trafficking, contrary to s. 5(2) of the CDSA, in relation to substances found in the appellant’s home that were allegedly narcotics but were not properly submitted for testing to Health Canada.
[3] The appellant was sentenced to 18 years’ imprisonment [1]. The trial judge ordered that he serve one-half of his sentence before he would be eligible for parole, pursuant to s. 743.6(1) of the Criminal Code. The trial judge also ordered forfeiture of the money seized and the appellant’s vehicle and imposed a $156,000 fine pursuant to s. 734.1 of the Criminal Code.
[4] The appellant appeals both his convictions and his sentence. For the reasons that follow, I would dismiss the conviction appeal but grant leave to appeal the sentence and allow the sentence appeal in part.
Background
[5] In March 2018, the Toronto Police Service began investigating the appellant, after receiving information from a confidential source about a person trafficking drugs in the Greater Toronto Area. The appellant was under police surveillance between April and July 2018.
[6] The appellant lived in a detached home in Mississauga. He also rented a parking spot in the underground parking lot of a condominium building.
[7] The appellant was observed at various times driving three different vehicles in connection with the trafficking operation: a GMC Sierra truck owned by the appellant, a Hyundai Tucson owned by his spouse, and an Acura MDX owned by the appellant. These vehicles were observed at the appellant’s home and at the condominium parking spot.
[8] As part of the investigation, the police mounted a pole camera outside of the appellant’s home. Between July 9-17, 2018, the pole camera recorded the front area of the home, capturing the movement of people and vehicles in and out of the home and any activities taking place in front of the home. Investigators were also on site from time to time surveilling the home and following vehicles that left the home.
[9] On the evening of July 16, 2018, the pole camera captured an individual, identified by the appellant as “John”, exiting his vehicle with a blue duffel bag and walking to the side entrance to the garage, where he was briefly lost from view. The duffel bag appeared to be heavy and containing some volume. When he returned to his car, he was carrying only a small plastic bag. Later, the camera captured the appellant taking a blue duffel bag out of the garage and depositing it in the Acura.
[10] The next morning, police observed the appellant remove a blue duffel bag from the front seat of the Acura. The duffel bag now appeared to be empty.
[11] That afternoon, police observed the appellant place a black Adidas knapsack into the Acura, drive to the condominium parking spot and replace the Sierra truck in the parking spot with the Acura. He was then observed moving several items between the vehicles, including placing two plastic pails and a green cloth reusable shopping bag into the back of the Acura.
[12] The appellant returned to the parking garage in the Hyundai that evening and entered the driver’s seat of the Acura where he sat for several minutes moving about in his seat. He then exited the vehicle with the Adidas knapsack, which appeared to be heavy and carrying some volume.
[13] After leaving the condominium parking garage in the Hyundai, the appellant conducted what he described as a drug delivery. He then returned to the parking garage, placed the Adidas knapsack back into the Acura and left.
[14] On July 18, 2018, the police executed warrants to covertly enter and search the Acura. In the Adidas knapsack, police observed several bundles of cash. In the back of the Acura, police found a shotgun in a case and a magazine loaded with two shells. The two plastic pails and the green bag contained a cutting agent, large volumes of narcotics and a large amount of money. Various drug paraphernalia was also found in the vehicle.
[15] The Acura was seized, and a more specific warrant was obtained. Upon a further search of the vehicle, police located a secret “trap” compartment in the front console area, which contained more bags of narcotics.
[16] In total, police seized 5.1 kg of heroin, 2.2 kg of heroin and fentanyl, 994 g of heroin, carfentanil and fentanyl, 494 g of carfentanil, 7.5 kg of cocaine/crack cocaine, $118,000 in bundled Canadian currency, the shotgun, and the ammunition for the shotgun.
[17] The same day, the police also searched the appellant’s home, where they found smaller quantities of controlled substances, more bundled cash, money counters, a cocaine press, and drug paraphernalia, among other things.
The Application Judge’s Decision
[18] The appellant brought a pre-trial application under s. 8 of the Charter of Rights and Freedoms challenging, among other things, the use of the pole camera.
[19] The application judge found that the use of the pole camera, on public property and capturing only the outside area of the appellant’s residence, was not an illegal search. [2]
[20] Applying the test set out in R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 32, the application judge held that there was no reasonable expectation of privacy in the circumstances. The recordings, although surreptitiously made, were taken from a device situated on public property, did not record audio, and captured activity at the front of the house that was visible to the public eye.
[21] Although the appellant had a direct interest in the subject matter of the recording, there was no evidence that he had a subjective expectation of privacy in the subject matter of the recording. Even if he had asserted a subjective expectation of privacy, the application judge held that the expectation was highly diminished given the nature of the recordings. They captured only what was “plain view” in front of his home, did not use any enhanced recording devices or tools, and did not capture any core biographical information.
[22] The application judge distinguished this from cases involving recordings of common areas that attracted a higher expectation of privacy, such as a common area within a private condominium building, or the enclosed backyard of a private home: see e.g., R. v. Yu, 2019 ONCA 942, 383 C.C.C. (3d) 260, leave to appeal refused, R. v. Mai, [2020] S.C.C.A. No. 38; R. v. Wong, 2017 BCSC 306.
The Trial Judge’s Decision
[23] The appellant admitted that the funds in his possession were proceeds from the sale of narcotics. Given this admission, the trial judge found there was no doubt as to his guilt on the two charges of possession of proceeds of crime over $5,000.
[24] The appellant’s position at trial was that he was a low-level delivery person in a narcotic trafficking operation. He admitted to receiving narcotics for delivery and collecting cash proceeds from these transactions, however, he denied knowledge of the specifics of the transactions and claimed no knowledge of any of the narcotics stored in his vehicle.
[25] The trial judge found that the appellant’s evidence was not credible because of the numerous implausible explanations he offered. His claim that he simply forgot he left the shotgun and loaded magazine in the Acura when they were in clear view in the back seat, and he had been seen moving items in and out of the back of the vehicle, was a deliberate lie. His claim that “John” was simply bringing him garbage from their employer to dispose of was “absurd”. His explanation for the trafficking-related paraphernalia in his vehicle and home was “strained and implausible” when looked at in context.
[26] The trial judge found that there was nothing believable about the appellant’s description of his dealings with his employer. For example, he could not explain why his employer would place such large quantities of narcotics in his vehicle without telling him.
[27] Furthermore, at times the trial judge found the appellant’s story “appeared to morph before [his] eyes.” When challenged on the absurdity of his claim that he moved the containers into the Acura because it needed to look like it was in use but that he had no idea what was in them, the appellant then claimed his employers also had access to the vehicle and may have put the containers inside. This could not be reconciled with video evidence of the appellant transporting items between the vehicles in the same container and the presence of identical containers in his garage.
[28] The trial judge found that the Crown had proved the offences beyond a reasonable doubt. He noted the “remarkable continuity” between all of the items found by police in the vehicle, home and garage. He also found that the appellant’s behaviour in the front seat of the Acura was consistent with accessing the hidden “trap” compartment. From the totality of the evidence, including the items seized and the appellant’s behaviour observed by police, the trial judge concluded that the appellant had full knowledge of and control over the substances in the Acura.
[29] The trial judge sentenced the appellant to 18 years’ imprisonment. In doing so, he considered the appellant’s admission that he had been involved in the trafficking operation as a delivery person for two years: Criminal Code, s. 725(1)(c). The trial judge also considered that the appellant’s moral culpability was high, given that he engaged in trafficking out of greed and was trafficking serious opioids. As such, denunciation and deterrence were the paramount sentencing principles. Despite the fact that the appellant was a first-time offender with significant rehabilitative potential, the significant aggravating circumstances warranted a sentence of 18 years.
[30] The trial judge imposed a half-parole order to reflect society’s interest in denunciation. In doing so, he considered the total volume of very serious narcotics, which he found to be “staggering”.
[31] Finally, the trial judge imposed a $156,000 fine, based on the estimated profits the appellant made from the trafficking business. The trial judge found that this was a conservative estimate and that the appellant had the ability to pay because: (i) he had enough equity in his home to satisfy the requested fine; and (ii) it was likely he had other profits of trafficking hidden away.
Analysis
[32] The appellant claims that the application judge erred in finding that the use of the pole camera was not a search under s. 8 of the Charter.
[33] The appellant further claims that the verdict was unreasonable because:
- The trial judge ignored or minimized evidence consistent with the appellant’s description of his role as a low-level deliveryman; and
- The trial judge’s analysis was unfairly and improperly dominated by the presence of a firearm.
[34] Finally, the appellant appeals his sentence on the basis that:
- The trial judge erred in applying s. 725(1)(c) of the Criminal Code;
- The 18-year sentence is harsh and excessive and disregards the principles of proportionality, individualization and restraint to which the appellant, as a first-time offender, was entitled to in his sentencing;
- The trial judge erred in principle in imposing a delayed parole order when there was no demonstrated need for additional deterrence and denunciation; and
- The trial judge erred in imposing a fine in lieu of forfeiture when there was no evidence of his ability to pay.
[35] I address each ground of appeal below.
(1) The application judge did not err in finding that the use of the pole camera was not a search under s. 8 of the Charter
[36] The Supreme Court of Canada has recently summarized the law on s. 8 in R. v. Bykovets, 2024 SCC 6, at paras. 30-31:
To establish a breach of s. 8, a claimant must show there was a search or seizure, and that the search or seizure was unreasonable…
A search occurs where the state invades a reasonable expectation of privacy. An expectation of privacy is reasonable where the public’s interest in being left alone by the government outweighs the government’s interest in intruding on the individual’s privacy to advance its goals, notably those of law enforcement. Courts analyze an expectation of privacy by considering many interrelated but often competing factors, which can be grouped together under four categories: (1) the subject matter of the search; (2) the claimant’s interest in the subject matter; (3) the claimant’s subjective expectation of privacy; and (4) whether the subjective expectation of privacy was objectively reasonable. [Citations omitted.]
[37] See also Tessling, at para. 32.
[38] This case concerns the appellant’s expectation of privacy of information, described in Tessling, at para. 23, as “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others” (quoting A. F. Westin, Privacy and Freedom (1970), at p. 7).
[39] Like in Bykovets, in this case there was no real dispute that the appellant had an interest in the subject matter of the surveillance and a subjective expectation of privacy over the driveway and front entrance to his house. The core issue was whether his expectation of privacy in the subject matter of the recording was objectively reasonable.
[40] In Bykovets, at paras. 37-43, the Supreme Court warned against an unduly narrow description of the subject matter of the search. The court stated that the description should take a broad and functional view of the subject matter, examining not only the information itself but also how it may support inferences in relation to other personal information. In that case, the court held that a reasonable expectation of privacy existed with respect to IP addresses, which allowed whoever obtained such an address to collect a user’s Internet activity.
[41] In this case, the pole camera was pointed at the appellant’s house, monitoring and recording everyone who came and went at all times of the day for a period of 8 days between July 9-17, 2018. Police then summarized the surveillance information so as to document who was coming and going from the house, their licence plate and car model, the time and date they were present and what they were doing. The application judge concluded that “the recordings, although surreptitiously made, were taken from a device situated on public property, did not record audio, and captured activities and traffic (both pedestrian and vehicular) at the front of the house, visible to the public eye.”
[42] The application judge found that there was no objective expectation of privacy over this public space. She based this finding on the existing case law, and distinguished the circumstances before her from cases where similar surveillance cameras captured common areas in a private condominium building (Yu, at para. 26), or the backyard of a private home bordered by trees, retaining walls and a fence preventing a public view of the backyard area (Wong, at para. 33).
[43] The appellant does not contend that the application judge erred in her application of the Tessling factors in light of the existing case law. Rather, the appellant argues that the approach to the expectation of privacy in the wake of technological advances such as pole cameras should evolve. As the appellant explains in his factum:
A pole camera has a Big Brother undertone to it. Undertone that becomes the very melody when you consider the contemporary availability of ubiquitous wireless networks and increased availability of miniature devices at nominal costs as well as the massive digital storage media now available. All this means entire streets, neighborhoods, cities could be continuously recorded. Unlimited amounts of information about what its citizens are up to could be gathered by the state authorities. The pole camera is truly “the camel’s nose under the tent.”
[44] According to the appellant, while his driveway and front of the house were visible to the public, this does not mean that he had no reasonable expectation of privacy over that space from technologically enhanced 24/7 surveillance. In short, he had a “right to be left alone.”
[45] The appellant referred approvingly to the Fourth Amendment jurisprudence from the United States which has recognized the long-term use of pole camera surveillance as a search for purposes of the U.S. constitutional protection from unlawful search and seizure. In United States v. Moore-Bush, 36 F.4th 320 (1st Cir. 2022), pole camera surveillance lasting eight months was found to constitute a search for purposes of the U.S. Fourth Amendment analysis:
Mindful of the brave new world that the routine use of such all-encompassing, long-term video surveillance of the front curtilage of a home could bring about, we are convinced that the government does conduct a search within the meaning of the Fourth Amendment when it accesses the record that it creates through surveillance of that kind….
[46] As a general proposition, it may well be that pole camera surveillance could give rise to an objective expectation of privacy over the subject matter of the recording within the s. 8 Charter analysis, based on its duration, the scope and nature of its surveillance, the basis for its placement or because of other contextual or technological factors. This general proposition stems from the broad and functional view of the subject matter of such a recording, which could potentially capture information about an accused's comings and goings as well as who they associate with and what activities they take part in. In the circumstances of this case, however, where the pole camera captured only the public space that an individual police investigator would have seen from the same distance, without any additional capture of sound or close-up camera angles, and for a limited period of time, such broader concerns do not arise.
[47] I see no error in the application judge’s analysis of the pole camera. She carefully considered the Tessling factors and applied them to the facts before her. As the application judge found, if there was any expectation of privacy by the appellant over the public space in front of the house captured by the pole camera, it was “highly diminished” and did not constitute a search for purposes of s. 8 of the Charter.
[48] As there was no violation of s. 8 by virtue of the pole camera, it is unnecessary to consider the related issue of the importance of this evidence in the trial judge’s analysis.
(2) The verdict was not unreasonable
[49] To demonstrate that a verdict was unreasonable based on a misapprehension of evidence, an appellant must show that the trial judge was mistaken about evidence that played an essential role in the convictions. As Doherty J.A. stated in R. v. Morrisey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 221: “Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction, then, in my view, the accused’s conviction is not based exclusively on the evidence and is not a ‘true’ verdict.”
[50] The appellant claims that the verdict was unreasonable because of a series of misapprehensions of the evidence at trial. According to the appellant, these misapprehensions led to the trial judge ignoring or minimizing evidence consistent with the appellant’s description of his role as a low-level deliveryman.
[51] Specifically, the appellant argues first, that the trial judge ignored or minimized evidence of the two deliveries observed by police; second, that the trial judge ignored the significance of money being left in a backpack in the appellant’s car; and third, that the trial judge misconstrued that the appellant’s references to digital devices were in fact the encrypted Blackberry phones recovered from the appellant’s home.
[52] The appellant also claims that the trial judge was mistaken about the appellant having “experience in the auto body business” which could explain how he either had the experience to build the trap in the Acura or knew how and by whom to arrange for this to be done. According to the appellant, he testified only that he owned a mechanical body shop and worked in the office, handling payroll for the employees. He also argues that the trial judge was inaccurate in stating that the evidence showed the appellant, on at least three occasions, in the driver’s seat of the Acura in circumstances consistent with him accessing the trap.
[53] Finally, the appellant argues that the trial judge’s decision was unfairly and improperly dominated by the fact that a firearm was recovered from the Acura. The appellant notes that the firearm was a legal, licensed recreational shotgun that was used regularly by the appellant at a licensed gun club. The firearm was in a proper case and not stored in an accessible location to the driver. Further, the firearm was hidden from sight in a locked vehicle. The appellant testified that the firearm was in the trunk of the Acura because he had “forgotten” it after a day at the gun range.
[54] The respondent submits that the trial judge provided cogent and well-supported reasons for his rejection of the appellant’s version of events and his findings with respect to proof on the merits are entitled to deference.
[55] I do not agree that the trial judge misapprehended the evidence in any of the ways raised by the appellant. The trial judge’s findings and inferences were available on the record and are entitled to deference. I see no basis to interfere with these findings.
[56] Furthermore, in my view, the appellant has not shown that any of the alleged factual disparities or misapprehensions of fact were material to an essential aspect of the trial judge’s reasoning or ultimate decision. Given the trial judge’s rejection of the appellant’s evidence with respect to the drugs, firearm and ammunition recovered from the appellant’s vehicle and home, the Crown’s case met its burden of proof. As the trial judge concluded, at para. 85, “I find that [the appellant]’s evidence is entitled to no weight at all when I come to sift the evidence presented by the Crown to discharge its burden of proving each of the essential elements of the charges. I am persuaded that these were all simply artful lies that are incapable of being believed or of raising a reasonable doubt.”
[57] With respect to the firearm, the trial judge inferred from its location that it played at least an “auxiliary role in the trafficking operation.” Again, this finding was open to him.
[58] The verdict on this record was not unreasonable.
[59] I reject this ground of appeal.
(3) The sentence appeal
[60] The trial judge sentenced the appellant to 18 years’ imprisonment, less credit for the time he served in pre-trial custody.
[61] The trial judge also made several ancillary orders. On consent, he ordered the forfeiture of the Acura as offence-related property. He ordered the forfeiture of all the cash seized, which the appellant admitted were proceeds of crime.
[62] The trial judge also ordered that the appellant would be ineligible for parole until he had served half his sentence, pursuant to s. 743.6(1) of the Criminal Code. Finally, he granted the Crown’s request for a fine in lieu of forfeiture in the amount of $156,000 to account for the appellant’s admitted profits from the drug trafficking business.
[63] The appellant alleges the trial judge erred: (i) in considering uncharged offences under s. 725(1)(c) of the Criminal Code; (ii) in the overall fitness of the sentence, particularly what he alleges is the excessive period of 18 years incarceration; (iii) in reducing the appellant’s eligibility for parole under s. 743.6(1) of the Criminal Code; and (iv) in ordering a fine in lieu of forfeiture, notwithstanding the appellant’s inability to pay.
(a) The trial judge did not err in considering uncharged offences under s. 725(1)(c) of the Criminal Code
[64] The appellant testified to participating in the trafficking operation for two years prior to being apprehended. The trial judge considered this fact, and the evidence of the sale of volumes of narcotics in the past for which no charges had been laid, as a further aggravating factor, pursuant to s. 725(1)(c) of the Criminal Code and the Supreme Court of Canada’s decision in R. v. Larche, 2006 SCC 56, [2006] 2 S.C.R. 762. The appellant alleges that this was unfair.
[65] Section 725(1)(c) permits a court to consider “any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge.” The conditions for applying s. 725(1)(c), as set out in Larche, at paras. 45-46, are: (i) the uncharged offences must themselves be proved beyond a reasonable doubt; (ii) there must be a close connection between such offences and the ones for which the accused is being sentenced; and (iii) there must be no unfairness to the accused in considering this circumstance. See also R. v. Shin, 2015 ONCA 189, 322 C.C.C. (3d) 554, at paras. 91-92 and 96. The trial judge found that all of these conditions were satisfied in this case.
[66] I see no error in the trial judge’s consideration of the appellant’s own testimony of involvement in drug trafficking or in his application of the Larche criteria.
(b) The fitness of the sentence
[67] The appellant argues that the sentence was not fit, as the length of the sentence was harsh and excessive.
[68] The trial judge rejected the appellant’s contention that he was simply a drug courier. He found that the Crown had proved beyond a reasonable doubt that the appellant “played an important, central and knowing role in a relatively sophisticated wholesale-level opioid and cocaine trafficking operation at the multiple-kilogram level.”
[69] The trial judge considered the aggravating and mitigating circumstances applicable to the appellant. He also referred to the broader harms associated with trafficking heroin, fentanyl and carfentanil:
It cannot be said how many people have died or how many lives were foreshortened or destroyed by the toxic trade carried on by [the appellant]. 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.
[The appellant] 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.
[70] The trial judge also considered the principle of parity in relation to analogous cases, establishing a range of 15 to 17 years for convictions involving smaller quantities of drugs and involving guilty pleas: see R. v. Fuller, 2019 ONCJ 643; R. v. Lodge (9 October 2019), Kitchener, (Ont. C.J.); and R. v. Olvedi, 2021 ONCA 518, 157 O.R. (3d) 583, leave to appeal refused, [2021] S.C.C.A. No. 340.
[71] The trial judge concluded that 18 years’ imprisonment was an entirely fit and proper sentence for the most serious of the offences for which the appellant was convicted (i.e., the trafficking offences), in light of the gravity of the offences, the appellant’s degree of responsibility, the necessity of denunciation and deterrence both general and specific, and sentences handed down in similar cases.
[72] I do not take issue with the trial judge’s conclusions with respect to the gravity of the offences or with the need for deterrence and denunciation in the context of the offences for which the appellant was convicted.
[73] However, it is also necessary to consider the principle of restraint, particularly in the context of a first-time offender such as the appellant.
[74] A sentencing court is obliged to determine a fit sentence having regard to the circumstances of the offence and the personal circumstances of the offender. “The goal in every case is a fair, fit and principled sanction”: R. v. Parranto, 2021 SCC 46, 463 D.L.R. (4th) 398, at para. 10.
[75] At the time of sentencing, the appellant was a 38-year-old first-time offender of previous good character with family support and family obligations.
[76] The trial judge refused the defence request for a pre-sentence report because he viewed the utility of such a report to be for young offenders and to avoid the 8-week delay involved before sentencing.
[77] In my view, while allowing a pre-sentence report is discretionary, the rationale provided by the trial judge for declining to permit such a report was flawed. A pre-sentence report can be useful for any offender, regardless of age, and the delay in obtaining such a report is not a sufficient justification for denying one where it would otherwise be appropriate. Such a report may be particularly important in the context of a first-time offender. In R. v. Priest, 30 O.R. (3d) 538, at p. 543, this court stated, “This court has stressed that before imposing a sentence of imprisonment upon a first offender, the trial judge should have either a presentence report or some very clear statement with respect to the accused’s background and circumstances.” In this case, however, it is apparent that the appellant’s personal circumstances were otherwise put before the trial judge in the sentencing submissions.
[78] In light of those circumstances, I agree with the appellant that the trial judge erred in failing to apply the principle of restraint. Specifically, it is well-recognized that where an offender has never served a period of incarceration, the shortest sentence possible ought to be imposed: R. v. Borde (2003), 63 O.R. (3d) 417, at para. 36; R. v. Disher, 2020 ONCA 710, 153 O.R. (3d) 88, at para. 59; R. v. Desir, 2021 ONCA 486, at para. 31; R. v. Simpson, 2021 ONSC 6032; R. v. Thomas, 2014 ONSC 6946; R. v. Faroughi, 2024 ONCA 178, at paras. 69-71. Further, while the objectives of denunciation and deterrence must be given significant weight, they should rarely, if ever, be the sole determinants of the length of a first penitentiary sentence. As Rosenberg J.A. stated in Borde, at para. 36:
The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence. Where, as here, the offender has not previously been to penitentiary or served a long adult sentence, the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives.
[79] See also Disher, at para. 59; and Desir, at para. 31.
[80] While this principle has been emphasized in the context of youthful offenders, it is not limited to that context: see e.g., Simpson, at para. 189, where this principle was applied in the context of a “relatively young, middle-aged” offender.
[81] I conclude that the trial judge’s failure to consider the principle of restraint constituted an error of principle in the sentencing of the appellant.
[82] Applying the principle of restraint, and in line with the principle of parity, in my view, the shortest possible sentence which would achieve the principles of deterrence and denunciation would be 15 years’ imprisonment.
[83] This is greater than the sentence of 14 years given in Parranto, the leading case on sentences involving trafficking fentanyl, where Mr. Parranto had pled guilty, had just over 500 grams of fentanyl, a gun, a lengthy criminal record, and to whom Gladue factors applied. In para. 101 of Parranto, Moldaver J., writing for the concurring justices, reflected on the range for trafficking fentanyl in the following terms:
Fentanyl trafficking, and largescale trafficking in particular, are a source of unspeakable harm. Accordingly, while the range of sentences currently imposed for the directing minds of largescale fentanyl operations straddles the upper single digits and lower double digits, sentencing judges should feel justified, where circumstances warrant, in applying a higher range, consisting of mid-level double digit sentences and, in particularly aggravating circumstances, potential sentences of life imprisonment. [Emphasis added.]
[84] This sentence also is equivalent to that imposed in Olvedi, involving a first-time offender, who had imported nearly 500 grams of pure fentanyl (and received a 15-year sentence for the importation conviction and a concurrent sentence of 12 years for possession for the purpose of trafficking for this same amount). [3]
(c) The delayed parole order pursuant to s. 743.6(1) of the Criminal Code was unwarranted
[85] The trial judge ordered a half-parole order pursuant to s. 743.6(1) of the Criminal Code. His reasoning was as follows:
His [the appellant’s] 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.
[86] For the same reason as set out above, I see no basis for delaying the appellant’s eligibility for parole as a first-time offender.
[87] Beyond reiterating that the quantity of drugs seized was “staggering,” the trial judge did not provide an explanation for why deterrence and denunciation were not accounted for in the length of the sentences of incarceration imposed. Furthermore, the Crown did not provide evidence of the absence of a prospect of rehabilitation (such as is the case where an offender has previous parole violations or shows a pattern of recidivism) or a demonstrated need for this additional punishment: R. v. Zinck, 2003 SCC 6, [2003] 1 S.C.R. 41, at para. 31.
[88] The trial judge assessed the appellant’s rehabilitation potential as being “guardedly optimistic” because of the prosocial network available to help sustain and supplement the appellant’s own efforts. He tempered that assessment by noting that the appellant had successfully concealed his criminal alter ego from his network in the past and by highlighting the appellant’s desire for easy gain that in his view had driven him “into the arms of such a harmful occupation” and could displace any resolve to seek rehabilitation on the part of the appellant. These observations are not consistent with a need for an exceptional addition of parole ineligibility.
[89] For example, in R. v. Café, 2023 ONCA 10, 165 O.R. (3d) 161, where this court affirmed an order of parole ineligibility, the court noted, at paras. 66-67, that the trial judge had found no mitigating factors, that the offender had a lengthy criminal record, and that the violence involved in the offences justified the delayed parole eligibility on the basis of a demonstrated need to protect the public.
[90] Parole ineligibility is appropriate for circumstances “out of the ordinary” and has been properly characterized as “rare” and “exceptional”: R. v. Wu, 2017 ONCA 620, at para. 34. The trial judge failed to explain why this additional punishment was warranted in this case, and in my view, that aspect of the sentence should be quashed.
(d) The fine in lieu of forfeiture was proper
[91] Finally, with respect to the trial judge’s discretionary order of a fine, the appellant submits that that the trial judge erred in imposing a fine in lieu of forfeiture, pursuant to s. 734.1 of the Criminal Code, as there was no reliable evidentiary basis regarding any quantum of illicit funds received by the appellant or available to pay a fine.
[92] The respondent submits that a fine in lieu of forfeiture is part of the Criminal Code’s slate of provisions targeting proceeds of crime, whose goal is to ensure that “crime doesn’t pay.” Unlike a fine imposed as part of punishment, imposition of a fine in lieu of forfeiture is not limited by an offender’s ability to pay.
[93] The $156,000 quantum of the fine sought by the Crown and granted by the trial judge was based on appellant’s own evidence that he had engaged in three drives per week, receiving $500 per drive, for two years. The trial judge further balanced the assumption that the appellant made deliveries every single week of the year against more conservative estimates of the number of overall deliveries and the period of criminality.
[94] The trial judge concluded after his review of the record in this case,
I find that the requested fine represents a very conservative, low-end estimate of the level of profits accrued by [the appellant] from his role in the operation of this illicit business. I find that [the appellant] 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.
[95] I see no basis to interfere with the trial judge’s discretion in the imposition of this fine.
Disposition
[96] For the reasons above, the appeal against the convictions is dismissed. Leave to appeal the sentence is granted and the sentence appeal is allowed, in part. The total sentence of incarceration is reduced to a total period of 15 years. This is done by reducing the sentences imposed on Counts 2 and 3 of Indictment CR-19-90000102-0000 from 18 years to 15 years, to be served concurrently with the sentences imposed for the other counts. The trial judge’s order with respect to parole ineligibility on Counts 1, 2, 3, 4 and 5 of the same indictment is quashed. The credit for pre-sentence custody as calculated by the trial judge remains in place, as do the remaining ancillary orders, including the fine in lieu of forfeiture.
Released: May 7, 2024 “G.T.T.” “L. Sossin J.A.” “I agree. Gary Trotter J.A.” “I agree. B. Zarnett J.A.”
Footnotes
[1] Less a credit for pre-sentence custody of 32 days.
[2] The application decision was made by Justice Rita-Jean Maxwell of the Superior Court of Justice on September 13, 2021, with reasons reported at 2021 ONSC 6054.
[3] On an apples to apples basis, the sentence is slightly less than that upheld in R. v. England, 2024 ONCA 360, which involved possession for the purpose of trafficking of a smaller (but still significant) amount of fentanyl, and large amounts of crystal meth and cocaine, as well as firearm offences. Mr. England, who had a lengthy prior record, received an aggregate sentence of 15.5 years after application of the totality principle (13 years and 9 months after mitigation for the harsh conditions of pre-sentence custody).
