Court Information

Ontario Court of Justice

Her Majesty the Queen v. Tan Nguyen

Heard on: January 29, 2014 Before: The Honourable Justice G. Sparrow Location: Toronto, Ontario

Appearances

Crown: D. Morlog Defence: H. Goldkind

Reasons for Judgment

SPARROW, G. (Orally):

THE COURT

On January 9, 2014, the accused pleaded guilty to the offence of trafficking cocaine. A recitation of the facts revealed that an undercover officer attempted to buy crack from a co-accused who agreed to sell some, but didn't have any. The officer approached another vendor who was also out of product. He then approached the accused who sold him 0.16 grams of crack. A search revealed an additional small amount of cocaine on the accused.

Exhibit one, the accused's criminal record reveals:

• a) a prior conviction for trafficking cocaine in 2009, and
• b) a long list of relatively minor offences, including thefts and breaches of recognizances.

Crown and defence agreed that the accused is a crack addict, and that the record is that of an addict. Because of the accused's prior conviction for trafficking, a mandatory minimum penalty of one year must now be imposed.

The accused has been in custody for approximately three and a half months, and has never sought bail. He did apply to be dealt with by the Drug Treatment Court, but his application was rejected.

Pretrial Custody Credit Submission

On January 9, counsel made a joint submission to the effect that the accused should receive credit for 1.5 days for each day served, pursuant to Section 719(3.1) of the Code. The Section permits credit of 1.5 days as opposed to the limit of one for one if "circumstances justify it".

The following factors were mentioned as justifying circumstances:

• a) the fact that the accused is an addict;
• b) the fact that his plea was entered relatively early with no application for bail;
• c) the fact that the accused had been a hard working citizen until addiction became a problem;
• d) the fact that his previous offences were relatively minor, and not demonstrative of violence;
• e) the fact that he will not get remission for time served in pretrial custody; and
• f) the fact that he has been in one of Toronto's detention centres where conditions are generally crowded and difficult, and no rehabilitation is available, as is well known.

The court questioned whether a joint submission on the issue of pretrial custody is appropriate, and whether all of the factors mentioned above are relevant to the determination under Section 719(3.1). It was noted that reliance on improper factors could amount to an error in law.

Adjournment and Further Submissions

On January 16, 2014 the matter returned. Defence counsel maintained that he should not have to "parse out" the relevant factors, given that they were part of a joint submission. Crown counsel was also somewhat reluctant to do so. When pressed, defence counsel acknowledged that the accused's record wasn't relevant, but maintained that all of the other factors mentioned previously were "justifying circumstances".

Crown counsel ultimately submitted that the standard factors mentioned in the case law—lack of remission credit and poor prison conditions—were sufficient to trigger Section 719(3.1), particularly given that the accused is an addict trafficker in need of the rehabilitation which is not available during pretrial custody. He also suggested that the accused's record showing no propensity for violence might have helped him gain remission time, and is therefore relevant.

Court's Analysis

With respect to the issue of whether a joint submission is appropriate, the Court had concerns, given the statement in Regina v. Stonefish, 2012 MBCA 116 (Man.C.A.) at paragraph 99 that the Court applies credit after a sentence is determined. Newspaper reports reveal that the Attorney General of Canada took this position at the recent hearing of three cases on the issue of the meaning of Section 719(3.1):

• Regina v. Stonefish, supra;
• Regina v. Carvery, 2012 NSCA 107, 2012 NSJ 527; and
• Regina v. Summers, 2013 ONCA 147, 2013 OJ 1068 (Ontario Court of Appeal).

In Regina v. Reid, 2011, the Ontario Court of Appeal ruled that pretrial custody is properly a part of a joint submission. However, that decision precedes the new legislation and rulings in Stonefish and Carvery, supra, that the onus is on defence to show justifying circumstances.

Decision

Ultimately it is not necessary to address this issue any further. A lengthy analysis of the applicable factors would not, in my view, be useful, given:

• a) the pending judgement from Supreme Court of Canada on this issue;
• b) the fact that the Crown is supportive of the 1.5 credit; and
• c) most importantly, the fact there are some "justifying circumstances": lack of remission, difficult prison conditions, and particularly the fact that this accused badly needs rehabilitation which is not available in pretrial custody.

I also note that the Crown acknowledges that the accused has behaved cooperatively since his arrest, including during his time in prison. This factor is relevant to the remission question although it is certainly always difficult to determine prospectively how it would be applied.

Credit will therefore be granted on the 1.5 basis.

Transcript Certification

TRANSCRIPT ORDERED: February 12, 2014 TRANSCRIPT COMPLETED: February 20, 2014 ORDERING PARTY NOTIFIED: February 20, 2014

THIS IS TO CERTIFY THAT THE foregoing is a true and accurate transcription from sound recording apparatus by E. Beltran and typed by Michelle Lewis, to the best of my skill and ability.

MICHELLE LEWIS CERTIFIED COURT REPORTER