R. v. Hoang
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Thien Hoang
Before: Justice S. R. Shamai
Heard on: June 20, July 4, 2016
Decision announced on: July 14, 2016
Ruling on Judicial Interim Release Application released on: July 22, 2016
Counsel:
Ms. E. Nadeau for the Crown
Ms. J. Hue and Ms. K. Schofield for the accused, Thien Hoang
SHAMAI J.:
Application for Judicial Interim Release
[1] Thien Hoang applies for judicial interim release at the conclusion of his preliminary inquiry. He bears the onus of showing cause why he ought to be released. He faces trial on serious charges of criminal conduct:
That on January 9, 2015, in the City of Toronto, he possessed three prohibited firearms: a Norinco Semi-Automatic rifle; a Squires Bingham semi-automatic rifle; a Simonov semi-automatic rifle. The charges relating to these firearms include the Norinco having readily accessible ammunition that was capable of being discharged in the firearm, and not being the holder of an authorization or licence under which the weapon might be possessed, and without a registration certificate of it; contrary to Section 95(1); a similar offence under Section 92(1) of the Code; careless carriage and storage of the Norinco; possession of the Norinco while prohibited by two Section 109(2) orders, made on different dates; possession of the Norinco while prohibited by an order pursuant to section 742.3(2) (conditional sentence order). Similar charges are outstanding against Mr. Hoang in relation to the Squires Bingham and the Simonov weapons, although not the count of possessing those firearms with readily accessible ammunition.
He faces charges of possession of prohibited weapons to wit, six over-capacity magazines, knowing he had no licence permitting such possession; and careless storage and carriage of them.
He faces a charge of possession of the Norinco knowing it was obtained by commission of an offence in Canada.
He faces charges that on January 9, 2015, he forcibly confined Winkle Lejarde, pointed a firearm at him without lawful excuse, and kidnapped him while using a firearm with intent to cause him to be confined against his will.
Mr. Hoang is charged with pointing a firearm at Winkle Lejarde.
On many of these charges relating to January 9, 2015, Mr. Hoang was co-accused with two others, although charges against one of them have now been withdrawn by the Crown.
In addition, Mr. Hoang stands charged with eleven offences alleged on January 17, 2015:
Possession of a .380 calibre semi-automatic handgun, with readily accessible ammunition that was capable of being discharged in the firearm, without being the holder of authorization or licence, and registration certificate. He faces other charges related to that handgun: possession of proceeds of crime; careless storage of it, and of 380 calibre ammunition; possession of these items as well as a crossbow while prohibited on three separate court orders, as above.
Mr. Hoang faces charges of possession of methamphetamine for the purpose of trafficking, and possession of heroin for the purpose of trafficking.
[2] He conceded orders to stand trial at the conclusion of the hearing, which commenced on November 2, 2015 and ended, with orders to stand trial, on July 16, 2016. Indeed, that was his position early on in the proceedings, with the exception of one count, pointing a firearm. The order to stand trial was conceded on that count as well, near the end of the preliminary inquiry. He asked this Court to consider his release however, within the powers prescribed by Section 523(2)(b).
Background Facts
[3] Mr. Hoang is charged along with two others with kidnapping, forcible confinement, and weapons charges detailed above, on January 9, 2015. The kidnapping, forcible confinement and pointing firearm charges concern the alleged capture and forcible detention of Winkle Lejarde, as Mr. Hoang and others took him from a place in Toronto to an address in neighbouring Peel Region. This was all for the purpose of enforcing a drug debt apparently owed by Mr. Lejarde to Mr. Hoang. According to some of the material before me, Mr. Lejarde was to acquire a particular cell phone for Mr. Hoang as repayment in part of a debt he owed. While at that address, some sort of fight broke out, resulting in an attempt murder charge being brought in Peel Region against Mr. Hoang. He apparently received a knife injury to his face in the course of the incident. The significant quantity of the drugs alleged in the information as well as some of the weapons were discovered when a search warrant was executed at his residence at Bristol Road in Mississauga, upon Mr. Hoang's arrest about a week later.
[4] The weapons charges of January 9 relate to firearms and overcapacity magazines which were taken to an address in Toronto by co-accused and another man not before the Court. They were stored at that place, the residence of the unwilling but drug-affected occupant of the apartment, who subsequently alerted police to the weapons which the others had left there. Police staged a break in to recover the items without casting aspersions on the occupant's involvement. Mr. Hoang returned with the others to recover the weapons, which by that time were no longer there. Text messages and security surveillance video supports the Crown's case on these charges, as well as the testimony of the occupant of the apartment.
[5] These occurrences are alleged on January 9 and 17, 2015. Mr. Hoang has been in custody since his arrest on January 17, 2015. Indeed, he did not seek bail until the end of the preliminary inquiry. The attempt murder charge was the subject of a preliminary hearing in Peel, before my colleague Justice Hawke. At the conclusion of that hearing, Justice Hawke ordered Mr. Hoang to stand trial on a charge of aggravated assault. He thereupon sought bail on similar terms to those proposed to this court. He was ordered to bail. Both of his parents were named as sureties in the amount of $250,000, and he was required to wear an electronic monitoring anklet. The evidence of his parents, Thuy Tran and Thinh Duc Hoang, was heard by Justice Hawke. As well, she heard the testimony of Steve Tan, an executive with Recovery Science, the company which developed the electronic ankle bracelet and the protocol for its use in various court-ordered contexts. Recovery Science monitors the use of the bracelet.
[6] On this judicial interim release hearing, a similar release plan is proposed. Ms. Tran and Mr. Hoang Sr. testified. The transcript of Mr. Tan's testimony before Justice Hawke was filed, and Crown was content not to cross-examine on it. Medical reports dated February 5, 2015 from Dr. Patrick Tan and Dr. Kal Belay at the William Osler Health System – Brampton Civic Hospital were filed, concerning Mr. Hoang's health condition. It was agreed that although no further medical report was filed to this end, the concerns about various forms of cancer was no longer suspected as the cause of Mr. Hoang's condition, but more likely, a stomach ulcer. By the Crown, Mr. Hoang's criminal record was filed, along with a pre-sentence report prepared in fall, 2010. Mr. Hoang was at that time awaiting sentencing on possession of drugs for the purpose of trafficking, possession of a firearm, and failing to comply with court orders, including his recognizance. Crown filed a lengthy videotaped police interview of Mr. Hoang on the charges he faces in Peel, which is placed before the Court not for the truth of its content, but to give the Court a better picture of the man.
Criminal Record and Prior Orders
[7] Mr. Hoang was serving a conditional sentence at the time of his arrest, which had commenced in December 2014. It required him to comply with terms of house arrest. His address was stated on the order to be on Parkside Drive in Toronto. As well he was bound by other court orders, by way of firearms and ammunition prohibitions. Those had been imposed most recently on a lifetime basis on December 10, 2014, and prior to that in 2011. The conditional sentence of December 2014 imposed a weapons prohibition as well.
[8] Although brief, Mr. Hoang's criminal record is significant: on his first convictions on April 8, 2011, a 30 month sentence was imposed in addition to 32 days time service, for possession of a prohibited or restricted firearm with ammunition; two counts of possession of a schedule 1 substance; possession of a Schedule 1 substance for the purpose of trafficking, and failing to comply with a recognizance. On December 10, 2014, a twelve month conditional sentence was imposed on conviction for possession of marijuana (940 gms) for the purpose of trafficking. I understand that a breach allegation was served on Mr. Hoang in Halton Region, on Mr. Hoang's arrest in that jurisdiction in January 2015. However the allegation did not proceed to the hearing stage. Counsel advise that the sentence has now expired.
Crown's Position
[9] Crown opposes Mr. Hoang's release, on secondary and tertiary grounds.
Proposed Release Plan
[10] Mr. Hoang proposes his release on entering into a substantial recognizance, secured by his mother and father, and featuring electronic monitoring through an ankle bracelet, monitored by Recovery Science Corporation.
Evidence Regarding Sureties
[11] It is worthwhile to review the family history, at least briefly, as I consider the proposed plan of release on the strength of their supervision as sureties.
[12] Tran Thuy, Ms. Tran, is Mr. Hoang's mother. She testified to her twenty-four years in the Toronto area, having entered Canada as a refugee in 1992, and become a successful member of the community. She completed a university degree and has worked as a resettlement counselor and more recently in community health. She earned $34,000 a year until 1999, when she gained employment in community health advocacy. She currently earns $65,000 a year. She has been recognised as an outstanding community member by the Atkinson Foundation. She left Vietnam with her son, Mr. Hoang, with whom she arranged to be smuggled out to Cambodia or Malaysia, the record is not clear, in 1988. They lived four years in a refugee camp then came here in 1992. She taught English there and earned a small amount of money; her son, at age 8, began his involvement running drugs in the camp. Ms. Tran described breaking out of jail five times in the course of her courageous journey to Canada. She sponsored her husband, a pastor and an artist, to come to Canada. He has been here since 1999. He worked in a factory for a while, but suffered an injury and no longer can do such work. The two maintain separate residences.
[13] Although not earning significant salary, and supporting six people (herself, her husband, her son, his wife and two children), Ms. Tran now owns four properties in Toronto and Mississauga (Evans Avenue, Parkside Drive, Ossington Street and now on Eaglemount in Mississauga. Ms. Tran had maintained a house on Bristol Avenue in Mississauga as her residence which she shared with her son and his family; that property was sold by her a week before the completion of the hearing; she has traded up, as I understand it, for the Eaglemount property) Crown suggested, uncontradicted, that her properties are valued at approximately $4 million dollars, which Crown suggests necessarily implicates her son's illicit contributions. Ms. Tran was closely cross-examined regarding the cold room in the Bristol Avenue home, which yielded the significant quantities of drugs, on execution of search warrant. Ms. Tran said that her son and his family occupied the lower level of the house, and that when she asked to enter that room, her son told her he was an adult and was entitled to his privacy. She was asked also about the crossbow which was found lying outside that room. She said she thought it was a toy. Ms. Tran professed no knowledge of the conditional sentence and its house arrest provisions, which were imposed in December 2014, even though she had been the surety on her son's release for a time prior to that conditional sentence. I note that Mr. Hoang was bound to house arrest conditions, and the only address indicated on the order was the Parkside Drive address, one of Ms. Tran's properties. I note as well that all the evidence shows that Mr. Hoang was residing in Mississauga with his wife and children at his mother's house on Bristol Road.
[14] Ms. Tran testifies that she is no longer as naïve as she once was about her son's drug problem. She says she would not permit him to maintain a 'private" room in the house. She was cross-examined about the time that she withdrew as surety on her son's bail, in relation to charges resolved in December 2014. She said that her car had gone missing, so she called police about it. He was in fact arrested as he crashed that car, and was found in possession of nearly a kilogram of marijuana. She acknowledged that the fail to comply with recognizance on his record related to his breach of house arrest provisions. Apparently on this incident, her son had accompanied his father to a plaza, and while his father was in a store, he was investigated on the street outside, and found to be in possession of 27 oxycodone pills.
[15] According to the statement Mr. Hoang gave to Peel police, he boasted of owning 5 rolexes, and acquiring an expensive handbag for wife.
[16] The evidence of Steve Tan of Recovery Science Corporation was heard by Justice Hawke. A transcript of that evidence was admitted on consent as part of this proceeding. There is no doubt that a high degree of technical proficiency lies behind the claim of this company that it can effectively monitor the whereabouts of an individual wearing the electronic ankle bracelet. There is an admitted margin of error; there is a method by which, with two hours' notice, a person monitored in this way can be permitted without setting of an alarm via the bracelet, to go to another place other than the one stipulated for the GPS-driven monitoring. I have received confirmation that Mr. Duc Hoang and Ms. Tran can comply with the requirements of the system, and that Ms. Tran is prepared to pay the $610 monthly fee for it. I am aware of the significant number of court orders in Ontario which rely on this system, both for the purpose of judicial interim release, and conditional sentence.
Analysis of Secondary Grounds
[17] All of this may calm concerns under secondary grounds in some circumstances, but given the degree of naiveté or perhaps willful blindness which the proposed sureties have demonstrated, in relation to their son, my concerns about re-offence are not abated by recourse to the electronic monitoring. I refer to their performance in the past, and as well to the discrepancies in their testimony, both in terms of internal inconsistency and inconsistency between the testimony on the bail hearing before Justice Hawke, in May 2016, and before me, on June 20, 2016. I point to the following examples:
In Justice Hawke's court: Ms. Tran said, he listens to me, he respected me because I deserve all his respect. Inconsistent with this is his refusal to allow her to contact his physician concerning his weight loss and his drug addiction; his failure to comply with his bail conditions, resulting in her withdrawing as surety; needless to say, the suggestion that her son listens to her is altogether inconsistent with him refusing her entry to the room in which he had significant quantities of drugs and paraphernalia suggesting manufacture of drugs; and the semi-automatic handgun. As well her son would not allow her to contact his physician, concerning his drug use and apparent weight loss – which she stated to be as much as 60 lbs.
Ms. Tran told Justice Hawke that she did not believe he was supporting himself and his drug habit by trafficking drugs because she gave him money for food; she stated that he may have trafficked because she knew he had relapsed. This would have been during the period when she was refused entry to the cold room. However, she then said that she was not aware of her son trafficking drugs at the time.
Ms. Tran said her son had access to her Audi in order to take himself and his family where they needed to go. Clearly, when he was arrested in Halton on January 16, he did not have his family with him; nor did he have the family with him when he had the car in May 2013, when he crashed the car.
[18] I have no doubt that Ms. Tran is a courageous woman and in her work makes a significant contribution to this community. However she is very clear in her numerous assertions about her belief in her power to steer her son in the right direction, just with the power of her love for him. I believe that her statements that now she understands what the dimension of his problems might be, is only another endeavour on her part to have him within her reach, but not necessarily her control. Despite herself, and no doubt because of her courageous journey with him, it is apparent to me that her commitment to her son is stronger than any possible commitment to the judicial system.
[19] Similarly, with his father, although the testimony is not as lengthy, neither before me nor before Justice Hawke, the primary issue seems to be in terms of the father being out of the residence with him at a time when he was not permitted to be outside the residence without one of his sureties. Father was not a surety at the time. Parents testified that Mr. Hoang being investigated on the street while his father was in the store; at that time he was found in possession of 27 oxycodone pills. The apparent naiveté or willful blindness extends as well to Ms. Tran's explanation for the expensive watches and jewellery which her son had: she said she thought they were gifts from his wife, a woman who appears to have been supported by Ms. Tran, who understood that she supported her son and the two children as well. This may be contrasted with the boastful accounts given by Mr. Hoang to the Peel investigator – which may well have been puffery – but it is consistent with the account given by him to the probation officer preparing a presentence report in 2010; and even more significantly, with the value of drugs found in the room he kept "private" from his mother, in the latter's home, at the time of his recent arrest in January 2015. This stance of being supported only by his mother was maintained, apparently, in 2010 as well, when the presentence report indicated that Ms. Tran was surprised to learn that her son had income of $500 a month from Ontario Works.
[20] I note as well, that although Justice McLeod's order placed Mr. Hoang on conditional sentence with house arrest conditions, noting his address to be one of the properties owned by his mother (although not the residence of either mother or father) mother had no apparent knowledge of the house arrest conditions, or the stated address that obtained at the time of her son's arrest in January 2015, when he and his wife and children lived with her at the Bristol Road address in Mississauga.
[21] All these issues give me grave concerns about the ability of his mother in particular to monitor his release; his father inspires no greater degree of confidence in me. I have heard nothing, moreover, from Mr. Hoang's wife, with whom he would also be residing while on the proposed bail. The willingness of that person to ensure the law abiding conduct of the accused is a factor which must be considered as part of the overall plan.
[22] Thus, while the electronic monitoring provides a remarkably airtight web, when used according to plan, it is only as good as those responsible as surety in ensuring that the multi-faceted criminal career is leashed while on release. According to his own claims, as expressed to the presentence report writer in 2010, to the Peel Region officers in 2015, and on reviewing the text messages admitted to be his and tendered as part of the Crown's case, Mr. Hoang seems very proud of his criminal prowess, and his arrogant flouting of his parents' authority, in past, does not encourage confidence in his desisting from the career he boasts of, or from the disrespect he has shown his parents in the past. As well, his criminal record shows that his words are not entirely empty when it comes to the serious criminal acts he has engaged in, in the past. I am not convinced in these circumstances that there remains no reasonable prospect of re-offence, if released on these conditions.
Analysis of Tertiary Grounds
[23] Even more concerning are the issues raised under the tertiary grounds. While the case of R. v. St. Cloud 2015 SCC 27, [2015] 2 SCR 328 reminds us of the proposition relied on by defence, that release is the norm, and detention the exception, that case also opens the door for greater reliance on tertiary grounds for detention. In this case, I am of the view that tertiary grounds apply to support Mr. Hoang's detention. Section 515(10)(c) of the Criminal Code provides that where detention of the accused is necessary to maintain confidence in the administration of justice, it provides an independent basis for detention. It is not limited to exceptional circumstances, to the most heinous of crimes, or to certain classes of crimes or so-called "unexplainable crimes". Justice Wagner spoke for the seven justices hearing that case, in describing how the theretofore prevailing interpretations of the leading case of R. v. Hall, 2002 S.C.R. 64 ought not be interpreted as requiring exceptional circumstances. Justice Wagner states:
(para 50) …detention may be justified only in rare cases, but that …is simply a consequence of the application of s. 515(10)(c), and not a precondition of its application, a criterion the court must consider in its analysis, or the purpose of the provision".
He continues to note that a "rareness of circumstances criterion would be vague and unmanageable in practice, and reviews the decision in 2014 of the Court in the case of R. v. Summers to further support the Court's conclusion that application of the section does not require exceptional or rare circumstances. (paragraphs 52-54).
[24] The Court does, however elaborate on how to consider the four criteria set out in section 515(10)(c).
Criterion 1: Apparent Strength of the Prosecution's Case
[25] In Mr. Hoang's case, I look first to the criterion of the "apparent strength of the Prosecution's case". Here, I have the advantage of having heard the Crown's case on the preliminary hearing, and I know as well that Mr. Hoang has conceded the Crown's case on the many serious counts before the Court. That places me in a different situation than a jurist would be, hearing the bail application at a much earlier stage, shortly after arrest. I am mindful that the Crown has some significant challenges in relying on the testimony of Winkle Lejarde, and that Mr. Carpenter's testimony may present a trier of fact with issues beyond I could consider on the preliminary inquiry. However, that is not to discount the other aspects of the Crown's case with regard to the charges which revolve around the guns repository aspect of the case, so to speak, on Broadview Avenue. The kidnapping case may be affected by those weaknesses; however there is other evidence, including text messages, which Crown may rely on. Moreover, a significant part of the jeopardy Mr. Hoang faces relates to the drugs and related items found on the search of his residence, after his arrest. Those charges appear to carry significant strength for the prosecution, without the other issues playing a central role.
Criterion 2: Gravity of the Offences
[26] The gravity of the offences is significant. On that aspect, the "objective" gravity of the offences, assessed on the basis of maximum sentences, is undoubtedly significant. Crown suggests that Mr. Hoang faces "double digit" sentences in this prosecution, and while it is hard to predict what a trier of fact may find, the Crown's suggestion is not unwarranted.
Criterion 3: Circumstances Surrounding the Commission of Offences
[27] Having regard to the third criteria, the circumstances surrounding the commission of offence, including whether a firearm was used: clearly, there is a series of firearms offences alleged here; the testimonial issues I alluded to earlier may compromise the Crown's case in part, but the evidence is certainly more extensive than those challenges. The firearms and ammunition are themselves of a very concerning nature: two high powered "assault rifles" and a .22 calibre rifle, along with five prohibited over-capacity magazines, four of them loaded with a total of 138 rounds of ammunition, suited to the assault rifles. Eleven rounds of ammunition for the .22 calibre rifle were found. Regarding the offences relating to the drugs found in Mr. Hoang's home (his mother's home) ammunition was found on Mr. Hoang's person corresponding to the calibres of weapons attributed to him in other locations. A prohibited handgun and ammunition were found there, as well as the crossbow with arrows. The three court orders which bound Mr. Hoang to not have weapons in his possession are an indicator of his willingness to comply with court orders.
[28] Other circumstances I would take into account concerning the alleged offences include the significant quantities of "serious" drugs: on his arrest, a bag said to be in plain view in the back seat of the car he drove (his mother's Audi), a "bong" first drew the attention of the officer, who was investigating initially a parking violation; further search of the bag disclosed nine ounces of crystal meth, two syringes, a spoon with wooden handle, a glass bottle with eight grams heroin, a further 2-3 grams of crystal meth and a gram of cocaine. Further, a total of eighteen rounds of ammunition were alleged to be found, along with two cellphones. Those charges are before the court in Halton region. In the residence on Bristol Road, in the room where Ms. Tran respected her son the drug addict's claim for privacy, 116.4 grams of heroin were seized, 663.34 grams crystal meth, 55.56 grams MDMA, 68.06 grams of cocaine, cutting agent, and $3540 cash. Paraphernalia was seized, which Crown alleges is consistent with the production of drugs. These are serious circumstances, the quantities of drugs in and of themselves. In conjunction with the ammunition and links to very threatening firearms, the circumstances raise alarm bells for members of the community. This Court is directed by Subsection 515(10)(c), as interpreted by the Supreme Court, to take into account a context involving a criminal gang, among other things. The text messages seized and the interview in Peel, along with the 2010 PSR all show at the very least that this individual is likely to boast of his ties to criminal organizations and to make ominous threats to those who he claims owe him money. The previous convictions, the text messages tendered on this prosecution, and some of the strong aspects of the Crown's case before me, in terms at least of the seized items, show me this is not mere talk.
Criterion 4: Liability for Lengthy Term of Imprisonment
[29] The final factor for consideration, Subsection 515(10)(c)(iv) is the "fact that the accused is liable on conviction, for a potentially lengthy term of imprisonment, or in the case of an offence that involves or whose subject matter is a firearm, a minimum punishment of imprisonment for a term of three years or more".
[30] The Court in St. Cloud directs that consideration of this criterion, unlike the second one, be considered on a subjective basis. Again, knowing that Mr. Hoang has conceded orders to stand trial, and that there is already a showing of some issues for the Crown's case at trial, the pattern of criminality which is potentially up for sentencing here is very serious. Without attempting to second guess Crown's position that a "double digit" sentence would follow, the quantities of drugs and the number of firearms offences, all while Mr. Hoang was serving a conditional sentence and taking into account the particularly venal firearms, this criterion weighs heavily against Mr. Hoang.
Conclusion
[31] This is a case where detention is warranted on tertiary grounds. Considering the grounds quite separately from the secondary grounds, I conclude that on this aspect as well, Mr. Hoang has not shown cause why he ought to be released, notwithstanding the sureties and the offer of electronic monitoring. These factors, under Section 515(10)(c) appear to attract assessment quite apart from the release plan. While tertiary grounds are not, in my experience, frequently invoked, they apply in this case.
[32] For all these reasons, I conclude that Mr. Hoang has not shown cause why he ought to be released on judicial interim release. As indicated in court on July 14, 2016, I am ordering that Mr. Hoang be detained in custody.
Released: July 22, 2016
Signed: "Justice S.R. Shamai"