ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR12-0000111-00
DATE: 20130809
BETWEEN:
HER MAJESTY THE QUEEN
– and –
NICOLAS WONG
Respondent
T. Vogel, for the Crown
A. Morrow, for the Respondent
HEARD: June 12, 13, 2013
mCWATT j.
reasons for judgment
[1] The Crown has brought an application pursuant to s. 752.1(1) of the Criminal Code of Canada for an order remanding Nicholas Wong for a period not exceeding sixty days for an assessment to be performed by Dr. Scott Woodside, or any designate under his direction, at the Centre for Addiction and Mental Health (CAMH). The assessment would then assist me in determining the application brought by the Attorney General of Ontario pursuant to section 753(1) and 753.1(1) of the Code to have Mr. Wong declared a Dangerous Offender, or alternatively, a Long-Term Offender.
[2] Mr. Wong was found guilty by a jury on February 23, 2012 of two counts of Attempted murder with a firearm and two counts of Discharging a firearm with intent to wound.
[3] These predicate offences involved one of the victims, Mr. Duy Tran, arranging to sell two pounds of marihuana to Mr. Wong. The marihuana was worth approximately $6,200. At approximately 4:30 pm. on April 10, 2010, Mr. Wong met with Mr. Tran in the parking lot of 51 Blossomfield Drive – an apartment complex in Toronto. The Respondent entered Mr. Tran’s vehicle where another of Mr. Tran’s friends, Mr. Park, was also seated. Shortly after their meeting for the purpose of Mr. Wong purchasing the marihuana, the Respondent, instead, forcefully took one pound of the drug away from the men. He then stepped out of the vehicle and fired a gun directly at Mr. Tran and Mr. Park. At the same time, two of Mr. Wong’s co-conspirators emerged from somewhere in or around the apartment complex and began shooting at the occupants of Mr. Tran’s vehicle. At least fourteen shots were fired from three different guns. Mr. Tran was shot in the leg. A bullet has remained lodged in his groin as its removal was deemed to be too medically risky.
[4] Mr. Wong has a criminal record with young offender and adult convictions. Including the predicate offences, he has been convicted of 22 criminal offences since 2003. Those offences include crimes of aggression, breaches of court orders, obstruction of police, drug possession, drug trafficking and multiple firearm related offences.
[5] The Respondent’s criminal record is summarized at paragraphs 8 to 19 of the Crown’s factum and I accept and rely on it as part of these reasons. None of that summary was challenged by Mr. Wong’s counsel. It is as follows:
“Crimes of Aggression
The Respondent’s first finding of guilt in a criminal matter dates back to May 26, 2000, when he was thirteen years old. The Respondent pleaded guilty to the charge of threatening bodily harm after threatening his mother on two separate occasions. On October 21, 1999, the Respondent’s mother tried to calm him down after he was slamming doors in the house. He responded, “Don’t touch me, I’ll shoot you, you better sleep with one eye open.” On January 12, 2000, the Respondent became enraged and raised his fists to his mother’s face saying, “You don’t want me to punch you, because if I did I would really hurt you.” The Respondent received a conditional discharge and one year probation for those offences.
In January of 2007, the Respondent pleaded guilty to domestic assault and failing to comply with recognizance. Following a dispute with his partner of four years, Ms. Robinson, the Respondent grabbed her by the arm and hair and attempted to pull her back into the apartment after she tried to leave. The Respondent was sentenced to fifteen days in custody followed by one year probation.
Breaches of Court Order and Crimes of Dishonesty
The Respondent has continually violated court orders and lied to police. His criminal record is replete with convictions for fail to comply recognizance, fail to comply with probation, fail to comply with a prohibition order and obstructing police.
Offence
Date
Sentence
Reference
1
Theft under $5000
2002-08-20
C.D. & 12 mos. Probation
Vm. 1, Tab 4
2
(1) Fail to comply recognizance
(2) Fail to comply probation
2004-11-26
7 days (9 days PSC)
Vm. 1, Tab 6
3
Fail to comply recognizance
2005-05-10
S.S. & 12 mos. probation
Vm. 1, Tab 7
4
(1) (1) Obstruct Peace Officer
(2) (2) Fail to comply
(3) Recognizance x 2
2005-06-01
1 day (28 days PSC)
Vm. 1, Tab 8
5
Obstruct Peace Officer
2005-06-02
S.S. & 12 mos. probation
Vm. 1, Tab 9
6
Fail to comply recognizance
2007-01-08
15 days conc.
Vm. 1, Tab 10
7
(1) Fail to comply probation
(2) Obstruct Peace Officer
2007-02-27
Conc. With gun offence
Vm. 1, Tab 11
Fail to comply prohibition order
2008-11-14
Conc. With gun& drug offences
Vm. 1, Tab 13
Fail to comply prohibition order
2012-02
To be determined
Vm. 1, Tab 14
Firearm and Drug Offences
The Respondent has also become involved with firearms, firearms trafficking and drug trafficking.
On October 24th, 2003, the Respondent pleaded guilty to unauthorized possession of a loaded prohibited firearm. The charge stemmed from a police investigation subsequent to a 911 caller advising the police that a gun has been pointed at the caller by a person in a motor vehicle. The Respondent was a passenger in the right front seat of a car. Two other males were in the car. A loaded .32 caliber handgun was located on the Respondent. Another handgun, a “bored out” .22 caliber handgun (made from a starter’s pistol) was located under the right front passenger seat. The gun was fully loaded. The driver of the car was arrested with a large amount of marihuana in a plastic bag. In the bag were 15 small 1” x 1” packets of marihuana, a bulk loose amount of marihuana in another bag and $640.
On June 2nd, 2005, the Respondent pled guilty to possession of a Schedule II substance (marihuana) and obstructing a peace officer. The Respondent was sentenced to a suspended sentence and twelve months probation.
On February 27th, 2007, the Respondent was convicted of another firearm offence when he pled guilty to possession of a loaded restricted firearm, failing to comply with probation and obstructing a peace officer. The Respondent attempted to flee from two police officers and in the process tried to discard a loaded handgun. He was sentenced to the equivalent of a 2 year and 5 month sentence, three years probation and a mandatory weapons prohibition.
The Respondent was also convicted of possession of a schedule substance on November 15th, 2007, after police officers found him to be in possession of a small quantity of marihuana and cocaine. The Respondent was sentenced to fifteen days imprisonment.
On November 14, 2008, the Respondent pled guilty to charges of possession of a firearm or ammunition contrary to a prohibition order, weapons trafficking and trafficking in a Schedule I substance. These charges stemmed from the interception of phone communications of the Respondent, during which he repeatedly engaged in trafficking of firearms. The communications also revealed the Respondent offering to sell cocaine to an associate. Throughout the intercepted communications, the Respondent can be heard planning robberies as well as revenge against individuals that have robbed him. The Respondent was sentenced to the equivalent of 4 years and 7 months imprisonment.
On February 23, 2012, the Respondent was convicted of two counts of attempt murder with firearm. He was bound by a weapons prohibition order at the time of the offence.
Since his first firearm and weapons prohibition order I February 2007, the Respondent has trafficked in firearms and attempted to murder with firearms. In both circumstances, he has conspired to do so with others.”
[6] Section 752.1(1) of the Criminal Code provides that if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence might be found to be a dangerous offender under section 753 or a long-term offender under section 753.1, the court shall, by order in writing, before sentence is imposed, remand the offender for a period not exceeding 60 days for an assessment to be used in an application under section 753 or section 753.1.
[7] There is no issue that Mr. Wong’s convictions in this case satisfy the definition of a “serious personal injury offence” as defined in section 752 of the Criminal Code.
[8] The Respondent does take issue, however, with whether there are reasonable grounds to find that he “might” be found to be a dangerous or long-term offender.
[9] Rather than dealing with the test at this phase of the Crown’s application – whether I am satisfied that there are reasonable grounds that Mr. Wong might be a dangerous or long-term offender, - counsel for Mr. Wong overly addressed the issues to be decided on the merits of the application itself.
[10] The threshold for ordering an assessment in these circumstances is a low one. The onus on the Crown is merely to persuade me that there are reasonable grounds to believe that Mr. Wong might be a dangerous offender. I need not make an actual finding of fact that he will be designated a dangerous offender, which is essentially what Mr. Morrow was arguing in the negative before me at this hearing.
[11] As set out at paragraph 20 of R. v. McArthur, “[2007] O.J. No. 5146 (Gen. Div.)”, the test is, at this application, “Is the court satisfied, after weighing and balancing all the relevant considerations, including the evidence, that the offender should be remanded for observation?” [See also R. v. Fulton, “[2006] S.J. NO. 669 at para. 21 (C.A.)”].
[12] On the evidence adduced before me, it is clear the Crown has satisfied its onus for an assessment to be ordered. It is “within the realm of possibility” that Mr. Wong might be found a dangerous offender (R. v. Fulton, supra).
[13] He has committed serious personal injury offences as the predicate crimes. He constitutes a threat to the life, safety or physical or mental well-being of other persons on the criteria set out in both section 753.(1)(a)(i) and 753.(1)(a)(ii).
[14] With respect to the criteria pursuant to s. 753.(1)(a)(i), the following evidence is indicative of the need for a psychological assessment of Mr. Wong.
[15] First, the Respondent’s conduct is accurately characterized by the Crown as a “pattern of repetitive behaviour that has demonstrated a failure on his part to restrain his behavior.”
[16] He has four different convictions involving the possession, trafficking and use of firearms. A reasonable inference can be made on the evidence presented at this hearing, that his possession and use of the firearms is in connection to drug trafficking. It is an accepted fact in these courts that firearms are part of the tools of the trade for a drug trafficker [R. v. Grant, 2006 18347 (ON CA)], [2006] O.J. No. 2179 (OCA) at para 82; R. v. Simon, [2010] ONCA 754 at para. 1]. Serious bodily harm is often the result of that trade.
[17] There is further evidence of a pattern of repetitive behavior in the record Mr. Wong has amassed in his relatively short life-time. The Crown has pointed to, and I accept, a number of significant relevant similarities between Mr. Wong’s firearm offences to show a pattern of behavior required for a designation pursuant to s. 753 (1)(a)(i) of the Code. The pattern consists of these factors:
Mr. Wong possesses loaded firearms;
he carries them in public places;
he does so for the purpose of drug trafficking; and
he does so while affiliated or while conspiring with others.
[18] His convictions in October, 2003, February 2007, November 2008, and February, 2012 support this finding.
[19] Second, Mr. Wong has shown an inability to restrain his behavior in the past. In spite of telling various courts over almost a decade that he wished to “turn his life around”, Mr. Wong has returned to his criminal lifestyle from the time of his first conviction. He has repeatedly breached orders of the court, whether on bail at the time (he has 5 of these convictions) or probation (he has 2 of these). He has breached prohibition orders not to possess a firearm. He has two of those convictions. He also has 3 convictions for obstructing a Peace Officer.
[20] Third, I accept the Crown’s submission that Mr. Wong’s past conduct suggests a “likelihood” that he could cause death or injury or severe psychological damage to another person in the future. He carries loaded firearms in public places. One such firearm has been linked to a homicide in 2004. He is obviously prepared to use a firearm – as shown in the predicate offences. Wiretap conversations presented as evidence in this application from his November 2008 convictions portray Mr. Wong as a somewhat relentless and potentially brutal thief who carries a firearm and is not complete without one. He presents on the wiretaps as unable and quite unwilling to extricate himself from a life of guns, drug peddling and robbery. There is, as a result of his record and past behavior, a substantial risk that his future behavior would likely cause death or injury or severe psychological harm to others because he cannot restrain himself.
[21] In the context of section 753(1)(a)(ii), Mr. Wong might also be found a dangerous offender and an assessment is mandatory as a result.
[22] For many of the reasons already set out in this ruling in the context of s. 753(a)(a)(i), Mr. Wong’s past conduct constitutes a “pattern of persistent aggressive behaviour” necessary for a dangerous offender designation in subsection 753.(1)(a)(ii).
[23] First, he has shown a pattern of persistently aggressive behavior through the convictions for possession loaded firearms. Aggressive behavior has been defined by these courts and I find that Mr. Wong’s past behavior fits within that definition [see. R. v. Campbell, “[1992] O.J. No. 2079 at para. 23 (O.C.J.)”; R. v. R.J.M., “[2008] O.J. No. 5991 at para. 70 (S.C.J.)”; and R. v. S.L. “[2011] O.J. No. 6078 at para. 32 (O.C.J.)”].
[24] Second, the predicate offences in this case form a part of that pattern. Those offences were clearly aggressive on any definition of that word and are the culmination of the pattern.
[25] Third, the evidence establishes that Mr. Wong has demonstrated a “substantial degree of indifference” to the “reasonably foreseeable consequences” of his past behavior. His seemingly constant possession of a loaded firearm has created a substantial risk to others. That played out in the predicate offences where he brazenly shot, along with others, at Mr. Tran and Mr. Park in the parking lot of many residential buildings.
[26] As a result, the Crown’s application is granted.
McWatt J.
Released: August 9, 2013
COURT FILE NO.: CR12-0000111-00
DATE: 20130809
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
NICOLAS WONG
Respondent
REASONS FOR JUDGMENT
McWatt J.
Released: August 9, 2013