Court File and Parties

Date: 2016-05-17 Ontario Superior Court of Justice

Between: Her Majesty The Queen – and – Thanh Hien Tran, Ba Tuan Tran, David Hoc Troung and Wali Seddiqi

Counsel: Althea Francis and Faiyaz Alibhai, for the Crown Peter Brauti and David Meirovici, for Thanh Hien Tran Kim Schofield, for Ba Tuan Tran Phil Klumak, for David Hoc Truong John Struthers, for Wali Siddiqi

Heard: September 3 and November 20, 2015, January 29 and April 1, 2016

TROTTER J.:

Introduction

[1] The accused were involved in a large marijuana trafficking operation. As a result of an investigation named, “Project Lie See”, which ran from April 1 to November 6, 2012, 13 people were charged with various offences under the Controlled Drugs and Substances Act (“CDSA”) and the Criminal Code. On September 3, 2015, the four accused persons before me entered pleas of not guilty, but were found guilty of the following offences:

• Thanh Hien Tran: Conspiracy to traffic marijuana, trafficking marijuana and possession of the proceeds of crime.
• Ba Tuan Tran: Conspiracy to traffic marijuana and trafficking marijuana.
• David Hoc Truong: Conspiracy to traffic marijuana and trafficking marijuana.
• Wali Seddiqi: Conspiracy to traffic marijuana.

[2] All accused were represented by experienced counsel. Instead of requiring the Crown to call evidence to establish guilt, counsel consented to proceeding on Agreed Statements of Fact (“ASF”). In accordance with the procedure in R. v. G. (D.M.) (2011), 2011 ONCA 343, 275 C.C.C. (3d) 295 (Ont. C.A.) and R. v. R.P. (2013), 2013 ONCA 53, 295 C.C.C. (3d) 28 (Ont. C.A.), I conducted plea comprehension inquiries of all accused persons. Satisfied that each accused understood that he would be found guilty on the basis of the ASF, and would face sentences that were not the subject of joint recommendations, I determined that it was appropriate to proceed in this manner. Based on the ASF, I found the accused guilty beyond a reasonable doubt of the offences listed above.

The Facts of the Offences

(a) Background to These Proceedings: The Constitutional Challenge

[3] Project Lie See was an 8-month-long investigation of a sophisticated operation involving the weekly shipment of hundreds of pounds of marijuana from British Columbia to Ontario. In exchange, huge sums of money were sent back by courier. The investigation involved a number of general warrants, a Part VI authorization and a search warrant (at the end of the investigation). I issued the Part VI authorization, along with one of the general warrants. [1] The general warrants were used to inspect certain places and to inspect courier packages sent from Toronto to B.C.

[4] In a separate proceeding involving Quoc Toan Lam (“Bryan”) (who appears on the same indictment as the 4 accused in this proceeding), Justice MacDonnell held that all warrants issued as part of the investigation (including the general warrant I issued) involved infringements of Mr. Lam’s s. 8 Charter rights: R. v. Lam, 2015 ONSC 2131. [2] This conclusion was based on a finding that evidence discovered in relation to a prior investigation in which Mr. Lam’s rights were violated (see R. v. Lam, 2014 ONSC 3538, per Hill J.) was improperly relied upon in the current investigation. However, Justice MacDonnell did not exclude any evidence against Mr. Lam under s. 24(2) of the Charter. In an unreported judgment, Mr. Lam was subsequently found guilty in a proceeding conducted by Justice McMahon and received a 6-year penitentiary term.

[5] The 4 accused before me were not part of the litigation before Justice MacDonnell. However, it was agreed that all parties would be bound by his decision. The nolo contendere procedure was invoked to preserve their appellate rights on this issue. Additionally, Thanh Hien Tran relies on these Charter breaches as a mitigating factor.

(b) The Offences

[6] Project Lie See revealed that Bryan Lam was the head of the operation. Bryan arranged for the shipment of marijuana from Mr. Seddiqi, who was in B.C. Mr. Truong (in conjunction with others) distributed the drugs in Ontario, at a cost of $2,500 to $3,000 per pound. Ba Tran lived in London, Ontario and was a wholesale purchaser of large quantities of marijuana from Bryan. Thanh Hien Tran (also known as “Steven Tran”) worked closely with Bryan. They lived in the same condominium building. Steven Tran had his own supplier of marijuana, but he was closely associated with Bryan. Bryan handled Steven Tran’s money.

[7] The Crown estimates (and defence counsel do not dispute) that the street value of the drugs was in the millions. When the investigation ended, $500,000 in cash was seized. On the basis of general warrants, the police intercepted and inspected courier shipments from Ontario to B.C., discovering over $2 million. The Crown submits that Bryan couriered closer to $5 million during the course of the investigation.

[8] The ASF explain the role of each of the accused in the operation in considerable detail. I will not catalogue all of the functions performed by each accused. I touch on the highlights.

[9] As already noted, Mr. Seddiqi was directing the shipments of marijuana from British Columbia to Toronto. Intercepted communications revealed that he was largely in charge of the supply side of Bryan’s operation. He spoke to Bryan on a daily basis. He instructed others on how marijuana was to be shipped east. He collected funds sent from Bryan and Bryan’s father.

[10] While Steven Tran worked closely with Bryan, he also had his own marijuana supplier in Montreal and distributed large quantities to customers in Toronto. Surveillance revealed dozens of visits between by Mr. Tran to Bryan’s condominium, carrying bags or suitcases, suspected to contain marijuana or money. When he was arrested, Mr. Tran had $200,000 in cash. He had recently made a cash purchase of a $70,000 Porsche. Search warrants revealed over 200 pounds or marijuana in storage lockers rented by Mr. Tran’s father. Intercepts captured Mr. Tran directing his father to pick up marijuana from storage lockers and distribute them in the Toronto area. Mr. Tran disputes that he was solely in charge of the marijuana found in storage lockers. His father rented these lockers and received 2 years’ imprisonment for his role.

[11] Ba Tran received drugs from Bryan and distributed them in the London area. Intercepts revealed his involvement in negotiating the quality and pricing of marijuana. He received photos of marijuana that were sent to Bryan by Wali Siddiqi. While they spoke on a daily basis, he placed orders with Bryan on a weekly basis. In one instance, he negotiated an order for 72 pounds of marijuana. When he was arrested, he was in possession of 10 pounds of marijuana. On Mr. Tran’s behalf, Ms. Schofield submits that the evidence shows that her client was not involved in the money laundering side of Bryan’s activities, and had no knowledge of it until late in the day. It would appear that he became a suspect only after the Part VI authorization, late in the investigation.

[12] David Truong was involved in distributing drugs in Toronto. He received shipments from truckers. He stored, packaged and distributed the drugs. Mr. Truong rented a storage locker. He was seen attending it on numerous occasions. Acting on general warrants, police found almost 40 pounds of marijuana in this locker, pre-packaged and ready to sell. When he was arrested, 1.5 pounds of marijuana were found in his apartment and over 28 pounds in the storage locker. Like Ba Tran, his involvement was only discovered after the Part VI authorization.

Facts Relating to the Offenders

(a) Steven Tran

[13] Mr. Tran is 34 years old. He has no criminal record. Mr. Tran came to Canada from Vietnam when he was 11. He has a 10-year-old son and assists his mother who has health issues.

[14] Mr. Tran spent 8 days in pre-sentence custody (PSC). Since that time, roughly 40 months ago, he has been on a form of house arrest. Before his arrest, Mr. Tran worked as a personal trainer. He was unable to have his bail varied in a manner that permitted him to continue this type of work (due to the fact that he was required to be in the presence of his surety at all times). He found other employment, but he ultimately lost his position, requiring him to remain at home.

[15] Mr. Tran attempted to resolve his charges some time ago. He pled guilty in 2014. However, shortly afterwards, concerns arose about the lawfulness of some of the warrants in this case. After a contested proceeding, he was ultimately successful in striking his plea: R. v. Tran, 2014 ONCJ 506. [3] After having his guilty plea struck, Mr. Tran waived his preliminary inquiry and joined up with the proceedings in this court.

(b) Ba Tuan Tran

[16] Mr. Tran is 28 years old. He was 24 at the time of the investigation. Mr. Tran was born in Hong Kong and came to Canada when he was very young. He spent 3 years in a refugee camp. Mr. Tran suffers with diabetes. He was hospitalized in May of 2015. He has been treated with insulin in the past and probably will be again in the future.

[17] Mr. Tran does not have a criminal record. He was in PSC for 7 days. He was released on a strict house arrest bail that lasted for almost 2 years. He was only able to obtain the Crown’s consent to vary this bail after the preliminary inquiry. Since that time, almost 19 months ago, he has been on a bail with a curfew from 11 p.m. to 6 a.m. Mr. Tran’s bail allowed him to work and go to school. He did not work for long and achieved limited educational progress. Based on a two-tiered formula to account for both situations, Ms. Schofield submits that her client be given 11.5 months credit for the combined PSC and onerous bail conditions. Lastly, Mr. Tran recently commenced full-time employment. He is training to become a welder.

(c) David Hoc Truong

[18] Mr. Troung is 27 years old. He has no prior record. Mr. Truong’s family resides in Edmonton. He came to Toronto to start a printing business. Mr. Truong spent two weeks in PSC. He was subject to house arrest for roughly 8 months and has been subject to a curfew ever since. He was forced to relocate to Hamilton to reside with his surety,

(d) Wali Siddiqi

[19] Mr. Siddiqi is 33 years old. In 1994, he came to Canada with his parents and siblings as refugees from Afghanistan. Mr. Siddiqi has an assault conviction from 2006. Mr. Struthers submits, and the Crown agrees, that it is irrelevant to these proceedings. I agree.

[20] Mr. Siddiqi went to British Columbia to start a construction company. After being arrested on these charges, he lost his business because he was unable to leave Ontario. He was subject to house arrest for a year, and then on a curfew for another year. He has since started a successful restaurant in Toronto, where he employs 42 people. Through his business, he has assisted others in coming to Canada and, when he has been able, he hires refugees to work at his restaurant. He has made sizeable charitable donations to help refugees and others in need.

The Positions of the Parties

[21] The Crown submits that Steven Tran should receive a sentence of 4 years’ imprisonment, along with orders under ss. 109 (firearms), 462.37(1) (forfeiture) and 487.051 (DNA) of the Criminal Code. For the rest of the accused, the Crown submits that sentences of 3 years’ imprisonment are appropriate (along with the same ancillary orders).

[22] On behalf their clients, all counsel submit that conditional sentences of imprisonment would meet the aims of sentencing in this case.

Analysis

(a) Introduction

[23] Before commencing my analysis, I wish to address a theme that was pursued during these proceedings. Shortly after the accused were found guilty, but before the sentencing hearing, there was a change of government at the Federal level. I was asked to adjourn the sentencing proceedings to await anticipated changes to the legal status of marijuana in Canada.

[24] Mr. Struthers, on behalf of Mr. Siddiqi, was the main proponent of this argument, joined by counsel for Mr. Truong. With his usual eloquence, Mr. Struthers argued that, if the possession of marijuana is soon to become legal in Canada, there is no need for general deterrence and it would be unfair to punish the accused for what they have done.

[25] The sentencing proceedings were adjourned from time-to-time, but not for this reason. In terms of determining appropriate sentences, I cannot give effect to this argument. To do so would be contrary to the rule of law, a principle so fundamental to our democracy, one that is enshrined in the preamble to the Canadian Charter of Rights and Freedoms. [4]

[26] If judges refuse to apply laws based on their subjective impressions of the likelihood of reform, the rule of law would be seriously undermined. It would cause great confusion about which laws are enforceable and which ones are not. As the Court of Appeal held in R. v. Song (2009), 2009 ONCA 896, 249 C.C.C. (3d) 289 (Ont. C.A.), at p. 292:

Judges are entitled to hold personal and political opinions as much as anyone else. But they are not free to permit those views to colour or frame their trial and sentencing decisions. They are bound to apply the law as it stands. [emphasis added]

[27] Just as judges are not entitled to pick and choose which laws they wish to apply, members of the public are not free to select which laws they wish to obey, even with the prospect of reform on the horizon. [5] In present circumstances, prosecutorial discretion and executive clemency, [6] not judicial fiat, are the only legitimate sources of reprieve. In the meantime, I must apply the CDSA faithfully and sentence offenders according to the customary principles and binding precedent.

(b) General Principles

[28] The following considerations are relevant to all accused persons. In paragraph (g) below, I address the circumstances of each accused individually.

[29] I begin with the statutory framework. By virtue of the combined operation of s. 465(1)(c) of the Criminal Code and s. 5(1) of the CDSA, the accused face maximum sentences of life imprisonment (on the conspiracy and trafficking counts). The proceeds of crime count faced by Steven Tran carries a maximum sentence of 10 years’ imprisonment: Criminal Code, s. 355(a).

[30] Generally speaking, when sentencing offenders for their involvement in large-scale drug trafficking, general deterrence and denunciation are at the forefront. Numerous cases support this approach. However, as Mr. Alibhai for the Crown acknowledged, there is little that is recent from the Court of Appeal that deals with large-scale commercial trafficking of marijuana. Consequently, I have drawn upon the grow operation cases. These cases are considered to be very serious for a number of reasons, such as the dangers caused by hydro bypasses in residential settings, along with accompanying violence and threats of violence. But they are also helpful in framing an approach to trafficking cases involving large commercial enterprises.

[31] In R. v. Nguyen, 2013 ONSC 6913, Ricchetti J. sentenced an accused person to 20 months’ imprisonment for conspiracy to possess marijuana for the purposes of trafficking and to produce marijuana. The accused ran a “garden supply” business that was tied to four marijuana grow operations. Establishing that general deterrence and denunciation were the primary sentencing principles in this context, Ricchetti J. said the following at paras. 170 and 171:

While the production and possession of marihuana for the purpose of trafficking remain illegal, there are huge profits to be made by those involved in marihuana grow operations, not just the operators but also those who knowingly help them to start, maintain and conceal their illegal activities. General deterrence requires a penalty to deter those who might be tempted to engage in this activity for the lucrative profits that are available.

Denunciation is also significant in the circumstances of this case where positive and active assistance was provided by Mr. Nguyen to numerous and very large marihuana growers to start, maintain their marihuana grow operations and to avoid detection by the police. Mr. Nguyen made a conscious choice to engage in this illegal activity to make substantial amounts of money and without regard to the harm to society and individuals when the drugs he helped to cultivate were distributed. These actions are deserving of condemnation by the public.

[32] The Court of Appeal (2016 ONCA 182) set aside the conspiracy counts and substituted convictions for the substantive offences. The sentences were upheld, without comment.

[33] Numerous cases underscore the primacy of general deterrence in sophisticated marijuana conspiracy and grow operation cases. See R. v. Bui, 2011 ONSC 7200 (per Tulloch J. (as he then was)), R. v. Gobran, 2013 ONCA 407, R. v. Grunwald, 2007 BCSC 1533 and R. v. Hill (2007), 2007 BCCA 309, 221 C.C.C. (3d) 472 (B.C.C.A.) and R. v. Pasha (1981), 61 C.C.C. (2d) 340 (Ont. C.A.).

(c) The Availability of Conditional Sentences

[34] The importance of general deterrence and denunciation in this context impacts on the availability of conditional sentences. With residential grow operations, the Court of Appeal has held that conditional sentences should only be imposed in “rare” cases. In R. v. Song, supra, the Crown appealed the imposition of a conditional sentence involving a large-scale residential grow operation. The Court of Appeal identified various errors committed by the sentencing judge. The trial judge had wrongly refused to apply “binding jurisprudence mandating that general and specific deterrence be taken into account in arriving at an appropriate sentence in cases of this nature.” The Court also found that, “he ignored or failed to give effect to the jurisprudence emanating from this Court in cases such as R. v. Jacobson (2006), 207 C.C.C. (3d) 270 at para. 31, and R. v. Nguyen (2007), 2007 ONCA 645, 227 C.C.C. (3d) 262, at para. 46, to the effect that conditional sentences will be rare - even for first offenders - in cases involving large residential marijuana grow operations.” (p. 291) See also R. v. Nguyen, 2013 ONCA 362, at para. 7.

[35] As I have acknowledged, the parallel between trafficking and production is not perfect. But as stated in Bruce A. MacFarlane, Robert J. Frater and Croft Michaelson, Drug Offences in Canada, 4th ed. (Toronto: Canada Law Book, 2015) (looseleaf), at §34:80: “…a significant level of commercialism in drug transactions…is usually regarded as a significant aggravating factor.” This is a key feature of grow operation cases and the case before me. Some of the accused had other vocations before, or perhaps during, the investigation. However, it would appear that they were all engaged in the business of selling drugs on a full-time basis. That is how such huge sums of money were generated. Involvement seems to have been motivated purely by profit.

(d) State Misconduct as a Mitigating Factor

[36] On behalf of Steven Tran, and based on the principles in R. v. Nasogaluak (2010), 2010 SCC 6, 251 C.C.C. (3d) 293 (S.C.C.), Mr. Brauti urged me take into account the Charter infringements found by Justice MacDonnell in R. v. Lam, supra. As the authors Drug Offences in Canada observe, at §34:80, some courts have given mitigating value to state misconduct in drug cases.

[37] The breaches found by Justice MacDonnell can only have, at best, a negligible impact on the sentences of the 4 offenders before me. I start with the observation that, in his s. 24(2) analysis, Justice MacDonnell did not find them to be particularly serious in the overall scheme of things. He found good faith on the part of the investigators in this case (para. 89).

[38] In terms of Mr. Lam’s Charter-protected interests, Justice MacDonnell found minimal impact (at paras. 90 to 92) because most of the general warrants were used to inspect courier packages sent by Mr. Lam (or on his behalf), a context engaging a minimal expectation of privacy. They had no impact on the privacy of any of the other accused. The general warrant used to inspect Mr. Lam’s apartment engaged greater privacy concerns, but only for him. I also note that Justice McMahon did not take this factor into account when sentencing Mr. Lam.

[39] In all of the circumstances, the breaches found by Justice MacDonnell, which did not warrant the exclusion of evidence, have little impact on the proper sentences for these accused.

(e) Credit for Onerous Bail Conditions

[40] All 4 accused spent short periods of time in PSC. They have all been on bail for over 3 ½ years and subjected to extended periods of house arrest and/or strict curfews.

[41] As Rosenberg J.A. held in R. v. Downes (2006), 205 C.C.C. (3d) 488 (Ont. C.A.), at pp. 497-498: "House arrest is a form of punishment, albeit of a different character than actual incarceration. Pre-sentence house arrest varies little in character from the house arrest that is often imposed as a term of a conditional sentence under s. 742.1 of the Criminal Code." All accused attempted to loosen their conditions of release, with varying success. If the Crown insists on house arrest or other onerous bail conditions, and then refuses to consent to their removal or reasonable loosening, it should anticipate that proper credit will be granted at the time of sentence: see R. v. Vallada, 2016 ONSC 887, at paras. 22-23. As discussed below, I give credit for the time spent on bail subject to onerous conditions over a significant period of time.

(f) Conduct of the Trial

[42] As discussed above, the accused in this case agreed to be bound by Justice MacDonnell’s ruling in R. v. Lam, supra. While Mr. Lam’s motion failed, he resolved his case in a timely fashion while at the same time preserving his rights on appeal. As Justice McMahon said when sentencing Mr. Lam: “I find the manner in which he conducted the trial in allowing the evidence to go in by way of stated fact as opposed to calling weeks of viva voce evidence to be extremely mitigating and merits a further reduction of what would otherwise be a fair and fit sentence”.

[43] I agree with these comments and adopt the same approach in this case.

(g) Sentences for Each Offender

[44] I turn now to the sentencing of each offender. Conditional sentences are not appropriate because I have determined that, prior to granting credit for PSC and restrictive bail conditions, penitentiary sentences are warranted for each accused: R. v. Fice (2005), 2005 SCC 32, 196 C.C.C. (3d) 97 (S.C.C.). Beyond this threshold issue, I am not persuaded that any of the accused is in the “rare” category of cases created by the Court of Appeal. The conditional sentence cases collected and presented by Ms. Schofield and Mr. Brauti do not persuade me otherwise. Most of them involved far less serious situations than the case before me, in which all 4 men were involved in a high level conspiracy to regularly traffic hundreds of pounds of marijuana, generating millions of dollars.

[45] As discussed below, there is room to distinguish the activities of Steven Tran, Ba Tran and David Hoc Truong as traffickers. But these differences do not detract from their involvement in the overall conspiracy, in which Mr. Siddiqi was a key figure.

i. Steven Tran

[46] Steven Tran played a more serious role in the conspiracy than the other accused. Moreover, given the amounts of cash and property involved, the proceeds of crime count is also very serious.

[47] Given that Mr. Tran is a first offender, and in view of his role in the enterprise, I believe that a penitentiary sentence approaching 3 years’ imprisonment would be appropriate. From this, significant credit must be granted to reflect his individual circumstances.

[48] Steven Tran must receive substantial credit for agreeing to trial by way of the ASF. I give limited credit to his attempts to resolve his case in the Ontario Court of Justice. Instead of accepting full responsibility at that time, he elected to delay his case in order to explore a Charter claim that had little impact on him. He is not to be faulted for this litigation strategy, but I fail to see how he ought to be credited for it on sentence.

[49] I am more concerned about Mr. Tran’s status as a first offender and the onerous bail that he has been on for 40 months. As noted above, after a period of house arrest, his bail was varied so that he could work, but not as he had done before as personal trainer. As the Crown wrote when responding to Mr. Tran’s request for a bail variation that would allow him to do this, “He doesn’t get his employment of choice.” This imperious attitude speaks for itself.

[50] In all of the circumstances, giving credit for all of these factors, in addition to the 8 days of PSC, I sentence Mr. Tran to 2 years less a day, concurrent on all three counts. I also make the ancillary orders requested by the Crown.

ii. Ba Tran

[51] Looking at Mr. Tran’s offending, and particularly his role in the conspiracy, before giving credit for mitigating factors, I have determined that a penitentiary sentence in the range of 2 to 2 ½ years is warranted. This reflects his reduced role in the conspiracy when compared to Bryan Lam and Steven Tran. Still, his offending is very serious.

[52] Taking into account the manner in which he chose to deal with these offences, his 8 days of PSC, his onerous bail conditions and his health challenges, I impose a sentence of 15 month’s imprisonment, along with the ancillary orders requested by the Crown.

iii. David Hoc Truong

[53] Mr. Truong was an integral part of the Toronto end of the operation. He was an extension of Mr. Siddiqi. He took direction from Bryan Lam and handled and packaged huge quantities of marijuana, readying it for sale and delivery in Toronto. However, his involvement was limited to a 2-month period of time, his detection only coming about after the Part VI authorization, shortly before the end of the investigation. Being a first offender, like Ba Tran, a penitentiary sentence in the range of 2 to 2 ½ years would otherwise be appropriate.

[54] Mr. Truong was in custody for about two weeks. He too was on a house arrest for approximately 8 months and subject to a curfew since that time, with no compliance problems. Taking all of these matters into account, as well as the manner in which he resolved these charges, I sentence Mr. Truong to 15 months’ imprisonment, concurrent on each count. I also make the ancillary orders requested by the Crown.

iv. Wali Seddiqi

[55] Mr. Seddiqi’s role in the conspiracy was very serious. However, unlike Mr. Tran, Mr. Seddiqi was not found guilty of trafficking or proceeds offences. Consequently, I start with a sentence in the range of 2 ½ years’ imprisonment.

[56] Like the other accused persons, I give credit for the time that Mr. Siddiqi spent in PSC and on bail. He was subject to house arrest for a year and then subject to a curfew condition for a year. In the process, he lost a business that he established in B.C. While on bail, Mr. Seddiqi has made the most of his time, once he was able to get out from under the curfew. He has created a successful business in Toronto. This, of itself, is not worthy of much credit in the circumstances. However, being a refugee himself, he has leveraged his prosperity to help others who are similarly situated. He has made significant contributions to charity, in a very focused way.

[57] Taking all of these factors into account, including the manner in which he has chosen to resolve his charges, I sentence Mr. Siddiqi to 18 months’ imprisonment, along with the ancillary orders requested by the Crown.

Conclusion

[58] I sentence the accused as follows: Steven Tran – imprisonment for 2 years less a day (concurrent on each count); Ba Tran – imprisonment for 15 months (concurrent on both counts); David Hoc Truong – imprisonment for 15 months (concurrent on both counts); and Wali Siddiqi – imprisonment for 18 months. I make the collateral orders requested by the Crown.

TROTTER J. Released: May 17, 2016

DATE: 2016-05-17 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N : HER MAJESTY THE QUEEN – and – THANH HIEN TRAN, BA TUAN TRAN, DAVID HOC TROUNG and WALI SEDDIQI

REASONS FOR JUDGMENT TROTTER J. RELEASED: May 17, 2016

[1] Despite being involved in this case back in 2012, counsel had no objection to my presiding over this phase of the proceedings.

[2] The validity of the Part VI authorization was not in issue.

[3] In his Reasons, Lipson J. noted that Mr. Tran was to be sentenced to three years’ imprisonment, based on a joint submission.

[4] As the Hon. R.J. Sharpe and K. Roach wrote in The Canadian Charter of Rights and Freedoms, 6th ed. (Irwin Law: Toronto, 2013), at p. 23: “Democracy can operate only under the rule of law and within a constitutional and legal framework upon which democratic institutions depend for their legitimacy.” As the Supreme Court held in Reference re Secession of Quebec, [1988] 2 S.C.R. 217, at para. 70: “At its most basic level, the rule of law vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs. It provides a shield for individuals from arbitrary state action.”

[5] At the time the offences were committed, the Safe Streets and Communities Act, S.C. 2012, c. 1, had just received Royal Assent (March 13, 2012). This legislation actually increased sentences for drug offences. For example, it amended s. 742.1 of the Criminal Code to preclude conditional sentences for serious offending involving the “import, export, trafficking or production of drugs.” This amendment came into force on November 20, 2012 (SI/2012-48) and is, therefore, not applicable to this case.

[6] With respect to the latter, see the discussion of the Royal Prerogative of Mercy in Hinse v. Canada (Attorney General), 2015 SCC 35, [2015] 2 S.C.R. 621.