CITATION: R. v. Pham, 2016 ONSC 7943

COURT FILE NO.: CR-15-90000414-0000

DATE: 20161216

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TUAN DUC PHAM

Defendant

Christopher Leafloor, for the Crown

Kim Schofield, for the defendant

HEARD at Toronto: 7 December 2016

mew j.

Sentencing decision

1On 7 September 2016, Tuan Duc Pham was convicted on charges of producing methamphetamine and possessing methamphetamine for the purpose of trafficking: 2016 ONSC 5614.

Circumstances of the Offence

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Circumstances of the Offence

There was a chemical fire at a makeshift laboratory located in an industrial unit on Toryork Drive, Toronto. Although no one was apprehended at the scene, surveillance footage showed a number of individuals leaving the premises shortly before the fire service arrived.

3The police found several buckets of chemicals containing precursors to methamphetamine, large round-bottom flasks, two compressed gas cylinders and 522.94 grams of finished methamphetamine, in both liquid and crystalline forms. The methamphetamine had a street value of approximately $28,000 to $31,000 if sold wholesale and $52,000 - $78,300 at the gram level.

4No evidence was tendered as to the additional potential production which could have been obtained from the precursors to methamphetamine that were found.

5Subsequent investigation led the police to Mr. Pham.

Circumstances of the Defendant

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Circumstances of the Defendant

Mr. Pham is a 40 year old married father of three school aged children. He was born in Vietnam and came to Canada in 1984 with his mother and three sisters. He did not complete high school. He has worked, mainly in the sign industry, but also, doing home renovation. He is presently in full-time employment.

7For a number of years, Mr. Pham owned a business installing signs. He used up all of his savings to establish this business. It shut down in 2012. He lost his investment. At around the same time, he was experiencing marital difficulties. His spouse and children had moved to Montreal.

8Mr. Pham’s wife has previously worked for a medical supply company but now runs her own business. Mr. Pham and his wife have seemingly reconciled and he has been able to become far more involved with the care and supervision of his children, which has, in turn, had a positive effect on his wife’s efforts to build up her business. Indeed, she has done sufficiently well that a family home has been purchased in Innisfil where the family now lives. She is supportive of her husband. In a letter filed with the court, she acknowledges that her husband has made “a few terrible mistakes.” She writes that she and her husband made a choice last year to move their family away from Toronto to start a new life in Innisfil. She writes with optimism about the well-being of her family and the future.

9In 2006, Mr. Pham was convicted of producing a Schedule II substance (marijuana) and of abstracting, consuming or using electricity or gas. He was fined $750 and given a nine month conditional sentence with probation for one year. That is the extent of his criminal record.

10The fire at the makeshift methamphetamine laboratory occurred on 29 November 2013. Mr. Pham was charged in April 2014.

Bail Conditions

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Bail Conditions

From April 2014 until April 2015, Mr. Pham was subject to strict house arrest. He had to live with his sureties, one of whom was his sister. He was unable to work. A variation in June 2014 allowed him to leave the house for child care purposes. In April 2015, the terms were relaxed further to place him under a curfew.

12No non-compliance issues have been reported.

Impact on the Community

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Impact on the Community

When, in August 2005, methamphetamine was moved from Schedule III to Schedule I under the Controlled Drugs and Substances Act, S.C. 1996, c.19 (as amended), a Regulatory Impact Analysis Statement explained that the reclassification would equate the penalties associated with methamphetamine offences with those of cocaine and facilitate effective denunciation of related crimes.

14In R. v. Copeland, 2007 37232 (ONSC) Spies J., referring to a Community Impact Statement for Methamphetamine Offences dated 9 June 2006 prepared by Health Canada, observed as follows at paras. 19-20:

19 Significant adverse effects come with methamphetamine use including minor physical effects and more severe effects including seizures, convulsions, extreme anxiety, repetitive compulsive behaviours, hallucinations, paranoia, violence, psychoses, cognitive impairment and changes to brain chemistry and structure. In extreme cases methamphetamine can cause death. Recurring methamphetamine use has been associated with cognitive impairment and brain injuries. Most chronic abusers eventually develop long-term psychotic behaviour characterized by intense paranoia and visual and auditory hallucinations, which can be coupled with extremely violent behaviour.

20 According to the Impact Statement, methamphetamine is a highly addictive drug. Studies have shown it to produce rates of addiction similar to those of heroin and cocaine. The treatment of methamphetamine addicts is more difficult than those addicted to other substances of abuse. In addition methamphetamine abusers have unusually high rates of relapse. Withdrawal from methamphetamine results in mood disturbances and violence is easily provoked.

15By producing methamphetamine, Mr. Pham placed himself at a high level in the chain that leads to the distribution and ultimate consumption of this dangerous and insidious drug.

Position of the Crown

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Position of the Crown

The Crown seeks a term of imprisonment of five to eight years as well as 10 year weapons prohibition order (section 109 of the Criminal Code); and a DNA order (section 487.04 of the Criminal Code).

17The Crown notes that 523 grams – just over half of a kilogram – of crystal meth, with a value of between $28,000 and $78,000, was seized. Although there was no evidence as to the production potential of the laboratory, the potential nevertheless existed. The laboratory was equipped with the means of production.

18There is no evidence that Mr. Pham is a drug user himself. Accordingly, it can be assumed that the sole motivation was economic.

19The significant amount of methamphetamine seized indicates a sentence in the suggested range, having regard to comparable cases.

Position of the Defence

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Position of the Defence

The defence acknowledges that the court has no choice but to send Mr. Pham to the penitentiary.

21However, Mr. Pham should be given a “blank slate” on moral blameworthiness. There is no evidence as to where he fit in the laboratory enterprise. The case against him was based on an accumulation of circumstantial evidence. It was known that there were others involved. But there is no evidence that would enable the court to determine where, on a scale of moral blameworthiness, Mr. Pham should be placed.

22What is known is that Mr. Pham’s name was not on the lease to the premises. He was not identified by a witness who undertook a photo identification review.

23Furthermore, there is no evidence about the production capability of the laboratory; whether it was a sophisticated operation or not the court should not speculate.

24What is clear is that the amount of methamphetamine seized was well below the amounts referred to in other production cases presented by the Crown as comparables.

25Mr. Pham was subjected to very restrictive bail conditions for the first year after he was charged. He should receive a one for two credit between April 2014 and 2015 and 5 months’ credit for the one and a half years since then that he has spent under curfew conditions.

26The appropriate range should be four to five years’ imprisonment, subject to adjustment to reflect the bail conditions.

Applicable Principles

27Section 10 of the Controlled Drugs and Substances Act provides as follows:

Purpose of sentencing

(1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.

28The general principles of sentencing are set out in section 718 of the Criminal Code. Judges passing sentence are required by law to impose a just sanction that has one or more of the following six objectives:

1. To denounce unlawful conduct;

2. To deter the offender and others from committing offences;

3. To separate offenders from society when necessary;

4. To assist in the rehabilitation of offenders;

5. To provide reparation for harm done to victims or to the community;

6. To promote a sense of responsibility in offenders and acknowledge harm done to victims and to the community.

29As well, the sentence must be proportionate to the gravity to the offence and the degree of responsibility of the offender. The sentence must also be similar those imposed on similar offenders, for similar offences, committed in similar circumstances.

Mitigating and Aggravating Factors

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Mitigating and Aggravating Factors

The aggravating factors in this case include:

• The amount and value of methamphetamine seized;

• Methamphetamine is highly addictive and harmful;

• The objective of commercial gain;

• Production is at a high level in the hierarchy of steps that result in the ultimate distribution and supply of methamphetamine;

• The chemical fire at the makeshift laboratory could have resulted in serious injury to persons and property.

31Mitigating factors include:

• Mr. Pham has a limited criminal record and has been regularly employed;

• Mr. Pham has the support of his wife and appears to be an involved parent and spouse;

• After being charged, Mr. Pham was subject to house arrest on stringent terms.

Discussion

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Discussion

Methamphetamine is an extremely pervasive and destructive drug. Mr. Pham would either have known this or been indifferent as to its destructive effects.

33The Crown referred to a number of cases involving production, trafficking and possession for purpose of trafficking methamphetamine: R. v. Villanueva (2007), 2007 ONCJ 87, 46 C.R. (6th) 129, 2007 ONSJ 87; R. v. Wu, 2014 ONSC 6000; R. v. Ling, 2012 ONSC 654 (affd 2014 ONCA 808); R. v. Nguyen, 2011 ONSC 6229; R. v. Zhang 2014 ONSC 3132; and R. v. Chui 2015 ONSC 2490.

34In R. v. Wu, the accused was found guilty of trafficking MDMA, ketamine and methamphetamine. A total of 175 kilograms of finished methamphetamine powder and tablets, containing predominately methamphetamine, was seized. The street value was between $763,000 (if bought in bulk) and $12 million (street value). The accused was on parole at the time of his arrest following conviction for possession of marijuana for the purpose of trafficking, for which he had received a two year sentence. He received a global sentence of eight years in prison.

35In R. v. Ling, police found MDMA, methamphetamine and ketamine which had been produced in a residential home. The value of the drugs found on the premises on its last day was $12.2 million. However, it was determined that the true potential of the laboratory far exceeded that amount. The accused had no criminal record. He was nevertheless sentenced to concurrent terms of sixteen years imprisonment on charges of producing MDMA, methamphetamine and ketamine, respectively.

36R. v. Villanueva is a trafficking and possession case. The accused either supplied to undercover officer or had seized a total of approximately 1.2 kg of crystal meth. He also attempted to sell an undercover officer 2.5 kg of crystal methamphetamine for $60,000, which turned out to be crystalline water softener. He received a five and a half year prison sentence. In considering the defendant’s culpability, MacDonnell J. drew the “inescapable” inference that the defendant had been involved in the crystal methamphetamine business for some time.

37In R. v. Nguyen, there was a fire in the kitchen of a house which was being operated as a clandestine drug laboratory for the production of methamphetamine. The defendant was in the house. As a result of the fire, he suffered extensive burns to 70% of his body. The weight of the methamphetamine found is not stated, but its value is stated as $249,000 and the “full potential” of the laboratory, taking into account what the ingredients seized could have translated into in terms of production, was about $3.5 million. The total amount of toxic waste generated by the drug production was about 200 kilograms which would have been disposed of in the community. The defendant was 20 years old and had no criminal record. He claimed that he had been put into the laboratory by two “older men” with serious criminal connections, of whom he was afraid. McWatt J. noted that, in addition to the dangers of methamphetamine to human life, the fact that there had been a fire and the potential for loss of life and property was real and serious. The defendant received a sentence of five years in jail for producing methamphetamine and two years in jail for arson by negligence, to be served concurrently.

38In R. v. Copeland, approximately 280 grams of methamphetamine was seized. Spies J. found that she did not really have any evidence of where the defendant fitted in the trafficking hierarchy. Her sentencing decision was based on the defendant being at least a low level trafficker of methamphetamine, the quantity of drugs seized and that he was trafficking for profit. The defendant had a significant criminal record, particularly for violent offences, but no prior drug convictions. He was sentenced to three years imprisonment.

39In the present case, a significant amount of methamphetamine was seized at the laboratory, albeit that the amount seized was less than in most of the cases referred to by the Crown. Nor was there any evidence as to the production potential of the laboratory. In my view, the court should not speculate about this in the absence of more cogent evidence of production potential.

40Furthermore, as defence counsel pointed out, there is no evidence as to the role which Mr. Pham played in the operations of the laboratory, and, hence, the degree of his moral blameworthiness.

41While I believe that the prospects for rehabilitation, and in particular the ability for Mr. Pham to resume his role as an involved father and husband, are good, the need for deterrence and denunciation weighs in favour of a condign sanction.

42I have considered as a mitigating factor, the time spent by Mr. Pham under stringent bail terms: R. v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321 (C.A.). Stringent bail conditions, especially house arrest, do represent an infringement on liberty and are, to that extent, inconsistent with the principle of the presumption of innocence (Downes, at para. 29).

43After taking into account all of the sentencing objectives which the Criminal Code and the Controlled Drugs and Substances Act require me to, and having particular regard to the circumstances of this case, I have concluded that Mr. Pham should be sentenced to a term of imprisonment of four and a half years.

Sentence

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Sentence

Mr. Pham, please stand,

45I sentence you to a term of imprisonment of four and a half years on each of the counts on which you have been convicted to be served concurrently.

46In addition, there will be a firearms prohibition order under section 109 of the Criminal Code for 10 years and a DNA order pursuant to section 487.04 of the Criminal Code.

Graeme Mew J.

Handed down orally: 16 December 2016