CITATION: R. v. Tommy Phan, 2017 ONSC 7770
COURT FILE NO.: CR-17-90000103-00BR
DATE: 20170602
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
TOMMY PHAN
Respondent
Aaron Schacter, for the Applicant
Leonard Hochberg, for the Respondent
HEARD: May 31, 2017
Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding subject to s. 517(1) of the Criminal Code directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as the trial is ended.
REASONS ON BAIL REVIEW
dunnet j.
[1] The Crown applies for a review of the order of the Justice of the Peace, dated March 3, 2017, releasing the respondent to live with his parents under house arrest.
[2] The Crown submits that the Justice of the Peace failed to give proper consideration to the tertiary ground in s. 515(10)(c) of the Criminal Code and thereby improperly concluded that the respondent’s detention was not necessary for the protection or safety of the public or to maintain public confidence in the administration of justice.
[3] The Crown also submits that the Justice of the Peace failed to give proper consideration to the public safety risks caused by the illegal distribution of fentanyl in the community and the respondent’s alleged role in endangering the public as a result of the seizure of one kilogram of fentanyl and twenty kilograms of cocaine.
[4] The respondent asserts that the Justice of the Peace carefully considered all of the relevant factors on the primary, secondary and tertiary grounds and came to the correct conclusion based on the plan of release and the fact that the respondent is twenty-one years old and has no criminal record.
[5] The Crown’s submissions are based on the failure of the Justice of the Peace to properly consider the tertiary ground.
[6] The allegations are that on February 17, 2017, the respondent was in an underground parking garage in Toronto. The co-accused arrived in a vehicle and parked next to the respondent’s vehicle. The police were conducting surveillance and observed the respondent and co-accused meet at the trunk of the respondent’s vehicle. The co-accused grabbed a hockey bag, later determined to contain sixteen kilograms of cocaine, which he placed into his vehicle.
[7] The respondent was followed by police and after his arrest, four individually wrapped kilograms of cocaine were found in the trunk of his vehicle. One kilogram of fentanyl was found in the rear passenger area of the respondent’s vehicle.
[8] Detective Jeffrey Ross testified as an expert on the illicit use and sale of fentanyl in Toronto; the dangers and harm of fentanyl; the fentanyl overdose epidemic in Canada; and the current street values of illicit fentanyl and cocaine.
[9] At the time of the bail hearing, the drug testing had not been completed. However, after the bail hearing, the results confirmed that the drugs tested positive for fentanyl and cocaine.
[10] In her reasons, the Justice of the Peace reviewed the evidence of the expert, stating that Fentanyl is one hundred times the strength of morphine and fifty times the strength and potency of heroin. Two milligrams of fentanyl can be a lethal dose. Users may not know they are using fentanyl and the number of overdoses and deaths relating to the drug has been described as a public health crisis in Canada.
[11] The evidence of the expert was that if one kilogram of fentanyl is pressed into pills, it would produce one million pills of “fake” oxycontin containing fentanyl. The wholesale value of those pills is between sixty and eighty million dollars.
[12] The expert also testified that the wholesale ounce value of the cocaine that was seized is between $936,000 and $1,152,000. It was the opinion of the expert that the amount of drugs seized would suggest that the respondent is likely involved in a sophisticated drug trafficking organization.
[13] In her reasons, the Justice of the Peace stated that fentanyl is an extremely dangerous drug that can yield considerable profits. Further, fentanyl and cocaine are potentially deadly drugs and Fentanyl has become the leading cause of opioid deaths in Ontario. The Justice of the Peace also stated that the fentanyl problem is ravaging Canada and is causing serious public health concerns.
[14] Dealing specifically with the tertiary ground, the Justice of the Peace set out the four factors to consider in determining whether detention is necessary to maintain confidence in the administration of justice. She cited R. v. St-Cloud, 2015 SCC 27 for the proposition that s. 515(10)(c) is a distinct ground that itself provides a basis for ordering pretrial detention and that it must not be interpreted narrowly, or applied sparingly, or only in rare cases.
[15] She further stated that the court must not order detention automatically even where the four listed circumstances support such a result. Rather, the court must consider the combined effect of all the circumstances to determine whether detention is justified.
[16] At page 23 of her Reasons, the Justice of the Peace stated:
At the end of this balancing exercise, the ultimate question to be asked by the court is whether detention is necessary to maintain confidence in the administration of justice. This is the test to be met under s. 515(10(c) of the Criminal Code.
To answer this question the court must adopt the perspective of the public, that is, the perspective of a reasonable person who is properly informed about the philosophy of the legislative provision, Charter values, and the actual circumstances of the case.
[17] The Justice of the Peace then stated that the Crown’s case is very strong. Elsewhere in her reasons, she reiterated on seven occasions that the Crown’s case as “very strong” and “exceedingly strong.”
[18] Dealing with the gravity of the offences, the Justice of the Peace stated that the respondent is facing extremely serious charges. Later in her reasons, she reiterated on three occasions that the nature of the offences are “extremely serious and concerning.”
[19] She stated:
The court heard from Detective Ross that fentanyl is fifty times stronger than heroin and one hundred times stronger than morphine. There is an assessment that essentially two grains of salt or two milligrams of it could kill fifty per cent of the population. Also, the court heard about the manner in which fentanyl is being used as counterfeit heroin and counterfeit oxycodone.
[20] The Justice of the Peace agreed that the respondent faces a lengthy term of imprisonment and added that the Crown had suggested the sentence would be 15 years or more based on the case law.
[21] At page 29 of her reasons, the Justice of the Peace concluded:
Having considered all of the above enumerated factors and having regard to all the circumstances, including the strong plan and excellent sureties proposed, as earlier outlined, I find that Mr. Phan’s detention is not required to maintain the public’s confidence in the administration of justice. Therefore, I find that Mr. Phan has shown cause why his detention is not justified on the tertiary ground.
[22] In my view, the Justice of the Peace erred in failing to explain why the respondent’s detention was not required. Given the evidence before her of the public safety risks caused by the illegal distribution of fentanyl in the community and the respondent’s alleged role in endangering the public by his possession of and trafficking in significant amounts of fentanyl and cocaine, she failed to explain her finding that his detention was not necessary to maintain public confidence in the administration of justice.
[23] The release of the respondent, given the serious tertiary ground concerns in the case, undermines public confidence in the administration of justice.
[24] The application is allowed. The order of the Justice of the Peace is vacated and the respondent is detained in custody.
Dunnet J.
Released: June 2, 2017
CITATION: R. v. Tommy Phan, 2017 ONSC 7770
COURT FILE NO.: CR-17-90000103-00BR
DATE: 20170602
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
TOMMY PHAN
Respondent
REASONS ON bail review
Dunnet J.
Released: June 2, 2017