OSHAWA COURT FILE NO.: CR-19-15130-00BR

DATE: 20190809

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Dat Doan

Defendant

Kerry Benzakein, for the Crown

David Heath, for the Defendant

HEARD: August 7, 2019

REASONS FOR DECISION

LEIBOVICH, J.

Overview

[1] Mr. Doan is charged with 18 drug-related offences. It is alleged that he has trafficked large amounts of cannabis, MDMA, cocaine, fentanyl and heroin. He is alleged to have trafficked .5 kilograms of MDMA, 9.5 pounds of marijuana, 2.25 kilograms of cocaine, 1 kilogram of fentanyl and .5 kilograms of heroin. He was involved in nine drug buys that took place from November 27, 2018 to June 19, 2019. He was arrested as part of an undercover police operation named Project Kamloops. A bail hearing was held before Justice of the Peace Ryan. It was a reverse onus, and on June 21, 2019 the accused was detained on all three grounds. Mr. Doan has brought a bail review pursuant to s. 520 of the Criminal Code. In support of his bail review, Mr. Doan has put forward two new sureties, his aunt and uncle, who just moved to Toronto from Alberta, and who were unavailable at the initial bail hearing. He is also proposing to use electronic monitoring. Crown counsel agrees that there is a change in circumstances and that I am entitled to conduct a de novo assessment. Crown counsel maintains that Mr. Doan’s detention is still required. Defence counsel submits that the new release plan is a strong one and it adequately addresses the primary, secondary, and tertiary concerns, and that Mr. Doan should be released. I agree that there has been new evidence presented and I must make a de novo assessment. However, for the reasons set out below, it is my view that Mr. Doan’s detention is still necessary.

Background and Allegations

[2] As stated, Mr. Doan faces 18 drug tracking charges from nine drug buys. As of November 27, 2018, Durham Regional Police had already been conducting an investigation of Mr. Doan. An undercover officer had bought large quantities of marijuana from him on about four occasions prior to that date, but on November 27, 2018, the undercover officer arranged to purchase a half kilogram of MDMA in addition to two pounds of marijuana. The undercover officer met with Mr. Doan and his wife, Ms. Lee, at the Kingsmen Bar and Grill located at 1550 Kingston Road, Pickering, where they arranged how they were going to conduct the drug transaction with respect to the MDMA and the marijuana. Lee took $7,000 pre-recorded police buy money from the undercover officer and left the bar. Mr. Doan remained behind and gave instructions to the undercover officer to attend the rear of the building where there was a Mercedes-Benz and to retrieve the marijuana from the trunk of that Mercedes-Benz.

[3] The undercover officer was later given directions to reattend the Mercedes and take out a bag that contained MDMA. It had been placed in there in the interim by an unknown third-party. The marijuana weighed 991 grams. The MDMA weighed 498 grams.

[4] Subsequently, on January 10, 2019, there was a further meeting. The undercover officer met again with Doan and arranged to purchase half a kilogram of cocaine for $28,500, with a down payment of $15,000, and the remaining balance to be paid at a later date. Mr. Doan made arrangements for the undercover officer to meet with Lu, a co-accused, to conduct the cocaine purchase. The undercover officer met with Lu at a McDonald's at 85 Ellesmere Road in Toronto at the direction of Lu. Directions were given orally and by text.

[5] During this meeting, Lu provided the undercover officer a quantity of cocaine in exchange for $15,000 of pre-recorded police buy money. Lu then entered a black Acura and was seen travelling to 65 East Liberty Street in Toronto where he was observed meeting with an unknown Asian male. The unknown Asian male was subsequently observed with the same bag that Lu received from the undercover officer. The cocaine delivered to the undercover officer on that date weighed 510 grams.

[6] On February 21, 2019, there was a cocaine deal arranged. The undercover officer arranged with Mr. Doan to purchase nine ounces of cocaine for $15,000 with a down payment of $10,000 and the remaining balance to be paid at a later date. Mr Doan made arrangements for the undercover officer to meet with Lu again to conduct the cocaine purchase. The undercover officer met with Lu at a plaza at 780 Kingston Road in Pickering.

[7] During this meeting, Lu provided cocaine to the undercover officer who had previously provided $10,000 to Mr. Doan, which Mr. Doan later handed to Lu in the meeting between the two of them. The $10,000 of pre-recorded police buy money had been placed in a black polka dot gift bag, which Lu was observed carrying from Mr. Doan following a meet that occurred after the drug deal. The cocaine in that deal weighed 248 grams.

[8] On March 29, 2019, the undercover officer arranged with Doan to purchase half a kilogram of cocaine for $28,500. Mr. Doan made arrangements for the undercover officer to receive the cocaine. The undercover officer met with Mr. Doan and Wong at a plaza located at 1555 Kingston Road in Pickering. During this meeting Mr. Doan provided the cocaine that he had received from Wong to the undercover officer. The cocaine weighed 527 grams.

[9] On April 4, 2019, the undercover officer arranged to receive a sample of fentanyl with the understanding that more fentanyl would be provided in the future. The undercover officer met with Mr. Doan at his residence at 120 Harbourside Drive in Whitby. During that meeting, Mr. Doan provided two samples of fentanyl, one blue and one purple. The fentanyl was found to weigh 1.3 grams for the blue fentanyl and 0.7 grams for the purple fentanyl. Those samples were ultimately tested, and the blue fentanyl turned out to be 3% fentanyl with heroin, and the purple fentanyl was 3.7% fentanyl. The undercover officer arranged to receive a half kilogram of heroin/fentanyl. The undercover officer met with Mr. Doan at his apartment or his house at 120 Harbourside Drive in Whitby and provided $39,000 of pre-recorded police buy money. Smith then attended the Scarborough town centre at the direction of Mr. Doan where he met with Phan Lu, who provided what was the fentanyl. The fentanyl was found to weigh 506 grams.

[10] On May 14, 2019, the undercover officer arranged to meet with Mr. Doan to receive another half kilogram of fentanyl. He met again with Mr. Doan at his residence at 120 Harbourside Drive in Whitby and he provided $39,500 pre-recorded police buy money. He then attended the CAA centre located at 7575 Kennedy Road in Brampton at the direction of Mr. Doan and Lu where he met with Lu and received the fentanyl. The fentanyl at that time was found to weigh 494 grams.

[11] On May 24, 2019, the undercover officer arranged with Mr. Doan to receive another half a kilogram of cocaine. The undercover officer met with Mr. Doan at his business and his wife’s business, LVY Nails Bar located at 1725 Kingston Road in Pickering and provided $30,000 of pre-recorded police buy money. Mr. Doan then attended 141 Cartwright Avenue where he met with the co-accused, Murray. He provided $30,000 to Mr. Doan and Mr. Doan advised that the full price would be $54,000. The cocaine was found to weigh 1,094 grams. And the cocaine came in the same bag that the undercover officer had provided the cash to Mr. Doan in.

[12] On June 17, 2019, the undercover officer arranged with Mr. Doan to receive a sample of fentanyl. He attended at 120 Harbourside Drive, Mr. Doan's house, and received 1.2 grams of brown fentanyl.

[13] On June 18, 2019, the undercover officer arranged with Mr. Doan to receive a half kilogram of fentanyl in exchange for $37,500. Mr. Doan directed the undercover officer to attend LVY Nails Bar at 1725 Kingston Road in Pickering. While at the location, Detective Constable Smith, the undercover officer, provided Mr. Doan with $37,500 in pre-recorded police buy money and he was directed to wait in the parking lot for the fentanyl to arrive. Lee and Lu arrived in the same parking lot and provided the undercover officer with a plastic bag containing a half kilogram of brown-coloured fentanyl. It was 504 grams in total. Lee and Lu then attended inside the Nail Bar where they received a portion of the pre-recorded police buy money from Mr. Doan which the undercover officer had provided to Mr. Doan and they left the area. They were observed meeting with Mr. Ho, who was subsequently arrest at 2900 Warden Avenue and found to be in possession of a loaded firearm, fentanyl and a portion of pre-recorded police buy money, approximately $25,000. Mr. Doan was later arrested at his residence just as he was returning to his residence and he was found in possession of $10,000 of police pre-recorded buy money.

[14] A quick review of the allegations reveals the following:

1. Drug transactions took place twice at Mr. Doan’s residence and twice at his wife’s nail bar;

2. Mr. Doan had access to six different drug suppliers. Justice of the Peace Ryan found that Mr. Doan was the kingpin of the operation. Defence counsel agrees that this is a reasonable inference; and

3. Subsequent testing has confirmed the nature of the alleged drugs, except in one case what was thought to be fentanyl was in fact heroin. Testing is only outstanding with respect to the May 24, 2019 transaction.

Mr. Doan’s Criminal Record

[15] Mr. Doan has five entries on his criminal record. In 2008 he was convicted of two counts of failing to comply with a recognizance. He was originally charged with trafficking marijuana with his mother. She was convicted but he was acquitted. In 2013 he was convicted of possessing a scheduled substance. In 2018 he was convicted of possessing proceeds obtained by crime in connection to a marijuana business. The longest jail sentence he has received is 30 days.

The Proposed Release Plan

[16] Mr. Doan’s aunt and uncle have moved to Toronto from Alberta. Mr. Doan’s uncle is an engineer in the Canadian Military. He is posted in Toronto where he is taking a two-semester term course that would allow him to obtain the rank of Lieutenant Colonel. Starting in September, he will be going to school during the day and will have to do two to three hours of reading a night. The aunt is a stay-at-home mom and takes care of the two teenage children. Mr. Doan is only six years younger than her. Given the uncle’s employment in the military, they have moved around significantly and usually go to a new posting every two to three years. As a result, they do not see Mr. Doan often, and the last time was in December 2017. They are prepared to act as sureties. They are prepared to have Mr. Doan reside with them and Mr. Doan will always be with one of them. In addition, Mr. Doan is prepared to wear an ankle bracelet with GPS monitoring.

[17] There is little dispute with respect to what the GPS monitoring can or cannot do. It is agreed that it cannot prevent flight or prevent re-offending. However, if it is removed, or if Mr. Doan ventures where he is not permitted, an alarm will be sent within 1-10 minutes. In addition, the police can be given the live feed and they can monitor Mr. Doan’s whereabouts. The bracelet can be easily cut off, but it will trigger an alarm. With respect to the GPS the material filed states:

The question of whether the inclusion of a monitoring requirement is sufficient for a proposed plan to meet the court’s requirements and objectives will be a case by case decision made by the court. In our view, monitoring ought not to be relied upon if the required standard is to prevent violations or to ensure an immediate police response – it cannot prevent an accused from fleeing, violating terms or committing offences, nor can it guarantee police intervention in a breach or offence in progress. Rather, monitoring is best thought of as a risk management tool deriving its potential to mitigate risk from:

a. the deterrence effect resulting from the accused knowing that he or she is being monitored and that breaches of monitored conditions will be detected and reported; and

b. the fact that, if the deterrence effect doesn’t work on a particular accused, non-compliant behaviour will be detected, reported and consequenced much earlier than would be the case with an accused who is not monitored.

Also see: R. v. Hammoe, 2016 ONSC 1790, [2016] O.J. No. 1475, R. v. Obi, 2015 ONSC 4444 and R. v. Doucette [2016] O.J. No. 852

[18] Mr. Doan is also agreeable that he not be given any phone or tablet or communication device.

Positions of Counsel

[19] It is the Crown’s position that while the proposed sureties are well-intentioned, they do not assist the accused in meeting his onus. There is still a risk that given the sentence he is facing he will abscond to Vietnam where he is Vietnamese national. The proposed sureties hardly know the accused. They cannot really prevent him from re-offending. Finally, all the factors under s. 515(10)(c) support detention. Using GPS does not change anything. A 10-minute head start, not to mention the inevitable police delay in responding, is significant.

[20] Counsel for Mr. Doan submits that this is a realistic release plan and one could not provide the court with a more restrictive plan. There is always a risk of absconding and committing an offence. But a mere risk is insufficient. There is no substantial risk. The release plan also gives the public confidence with respect to the tertiary ground. Finally, while Mr. Doan has a record, it is not significant.

Law and Analysis

[21] Under s. 11(d) of the Charter, an accused is always presumed innocent until proven guilty. Per s. 11(e) of the Charter, an accused is entitled to reasonable bail and not to be denied bail without just cause. The concept of reasonable bail includes that the terms of release be reasonable and no more onerous than what is necessary in the circumstances.

[22] In R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 Wagner J. (as he then was) explained why detention is not the usual or preferred course. At para. 70, he wrote:

...it is important not to overlook the fact that, in Canadian law, the release of accused persons is the cardinal rule and detention, the exception...This entitlement rests...on the cornerstone of Canadian criminal law, namely the presumption of innocence that is guaranteed by s. 11(d) of the Charter...These fundamental rights require the justice to ensure that interim detention is truly justified having regard to all the relevant circumstances of the case. [Citations omitted]

[23] In R. v. Myers, the Supreme Court of Canada stated that “In accordance with the principles articulated in Antic, we must not lose sight of the fact that pre-trial detention is a measure of last resort.” However, pre-trial detention is sometimes necessary and appropriate. If just cause exists, reasonable bail may be denied. This bail review is governed by section 520 and s. 515(6)(d) of the Criminal Code. Mr. Doan shall be detained in custody unless he can show cause that his detention is not justified. The accused, Mr. Doan, bears the onus of proof.

[24] With respect to s. 515(10)(c) guidance was provided by the Supreme Court of Canada in R. v. St-Cloud. The principals are summarized below:

1. S. 515(10)(c) is a distinct ground that, in itself, provides a basis to order pre-trial detention of an accused. In other words, the tertiary ground is not a residual ground that only comes into play where the first two grounds of detention do not apply. The application of this ground is not limited to exceptional circumstances, to unexplained or inexplicable crimes, to the most heinous crimes or to certain categories of offence.

2. When deciding whether to apply s.515(10)(c), the court should instead consider all the circumstances of the particular case before it, paying particular attention to the four enumerated circumstances in s.515(10)(c): (i) the apparent strength of the prosecution’s case; (ii) the gravity of the offence; (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used; and, (iv) the fact that the accused is liable, on conviction, to a potentially lengthy term of imprisonment.

3. The four circumstances are not exhaustive, and no single circumstance is determinative. The court must balance all relevant circumstances.

4. The court must not order detention automatically even where the four listed circumstances support such a result. At the end of the balancing exercise, the question that is to be asked by the court is whether detention is necessary to maintain public confidence in the administration of justice.

5. To answer this question, the court must adopt the perspective of a reasonable person, who, while not a legal expert, is properly informed of the philosophy of the legislative provisions, Charter values and the actual circumstances of the case.

[25] The nature of the proposed release plan is not just relevant to the tertiary ground but also to the tertiary ground as stated by Justice Schrek in R. v. Rashad, 2017 ONSC 7580 at para. 18:

However, the factors set out in s. 515(10)(c) are not exhaustive and other factors may be considered. One such factor is the proposed release plan. As observed in R. v. Dang, 2015 ONSC 4254, at para. 58, the plan of release is something that a reasonable and knowledgeable member of the community would consider when evaluating his or her level of confidence in the administration of justice. See also Fleming, at para. 22; R. v. Phan, 2015 ONSC 5947, at para. 26. The adequacy of the plan appears to have been a consideration in R. v. Phan (unreported, July 16, 2017, Ont. S.C.), on which the Crown relies, as the Court in that case stated (at p. 15) “right-thinking citizens… would be aghast if this man were admitted to bail on the proposal that has been put before this court [emphasis added].”

The Primary and Secondary Grounds

[26] I have concerns with the release plan. The sureties are well-intentioned and appear to be good, honest individuals. They will no doubt try their best. However, they have had little contact with the accused who is now a fully-grown man. Would the accused really follow the directions of his aunt and uncle? I appreciate that the accused was acquitted in 2013 of trafficking marijuana. This acquittal though has not led him to distance himself from the drug trafficking culture. He possessed a controlled substance in 2013. He was convicted in 2018 of a drug-related offence. The current allegations are not just serious but they, coupled with his past, also show how integrated drug trafficking is with the accused’s day-to-day life as two transactions took place at his residence and two took place at the family nail bar. I do not believe that the proposed sureties, even though they said they did, have a firm grasp of the enormity of the task they have set for themselves. However, the accused’s longest sentence has been only 20 days. The proposed GPS does assist to a degree. In my view the accused has, just barely, met his onus with respect to the primary and secondary grounds.

The Tertiary Ground

[27] However, it is my view that having regard to all the factors set out in s. 515(10)(c) the accused’s detention is necessary to maintain confidence in the administration of justice. I say this for the following reasons:

1. This is a very strong Crown case. There is no dispute on this issue. The Crown’s case, as it is currently presented, is overwhelming. It is supported by the undercover officer, other surveillance, photos, text messages, and the buy money found on the accused upon arrest. There are, to date, no defences apparent from the record;

2. These are very serious and grave offences that affect public safety. The accused is alleged to have sold significant amounts of dangerous drugs over a lengthy period of time. The Crown has filed significant material regarding the opioid and fentanyl crisis. Justice Goldstein did a detailed review of the literature in this area in R. v. Cinelli, 2018 ONSC 4983, [2018] O.J. No. 4490. He stated at para. 16: “The Crown has filed materials to prove what is quickly becoming a notorious fact: fentanyl is killing young people across the country and the rise in mortality is growing exponentially. It has created a public health crisis which is of a different dimension than anything that Canada has ever seen from the sale of illicit drugs.”

3. The circumstances of the offences do not involve a firearm. That is something. But they also portray the accused as the main hub of this drug trafficking operation. Justice of the Peace Ryan’s description of the accused as the Kingpin is well placed; and

4. At this stage it is difficult to estimate what sentence the accused would ultimately receive after a finding of guilt, but given the material I have been presented, it seems likely that the accused will receive a significant penitentiary sentence of around 10 years.

[28] I have considered the release plan and how it affects the tertiary grounds. I have read carefully Justice Schreck’s comments in R. v. Rashad where he stated at para. 14:

The sureties in this case were, in my view, impressive. They have clearly put a lot of thought into the proposed release plan and how it would be implemented. They are willing to pledge significant assets which they are well aware they stand to lose. The plan is that proposed involves constant supervision, which is further supported by electronic monitoring. I am cognizant of the fact that the electronic monitoring will only tell where the applicant is and not what he is doing. However, as observed by Trotter J. (as he then was) in R. v. Fleming, [2015] O.J. No. 4380 (S.C.), at para. 18, it would prevent the applicant from attending the kind of meetings he allegedly attended with the undercover officer in this case.

[29] However, each case is different, and in this case I am of the view that the public would lose confidence in the administration of justice if the accused, who has prior drug-related convictions and is alleged, based on a very strong case, to be a kingpin of a significant drug trafficking enterprise involving deadly drugs for which he is liable to receive 10 years in the penitentiary, is released from jail even on the proposed plan with its strengths and weaknesses that are alluded to above.

[30] Therefore, looking at all the circumstances presented to me, and all the factors listed at s. 515(10)(c) of the Criminal Code, the accused’s detention is necessary to maintain confidence in the administration of justice. The review is dismissed.

The Honourable Justice H. Leibovich

Released: August 9, 2019

R. v. Doan, 2019 ONSC 4723

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Dat Doan

REASONS FOR DECISION

The Honourable Justice H. Leibovich

Released: August 9, 2019