reasons for sENTENCE

kelly j.

[1] Mr. Le has pleaded guilty to possession of cocaine for the purpose of trafficking (908 grams) and possession of marijuana for the purpose of trafficking (13.6 kilos), contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. Mr. Le now appears before me for sentencing.

[2] The Federal Crown submits that the appropriate sentence is one of four years in custody. Counsel for Mr. Le submits that Mr. Le should receive a sentence significantly less than that: two years less one day to be served in the community. In the alternative, Counsel for Mr. Le submits that a two-year sentence is appropriate after having considered credit for pre-sentence custody.

[3] Counsel for Mr. Le submits that he should receive credit for the time spent in pre-sentence custody, pursuant to R. v. Summers[^1] and for the time he has been subject to strict bail conditions, pursuant to R. v. Downes.[^2] The Federal Crown agrees but contests the amount of credit that should be applied.

[4] Counsel for Mr. Le further submits that there should be a reduction in Mr. Le's sentence because Mr. Le's s. 10(b) rights were violated following his arrest. The Federal Crown agrees but submits that they have already taken that into consideration in submitting that a sentence of four years is appropriate.

[5] After having considered the facts giving rise to the plea, the personal background of Mr. Le and the relevant legal principles, I find that the sentence imposed should be one of four years, less credit of one year for a further three years to serve. On consent, Mr. Le will be subject to a weapons prohibition for 10 years, forfeiture and he will provide a sample of his DNA.

[6] What follows are my reasons.

The Facts

[7] The facts giving rise to the plea may be summarized as follows:

a. On August 1, 2018 Members of the Toronto Police Service ("TPS") obtained a warrant to search the home of Mr. Le.

b. TPS executed the warrant of the home of Mr. Le located at Unit 1805, 90 Eastdale Avenue in the City of Toronto.

c. Upon entry into the Unit, Mr. Le was arrested.

d. In the Unit, TPS located a lockbox in the bedroom. There was a key found attached to the keys that opened the Unit.

e. The following items were seized inside of the bedroom and the lockbox once opened:

i. 908 grams of powder cocaine (packaged in baggies containing various quantities).

ii. 13.6 kilos (13,606.47 grams) of marijuana (packaged in bags that had Mr. Le's finger and thumbprints on them).

iii. A number of scales as well as other drug paraphernalia.

iv. Multiple cellphones.

v. $6,780 Canadian.

vi. $5.00 American.

f. The narcotics found belonged to Mr. Le. They were in his Unit, were not for his personal use and were possessed for the purpose of trafficking.

[8] These are the facts upon which Mr. Le is being sentenced. I will now consider Mr. Le's background.

Mr. Le's Background

[9] Mr. Le's background may be summarized as follows:

a. Mr. Le was born on March 22, 1993. He is currently 28 years of age.

b. He lived in refugee camps for two years in the Philippines. His family had moved there from Hong Kong.

c. Mr. Le came to Canada at age two. The family lived in a hotel, initially. They then moved to a home on Oak Street where Mr. Le lived until he was eight years-old. Since then, he has lived in the Regent Park area.

d. Mr. Le's father became addicted to heroin. That caused the breakup of the marriage. Mr. Le's parents separated when he was eight years of age.

e. Mr. Le lived in grow operations operated by his mother and surrounded by bags of marijuana. She was the "gardener" as a means of making a living.

f. His mother suffers from severe depression and schizophrenia.

g. His parents did not speak English and Mr. Le did not have an effective way of speaking to them because he did not speak their language.

h. Mr. Le has a drug addiction. He started smoking marijuana in grade 4. He was using ecstasy in grade 9 and dropped out of school. This "messed up" his emotions.

i. He recalls being the subject of significant bullying due to a speech impediment.

j. In 2012, when he was around 17 or 18 years of age, Mr. Le started investigating the Muslim faith. He believes that it has been a touchstone for him because he was in a dark period. He was having suicidal thoughts. He was captured by his curiosity of the Muslim faith, causing him to convert in 2013.

k. He has never sought counseling until recently. He says that he has benefitted from it.

l. He has also learned languages while on bail, including Spanish and Russian.

m. His first job was at a McDonalds restaurant. He also went door to door selling advertising and then worked at a Loblaws store.

n. Eventually, Mr. Le went to Alberta to work and earned a significant income. However, that is where he became more addicted to narcotics.

o. Upon his arrest, he has managed to reconnect with his family and dealt with his drug addiction.

p. He has been employed at a restaurant since his arrest. It appears that he is a valued employee.

q. He has a job available to him at the restaurant when the impact of the pandemic is over.

[10] Mr. Le addressed the Court during the proceeding. Some of his comments may be summarized as follows:

a. Mr. Le began by apologizing to the Court and the City of Toronto. He regrets his conduct and is remorseful. He let himself down. He disappointed his family. He recognizes that he hurt the users and their families. He apologizes for contributing to the drug abuse problem in the City.

b. Mr. Le suggested that he was never been good at anything, including sports and school. There was a language barrier with his family which meant they could not provide him with the support he so desperately needed. He was beaten by his parents for his failures.

c. He observed family members using drugs, becoming addicted and selling. He thought that this behaviour was normal. He will pay the price of being involved in the narcotics business (for two years) for the rest of his lifetime.

d. Mr. Le stated that there are no excuses for what he has done. He takes full responsibility for his actions. He assures the Court that we will not see him again.

e. He is learning about self-awareness. He has learned that he is able to express himself better now. Learning languages has facilitated these advancements.

[11] As stated above, Mr. Le sought employment opportunities in Alberta but was not successful there. He was told that he was too short, too small and too weak. He encountered racism for the first time, although he had been bullied at school. He has been suicidal and did not turn to his faith at that time. That has changed.

[12] There were several letters filed on behalf of Mr. Le. They may be summarized as follows:

Naeem Muhammad Khan: Naeem is a Muslim preacher and part of a deradicalization counseling program run by Paradise Forever Support Group Inc. He also volunteers at Street Dawah Toronto. He met Mr. Le in early 2011, when Mr. Le expressed interest in Islam. Mr. Le eventually converted and is like family to Naeem. He observed a change in Mr. Le after he returned from working in Fort McMurray (from mid-2014 to the end of 2015). Naeem noticed that Mr. Le had lost weight, did not talk much and appeared distressed. He suffered from facial tics. After his arrest, Naeem described Mr. Le as a "broken man" who was "depressed, ashamed, afraid and embarrassed". Naeem learned of Mr. Le's unhealthy family situation, his parents' past separation; his mother's mental health issues; the absence of his father as a guiding member, lack of participation in his life and addiction to heroin; the lack of communication between Mr. Le and his parents, as they barely spoke English, and Mr. Le barely spoke Vietnamese; and the fact that Mr. Le was in the wrong kind of company and environment while in Alberta which ultimately precipitated into what [we] are unfortunately seeing today.

Naeem observes that while in Fort McMurry, Mr. Le dealt with isolation, bullying and racism. He also had to deal with family problems in Toronto. This led to his use of cocaine on a regular basis. Naeem has had significant and constant contact with Mr. Le since his return to Toronto. He believes that Mr. Le has "turned over a new leaf" and wants to lead a life "free of crime, drugs and bad influences". He has dealt with family issues and taken counseling for his addictions. Naeem concludes his letter by stating: "Life has not been very kind to him and the circumstances have been unfortunate but I believe there is still great hope for this young man to outshine his past and become better."

Zafer Zuhair: Zafer is a paralegal and friend of Mr. Le. He has known Mr. Le for 18 years. They attended elementary school together. They shared interests in video games and art. He describes Mr. Le as ashamed for what he has done. Zafer states that Mr. Le is aware of the implications to our community through his "drug problem" that have hurt many lives, including that of himself and his father. He regrets his behaviour and takes responsibility for his actions. Zafer observes that Mr. Le has been in counseling which Mr. Le says has been beneficial to him. Zafer suggests that "given the opportunity to right his wrongs and turn things around, he would".

Saad Ahmed: Saad is a friend of Mr. Le. He is a technology consultant, having graduated with a degree in biomedical engineering. He met Mr. Le in 2006. They went to school together and speak regularly now. He suggests that Mr. Le's criminal behaviour is inconsistent with Mr. Le's character. He describes Mr. Le as "trustworthy and helpful". Mr. Le has the best interests of others in mind and is generous.

Saif Rahman: Saif is a Sustainability Consultant and has a degree in chemical engineering from The University of Waterloo. He has known Mr. Le for over 10 years. He describes Mr. Le as a great motivator who has a "really clean heart". He states as follows:

I knew Tony had issues in the past with ecstasy and MDMA which lead him to be very depressed and having suicidal thoughts. He has confided in our group of friends about his issues with drugs and depression and how it led him to finding help in a higher power. I know Tony is very sorry for what he did, and he has told me many times that he has no one to blame but himself.

Saif describes Mr. Le as "good person with a kind heart". He believes that Mr. Le will "apply the lessons from this experience and will not repeat the same mistake".

Tam Le: Tam is Mr. Le's aunt. Mr. Le has been living with her since his release from custody. During that time, he has reflected on his mistakes. He is improving his relationship with himself and his family. He is helpful and is proactive in the house. He is studying languages and spending his time "wisely". He is "bettering" himself. She thinks that Mr. Le is "a good young man that made a bad choice and is really sorry for it".

Thi Giao Nguyen: Thi is the owner of Da Nang restaurant and has employed Mr. Le prior to the pandemic. He describes Mr. Le as a "quick learner, very flexible and hard working. He has a positive attitude and a good sense of humour". He was punctual, professional and possessed excellent customer service skills. He was a popular employee and a great asset to the restaurant. Thi states, "Tung will always have a job with me due to his strong work ethic and positive attitude."

Mr. Mohammed Habib: Mr. Habib advised that Mr. Le has been a volunteer at the Danforth Islamic Centre. He has been volunteering to distribute food hampers. He has sorted, packed and delivered food to families in need.

Ms. Carole Eastman: Ms. Eastman provided a letter from How Recovery Addiction Services. She advised that Mr. Le completed the Individual Addiction Counseling Program consisting of 10 to 12 one-hour sessions. She described that during the sessions, Mr. Le was "able to process his childhood trauma and the adverse effects associated with addiction". She states that Mr. Le has been "working hard at overcoming life's challenges and has implemented many positive changes in his life". In her opinion, Mr. Le, "demonstrates a high degree of internal motivation to maintain his sobriety and continue his path of personal growth and successful recovery".

[13] Medical letters were provided to give insight into the health of Mr. Le's parents:

a. A letter from Dr. Yen Hoang Le indicates that Mr. Le's father is "an unfortunate man ridden with many medical illnesses including: "chronic liver disease, lipid abnormality, depression, chronic MSK pain and poor social support". He is on a disability pension.

b. A letter from Dr. Phuong Tran describes that Mr. Le's mother suffers from Major Depressive Disorder, Chronic with psychosis and passive suicidal thoughts.

[14] I will now turn to the legal principles that must be considered on sentencing.

The Law

a. Criminal Code Considerations

[15] In determining an appropriate sentence, regard must be had to the sentencing objectives in s. 718 of the Criminal Code, which provides as follows:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[16] The sentencing judge must also have regard to the following: any aggravating and mitigating factors, including those listed in s. 718.2(a)(i) to (iv); the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b)); the principle that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (s. 718.2(c)); and the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2(d) and (e)).[^3]

[17] Pursuant to s. 718.1 of the Criminal Code, "[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender". Imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime.[^4]

b. Range of Sentence

[18] The Federal Crown provided cases in support of their position. I have attached the case summaries as Appendix "A". While I have considered all cases submitted, I remind myself of the principles in the often cited two cases involving circumstances such as this:

R. v. Bajada:[^5] The Ontario Court of Appeal reduced Mr. Bajada's sentence from eight years to six years for his possession of over one-half kilogram of cocaine (worth $62,500). He was 51 years of age with a criminal record, including several narcotics offences. The Court held, at para. 13 as follows: "It would appear that sentences of five to five and one-half years are not uncommon for possession of a substantial amount of cocaine for the purposes of trafficking following an accused's plea of guilty or where the accused has no prior record."

R. v. Bryan:[^6] The Ontario Court of Appeal upheld the sentence for Mr. Bryan but stated as follows at para. 1: "Normally, in cases of this nature, sentences of five to eight years would reflect the proper range for someone, without a record, convicted of possession for the purpose of trafficking in slightly more than a pound of cocaine."

[19] Counsel for Mr. Le also provided cases in support of her position. I have attached the case summaries as Appendix "B". Again, I have reviewed those cases and agree that a conditional sentence may be imposed with conditions such that the principles of denunciation and deterrence are addressed.

[20] As I have stated, I have reviewed all the cases provided. Although they assist me in determining the governing principles that must guide my decision, a careful review of them demonstrates that sentencing is not an exact science. It is instead a profoundly individualized process driven by the unique facts of every offence and the unique characteristics of every offender. As Chief Justice Lamer noted in R. v. M. (C.A.),[^7] "there is no such thing as a uniform sentence for a particular crime." The circumstances of any case, including this one, can be readily distinguished from any other case.

[21] Despite sentencing being an individualized process, prior decisions assist in defining the principles that I must apply. The cases also assist in determining the appropriate range of sentence and the factors that place Mr. Le within that range.

c. Charter Breach

[22] A question for consideration in sentencing Mr. Le is whether his sentence should be reduced because of the s. 10(b) breach. The Federal Crown concedes there was a Charter breach of one hour, 15-minutes in Mr. Le exercising his right to counsel. Counsel for Mr. Le submits that the delay is three hours, five minutes. (I have attached an agreed statement of the timeline provided by counsel at Appendix "C").

[23] In R. v. Nasogaluak,[^8] the Supreme Court of Canada held as follows:

3 … the sentencing regime provides some scope for sentencing judges to consider not only the actions of the offender, but also those of state actors. Where the state misconduct in question relates to the circumstances of the offence or the offender, the sentencing judge may properly take the relevant facts into account in crafting a fit sentence, without having to resort to s. 24(1) of the Charter. Indeed, state misconduct which does not amount to a Charter breach, but which impacts the offender may also be a relevant factor in crafting a fit sentence.

4 Where the state misconduct does not relate to the circumstances of the offence or the offender, however, the accused must seek his or her remedy in another forum. Any inquiry into such unrelated circumstances falls outside the scope of the statutory sentencing regime and has no place in the sentence hearing. Likewise, a reduction of sentence could hardly constitute an 'appropriate' remedy within the meaning of s. 24(1) of the Charter where the facts underlying the breach bear no connection to the circumstances of the offence or the offender. [Emphasis added]

[24] In the case of R. v. Suter,[^9] the Supreme Court of Canada stated the following, at para. 46:

… Tailoring sentences to the circumstances of the offence and the offender may require the sentencing judge to look at collateral consequences. Examining collateral consequences enables a sentencing judge to craft a proportionate sentence in a given case by taking into account all the relevant circumstances related to the offence and the offender.

[25] That said, the Supreme Court also said in Suter that collateral consequences cannot result in too much of a reduction in sentence. At para. 56, the Court held: " …[T]he fundamental principle of proportionality must prevail in every case – collateral consequences cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender."

d. The Pandemic

[26] Counsel for Mr. Le also submits that Mr. Le's sentence should be reduced because he will be serving his sentence during the COVID-19 pandemic. In support of that position she relies on the principles set out in R. v. Hearns.[^10] Boswell J. addressed this issue in the case of R. v. M.W.,[^11] at para. 51:

Going forward, any period of additional incarceration to be served by MW, will be subject to the same COVID-related restrictions he has been experiencing over the past three months, which will include increased time alone in his cell, reduced contact with other inmates, a heightened risk of contracting the novel coronavirus and a suspension of visits from family and friends. In other words, the conditions of his detention will continue to be particularly harsh.

[27] While the pandemic may be taken into consideration, I remind myself of the principles (again) that collateral consequences cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender as stated in Suter.

[28] I will now consider the fit sentence in light of these principles.

Analysis

[29] In coming to my conclusion regarding the fit sentence, I consider the following to be the aggravating factors in relation to Mr. Le's circumstances:

(a) The quantity of the drug is significant: 908 grams of cocaine and 13.6 kilos of marijuana.

(b) The amounts possessed are not suggestive of a low-level dealer. It is obvious that they were possessed for a commercial purpose.

(c) He pleaded guilty to two counts: possession of cocaine and marijuana for the purpose of trafficking that are two significant crimes.

(d) The nature of the drug (cocaine) wreaks havoc on our society. There are obvious consequences for Mr. Le, but the serious consequences for the addicted user and our community are immense.

[30] I consider the following to be the mitigating factors:

(a) Mr. Le has no criminal record.

(b) He is relatively young – 26 years of age at the time of the offence. He is only 28 now.

(d) The plea also saved court time and resources in a post-Jordan era.

(e) By giving up his right to trial, Mr. Le saved court resources at a time when the judicial system is under significant pressure due to the suspension of jury trials and other issues arising from the COVID-19 pandemic.

(f) Mr. Le has expressed an understanding that what he did was wrong.

(g) He has taken very positive steps to address his substance abuse.

(h) The Federal Crown acknowledges the state misconduct giving rise to a Charter breach.

(i) Post charge, Mr. Le has made significant steps at rehabilitation.

(j) Mr. Le has reacquainted with his family and improved his relationship with them.

(k) Mr. Le has used his time wisely, pursuing education in the languages.

(l) Mr. Lee has suffered trauma due to his upbringing and difficulties in both his pursuit of education and pro-social employment.

(m) Mr. Lee has found comfort in his faith.

(n) Mr. Lee is a contributing member to our society, volunteering his time to help those in need.

(o) Mr. Lee has the support of his family and his community.

(p) Mr. Lee has good prospects for living a pro-social life. He has a job awaiting him after the pandemic.

[31] I will now turn to a consideration of the fit sentence.

The Fit Sentence

[32] This is a very difficult case. The courts, including the Supreme Court of Canada, have elaborated on the perils of cocaine and the immeasurable harm it does to our society.[^12] The use and sale of cocaine kills. The harmful health effects are enormous. Cocaine sale is closely associated with violent crime.[^13] The amounts of cocaine found with the large amount of marijuana suggest this was a significant drug operation being managed by Mr. Le.

[33] Deterrence and denunciation are significant considerations in sentencing a person like Mr. Le who has been found guilty of serious offences. These offences cry out for a significant sentence in the range of 5-8 years. However, I cannot ignore Mr. Le's possible rehabilitation.

[34] The appropriate sentence imposed must be one from which our society feels protected and which deters others from committing similar crimes, without crushing the hopes of Mr. Le. However, Le deserves a sentence that addresses the appropriate legal principles in consideration of his background and the facts.

[35] In coming to my conclusion about the appropriate sentence, I am also cognizant of the principles set out in R. v. Priest,[^14] at p. 296:

[I]t is a well-established principle of sentencing laid down by this court that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence.

[36] I am also mindful of the fact that this is Le's first visit to the penetentiary and of the direction of Rosenberg J.A. in R. v. Borde,[^15] that a "first penetentiary sentence should be as short as possible". This is Mr. Le's first jail sentence. That said, the jump principle is not applicable due to the severity of the offences.

[37] Mr. Le's plea of guilt is important, not only because it saved resources in a post-Jordan era, but because it is saving resources at a time the Court will be dealing with cases not reached due to the COVID-19 pandemic. The saving of court time in these circumstances is significant. I also consider the fact that Mr. Le is commencing his sentence during the pandemic which means it is likely that the circumstances of his incarceration, going forward, may be harsher. That said, there is no evidence that he suffers from a medical condition that will make him more vulnerable than anybody else to the virus.

[38] I am persuaded that the type of Charter violation conceded in the circumstances of this case warrants a reduction in Mr. Le's sentence. I find that that the conduct of the police is sufficiently connected to the circumstances of the offender or the offence to warrant such a reduction in sentence. The delay in providing Mr. Le with access to counsel, in the circumstances, is significant. He is a first offender arrested following a dynamic entry. One can only imagine the stress of the situation and the need for him to speak with counsel promptly.

[39] I have considered the imposition of a conditional sentence. Although I do not believe that Mr. Le is a danger to our society, I do not accept that a sentence of two years less one day is a fit sentence in all of the circumstances. To impose such a sentence would not be in compliance with the sentencing principles that I am required to consider in sentencing a person like Mr. Le for these types of offences. Such a sentence would not properly reflect the gravity of the offence and it would not sufficiently denounce it.

[40] Initially, and before receiving the materials in support of Mr. Le's position on sentence, the Federal Crown had submitted the appropriate sentence was a global one of five years. Upon receipt of the defence materials, they reduced their proposed sentence to four years. In my opinion, they were right to do so. I accept that the reduced sentence of four years is appropriate.

[41] In the circumstances, I find that the appropriate sentence is one of four years. Some may consider this sentence low, but I find that it properly addresses the principles that I must consider when sentencing a person like Mr. Le who has been found guilty of very serious offences.

[42] The sentence imposed will be four years less credit for pre-sentence custody of one year. Mr. Le is entitled to a reduction in sentence for a variety of reasons.

The Summers Credit

[43] Mr. Le will be given credit for time spent in pre-sentence custody in accordance with s. 719(3.1) of the Criminal Code and Summers. Mr. Le was in custody for 10 days until released. Enhanced at 1.5 days for each day spent in presentence custody, Mr. Le will be given credit for 15 days.

The Downes Credit

[44] Counsel for Mr. Le seeks credit for the strict terms of release that Mr. Le was subject to for a period of time. The Federal Crown agrees but submits that the amount of credit should be three to five months as opposed to the seven months proposed by Counsel for Mr. Le.

[45] Counsel for Mr. Le advises that since his release from custody, he has been subject to house arrest for three months and a curfew from 10:30 p.m. to 6:00 a.m. for a significant amount of time. Based on all of the circumstances, I am prepared to give Mr. Le credit for six months pursuant to the principles in Downes.

Collateral Consequences

[46] I agree that there was a significant Charter breach in not implementing Mr. Le's rights to counsel in conformity with Mr. Le's Charter rights as I have set out above. I also agree that Mr. Le will be serving his sentence during a time when the consequences of the pandemic are being felt by all, including those incarcerated. While Mr. Le, himself, may not be more vulnerable to the virus, the time he serves will be harsher as set out by Boswell J. above.

[47] In these unique circumstances, I am prepared to exercise my discretion, to give Mr. Le further credit of 5.5 months.

Conclusion

[48] Mr. Le is sentenced to four years, less one year of pre-sentence custody for a further three years to serve. The sentences will be imposed concurrently.

[49] The following ancillary orders are granted:

(a) A section 109 order for 10 years;

(b) Forfeiture of all items seized; and

Kelly J.

Released: May 20, 2021

appendix “A”

Case	Offence(s)	Quantity	Plea	Record	Circumstances	Sentence
R. v. Bajada, 2003 15687 (ON CA)	Possession for the purpose	½ kg	Not guilty	Yes[^16]	- 51 at time of offence - ~500 grams of 74% pure cocaine with an estimated value of $62,500 - Court of Appeal wrote at para 13 that "[i]t would appear that sentences of five to five and one half years are not uncommon for possession of a substantial amount of cocaine for the purposes of trafficking following an accused's plea of guilty or where the accused has no prior record."	Court of Appeal reduced the sentence from 8 to 6 years
R. v. Bryan, 2011 ONCA 273	Possession for the purpose	"more than a half-pound of cocaine"	Guilty	No	- Seizure of "more than a half-pound of cocaine" (less than ~300 grams of cocaine) - "the unusual circumstances of this case, where there are fairness concerns arising out of the way in which the respondent was persuaded to plead". - Court of Appeal wrote at para 1: "Normally, in cases of this nature, sentences of 5 to 8 years would reflect the proper range for someone, without a record, convicted of possession for the purpose of trafficking in slightly more than a pound of cocaine. This case should not be taken as suggesting otherwise.	3 years
R v Williams, [2015] OJ No 366	Possession for the purpose	510.55 grams	Guilty	Yes	- Minor record; - Role as "drug courier"; - Employable; - father of 2 and provides financial where possible; - 3.5 month credit in light of section 10(b) violation.	3 years
R v Sanchez, 2018 ONSC 1294	Possession for the purpose	1.043 kg	Not guilty	No	- Polydrug operation (1 kg cocaine, 18 kg of marijuana, ½ kg psylocibin and oxycodone); - 23 months spent on house arrest and spent 3 years on curfew; - 28 years old; - Low role –subordinate role.	4 years and six months on the cocaine 6 months on the marijuana concurrent

appendix “B”

Case	Facts	Sentence	Reasons
R. v. Nesbitt, 2012 BCCA 243	- accused and girlfriend became associated with an individual involved in the drug trade - he was arrested when this individual asked him to make a delivery - Nesbitt pled guilty to p4p cocaine – 17 kgs - Crown sought 6 years - Defence sought CSO	2 years less a day CSO	- COA upheld sentence - guilty plea - extensive rehabilitation - no CR and involved in criminal activity for short period of time - co-operative with police
R. v. Patel, 2005 BCPC 442, 2005 BCPC 0442	- police arrested Patel in a vehicle, upon arrest they located a black leather duffle bag on the rear seat and a backpack in the front seat - police seized over 900 flaps of drugs totalling 1.8 kg cocaine, 3 cell phones, a pager, and calculator - Patel had related CR – 3 entries for drug offences	2 years	- early plea, remorse - steady education, employment and volunteer works - caregiver for his wife/children - cases in which a CSO was granted are not present here – Patel had CR. He was convicted three times of drug related offences
R. v. Matthews, [2020] OJ No 4152	- convicted of p4p cocaine and proceeds under $5000 - police executed search warrant and located 700 grams of cocaine - Crown sought 3- year sentence - Defence sought SS + 3 years probation, once the sections 742.1, defence sought CSO	2 years + 1 day	- dated conviction of trafficking narcotics - poor prospect of rehabilitation - not remorseful The court noted "a sentencing judge must not simply look at the length of a sentence, but also to the conditions under which it is served and what effect the sentence will have on the offender" in terms of crafting a sentence (para 44) - sentencing is an individual process (para 43) Judicial notice can be taken of COVID-19 worldwide and in prison populations – this must be considered in fashioning a fit and just sentence (para 51)
R. v. Webster, 2016 BCCA 218	- Webster was in possession of 13 packages of cocaine, totaling 567 grams - his condominium was searched and police located 330 grams of cocaine, scales, score sheets and cash - trial judge sentenced Webster to 18 months - Webster appealed	18-month sentence upheld	The Court found this to be a fit sentence. - unrelated CR, which included 4 convictions of driving offences, the latest of which he was sentenced to jail for driving suspended - turned his life around, rehabilitative steps taken
R. v. Kane, [2011] NJ. No. 417	- guilty plea to conspiracy to traffic cocaine and marihuana - he was not the head of the conspiracy but he was not a low level dealer - this involved a large scale operation with transactions involving 50 pounds of marihuana and 2 kg of cocaine - Kane was a conduit between suppliers and sellers - Crown sought sentence over 4 years - defence sought 2 years less one day CSO	2 years less one day CSO	- no CR - steadily employed, healthy relationship - expressed sincere remorse - good candidate for community supervision
R. v. Lacasse, 2015 SCC 64, [2015] 3 SCR 1089	- impaired driving case		The Court talks about ranges at para 58 onwards: There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are [page1119] difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. In other words, sentencing ranges are primarily guidelines, and not hard and fast rules (para 60)
R. v. Nasogaluak, 2010 SCC 6	- impaired driving case - trial judge held police used excessive force in arresting the accused and breached his rights under section 7 of the Charter		"The wide discretion granted to sentencing judges has limits. It is fettered in part by the case law that has set down, in some circumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions in accordance with the principle of parity enshrined in the Code. But it must be remembered that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred" (para 44)
R. v. Proulx, 2000 SCC 5	- guilty plea to dangerous driving causing death and dangerous driving causing bodily harm - sentenced 18 months, lower courts held CSO was not appropriate	- CSO appropriate	"This is not to say that the conditional sentence is a lenient punishment or that it does not provide significant denunciation and deterrence, or that a conditional sentence can never be as harsh as incarceration… A conditional sentence may be as onerous as, or perhaps even more onerous than, a jail term, particularly in circumstances where the offender is forced to take responsibility for his or her actions and make reparations to both the victim and the community, all the while living in the community under tight controls" (para 41) - sentencing is an individualized process (para 82) A conditional sentence can achieve both punitive and restorative objectives. To the extent that both punitive and restorative objectives can be achieved in a given case, a conditional sentence is likely a better sanction than incarceration. (para 100) The court takes into consideration the shame of encountering members of the community, making a conditional sentence difficult – adding in value with respect to denunciation (para 105)
R. v. Ijam, 2007 ONCA 597, [2007] OJ No. 3395	- charged with proceeds of crime, possession of instrument of forgery, production of counterfeit money as a result of a sophisticated counterfeit operation - sentenced to 21 months imprisonment - he appealed	- 21 month CSO was substituted for imprisonment	- after the appellant was charged with this offence, there was a complete turnaround of his behaviour… it is clear that a custodial term of imprisonment is not required for the purpose of specific deterrence or rehabilitation (para 49-50) - the court recognizes that when sentencing youthful first-offenders, the paramount considerations are rehabilitation and specific deterrence – a sentencing judge should not place undue weight on general deterrence (para 55 onwards)
R. v. Hearns, 2020 ONSC 2365	- Hearns pled guilty to aggravated assault		COVID-19 - COVID-19 must be a factor to take into consideration at sentencing - the court takes into consideration the risk of infection is higher in custodial institutions where conditions make it difficult, if not impossible to implement social distancing - that is not to say that the virus is rampant in jails, or that the government officials are not trying to protect the inmates (para 11) - there was no concern about Hearns having enhanced vulnerability flowing from age or underlying medical conditions, however this does not negate the concern - the virus does not discriminate - the virus affects our conception of the fitness of sentence. A sentence may be fit even if it is not perfectly proportionate. - Fitness looks, not only at the length of a sentence, but the conditions under which it is served. As a result of the current health crisis, jails have become harsher environments, either because of the risk of infection or, because of restrictive lock down conditions aimed at preventing infection. Punishment is increased, not only by the physical risk of contracting the virus, but by the psychological effects of being in a high-risk environment with little ability to control exposure. (para 16) - a sentence may be reduced where it is necessary to account for other punitive consequences or where the sentence would have a more significant impact on an offender - The question is not whether, looking backwards, the offender is entitled to more credit. The question is whether, looking forward, the pandemic warrants reduction of the sentence yet to be served. The question is whether the sentence already served, calculated with 1.5 to 1 credit, is a sufficient penalty. Given the pandemic, it may be that a sentence of shorter duration is not only tolerable, but appropriate, in the interests of personal and public safety.
R. v. M.W., 2020 ONSC 3513	- pled guilty to sexual assault		- the Court identified the pandemic as a factor which must be considered in crafting a fit and just sentence (paras 46-49)

appendix “C”

Timeline for Sentencing

TIME (A.M.)	EVENT
2:00	Police attended the applicant's residence to execute the search warrant. DC Ebrahimi would have testified, that upon entry into the unit, he arrested the Applicant and provided him his right to counsel.
2:21	Officers requested that the Primary Response Unit ("PRU") attend 90 Eastdale.
2:30	PRU officers arrived on scene.
2:35	DC Ebrahimi turned over the applicant to PRU officers, PC Chow and PC Sinclair.
2:40	The PRU officers conducted a pat down search before placing the Applicant in the scout car. The officers provided the applicant his right to counsel and transported the applicant to 55 division shortly thereafter.
2:55	The applicant and PRU stood by at the sally port. Meanwhile, officers completed the search at 90 Eastdale.
3:12	The applicant was paraded and processed before Staff Sergeant Russell.
3:15	The level three search of the applicant commenced.
3:19	The level three search of the applicant completed.
3:20	The applicant was then placed in an interview room -Sinclair noted that once the applicant is placed in the interview room, the applicant "is back in custody of Guns and Gangs for phone call".
3:35	GGTF officers started their debrief.
3:45	GGTF officers concluded their debrief.
4:15	DC Miles obtained basic information from the applicant in preparation for the show cause hearing.
4:32	Ebrahimi passed by the interview room. He saw some knocking on the door coming from the inside.The applicant requested to go to the bathroom. Ebrahimi took the applicant to the bathroom.
4:35	DC McKeown called duty counsel.
4:39	DC Ebrahimi brought the applicant to the interview room.
5:05	Duty counsel called back and spoke to the applicant.

court file no.: CR-19-90000576-0000

DATE: 20210520

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

and -

vu tung le

REASONS FOR SENTENCE

Kelly J.

Released: May 20, 2021

[^1]: 2013 ONCA 147, aff'd. 2014 SCC 26 [^2]: (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321 (C.A.) [^3]: See: R. v. Nur, 2011 ONSC 4874, aff'd. 2013 ONCA 677, upheld 2015 SCC 15, [2015] 1 S.C.R. 773 [^4]: See: R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, at para. 80 [^5]: 2003 15687 (ON CA), 2003 169 O.A.C. 226 (C.A.) [^6]: 2011 ONCA 273, para. 1 [^7]: 1996 230 (SCC), [1996] 1 SCR 500, at para. 92 [^8]: 2010 SCC 6 [^9]: 2018 SCC 34 [^10]: 2020 ONSC 2365, [2020] O.J. No. 1648 (S.C.J.) [^11]: 2020 ONSC 3513 [^12]: R. v. Daya, 2007 ONCA 693 (C.A.) [^13]: R. v. Hamilton (2004), 2004 5549 (ON CA), 186 C.C.C. (3d) 129 (Ont. C.A.) [^14]: (1996), 1996 1381 (ON CA), 110 C.C.C. (3d) 289 (Ont. C.A.) [^15]: (2003), 2003 4187 (ON CA), 172 C.C.C. (3d) 225 (Ont. C.A.), at para. 3 [^16]: Mr. Bajada had a criminal record with 8 convictions between 1986 and 1996 (four of the convictions were drug related). Five year gap between last entry in record and sentencing.

R. v. Le, 2021 ONSC 2835

Case Summary

reasons for sENTENCE

The Facts

Mr. Le's Background

The Law

a. Criminal Code Considerations

b. Range of Sentence

c. Charter Breach

d. The Pandemic

Analysis

The Fit Sentence

The Summers Credit

The Downes Credit

Collateral Consequences

Conclusion

appendix “A”

appendix “B”

appendix “C”

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legal Tests 3

Legislation 4