Court File and Parties

COURT FILE NO.: CR-20-00015437 DATE: 2022-03-28

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – THANH HAI LU Defendant

Counsel: Amanda Hauk, for the Public Prosecution Service of Canada Gregory Lafontaine and Julia Kushnir, for the Defendant

HEARD: February 18, 2022

REASONS FOR SENTENCE

DI LUCA J. :

[1] Following a focussed judge alone trial, Mr. Thanh Hai Lu was convicted of the following offences:

a. Trafficking in Cocaine – ½ kilogram – January 10, 2019 b. Trafficking in Cocaine – 9 ounces – February 21, 2019 c. Trafficking in Fentanyl – ½ kilogram – April 16, 2019 d. Trafficking in Fentanyl and Heroin – ½ kilogram – May 14, 2019 e. Possession of Cocaine for the Purpose of Trafficking – ½ kilogram – June 18, 2019 f. Possession of MDMA for the Purpose of Trafficking – 200 g – June 18, 2019 g. Possession of Ketamine – 8 g – June 18, 2019

[2] Mr. Lu is now before me for sentencing. As is often the case, the task of determining a fit sentence is very difficult. Mr. Lu presents as a duality. On the one hand, he is a commercial level drug trafficker. He played a significant role in a drug trafficking scheme involving bulk quantities of cocaine, fentanyl, fentanyl/heroin and MDMA.

[3] On the other hand, apart from his drug dealing activities, Mr. Lu is an otherwise productive member of society with very strong family and peer supports. He has no criminal history. He has skillsets that could readily be used to honestly and legally provide for himself and his family.

[4] Despite all he has going for him, Mr. Lu chose to involve himself in an incredibly dangerous and illegal enterprise that could have killed many people. He did so for no purpose other than the allure of easy money.

[5] The consequences of his decision will alter the trajectory of his life. With any luck, once he is released from the penitentiary, Mr. Lu will use his skills and experience to lead a productive life and provide for his family.

The Scheme to Traffic Drugs

[6] As set out in the Reasons for Judgment reported at R. v. Lu, 2021 ONSC 7889, the investigation in this case commenced when an undercover police officer started purchasing marijuana and MDMA from Mr. Dat Doan. As the investigation progressed, Mr. Doan eventually agreed to sell cocaine to the undercover officer.

[7] The first cocaine transaction occurred on January 10, 2019, and it involved Mr. Doan and the undercover officer agreeing to a price of $28,500 for a half kilogram of cocaine, with a deposit of $15,000. At an arranged time and place, Mr. Lu met with the undercover officer and provided the cocaine in exchange for $15,000. During this transaction, Mr. Lu apologized for the fact that the deal had been delayed and stated that, going forward, he would be “good” for whatever the undercover officer wanted with a day or two notice. Mr. Lu also indicated that the undercover officer would be pleased with the quality of the drugs and he made reference to the presence of a logo that was pressed into the cocaine.

[8] The second cocaine transaction took place on February 21, 2019. This transaction initially involved ½ kilogram of cocaine with a deposit of $10,000, but Mr. Doan later indicated that he would only be able to provide 9 ounces of cocaine. During the meeting to discuss this transaction, Mr. Doan indicated that Mr. Lu might be “the driver.” The undercover officer delivered the money to Mr. Doan. Mr. Lu then engaged in an exchange of messages with the undercover officer wherein he indicated that he had 9 ounces and that more would be available in a couple of days. The undercover officer thereafter met with Mr. Lu and received the cocaine in a pencil case. Further discussion about the provision of drugs ensued during this meeting. Mr. Lu apologized about not being able to get a ½ kilogram and explained that he was “between orders” at the time.

[9] On March 28, 2019, the undercover officer reached a further agreement to purchase ½ kilogram of cocaine from Mr. Doan for $28,500. He then communicated with Mr. Lu to set up a time and place for receipt of the drugs The transaction did not take place as Mr. Lu advised that he was not happy with the quality of the drugs he had obtained.

[10] Following the completion of the cocaine transactions, the police investigation turned to fentanyl and heroin. On April 14, 2019, Mr. Doan provided small samples of “blue” and “purple” drugs to the undercover officer. The “blue” tested as a mixture of fentanyl and heroin and the “purple” tested as fentanyl.

[11] On April 16, 2019, following provision of the samples, Mr. Doan agreed to sell ½ kilogram of “grape” or purple fentanyl. The agreed upon price was $39,000. During this transaction, Mr. Doan advised that the “driver” obtained the drugs for $37,000, with the $2,000 being the profit on the deal to be split between Mr. Doan and the driver. Mr. Doan also assured the undercover officer that “the driver” would be the “same guy”, in other words Mr. Lu.

[12] Once the money was provided to Mr. Doan, the undercover officer met with Mr. Lu and received ½ kilogram of “purple” fentanyl. During this meeting, the undercover officer engaged Mr. Lu in a discussion about “purple” and “blue”, which the undercover officer understood as coded language for different mixtures of fentanyl and heroin. Mr. Lu indicated that he had heard the “blue” was better than the “purple” but more expensive. Mr. Lu did not appear to be overly knowledgeable on the subject.

[13] Police surveillance tracked Mr. Lu’s movements and showed him travelling to meet with Zehra Sevim, whereupon he obtained a bag containing the fentanyl, which he then delivered to the undercover officer. The surveillance also showed that Mr. Lu and Mr. Doan met up in a parking lot right after the transaction with the undercover officer.

[14] The final drug transaction occurred on May 14, 2019. This transaction involved ½ kilogram of “blue” fentanyl and heroin. Mr. Doan and the undercover officer agreed upon a purchase price of $39,500. They again discussed the profit on the deal and Mr. Doan indicated that “buddy” would make $1,000 on the deal.

[15] Police surveillance showed that Mr. Lu met with Ms. Sevim and she provided him a bag. Mr. Lu then travelled to meet with the undercover officer and provided the drugs in the parking lot of a hockey arena. By the time the drugs were provided to the undercover officer, they had been placed inside a different bag.

[16] Mr. Lu was arrested on June 18, 2019. At that time, a search of his apartment revealed a further ½ kilogram of cocaine, 207 grams of MDMA and a small quantity of ketamine. The search also revealed a large quantity of cutting agent, a money counter, digital scales, a vacuum sealer and drug packaging.

Mr. Lu’s Personal Circumstances

[17] Mr. Lu is 37 years of age. He has no criminal record or history of involvement with the legal system. He was born in Canada to hard working parents who emigrated from Vietnam. He has strong family support and his mother was in court during the trial.

[18] Mr. Lu has been in a long standing and stable relationship with a woman he hopes to one day marry. She is very religious and acts as a positive influence on his life.

[19] In terms of education and work history, Mr. Lu has been involved in a number of endeavours over the years. He has completed a number of college courses in auto mechanics, travel agency and freight forwarding. He has been employed as an apprentice auto mechanic, a landscaper and in construction.

[20] When Mr. Lu was invited to address the court, he spoke eloquently about the shame he has visited upon his family and expressed regret and embarrassment over his involvement in this matter.

The Position of the Parties

[21] The Crown seeks a sentence of 8 to12 years in the penitentiary depending on the court’s findings regarding Mr. Lu’s knowledge in relation to the nature of the drugs trafficked. The Crown submits that if the court is satisfied beyond a reasonable doubt that Mr. Lu knew he was trafficking in fentanyl, a twelve-year sentence is appropriate. Conversely, the Crown submits that if the court finds on a balance of probabilities that Mr. Lu believed he was trafficking cocaine at all times, an eight-year sentence is appropriate. Lastly, the Crown submits that if Mr. Lu’s knowledge is simply that required for conviction, a ten-year sentence is appropriate.

[22] In terms of level of participation, while the Crown agrees that Mr. Doan was the main player in the drug trafficking scheme, the Crown argues that Mr. Lu was much more than a simple delivery person. The Crown submits that Mr. Lu was essentially second in command and acted as a trusted and deeply involved party in the scheme.

[23] The defence argues Mr. Lu was essentially one of a number of delivery drivers in Mr. Doan’s drug trafficking enterprise. As such, he played a significantly less culpable role. In addition, the defence argues that the Crown has failed to prove that Mr. Lu specifically knew that he was trafficking in fentanyl and that, at worst, Mr. Lu would have believed he was simply delivering quantities of cocaine throughout the series of transactions. As such, the defence argues that Mr. Lu should be sentenced on the basis that his moral culpability is akin to that of a person delivering amounts of cocaine at the direction of the person in charge of the scheme.

[24] The defence also emphasizes Mr. Lu’s strong personal antecedents, family background and rehabilitative prospects. Ultimately, the defence suggests a sentence in the range of 3 to 4 years incarceration.

Principles of Sentencing

[25] The objectives of sentencing long recognized at common law have been codified in Section 718 of the Criminal Code. They are: the protection of society and the maintenance of a just, peaceful and safe society through the denunciation of unlawful conduct; deterrence, both general and specific; the separation of the offender from society where necessary; rehabilitation; reparation for harm done to the victims or the community; and promotion of a sense of responsibility in offenders and acknowledgement of the harm done.

[26] Section 718.1 provides that the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances.

[27] Section 10(1) of the Controlled Drugs and Substances Act also provides that the fundamental purpose of sentencing in drug cases 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.

[28] In terms of fentanyl trafficking offences, there is no issue that fentanyl is an especially dangerous drug, significantly more dangerous than cocaine, see R. v. Parranto, 2021 SCC 46 per Moldaver J. at paras. 93-95, and R. v. Loor, 2017 ONCA 696 at paras. 33-39. Moreover, there is also no issue that the rise in fentanyl trafficking has contributed to the existence of an opioid crisis that has resulted in thousands of deaths over recent years, see R. v. Olvedi, 2018 ONSC 6330 at para. 27, aff’d 2021 ONCA 518 at paras. 40-44 and R. v. Parranto, supra, at para. 96. As such, general deterrence and denunciation are paramount sentencing factors, see R. v. Lu, 2016 ONCA 479. That said, the court must nonetheless consider the defendant’s rehabilitative prospects, see R. v. Disher, 2020 ONCA 710 at para. 22.

[29] In terms of the range of sentence for trafficking in large quantities of fentanyl, I note that in R. v. Parranto, supra, at para. 68, the Supreme Court of Canada recently held that a range of 8 to 15 years can be discerned based on a national canvass of case law:

A more accurate range based on a review of reported case law nationally would be in the region of 8 to 15 years. For example, eight‑year sentences were imposed in Smith (2019) (1834 pills, as part of an 11‑year sentence), as well as R. v. Leach, 2019 BCCA 451 (11,727 pills, as part of a 16‑year sentence); R. v. Sinclair, 2016 ONCA 683; R. v. Solano‑Santana, 2018 ONSC 3345 (5000 pills); R. v. White, 2020 NSCA 33, 387 C.C.C. (3d) 106 (2086 pills); and R. v. Borris, 2017 NBQB 253 (4200 pills). Other sentences imposed include: an 8‑year and two‑month sentence in R. v. Sidhu, C.J. Ontario, No. 17‑821, June 16, 2017, aff’d 2019 ONCA 880, in which the offender trafficked 89 g of fentanyl and other drugs soon after being released on parole; a 10‑year sentence in R. v. Petrowski, 2020 MBCA 78, 393 C.C.C. (3d) 102, for trafficking 51 g fentanyl where the offender used a co‑accused to insulate himself from detection; 11 years for trafficking 204.5 g of a fentanyl blend in R. v. Vezina, 2017 ONCJ 775; 13 years for trafficking 232 g fentanyl and large quantities of other drugs as part of a sophisticated drug trafficking operation in R. v. Mai, [2017] O.J. No. 7248 (QL) (Ont. S.C.J.); and 15 years for a profit‑motivated offender who was the directing mind of “a large‑scale drug trafficking operation involving an enormous amount of fentanyl” in R. v. Fuller, 2019 ONCJ 643 (the offender possessed about 3 kg of fentanyl in the course of the conspiracy).

[30] In R. v. Lynch, 2022 ONCA 109, a case involving the trafficking of approximately 1 kilogram of cocaine, 149 grams of MDMA and 41 grams of fentanyl, the Court of Appeal for Ontario offered the following guidance:

[14] Returning then to the errors involved, the trial judge erred in concluding that the range of sentence for mid-level traffickers of cocaine is four to six years. Decisions of this court have established that the range for such offenders is five to eight years: see, for example, R. v. Maone, 2020 ONCA 461, at paras. 12-13. Further, fentanyl is a more dangerous drug than is cocaine. To the degree that the trial judge used his comparison of these ranges to justify a lower sentence in this case, he erred.

[15] To be clear, the trial judge initially correctly identified the sentencing range in this case as between six and eight years. However, he then incorrectly lowered that range by his erroneous comparison to what he thought was the comparative range for cocaine. He appears to have adopted this approach because of his view that all dangerous drugs should be treated the same when it comes to sentencing. That view itself reflects error. It is a well-established principle that drugs vary in the degree of danger that they represent to those who consume them. Consequently, the more dangerous the drug being trafficked, the higher the penalty that will be imposed. Fentanyl is now known to be a much more dangerous drug than almost any other. That reality directs that a sentence imposed for trafficking in fentanyl should be as long or longer than a corresponding sentence for trafficking in cocaine: R. v. Olvedi, 2021 ONCA 518, 157 O.R. (3d) 583, at para. 56, leave to appeal to S.C.C. requested, 39854.

[31] As a result, the Court of Appeal allowed the Crown’s appeal and imposed a sentence of 6 years. That said, the Court noted that the Crown’s request for an 8-year sentence was reasonable in the circumstances, especially in view of the 10 year sentence upheld by the Supreme Court of Canada in Parranto, a case involving higher quantities of fentanyl.

[32] In considering the range of sentence applicable in this case, I have also considered R. v. Broderick, 2018 ONCJ 4, R. v. Fuller, 2019 ONCJ 643, R. v. Crozier, OCJ, unreported December 1, 2020, R. v. Doolittle, OCJ, unreported, February 4, 2021 and R. v. Harwood, OCJ, unreported, February 3, 2021.

[33] As well, I have considered the following cases which set out the range of sentence of 5 to 8 years for offences involving trafficking of significant amounts of cocaine; R. v. Bryan, 2011 ONCA 273, R. v. Maone, 2020 ONCA 461, R. v. Brown, 2021 ONCA 35, and R. v. McIntyre, 2016 ONCA 843.

Mr. Lu’s Degree of Responsibility

[34] In accordance with the arguments of counsel, an assessment of Mr. Lu’s degree of responsibility in this case focusses on two issues; (1) the level of his involvement in the drug trafficking scheme, and (2) his level of knowledge in relation to the drugs trafficked.

[35] I start by assessing the nature of Mr. Lu’s role in the drug trafficking scheme. I agree with the submission that Mr. Doan was the central or main player in the drug trafficking enterprises. The evidence places him in the key role of meeting with the undercover officer wherein he formed the agreement to traffic, including the price, quantity and type of drug. As well, it is clear that Mr. Doan used persons other than Mr. Lu to deliver drugs.

[36] That said, I do not accept that Mr. Lu’s role was simply as a mere courier or delivery person. The evidence shows that Mr. Lu was Mr. Doan’s trusted associate. He delivered the drugs. On one instance he received a significant quantity of buy money. He discussed supply issues and delivery timelines with the undercover officer. He was in the position to postpone one deal when he deemed the product to be of inferior quality.

[37] Moreover, while Mr. Doan appears to have brokered the deal for the fentanyl and fentanyl/heroin, the evidence suggests that it was Mr. Lu who actually made the arrangements to purchase the drugs from his source. Lastly, on Mr. Lu’s arrest, the search of his apartment revealed additional quantities of cocaine and MDMA, as well as drug trafficking paraphernalia suggesting direct involvement in commercial level trafficking.

[38] Ultimately, while Mr. Doan appears to have been the main person in charge, Mr. Lu was his “right hand man.” He exercised decision making authority and had a degree of involvement well beyond that of a simple courier or delivery person.

[39] I turn next to determining Mr. Lu’s level of knowledge. On this issue, I note, as I did in my Reasons for Judgment, that the mens rea for trafficking does not require proof of knowledge of the specific drug particularized in the indictment. All that is required is that the defendant know that the item trafficked is a controlled substance, see R. v. Williams, 2009 ONCA 342 at para. 19.

[40] The Crown urges me to find beyond a reasonable doubt that Mr. Lu had specific knowledge that the drug he was trafficking in relation to the final two sales to the undercover officer was fentanyl. The Crown argues that such a finding would be aggravating as it suggests an even higher degree of moral responsibility and culpability.

[41] The defence argues that the evidence, at best, supports a finding that Mr. Lu may well have believed that the drug he trafficked was cocaine in all instances. In particular, the defence points to the evidence that Mr. Lu did not appear overly knowledgeable in terms of the “purple” and “blue” drugs trafficked in the last two sales. The defence further argues that when this limited level of knowledge is viewed in concert with Mr. Lu’s more limited role in the operation, the evidence as a whole falls short of proving that he had specific knowledge of the nature of the substance.

[42] I begin my analysis of this issue by noting that at a sentencing hearing, the Crown bears the onus of proving aggravating facts beyond a reasonable doubt and the defence bears the onus of proving mitigating facts on a balance of probabilities, see Criminal Code, section 724(3)(d-e).

[43] Given the nature of the mens rea required for the offence of trafficking, there exists a continuum of outcomes on the issue of the defendant’s knowledge of the particular drug in question. I will canvass some of these potential outcomes next but in doing so, I am not attempting to be exhaustive. Sentencing is very fact and context specific and many different scenarios will arise.

[44] The starting point outcome is the one consistent with the finding of guilt on the counts as particularized in the indictment, namely that the defendant trafficked in a substance determined to be fentanyl or fentanyl and heroin, and knew only that the substance he trafficked was a controlled substance. In view of the required mens rea for trafficking, this is the minimum available outcome following conviction.

[45] Another potential outcome arises where the Crown proves beyond a reasonable doubt that the defendant not only knew that the drug trafficked was a controlled substance, but also that it was the specific drug particularized in the indictment. In many cases, this outcome simply follows conviction as a finding that the defendant has knowledge that a substance is a controlled substance is often based upon evidence proving knowledge, either directly or by inference, of the specific nature of the drug in question.

[46] In instances where the Crown proves that the defendant had knowledge of the specific drug in question, it may be open to the court to find that this level of knowledge reveals a higher degree of moral responsibility and culpability. Where, for example, the drug particularized in the indictment is a particularly dangerous or pernicious drug such as fentanyl or a mixture of heroin and fentanyl, a finding that the Crown has proven knowledge of the specific drug beyond a reasonable doubt will serve as an aggravating factor for the purposes of sentencing. Instances where a defendant traffics in a substance known to be fentanyl or known to be a mixture of fentanyl and heroin will demonstrate a higher degree of moral culpability than instances where a person traffics a controlled substance and is, for example, indifferent or reckless as to the specific nature of the drug involved. That said, the difference in moral culpability will depend on the facts of the specific case.

[47] Another potential outcome arises in instances where the defence seeks to establish the fact that the defendant believed that the drug he trafficked was something less serious than the drug actually trafficked. In such instances, in order for the belief to be mitigating on sentence, the defendant must point to evidence capable of supporting the belief on a balance of probabilities.

[48] The extent of mitigation available depends on what the defendant is able to establish on the evidence. To give an example, if the defendant demonstrates on a balance of probabilities that he believed the drug he was trafficking was heroin instead of fentanyl, the degree of mitigation would potentially be modest or slight as the difference between the two drugs is not greatly significant from a moral culpability standpoint. Where however, a defendant establishes that he believed he was trafficking in marijuana and the drug trafficked turned out to be fentanyl, the defendant would be entitled to a more significant degree of mitigation, potentially warranting a departure below the accepted range of sentence.

[49] A situation similar to this latter example arose in R. v. C.N.H. (2002), 170 CCC (3d) 253 (Ont.C.A.), where the accused, who was convicted of importing cocaine, established to the sentencing judge’s satisfaction that he believed he was actually importing marijuana. The sentencing judge found that this belief was a mitigating fact. The Court of Appeal agreed with this finding and offered the following guidance on this issue:

[46] In my view, the most significant extenuating factor in this case is the trial judge's finding that the respondent believed that he was importing marihuana rather than cocaine. It has been held under the former Narcotic Control Act that the mens rea for the importing offence is satisfied if the accused knew or was wilfully blind to the fact that the contraband was a narcotic, not necessarily the particular narcotic actually imported. See R. v. Blondin (1970), 2 C.C.C. (2d) 118, [1971] 2 W.W.R. 1 (B.C.C.A.), affd R. v. Blondin (1971), 4 C.C.C. (2d) 566n, [1972] 1 W.W.R. 479 (S.C.C.). Thus, the respondent was properly convicted of the offence of importing cocaine although he believed the substance to be marihuana. But, in considering the sentence to be imposed, the respondent's state of mind is very relevant. The fundamental principle of sentencing as set out in s. 718.1 of the Criminal Code is that the sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender". This requires the court to consider the moral blameworthiness of the offender.

[47] There is a considerable difference in the moral blameworthiness of a person who believes he is importing marihuana, a so-called "soft drug" that is grown in Canada, and one who knows he is importing cocaine, a dangerous drug that has no domestic source. The finding of the trial judge was that the respondent "believed throughout that it was marijuana". I also interpret his reasons as finding that the respondent was not wilfully blind but actually took steps to determine that it was marihuana and was duped by the principals in the scheme. On the other hand, the respondent must be sentenced for the offence of importing [page581] cocaine. Further, as the trial judge observed, anyone engaged in this kind of behaviour is at least reckless in the sense that he runs the risk that the people with whom he is dealing will not deal honestly with him.

[48] In this court, counsel for the appellant suggested that the respondent’s belief was not a mitigating factor. She relied upon the following passage at p. 642 O.R., p. 550 C.C.C. of Madden:

As to the sentence itself, the main thrust of the appellant's argument was that the trial judge, having found that the appellant believed she was importing marijuana, should have either sentenced her as a marijuana importer or, alternatively, discounted the normal range for the importation of cocaine to achieve the same result. We do not agree. The appellant must be sentenced as an importer of cocaine. The court should not ignore her recklessness in accepting for delivery, without further inquiry, a substance she knew to be a narcotic.

[49] There are two answers to that submission. First, in this case, the trial judge found that the respondent did make inquiries to ensure himself that the drug was indeed marihuana. Second, in the subsequent decision of this court in R. v. Sagoe, [1998] O.J. No. 4721 (C.A.), this court held that the accused's belief is a relevant factor. The court held as follows at para. 6:

As to sentence, we are all of the opinion that the sentence imposed is excessive. The trial judge appears to have thought that it was irrelevant that the appellant was wilfully blind to the nature of the narcotic involved, as opposed to having knowledge that it was heroin. This is not correct. Although the appellant had to be sentenced as being in possession of heroin for the purpose of trafficking, the fact that she did not know it was heroin was a mitigating factor. This factor, together with her passive role in the commission of the offence and the fact that she received no real benefit from it, justifies a reduction in her sentence.

[50] Finlayson J.A., who authored the decision of this court in Madden, was also a member of the court in Sagoe.

[51] To conclude, the respondent's belief, especially given the steps he took to satisfy himself that the substance was marihuana, was an important extenuating factor. He believed that he was importing what would amount to a relatively small quantity of marihuana rather than a large quantity of cocaine. This factor justifies imposing a sentence out of the Cunningham six- to eight-year range.

[50] Turning to the facts in this case, I am satisfied beyond a reasonable doubt that Mr. Lu knew he was trafficking in fentanyl and fentanyl and heroin when he delivered drugs to the undercover officer on the final two occasions. I reach this conclusion for the following reasons taken together and viewed in the context of the whole of the evidence:

a. Mr. Lu was not simply a courier or driver. He was significantly engaged in the drug trafficking scheme and was providing large quantities of drugs in concert with Mr. Doan. He demonstrated a knowledge of the nature of the business and had previously advised the undercover officer that he could get whatever drug the undercover officer wanted on 1 or 2 day’s notice. As well, the evidence reveals that it was Mr. Lu who obtained the fentanyl and fentanyl/heroin from Ms. Sevim. b. Mr. Lu demonstrated an awareness of the quality of the product supplied to the undercover officer and had previously postponed a cocaine deal when the product was not good enough. A concern about the quality of the product supplied suggests a degree of knowledge in the nature of the substances he was trafficking. c. The quantities trafficked and the dollar amounts involved support a ready inference that this was commercial level trafficking undertaken for profit. An obvious common-sense inference is that persons involved in commercial level trafficking with values reaching into the tens of thousands of dollars know exactly what they are supplying. It is the nature of the very business they are in. d. Mr. Lu expressed a degree of knowledge when the undercover officer talked about “purple” and “blue” though he did not seem overly knowledgeable. He explained his belief that the “blue” was better, though it cost more. The “blue” that was trafficked was in fact modestly more expensive than the “purple.” e. The dollar value of the “purple” and “blue” was significantly higher than the value of the cocaine that Mr. Lu and Mr. Doan had already trafficked. While I accept that there were fluctuations in the value of cocaine, when the deals are viewed in context, including the provision of the samples of “purple” and “blue”, I am not prepared to find that Mr. Lu may simply have believed that he was dealing in cocaine that had become significantly more expensive due to price fluctuations. f. The drug expert testified he had experience with fentanyl being sold in different colours demarcating different degrees of potency. While the expert had observed coloured crack cocaine, he had never seen coloured powdered cocaine.

The Principle of Parity

[51] The principle of parity is codified in section 718.2 (b) of the Criminal Code. It directs that similarly situated offenders who commit similar offences should receive similar sentences. Viewed broadly, parity is an expression of proportionality, which is itself the fundamental principle of sentencing, see R. v. Friesen, 2020 SCC 9 at paras. 30-33.

[52] Parity does not require the imposition of identical sentences nor is it to be applied rigidly. Ultimately, the principle of parity is one of a number of factors that a sentencing judge must consider in arriving at a fit and proportionate sentence, see R. v. Beauchamp, 2015 ONCA 260 at paras. 276-280.

[53] At the completion of the investigation in this case, both Mr. Doan and Mr. Lu (and others) were arrested and charged with various drug trafficking offences. Mr. Doan resolved his matters before Bird J. with a guilty plea to four counts of trafficking, the particulars of which are as follows:

a. Trafficking cocaine – ½ kilogram – January 10, 2019 (with Mr. Lu) b. Trafficking fentanyl – ½ kilogram – April 16, 2019 (with Mr. Lu) c. Trafficking fentanyl – ½ kilogram – May 14, 2019 (with Mr. Lu) d. Trafficking heroin – ½ kilogram – June 17, 2019 (not with Mr. Lu)

[54] In terms of sentence, the Crown sought a global sentence of 12 years in view of the nature and quantity of drugs involved as well as Mr. Doan’s role in the trafficking scheme. The defence position was one of five years less one day imprisonment in addition to pre-trial custody time enhanced to account for the severe conditions under which it was served. After accounting for pre-trial custody credit and considering the mitigating effect of conditions of pre-trial custody, Bird J. imposed a sentence of five years less one day. That said, she noted that the operative sentence was “in the range of 11 years” before accounting for standard Summers credit and significant Marshall/Duncan mitigation.

[55] I note that on the facts before Bird J., Mr. Doan was the principal of the drug trafficking scheme and was the person who mainly interacted with the undercover officer. I also note that while three of Mr. Doan’s offences were committed with Mr. Lu, the fourth offence Mr. Doan committed did not involve Mr. Lu. On this fourth offence, Mr. Doan set up a deal with the undercover officer and another individual ultimately delivered ½ kilogram of heroin.

[56] In terms of the amounts of drugs as between Mr. Doan and Mr. Lu, I note that Mr. Doan pleaded guilty to trafficking the additional ½ kilogram of heroin. However, Mr. Lu was found guilty of trafficking 9 ounces of cocaine (which on the facts before me involved Mr. Doan) and on arrest, Mr. Lu was found in possession of an additional ½ kilogram of cocaine as well as 200 grams of MDMA in circumstances where it was clear that the possession of these additional drugs was for the purpose of trafficking.

Mitigating Circumstances

[57] Mr. Lu has no criminal record and has led an essentially unblemished life. Mr. Lu has strong family and peer support. The letters in support all speak to his general good character. He has skills and abilities that suggest he can readily become a contributing member of society. I accept that Mr. Lu is likely never to commit another criminal offence. He has strong prospects for rehabilitation, despite the fact that the offences were motivated by greed.

[58] I also accept that he is remorseful. When asked whether he wanted to address the court, Mr. Lu spoke emotionally and eloquently. I accept that he has insight into his criminality. He feels that he has let his family down and he is deeply ashamed of what he has done. While it is trite to observe that Mr. Lu should not be punished for exercising his right to trial, I also wish to note that his plea of not guilty is not inconsistent with his claim of remorse. While a guilty plea is, inter alia, a sign of remorse, a person can be remorseful for having committed an offence while nonetheless exercising their constitutional right to a trial. The two are not incompatible. In addition, I note that the trial in this matter was significantly streamlined by the efforts of counsel which resulted in an extensive agreed statement of fact that obviated the need for a week or two of viva voce evidence. As such, Mr. Lu is entitled to the mitigation that stems from saving valuable court resources and time.

Aggravating Factors

[59] The nature of the drugs involved is aggravating. Not only did Mr. Lu traffic in, and possess for the purpose of trafficking, large quantities cocaine, he also trafficked in very significant quantities of fentanyl and fentanyl/heroin. More importantly, for the reasons already provided, I am also satisfied beyond a reasonable doubt that Mr. Lu was subjectively aware that he was trafficking in fentanyl and a mixture of fentanyl and heroin in relation to the final two transactions.

[60] The scope of the scheme is also aggravating. Mr. Lu was involved in a large-scale commercial undertaking trafficking in significant quantities of serious drugs. As well, this is not an instance where Mr. Lu played a minor role in the scheme. He was not simply a delivery person.

[61] Lastly, the offence was motivated by greed. This is not an instance where Mr. Lu was motivated by addiction or other significant personal circumstance.

Time Spent in Pre-Trial Custody and on Restrictive Bail Conditions

[62] Mr. Lu was arrested on June 18, 2019 and released on bail on June 21, 2019. He spent four days in custody prior to being admitted to bail. The parties agree that he should be credited with six days of pre-trial custody.

[63] In terms of time spent on restrictive bail conditions, the defence filed a helpful chart setting out a timeline of the operative bail conditions, along with a recitation of the impact of the bail conditions imposed on Mr. Lu. This recitation was essentially provided by way of counsel’s submissions and not in sworn form from Mr. Lu. The Crown did not object to the court’s receipt of this information by way of submissions. That said, the Crown also filed a helpful chart setting out a COVID timeline correlating the various bail restrictions to the various restrictions imposed on the public as a result of the pandemic.

[64] Based on the material before me, Mr. Lu has been on restrictive bail conditions for approximately 1,011 days. He was on a house arrest bail with ankle monitoring for a period of 367 days from June 21, 2019 to June 23, 2020. He was permitted to be out of his residence for medical emergencies or in the direct and continuous company of one of his sureties. He was then on house arrest, without ankle monitoring, but with the same exceptions for 141 days from June 23, 2020 to November 10, 2020. A further surety was then added, and Mr. Lu remained on house arrest for a further 395 days from November 10, 2020 to December 10, 2021. His bail was then varied to allow him to be at a work while on his own. This final bail variation occurred on December 10, 2021, and remains in place to date which is 108 days.

[65] As set out in the Crown’s chart, the COVID pandemic commenced on March 17, 2020, when a state of emergency was declared and businesses, schools, bars and restaurants were closed. The Crown’s chart also sets out the various dates on which significant changes to the various federal, provincial and municipal lockdowns were announced. Based on this chart, the Crown notes that the general public was subject to lockdowns between March 17 and June 22, 2020 (3 months and 5 days), between October 9, 2020 and June 1, 2021 (7 months and 24 days) and between January 5 and January 21, 2022 (27 days). Lastly, the Crown notes that following conviction, the sentencing hearing and imposition of sentence were delayed at Mr. Lu’s request so that he could get his affairs in order prior to stepping into custody.

[66] In considering whether a Downes credit is appropriate, I must consider the specific impact that the restrictive bail conditions had on Mr. Lu. On this issue, I accept that Mr. Lu was subject to a significant deprivation of liberty based on the restrictive bail conditions that have been in place for a very long period of time. I also accept that this restriction of liberty would have occurred during the global COVID pandemic and that this results in some degree of moderation in terms of the impact of the bail conditions, given that during portions of the time under bail, Mr. Lu would have been subject to varying degrees of public health related lockdowns. However, I find the degree of moderation is slight. The restrictive bail conditions went well beyond the COVID restrictions in place during various periods of time.

[67] In accordance with R. v. K.M., 2017 ONSC 4769, the defence submits that credit at a ratio of 1:4 should be granted for the entire period of time during which Mr. Lu was subject to restrictive bail conditions. Applying this ratio would result in a credit of 253 days on account of restrictive bail conditions. The Crown argues that a credit of 2 months is appropriate in the circumstances.

[68] The determination of an appropriate degree of mitigation for restrictive bail conditions is discretionary. There is no fixed mathematical formula and the “credit” to be applied may simply be reflected as a mitigating factor on sentence rather than a fixed credit, see R. v. Joseph, 2020 ONCA 733 at para. 108 and R. v. C.C., 2021 ONCA 600 at paras. 4-5.

[69] In my view, considering the extent of the submissions on the impact of the bail conditions in this case and considering the fact that impact of the bail conditions must be considered in context with the extent of the public health lockdowns, I am satisfied that a credit of 200 days is appropriate. In arriving at this number, I decline to reduce the credit on the basis that Mr. Lu sought a lengthy adjournment of his sentencing hearing in order to get his affairs in order, and therefore essentially acquiesced to the restrictive conditions.

The Appropriate Sentence

[70] As mentioned at the outset, sentencing Mr. Lu is a difficult task. The offences committed are large scale and commercial. They involve significant quantities of cocaine, fentanyl and fentanyl/heroin. The offences involve a high degree of moral blameworthiness. That said, I cannot ignore Mr. Lu’s antecedents. He has no criminal record. He has a strong rehabilitative potential and will likely never be before the court again.

[71] In terms of parity, I place Mr. Lu’s degree of involvement as second to Mr. Doan. While Mr. Doan was the principal of the scheme, Mr. Lu was a high-level trusted associate who was integrally involved in the scheme. Mr. Doan resolved his case with a guilty plea. However, I note that there are differences in terms of the quantities of drugs involved. Mr. Doan trafficked a further ½ kilogram of heroin, not involving Mr. Lu. Conversely, Mr. Lu was found guilty of trafficking 9 ounces of cocaine, an offence which involved Mr. Doan but was not an offence that Mr. Doan was sentenced on. As well, on arrest, Mr. Lu was found in possession of additional quantities of cocaine and MDMA.

[72] When I consider all the applicable sentencing principles, the sentence imposed on Mr. Doan as well as the principle of totality, I come to the conclusion that a global sentence of 9 ½ years’ incarceration is warranted in the circumstances. From that number I deduct 6 days for pre-trial custody and 200 days for time spent on restrictive bail conditions. This equates to credit of 6 months and 26 days. This leaves an effective sentence of 8 years, 11 months and 4 days from today’s date. I break down the sentence as follows:

a. Count 1 – 5 years concurrent; b. Count 2 – 3 years concurrent; c. Count 3 – 8 years, 11 months and 4 days (in addition to 6 months and 26 days); d. Count 4 – 8 years, 11 months and 4 days concurrent; e. Count 5 – 5 years concurrent; f. Count 6 – 6 months concurrent; g. Count 7 – 1 day concurrent.

[73] I also impose the following ancillary orders: a weapons prohibition order for 10 years, a forfeiture order as agreed between counsel and a DNA order. I waive imposition of the victim fine surcharge.

[74] Mr. Lu, I wish you good luck. I also wish to thank counsel for their most professional assistance and skill.

Justice J. Di Luca

Release Date: March 28, 2022

NOTE: As noted in court, on the record, this decision in writing is to be considered the official version of the Reasons for Sentence and takes precedence over the oral Reasons read into the record.

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – THANH HAI LU Defendant REASONS FOR SENTENCE The Honourable Justice J. Di Luca

Released: March 28, 2022