COURT FILE NO.: CR- 21-90000487-0000
DATE: 20231121
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
- and -
XING HUNG TRUONG
Diana Lumba and Elisa Mastrorillo, Counsel for the Public Prosecution Service of Canada
Soban Ponnampalam, Counsel for Mr. Truong
HEARD: April 6, August 16, and November 21, 2023
HIMEL J.
REASONS FOR SENTENCE
[1] Xing Hung Truong entered pleas of guilty to the following charges: possession of fentanyl for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 as amended (“CDSA”), possession of heroin for the purpose of trafficking contrary to s. 5(2) of the CDSA, possession of cocaine for the purpose of trafficking contrary to s. 5(2) of the CDSA, and possession of proceeds contrary to s. 354(1)(a) of the Criminal Code of Canada, R.S.C., 1985, c. C-46. He had elected to be tried by a judge sitting alone.
[2] The plea inquiry pursuant to s. 606(1) of the Criminal Code was satisfied. Mr. Truong confirmed that he was entering these pleas voluntarily, that he understood that the pleas were an admission of the essential elements of the offences, that he was aware that he was giving up his right to have a trial, that he understood the nature and consequences of the pleas, and that he was aware that this court was not bound by any agreement made between counsel regarding the sentence. I ordered that a pre-sentence report (“PSR”) be prepared. It has now been received. Counsel have made their submissions on sentence. The following are my reasons for sentence.
FACTUAL BACKGROUND
[3] In August 2020, members of the Toronto Drug Squad were investigating Mr. Truong and his involvement in drug trafficking in Toronto. They obtained a CDSA search warrant to search #903 –10 Tobermory Drive, Toronto which they believed was his residence. When they executed the warrant on August 21, 2020, they found Mr. Truong sleeping in a make-shift bedroom set up in the living room. Upon search of the apartment, they located quantities of heroin, fentanyl, and cocaine, used and unused plastic packaging, a functioning digital scale, two cellphones, and personal paperwork. They also found a mug, a knife with cocaine residue, a passport and health card in the name of Mr. Truong, and tax returns in the name of Mr. Truong in the hallway closet. No evidence was found in his sister’s bedroom or in his mother’s bedroom.
[4] Police further obtained a search warrant for Mr. Truong’s vehicle – a black 2005 Toyota Corolla with licence plate number CEVK 198. In the car, police located heroin, fentanyl and cocaine along with another digital scale.
[5] From the residence, the breakdown of what was seized is as follows:
• 54.65 grams of a heroin and caffeine mixture;
• 87.43 grams of a fentanyl and dimethyl sulphone mixture with 7.35 grams also mixed with caffeine;
• 85.48 grams of a cocaine and phenacetin mixture;
• 25.27 grams of cocaine; and
• Canadian currency in the amount of $905
[6] From the car, the breakdown of what was seized is as follows:
• 9.44 grams of heroin and caffeine mixture in the CD storage slot;
• 7.29 grams of fentanyl, dimethyl sulphone and Furanyl UF-17 mixture in the CD storage slot; and
• 6.77 grams of cocaine in the centre console as well as a functioning digital scale.
[7] The total amounts seized are as follows:
• 94.72 grams of fentanyl;
• 117.52 grams of cocaine;
• 64.09 grams of heroin; and
• Canadian currency in the amount of $905.
[8] The street value of the 64.09 grams of heroin was between $4,560 to $12,820. The street value of the fentanyl was between $10,350 to $21,278. The street value of the cocaine was between $5,530 to $13,921. The total street value of the drugs seized ranged from $20,440 to $48,019. It was agreed that the drugs were possessed for the purpose of trafficking.
POSITIONS OF THE PARTIES
The Crown Position
[9] The Crown submits that an appropriate sentence in this case is a global sentence of 7 years’ imprisonment. This would be broken down as follows: 7 years for the possession of fentanyl for the purpose of trafficking conviction, 2.5 years for the possession of cocaine for the purpose of trafficking conviction served concurrently to the fentanyl conviction, 3 years for the possession of heroin for the purpose of trafficking conviction also served concurrently to the fentanyl sentence, and 30 days for possession of proceeds obtained by crime also served concurrently to the sentence of 7 years. The Crown further submits that certain ancillary orders ought to be made, namely a forfeiture order for the cash and paraphernalia located at the home and in the car of Mr. Truong, a s. 109 order for life, and an order that a DNA sample be taken.
[10] Counsel argues that the sentence proposed by the defence is outside the range of sentence for offences of this kind. She says the range from the Court of Appeal for Ontario is 6 to 9.5 years for offences involving similar quantities of fentanyl. She points to R. v. Sidhu, 2019 ONCA 880, where the Court of Appeal upheld the global sentence imposed by the Ontario Court of Justice of 8 years and 2 months for convictions of trafficking and possession for the purpose of trafficking in heroin, fentanyl and methamphetamine. The sentence was 9 years and 6 months for the fentanyl conviction with credit that reduced the sentence to 8 years and 2 months. The appellant was 25 years old at the time of the offences, had prior related convictions and resumed commercial trafficking within months of his release on parole while bound by probation orders and subject to weapons prohibitions: R. v. Sidhu (16 June, 2017), Kitchener (Ont. Prov. Ct.). The court wrote that it could not be said that the sentence imposed was demonstrably unfit given the aggravating factors including the near-immediate return to commercial trafficking of the appellant following his release from custody, the nature and variety of highly addictive drugs which he trafficked, and the significant problems in the community involving opioids, particularly fentanyl coupled with its tragic consequences: Sidhu, at para. 4.
[11] Crown counsel takes the position that the case of Mr. Truong is quite similar to the case of Mr. Sidhu considering the amount of fentanyl involved (89.5 grams as opposed to 94.7 grams), the prevalence of fentanyl in the community, the seriousness of the offences, that they each used cocaine, that there were three different Schedule I substances involved, that they were youthful (Mr. Truong was 27 years old), had family support, entered guilty pleas, had a criminal record and returned to commercial trafficking within months of release from custody.
[12] The Crown also points to R. v. Disher, 2020 ONCA 710, 153 O.R. (3d) 88, where the Ontario Court of Appeal allowed a sentence appeal from a 12-year sentence and imposed a sentence of 8 years’ imprisonment where the appellant, on the first day of trial, pleaded guilty to a number of offences including drug offences, possession of proceeds obtained by crime, possession of a prohibited weapon, breach of probation, and breach of recognizance. In a hotel room safe, he had 42.6 grams of mixed powder substances including heroin, fentanyl and derivatives of fentanyl as well as 47.5 grams of marijuana. At the time of his arrest, he had been on release on a recognizance for two weeks on other drug charges. The sentencing judge noted the aggravating factors which were the gravity of the offences and Mr. Disher’s serious and related criminal record. The Court of Appeal held that the sentencing judge erred by failing to consider Mr. Disher’s rehabilitative prospects evidenced by his rehabilitative attempts while in custody and his rehabilitative potential.
[13] In Disher, Justice Gillese noted the aggravating factors which included Mr. Disher’s serious and related criminal record. By way of mitigating factors, she reviewed his long-standing addiction to crystal methamphetamine, his guilty plea on the first day of trial, that this was his first penitentiary sentence, and that he has shown rehabilitative potential. In keeping with Disher, Crown counsel submits that the range of 8 years’ imprisonment for possession of 42.6 grams of fentanyl for the purpose of trafficking was considered appropriate.
[14] In the case of R. v. Boose, 2023 ONCA 493, the Court of Appeal upheld a sentence of 6.5 years for possession of 71.96 grams of fentanyl for the purpose of trafficking before credit for pre-sentence custody was considered. At para. 3, the court wrote, “[t]he sentence falls squarely within the range for this amount of fentanyl.” In R. v. Smith, 2023 ONCA 500, the Ontario Court of Appeal upheld a sentence of six years for the count of possession of 28.6 grams of fentanyl for the purpose of trafficking.
[15] The Crown argues that Mr. Truong had a normal childhood, was raised by a hardworking mother, that there is passing mention of mental health issues in the pre-sentence report, that Mr. Truong has no full-time employment, and has no goals for work or school. He has not taken steps towards pro-social behaviour. He has not demonstrated how he will change the negative influences in his life.
[16] In summary, Crown counsel submits that a global sentence of 7 years takes into account not only the principles of denunciation and deterrence but also the aggravating factors namely that Mr. Truong has a limited but closely related criminal record. The record includes entries for two counts of possession for the purpose of trafficking. For these offences, Mr. Truong received 26 months and a weapons prohibition on the first count, and 6 months concurrent on the second count. He was on parole for these offences when he committed the offences in the instant case. The street value of the drugs is between $20,440 and $48,619 which demonstrates that the drugs were possessed for commercial purposes and Mr. Truong was motivated by profit. Crown counsel notes that the mitigating factors are that he has entered a guilty plea and is taking responsibility for his actions. However, the plea was on the eve of the trial date.
[17] With respect to the issue of credit for pre-sentence custody, the Crown takes the position that credit for pre-sentence custody of 182 days on a 1.5:1 basis would equal 273 days. With respect to credit for difficult conditions during pre-sentence custody, she says that in accordance with R. v. Duncan, 2016 ONCA 754, should this court grant credit for lockdown conditions, Mr. Truong should receive an additional 57 days of credit. With respect to credit for restrictive bail conditions, in accordance with R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 37 C.R. (6th) 46 (Ont. C.A.), she recommends that the court credit Mr. Truong with seven months (213 days) for being on bail under house arrest and with electronic monitoring. The condition of electronic monitoring was varied with the Crown’s consent on May 2, 2022. The total amount of credit would be 543 days.
The Defence Position
[18] Counsel for the defence takes the position that an appropriate sentence is a global sentence of 4 years with credit for pre-sentence custody. The defence points out that Mr. Truong is now 30 years old, has one conviction from 2017 for possession for the purpose of trafficking, has pleaded guilty on these charges, and has saved the court valuable resources. He has taken responsibility for his actions. There were no firearms or violence associated with the possession of the drugs. Counsel submits that Mr. Truong was an addict dealer who used heroin, cocaine, and ecstasy. Reference is made in the PSR about his drug use and how his addiction affected him adversely. Mr. Truong has since attended rehabilitation programs and now is clean and sober. He was raised by his mother alone and she and his sister are very supportive of him. He is ashamed and upset by what he has done and suffers from depression and anxiety. Counsel says that once he has dealt with these matters, he wishes to travel to Vancouver and work with extended family who reside there.
[19] The defence relies on the decision of R. v. Jaber, 2021 ONCJ 247 to support the position that four years of custody is an appropriate sentence. In that case, the offender pleaded guilty to possession of fentanyl and heroin for the purpose of trafficking, possession of methamphetamine for the purpose of trafficking, possession of marijuana for the purpose of trafficking, possession of proceeds exceeding $5,000, several gun offences, and failure to comply with a probation order. Mr. Jaber received a four-year global sentence.
[20] Counsel further relies on R. v. Herchuk, 2011 ABPC 367, [2011] A.J. No. 1383, where Justice T.C. Semenuk sentenced Mr. Herchuk to three years’ imprisonment with credit of seven months of pre-sentence custody for nine drug and weapons offences. None of the drugs involved fentanyl. Counsel submits that a sentencing range is only a guideline. The court can impose a sentence outside of the range so long as it considers the principles of sentencing.
[21] The defence filed the lockdown records of the Toronto South Detention Centre. The records show that there were 114 days of lockdowns during the time Mr. Truong was in custody. Furthermore, this was during the time of the COVID-19 pandemic which was a particularly difficult time. He refers to the case of R. v. Warsame, 2022 ONSC 424, at paras. 42 to 61, Justice Molloy considered the question of enhanced credit for extremely harsh conditions while the accused was in custody. The accused was awarded 300 days of credit. In the case at bar, counsel seeks an additional day for each day of lockdown.
[22] Counsel for the defence also refers to the time spent under bail conditions since Mr. Truong’s release from custody. He points to para. 69 of Herchuk which addresses the question of credit for time spent on stringent bail conditions in accordance with Downes. Mr. Truong was released on a bail with his mother and sister as his sureties. He was also required to reside with his mother and be subject to house arrest and electronic monitoring. The electronic monitoring condition was removed on May 2, 2022. However, Mr. Truong could not work or go outside of the home without a surety. Counsel seeks 365 days for Downes credit.
[23] In summary, at the time of the submissions on sentence, the credit being sought by counsel for the defence was 273 days to represent credit in accordance with R.v. Summers [2014]. S.C.R. 575 at 1.5:1, 111 days to represent the lockdown days in custody in accordance with Duncan, and 365 days for time spent on release on stringent bail conditions in accordance with Downes. This would total 749 days of credit for pre-sentence custody and stringent bail conditions.
EVIDENCE ON THE SENTENCING HEARING
[24] Counsel filed an Agreed Statement of Facts which has been marked as an exhibit. Crown counsel submitted the criminal record of Mr. Truong which indicates that on December 5, 2017, he was convicted of possession of a Schedule I substance for the purpose of trafficking contrary to s. 5(2) of the CDSA and received a sentence of 26 months’ imprisonment and a weapons prohibition pursuant to s. 109 of the Code. He was also convicted of possession of a Schedule I substance for the purpose of trafficking and received a sentence of six months to be served concurrently. The Crown also provided the court with a chart to demonstrate the Crown’s calculations of pre-sentence custody credit for the time Mr. Truong spent in custody and the time spent on release subject to house arrest.
[25] Counsel for Mr. Truong filed the lockdown records from the Toronto South Detention Centre where Mr. Truong was incarcerated from his arrest on August 21, 2020 until September 13, 2021 when he was released on house arrest with electronic monitoring.
[26] The pre-sentence report dated September 8, 2023 was filed as an exhibit at the hearing and its contents are discussed below.
ANALYSIS AND THE LAW
[27] Before turning to the specific circumstances of this case, I first consider the general sentencing principles which apply. The fundamental purpose of sentencing is set out in s. 718 of the Criminal Code. It is to ensure respect for the law and to promote a just, peaceful and safe society. The imposition of just sanctions requires that I consider the sentencing objectives referred to in this section which include denunciation of unlawful conduct, deterrence of the offender and other persons from committing offences, separating offenders from society where necessary, rehabilitation of offenders, providing reparation for harm done to victims or to the community, promoting a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community.
[28] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. When imposing sentence, I am to take into account certain factors which may increase or reduce the sentence because of aggravating or mitigating circumstances. The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This is known as the principle of parity reflected in s. 718.2(b). Where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh otherwise known as the principle of totality reflected in s. 718.2(c). The offender should not be deprived of liberty if less restrictive sanctions are appropriate and all available sanctions other than imprisonment that are reasonable in the circumstances, should be considered for all offenders, particularly Aboriginal offenders. These are known as the principles of restraint reflected in ss. 718.2(d) and (e).
[29] I now turn to the relevant jurisprudence on sentencing applicable to the offences in this case. In cases involving persons convicted of trafficking and possession for the purposes of trafficking in controlled substances, the courts have ruled that deterrence and the protection of the public are of paramount consideration. The nature and quantity of the drug are relevant to the issue of sentencing. Whether there is a significant element of commercialism, the role of the offender and the circumstances of the offender are all relevant considerations. In passing sentence, the court may consider the well-being of younger but presently uncommitted potential users of drugs and in so doing, impose a sentence which emphasizes the protection of the public. The court will also look to the circumstances of the offender including whether the offender has an addiction to drugs.
[30] In the decision of R. v. Parranto, 2021 SCC 46, 463 D.L.R. (4th) 389, the Supreme Court of Canada upheld that the Alberta Court of Appeal correctly intervened where it found that the sentences imposed at first instance were demonstrably unfit for cases of largescale fentanyl trafficking and that severe penalties involving double-digit penitentiary terms were appropriate.
[31] Justice Moldaver wrote a concurring opinion which agreed with the majority that the sentences imposed by the trial judges were both demonstrably unfit and fell below the range of sentences warranted in cases like this: Parranto, at para. 84. Justice Moldaver said that he wished “to focus on the gravity of largescale trafficking in fentanyl for personal gain and the need to impose severe penalties and went on to write at para. 86, “In my view, society’s understanding of the gravity of largescale fentanyl trafficking has increased such that an upward departure is mandated.” He went on to describe the dangers posed by trafficking in hard drugs including direct and indirect harms to society and considered the specific dangers posed by largescale fentanyl trafficking given the potency of the drug and the risk of overdose and death. While he wrote that heavy penitentiary sentences are appropriate for offenders who have trafficked in large quantities of fentanyl, he did say at para. 99, “[m]y comments that follow do not apply to sentences for street level trafficking or where traffickers are motivated by a need to support their own addiction.” While the range of sentence discussed by the Supreme Court in Parranto is not applicable to the case at bar, the comments regarding fentanyl trafficking are relevant.
[32] In Disher, referred to above, the Court of Appeal for Ontario noted that caselaw on sentences for trafficking in fentanyl is still developing but that a sentence of eight years is consistent with that received by offenders who are mid-level recidivist traffickers of heroin adulterated with fentanyl. In R. v. Loor, 2017 ONCA 696, [2017] O.J. No. 4628, the court held that offenders who traffic significant amounts of fentanyl should “expect to receive significant penitentiary sentences”: at para. 50. The Court of Appeal upheld a six-year sentence for Mr. Loor who was a low-level member of a trafficking ring, had trafficked in 45 fentanyl patches obtained through a forged prescription, and had a criminal record that included a prior conviction for trafficking. In R. v. Lloyd, 2019 BCCA 128, [2019] B.C.J. No. 631, the British Columbia Court of Appeal upheld a six-year sentence for an offender found in possession of 51.29 grams of heroin mixed with fentanyl. There were a number of other convictions including for weapons related offences. Mr. Lloyd had ten prior convictions for possession for the purpose of trafficking.
[33] The defence had submitted the case of Jaber to support its position that a four-year sentence is appropriate. In Jaber, the offender pleaded guilty to having possession of 223 grams of fentanyl for the purpose of trafficking. There were more aggravating features in that case in that Mr. Jaber also had two firearms and $170,000 in his possession. The Crown sought an 11-year sentence and the defence sought a sentence of two years served as a conditional sentence. Mr. Jaber had a limited but related criminal record. Like Mr. Truong, he was young and had social supports. The court sentenced him to four years.
[34] Crown counsel argues that the Jaber case may be distinguished in several respects. First, in Jaber, there was agreement that Mr. Jaber was holding the drugs and items for someone else when he was found in possession and that he was just a pawn. In Mr. Truong’s case, he was in sole possession of the drugs. In Jaber, his life circumstances involved a traumatic childhood which included sexual abuse. Mr. Truong had a normal childhood and was raised by a hardworking mother. Mr. Jaber suffered from mental health issues and severe Attention-Deficit / Hyperactivity Disorder. In Mr. Truong’s case, there was only passing mention of mental health issues. Mr. Jaber had several letters from community members in support. Mr. Truong had some family members who wrote letters. Mr. Jaber worked two full time jobs. Mr. Truong did not have employment. Mr. Jaber had completed college and Mr. Truong did not complete high school and had not made efforts to enroll in higher education. Mr. Truong’s attitude in delaying in contacting the probation office and in not taking steps towards prosocial behaviour distinguish him from Mr. Jaber.
[35] The sentencing decisions for possession for the purpose of trafficking in cocaine suggest a range of sentence between six months to two years less a day depending upon the circumstances of the offence and the offender: see R. v. Woolcock, [2002] O.J. No. 4927 (Ont. C.A.), at para. 15. The quantity of the drugs involved, the nature of the transactions and the criminal antecedents of the offender are all relevant considerations.
[36] The sentencing jurisprudence for possession of heroin for the purpose of trafficking also emphasize the principles of denunciation and deterrence.
DECISION
[37] Sentencing involves the exercise of discretion and requires the sentencing judge to consider the individual circumstances of the offender, the circumstances of the offence and the need for the sentence to meet the sentencing objectives outlined by Parliament. The goal of sentencing is to impose a just and fit sentence, responsive to the facts of the individual offender and the particular circumstances of the commission of the offence: see R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455 at para. 44. The sentencing process is an individualized one, but the court must remain mindful of the sentencing ranges discussed in the jurisprudence.
[38] In considering both the circumstances of the offence and the circumstances of this offender, I consider the relevant aggravating and mitigating circumstances. I must also consider that like offenders should be treated alike. I consider the following circumstances to be relevant in the case of Mr. Truong.
[39] Mr. Truong is 30 years of age and was born on February 26, 1993. He resides with his mother and his grandparents. His parents had immigrated to Toronto from Vietnam in 1992 and divorced when Mr. Truong was seven years old. The mother described her ex-husband as an absentee parent who did not have a strong commitment to his family. Mr. Truong’s mother and sister, who is now 28 years old, as well as his grandparents have played an important role in Mr. Truong’s life. Mr. Truong’s mother is employed as a cleaner and his sister is a teacher. Mr. Truong is close to his sister and has a minimal relationship with his father. Currently, he is financially dependent on his mother who has worked very hard to support her family.
[40] Mr. Truong dropped out of school in Grade 11 because of negative peer pressure and involvement in drug activity. He wanted to enroll in an adult school but was not committed to it. He has not held employment exceeding one year. His work was in warehouse positions and contract employment. He is not receiving social assistance. Mr. Truong plans to seek employment. As for substance use, he told the probation officer that he experimented with marijuana and cocaine. He later began consuming alcohol and experimented with heroin, crack cocaine, and ecstasy. He says he is clean and sober and has quit all substances, acknowledging that drugs affected his work, education and family relationships and led to his current legal issues. He has attended a rehabilitation program and found it beneficial.
[41] The probation officer also noted that Mr. Truong attended at the probation office only after several attempts were made to contact him. He did not show remorse for the delay. However, he was polite, honest and recognized his weakness in succumbing to peer pressure. He spends most of his leisure time with his family as his associates have a negative influence on him. His mother and sister are concerned about his mental health and that he can be manipulated easily by others. Mr. Truong showed that he was regretful and ashamed of his offences before the court.
[42] The probation officer noted that Mr. Truong is willing to report, attend counselling, or pay restitution once he is able. The probation officer has some concerns about his history of non-compliance, substance abuse and negative peer influences but made various recommendations about conditions of probation should the court order community supervision.
[43] Cases regarding the appropriate range of sentence for possession of fentanyl for the purpose of trafficking emphasize denunciation and deterrence. The effect of fentanyl on drug users is a relevant consideration and the courts view the incredibly negative impact of this drug on users and on society. While the Supreme Court in Parranto deals with sentencing for commercial high-level drug trafficking in fentanyl, the court’s comments regarding the harm caused by this drug are especially relevant. The jurisprudence cited by the Crown supporting a 6-to-9.5-year range for trafficking or possession of fentanyl for the purpose of trafficking in fentanyl highlight the ills caused by this drug.
[44] Possession of cocaine for the purpose of trafficking is also a serious offence. Cocaine is a highly addictive drug. In Woolcock, the Court of Appeal for Ontario observed that sentences for trafficking in dangerous substances must emphasize that general deterrence and denunciation are of paramount concern. Each case must be considered in light of its circumstances and the aggravating and mitigating factors. The accused’s prospects for rehabilitation as well as the other sentencing objectives must also be considered.
[45] As mentioned above, sentencing decisions for possession of heroin for the purpose of trafficking emphasize the principles of denunciation and deterrence. The amount of the drugs involved, the scale of the operation, and the personal circumstances of the offender are all relevant considerations.
[46] In the case at bar, there are many factors in mitigation including that Mr. Truong pleaded guilty to the charges and has demonstrated remorse. He is taking responsibility for his actions. He has saved valuable court resources at a time when resources are scarce because of the aftermath of the COVID-19 pandemic. Crown counsel says that there is nothing in the PSR that suggests that the sentence imposed should be one outside the range of sentence suggested by the Court of Appeal. However, I find that the PSR demonstrates that Mr. Truong has strong family support from his mother and sister who also attended court each day, that Mr. Truong was engaged in substance use but now seems to be clean and sober, and that he has made some efforts at rehabilitation, although there are no details about that before the court. While he has not taken steps to complete his education or to find work, perhaps the time spent in the penitentiary will be well spent as he can avail himself of various programs that are offered.
[47] Another factor in mitigation is that there was no violence or evidence of guns when the warrant was executed either in the apartment or in the car. While Crown counsel says there was no evidence that Mr. Truong was trafficking in drugs to support his own drug habit such as indicia in the apartment of personal use, there is mention in the PSR regarding Mr. Truong’s use of drugs as a youth and at the time of the offences. I would not characterize him as an “addict/trafficker” but there are certainly references to his drug use over the years. In his statement to the court, he said that he understands the effects of drugs and the negative impact upon his family.
[48] The aggravating factors include the nature of the offences, the types of drugs, and the effect of these types of offences on the public. Fentanyl and heroin are two of the deadliest substances in the community. As the Supreme Court of Canada observed in Parranto, the prevalence of fentanyl in the community is of grave concern. It is obvious that Mr. Truong was in possession of the three Schedule I substances in substantial amounts for the purpose of earning a profit. The further aggravating factor is that he has a criminal record for drug offences, although it is somewhat dated. However, he was on parole when these offences were committed in August 2020. Section 718.2(a)(vi) of the Criminal Code provides that one of the circumstances the court ought to consider in imposing a sentence includes “evidence that the offence was committed while the offender was subject to a conditional sentence order made under section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act.”
[49] In the case at bar, Mr. Truong has addiction issues which are not documented nor treated. It is also possible that he suffers from Attention-Deficit / Hyperactivity Disorder. He has no concrete plans for the future but hopes to move to Vancouver to work with relatives. Crown counsel has pointed out several distinguishing features between the Jaber case and the case before me. The facts in Jaber were different in light of Mr. Jaber’s role in the offences and his individual personal circumstances which justified a four-year global sentence. Those circumstances do not apply to the same extent here in order to take this case outside of the range of 6 to 9.5 years for offences involving similar quantities of drugs including fentanyl: see also Boose.
[50] In summary, a sentence for these offences must emphasize denunciation and deterrence. The sentence must also recognize that Mr. Truong committed the offences while on parole, which the Criminal Code provides is a relevant consideration. Further, the jurisprudence involving sentences for offences of possession of fentanyl for the purpose of trafficking in similar quantities places the sentences in the 6-to-9.5-year range. A sentence must recognize that Mr. Truong had possession of a number of Schedule I substances and the amounts in his possession were substantial. I am mindful that there are cases that call for a sentence outside a particular range and the determination of a just sentence is a highly individualized exercise: see: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 57 and 58. I consider that Mr. Truong entered a guilty plea and has demonstrated remorse. I also accept that he suffered from some addiction at the time of the offences.
The issue of credit for harsh pre-sentence conditions according to R. v. Duncan and R. v. Marshall and credit for conditions of judicial interim release according to R. v. Downes
[51] In Duncan, the Court of Appeal for Ontario recognized that harsh pre-sentence conditions can provide mitigation and enhanced credit in fashioning a suitable sentence. In R.v.Marshall,2021 ONCA 344, 2021ONCA 344, at paras. 52 and 53, the Court of Appeal for Ontario clarified that Duncan credit is available for “particularly punitive pretrial incarceration conditions” as a mitigating factor to be taken into account when imposing sentence. However, the court cautioned that, while not “necessarily inappropriate”, quantifying Duncan credit may be unwise as it allows for Duncan credit, in and of itself, to overwhelm an appropriate sentence. Rather, such conditions have been considered as part of the mitigating factors in the sentencing process. However, there are cases where quantifying the credit has been done: see R. v. Kongolo, 2022 ONSC 3891 at para. 82.
[52] As for jurisprudence on the impact of harsh conditions of pre-sentence custody, there have been several decisions from the Superior Court of Justice and the Ontario Court of Justice expressing concern about the number of lockdown days at the Toronto South Detention Centre and the conditions of incarceration: see R. v. Persad, 2020 ONSC 188; R. v. Spicher, 2020 ONCJ 340, at paras. 59-68; R. v. Jama et al., 2021 ONSC 4871, at paras. 51, 53, 55. For more recent cases on the effects of harsh conditions in pre-sentence custody see R. v. Starostin, 2023 ONSC 3677, at paras. 52 and 53; R. v. Kongolo, 2022 ONSC 3891, at paras. 82 and 83; R. v. Pathmanathan, 2023 ONCJ 142; R. v. Bahamonde, 2022 ONSC 916, at para. 80; R. v. Doyle, 2022 ONSC 2489, at paras. 53 – 63; R v. Haj, 2022 ONSC 1457, at paras. 8 and 9; and R. v. Owusu-Boamah, 2023 ONSC 496, at para. 42.
[53] In other cases, rather than quantifying the credit, courts have taken the circumstances of incarceration into account when fashioning a sentence.
[54] For example, in R. v. Bernard, 2021 ONSC 5817, Justice Forestell reduced the sentence from seven years to five years where the accused had served a total of 536 days during the pandemic, 456 of which were lockdown days. At para. 26, she commented as follows:
Credit for harsh conditions can serve two functions: Taking into account the impact of the conditions on the offender and giving credit for them serves to ensure that the sentence is proportional and individualized. In addition, credit for harsh conditions can serve a communicative function. It conveys the message to state actors that inhumane conditions are unacceptable. (See: R. v. Persad, 2020 ONSC 188.)
[55] Similarly, in the case of R. v. Baldwin, 2021 ONSC 7025, at paras. 15 and 74, Justice Maxwell held that an accused who was subject to 233 lockdown days of 512 days served during the pandemic should be credited with one year of Duncan credit.
[56] With respect to Downes credit, this sentence should also recognize that Mr. Truong has already been released in the community, has been under court supervision, and has not breached its terms for two years. The terms were extremely restrictive and affected his liberty. Mr. Truong was released from custody on September 13, 2021 under terms of house arrest and with electronic monitoring. He applied for a variation to remove the electronic monitoring and the Crown consented. The condition was removed on May 2, 2022. He resided with his mother and sister and had to be in the direct presence of one of his sureties at all times. The terms of release should also be considered in fashioning the overall sentence and reducing the sentence accordingly.
RESULT
[57] Mr. Truong shall be sentenced as follows: for the offence of possession of fentanyl for the purpose of trafficking, he shall be sentenced to 6 years imprisonment; for the offence of possession of heroin for the purpose of trafficking, he shall be sentenced to 3 years to be served concurrently to the possession of fentanyl offence; for the offence of possession of cocaine for the purpose of trafficking, Mr. Truong shall be sentenced to a period of 2.5 years to be served concurrently to the possession of fentanyl for the purpose of trafficking offence; for the offence of possession of proceeds ($905), he shall be sentenced to 30 days to be served concurrently to the possession of fentanyl offence. The global sentence for these offences shall be six years.
[58] Mr. Truong served a sentence on other charges from April 30, 2019 until January 27, 2020. He was granted parole on January 27, 2020 which he was on until August 21, 2020. On August 21, 2020, he was arrested on these charges and detained in custody until March 15, 2021. He was serving a prior sentence during this time. Following the completion of his prior sentence, he was in custody from March 16, 2021 to May 3, 2021. On May 3, 2021, he applied for bail but was detained. On September 13, 2021, he was ordered released with the Crown’s consent. Therefore, Mr. Truong is eligible for credit for time spent in custody on these charges from March 16, 2021, until September 13, 2021, a total of 182 days. On a 1.5:1 basis in accordance with R. v. Summers, this would equal 273 days. With respect to Duncan credit, in light of the lockdown records filed and the impact of harsh conditions during Mr. Truong’s incarceration, he shall be credited with an additional 0.5 or half day for each day in custody which would equal 91 days. This would be a total of 364 days. As for credit for restrictive bail conditions, in keeping with the approach in Downes, where the offender received five months of credit for 18 months on house arrest, I would grant Mr. Truong, who has been on bail for 24 months, with eight months of credit. The total credit given is 1 year and 8 months or 20 months against the six-year sentence. The remaining sentence left to be served is 4 years and 4 months.
[59] There will be a s. 109 order for life. I also order that Mr. Truong provide a sample of his DNA pursuant to s. 487.051(3) of the Criminal Code as this is a “secondary designated offence” under this provision.
[60] I further order that the money and drug paraphernalia found in Mr. Truong’s residence be forfeited to the Crown. There will be no Victim Fine Surcharge imposed.
Himel J.
Released: November 21, 2023