Court File and Parties

Court File No.: CR-23-00001-00 Date: 2024-10-08

Superior Court of Justice – Ontario

B E T W E E N:

HIS MAJESTY THE KING

- and -

ADAM LUANGPHASI and ALEXANDER LE

Defendants

Before: S.E. Fraser J. (orally)

Counsel: K. Yeh, for the Crown A. Gerges and J. Vamadevan, for the Defendant, Adam Luangphasi C. Tarach, for the Defendant, Alexander Le

Heard: Sentencing Submissions heard June 20, 2024

Reasons for Sentence

I. Overview

1Mr. Adam Luangphasi and Mr. Alexander Le were arrested along with several other persons following a large investigation by the York Regional Police and the Ontario Provincial Police dubbed “Project Southam”. Several trials were conducted in respect of those arrested. Three others appeared on the indictment at the outset of this trial, and I severed them from the indictment.

2On February 23, 2024, after a trial before me, I found Mr. Adam Luangphasi, guilty on Count 1, conspiracy to traffic cocaine contrary to s. 5(1) of the Controlled Drugs and Substances Act (CDSA), thereby committing an offence contrary to s. 465(1)(c) of the Criminal Code, (the Carpet Conspiracy), on Count 5, conspiracy to import cocaine contrary to s. 6 of the CDSA, thereby committing an offence contrary to s. 465(1)(c) of the Criminal Code (the Guyana Conspiracy), and on Count 7, conspiracy to import cocaine for a second conspiracy (the Plane Conspiracy).

3On September 25, 2023, Mr. Le pleaded guilty to Count 16 on the indictment and I found him guilty of conspiracy to export cannabis from Canada contrary to s. 11(1) of the Cannabis Act, thereby committing an offence contrary to s. 465(1)(c) of the Criminal Code (the Cannabis Conspiracy).

4On February 23, 2024, on I found Mr. Le guilty on Count 1, conspiracy to traffic cocaine contrary to s. 5(1) of the CDSA in relation to the Carpet Conspiracy and on Court 5, guilty of conspiracy to import cocaine contrary to s. 6 of the CDSA, in relation to the Guyana Conspiracy.

5Today, I will pronounce sentence on Mr. Luangphasi and Mr. Le. These are my reasons for sentence.

II. Facts

A. Circumstances of the Offence

6Project Southam was a multi-jurisdictional police investigation relating to the importation and trafficking of cocaine. Over the course of many months, police surveilled Mr. Luangphasi and Mr. Le and others, through wiretaps and vehicle probes and other means.

7Mr. Luangphasi and Mr. Le were in constant communication with each other, as evidenced in the wiretaps. Mr. Luangphasi was a leader in the Guyana Conspiracy and the Plane Conspiracy and Mr. Le appeared devoted to Mr. Luangphasi. I found that there was a tacit agreement by Mr. Le to act in a common criminal objective with Mr. Luangphasi and that Mr. Le assisted Mr. Luangphasi.

8On the Carpet Conspiracy, I held that they were conspiring to traffic cocaine that was obtained through the importation of carpets from which cocaine was extracted.

9On the Guyana Conspiracy, Mr. Luangphasi and Mr. Le also conspired to import 30 to 40 kilograms of cocaine from Guyana.

10In respect of the Plane Conspiracy, Mr. Luangphasi conspired to import cocaine with Mr. Giedrius Kesminas, Hans Lauro, Nathan Brown, Owen Vogelson and Basil Dixon. The aim was to import 300 kg of cocaine by airplane with Mr. Kesminas either piloting the plane or renting the plane through his connections.

11In the case of Mr. Le, the Project Southam investigation led to a charge of conspiracy to export of cannabis. On May 19 and 20, 2021, communications were intercepted between Mr. Le and another person, which ultimately led to an agreement and a transaction on June 14 and 15, 2021 to ship cannabis. The admitted facts which are at Exhibit 8 to the trial proceedings demonstrate that between May 19, 2021 and June 15, 2021 Mr. Le conspired to export 400 lbs of cannabis, which was seized on June 15, 2021.

B. Circumstances of the Offender

(i) Mr. Luangphasi

12Mr. Luangphasi is a 38-year-old man who was 34 at the time of the offences. He is the child of first-generation immigrants and grew up in Calgary in poverty with his parents both working very long hours, his mother a seamstress and his father working in construction. His wife Tanya Truong and he have been together since 2015 and were married in 2017. She has three children aged 11, 16 and 18 from a previous relationship who see Mr. Luangphasi as a father, and they have a son together who was born in 2020. Mr. Luangphasi assists with parenting. She describes him as a good man and a wonderful father.

13Mr. Luangphasi’s mother Laosinmui Luangphasi states that she struggled to give her children the guidance they needed when they were young and that she has seen him change from a troubled young man to a strong and caring adult who is a respected man in the community. She believes that he has a gentle heart.

14The Court received letters from his wife and his mother both who speak of him in positive terms. Mr. Luangphasi’s wife describes him as hardworking and devoted and that their lives were turned upside down in the Covid-19 pandemic when they both lost their jobs.

15Mr. Luangphasi has a criminal record. His most recent convictions were in 2009 for trafficking a Schedule I substance and trafficking a Schedule III substance for which he received a four-year sentence on each charge.

16While serving his sentence, he took a welding course at the Southern Alberta Institute. He has been employed in administrative positions and as a boxing coach. No letters of employment were filed. Mr. Luangphasi did not testify on sentencing.

(ii) Mr. Le

17Mr. Le is 32 years old. He has no criminal record. Counsel filed an extensive record with letters from family and friends who support Mr. Le, speak to his character and the support that he has provided his family and friends. Notably, his parents divorced in recent years and his mother has required substantial support which Mr. Le has provided. It is not clear what support Mr. Le’s mother will receive without him.

18At the time of the June, 2024 sentencing submissions, Mr. Le had been working at Pho Le Anh in Aurora, Ontario for a year and a half and Mr. Andrew Le states that he has been of assistance to the smooth running of the business. Mr. Andrew Le is Mr. Alexander Le’s brother and he pleaded for leniency noting that his brother’s absence would significantly impair the family’s ability to function.

19Mr. Le is a father. I have received a letter from his son asking me to consider that his father will miss key moments in his life like high school and university graduations. Mr. Le’s mother also pleads for leniency describing her son as the best son she could ask for.

20It is also important to note that while awaiting trial, Mr. Le volunteered at the China Meizhou Mazu Temple Canada from September, 2021 to January 2024 totalling 828 hours and that he was a valuable member of the temple and that his contributions were invaluable.

C. Impact on the Victim and/or Community

21The importation and trafficking of illegal drugs has a negative and corrosive impact on society. In R. v. Russo, (1999), 42 O.R. (3d) 120 Justice Doherty stated “Conspiracies that contemplate the sale of large amounts of a drug like cocaine clearly pose a much more significant danger to the community than do agreements to supply small amounts to others for purely personal use.” It causes direct and indirect economic harm and kills and harms both directly and indirectly both from the product itself and the violent crime with which it is closely associated. See: R v. Hamilton and Mason, 72 OR (3d) 1, [2004] OJ No 3252, 72 OR (3d) 1.

III. Positions of Crown and Defence

22In respect of Mr. Luangphasi, the Crown seeks a custodial sentence of 19 years for the Plane Conspiracy, proposes a sentence of 15 to 16 years for the Guyana Conspiracy and a five-year sentence for the Carpet Conspiracy and ancillary orders.

23The Defence submits that the fit sentence is 10 years for the Plane Conspiracy, 6.5 years for the Guyana Conspiracy and four years for the Carpet Conspiracy.

24In respect of Mr. Le, the Crown seeks a sentence of 10 years as a global sentence and Mr. Le argues that a four-year global sentence on the Carpet and Guyana Conspiracies is appropriate and that I should impose a Conditional Sentence Order on a sentence of two years less a day in respect of the Cannabis Conspiracy.

IV. Sentencing Principles

25Section 718 of the Criminal Code provides that 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: 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 and the community, and the promotion of a sense of responsibility in offenders and an acknowledgment of the harm done.

26Section 718.1 mandates that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Sentencing judges must also consider parity such that offenders who commit similar offences in similar circumstances should receive similar sentence (See R. v. Friesen, 2020 SCC 9 at para. 31). This principle is reflected in section 718.2(b) of the Criminal Code.

27In Friesen, the Supreme Court again stated that that parity is an expression of proportionality. Sentencing precedents reflect “the range of factual situations in the world and a plurality of judicial perspectives. Precedents embody the collective experience and the wisdom of the judiciary. They are the practical expression of both parity and proportionality.” (Friesen, at paras. 32 and 33)

28I note also that I am bound by the principle of restraint. This means that I should not deprive an offender of his liberty if less restrictive sanctions may be appropriate in the circumstances.

29Sentencing must be tailored to the circumstances of the offence and the offender. The process of arriving at 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. (See R. v. Nur, 2015 SCC 15, at para 43).

V. Case Law

30In R. v. Hamilton, supra, the Court of Appeal held at paras. 104 to 105:

The importation of dangerous drugs like cocaine and others found in Schedule I of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 has always been considered among the most serious crimes known to Canadian law: "Sentencing Reform: A Canadian Approach", Report of the Canadian Sentencing Commission (Ottawa: Ministry of Supply and Services, 1987), p. 205. The immense direct and indirect social and economic harm done throughout the Canadian community by cocaine is well known: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, 160 D.L.R. (4th) 193, at pp. 1036-40 S.C.R., pp. 235-37 D.L.R., per Cory J., in dissent on another issue; R. v. Smith, [1987] 1 S.C.R. 1045, 34 C.C.C. (3d) 97, at pp. 1053-54 S.C.R., pp. 123-24 C.C.C. [page30 ]The use and sale of cocaine kills and harms both directly and indirectly. The direct adverse health effects on those who use the drug are enormous and disastrous. Cocaine sale and use is closely and strongly associated with violent crime. Cocaine importation begets a multiplicity of violent acts. Viewed in isolation from the conduct which inevitably follows the importation of cocaine, the act itself is not a violent one in the strict sense. It cannot, however, be disassociated from its inevitable consequences. Unlike the trial judge (para. 224), I characterize cocaine importation as both a violent and serious offence: see R. v. Pearson, [1992] 3 S.C.R. 665, 77 C.C.C. (3d) 124, at pp. 693-96 S.C.R., pp. 143-44 C.C.C.

Cocaine is not indigenous to Canada. Without the cocaine importer, whatever his or her motive or involvement, there would be no cocaine problem. Both before and after the amendments to the sentencing provisions in Part XXIII of the Criminal Code and the introduction of the sentencing provision (s. 10) into the Controlled Drugs and Substances Act, S.C. 1996, c. 19, this court has emphasized the gravity of the crime and, therefore, the need to stress denunciation and deterrence in sentencing all drug importers, even vulnerable first offenders. In Cunningham, supra, at pp. 790-91 O.R., pp. 546-47 C.C.C., the court, in fixing a range of six to eight years for couriers who smuggle large amounts of cocaine into Canada, said:

We recognize as well that the suggested range will often require the imposition of a severe penalty for first offenders. We are not insensitive to this concern, mindful as we must be that in many instances, couriers tend to be weak and vulnerable, thereby becoming easy prey for those who engage in drug trafficking on a commercial basis.

Sympathetic though we are to the plight of many couriers, such concerns must give way to the need to protect society from the untold grief and misery occasioned by the illicit use of hard drugs.

31I must therefore give primacy to denunciation and deterrence and recognize that the importation of cocaine is a serious and violent offence.

32I must also consider the principle of parity. I have had the benefit of reading Justice Boswell’s decision in R. v. Kesminas, 2024 ONSC 666. Mr. Kesminas was tried separately on Count 7, the Plane Conspiracy, and another count which did not relate to Mr. Luangphasi or Mr. Le. His involvement in the Plane Conspiracy was that he was to be the pilot and arrange for the plane as further discussed in Justice Boswell’s decision R. v. Kesminas, 2024 ONSC 666. Justice Boswell imposed a sentence of 7.5 years after taking into account his pre-sentence release conditions.

33The Crown also relies upon R. v. Buffone, 2021 ONCA 825. In that case, the Court of Appeal for Ontario imposed life sentences where the quantity of cocaine was 2,000 kilograms over a three-year period. There the Court of Appeal set out that sentences that were reached on the basis that joint submissions are not fit comparators and stated:

All sentencing starts with the proportionality principle: sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender: R. v. Friesen, 2020 SCC 9, at para. 30. The proportionality principle has long been central to Canadian [page410] sentencing and is now codified as the "fundamental principle" of sentencing in s. 718.1 of the Criminal Code: Friesen, at para. 30.

Parity is an expression of proportionality, and a consistent application of proportionality will lead to parity: Friesen, at para. 32. However, an approach that assigns the same sentence to unlike cases can achieve neither parity nor proportionality: Friesen, at para. 32. That is what occurred in the sentencing below.

34The Crown argues that I should not look to cases that were the subject of joint submissions, as they are not appropriate comparators. I agree that Buffone stands for this principle and that as a result, the sentence imposed in the case of Jefferson Diaz-Para does not assist me with the case here. Mr. Vogelson has yet to be sentenced. It is of note that Justice Boswell sentenced Mr. Kesminas to 7.5 years.

35In R. v. Duncan, 2016 ONSC 1319, Justice Code reviewed the sentencing range and summarized the case law respecting leaders in a conspiracy at para. 37. He stated:

In conclusion, this second group of cases discloses a range of 12 to 19 years for the leaders or principals in large scale cocaine importation schemes. Almost all of the accused were first offenders with families and almost all of them went to trial. The variation within the 12 to 19 year range appears to turn mainly on the quantities involved, as a reflection of the relative gravity, sophistication, and dangerousness of the particular schemes. As the Court of Appeal put it in R. v. Niemi, supra, "The sentence is imposed not to deter importing as a business venture but because of the extraordinary damage done by the drugs being imported". The trial courts bear witness every day to the widespread ravages and criminal consequences of cocaine addiction and cocaine trafficking. Accordingly, the proportionality principle requires a sentence that reflects the very high objective gravity of an offence that causes so much harm, and that objective gravity will vary with the quantities involved. This second group of cases appears to suggest that the 19 year top end of the range is reserved for cases involving "hundreds of kilos", that the 14 to 17 year middle range is appropriate for cases involving amounts in the high teens (e.g., 14 to 19 kilos), and that the 12 to 13 year bottom end of the range is appropriate for cases involving lesser amounts (e.g., 3 to 12 kilos).

36Therefore, there are two key factors emerging from the case law which are relevant to the principle of sentencing on conspiracy to import cocaine. One factor is the amount of cocaine sought to be imported or actually imported. A second factor is the role of the offender in the conspiracy. The court must examine whether the offender is a courier, someone aiding or abetting or whether they are a leader.

37The Defence argues that this was a “dry” conspiracy and that the drugs never made it into the country and that that is a factor in sentencing. In support, Mr. Luangphasi relies on the decision in R. v. Tello, 2023 ONCA 335 which upheld the sentencing decision of the trial judge. On appeal, Mr. Tello argued that the sentence was disproportionate because the conspiracy was a dry conspiracy in that no actual drugs were imported. At para. 93, the Court of Appeal referenced Justice Doherty’s statements in R. v. Russo, supra, at p. 125 that:

Their agreement contemplated a large-scale commercial transaction in a deadly substance. While ultimately no profit was made, there can be no doubt that profit was the motive. These respondents were prepared to do significant damage to others so that they could make money.

38The Court then held and then stated that the trial judge took that into account and had stated that it resulted in a “significant reduction” in the sentence. The Defence argues that R. v. Tello, supra, stands for the principle that a dry conspiracy will result in a significant reduction in sentence.

39I do not accept that interpretation. First, I see the Court of Appeal giving deference to the sentencing judge. Second, the Court does not disagree with other language in Russo, which is applicable to this case. In Russo, Justice Doherty stated:

First, he emphasized the respondents' inability to actually deliver the drugs they had agreed to deliver to Destefano. He clearly regarded this as a mitigating factor. No doubt, this would have been a significantly worse case had the respondents actually obtained and delivered four kilograms of cocaine. I cannot regard their failure to do so, however, as properly placed on the credit side of the ledger for sentencing purposes. The respondents agreed to deliver four kilograms of cocaine to a drug trafficker. When they did so, they intended to make good on that promise. Discussions to that effect went on for some two months. The respondents did not withdraw from or abandon the conspiracy and their attempts to acquire the promised cocaine continued up to the date of Destefano's arrest. Neither operated under extenuating circumstances like those found in R. v. Stevens (1997), 115 C.C.C. (3d) 372, 115 Man. R. (2d) 300 (C.A.) which could be said to mitigate their culpability. They deserve no credit for the fact that their criminal aspirations exceeded their grasp. The trial judge erred in principle in discounting the gravity of the offence because the respondents were unable to deliver the cocaine as promised.

40In my view, it would be an error to accept that a dry conspiracy warrants a lesser sentence within the range or that it is a mitigating factor. I do accept that had the conspiracy been abandoned it might warrant a sentence reduction. But that is not the case here. None of the conspiracies were abandoned and in the case of the Plane Conspiracy, Mr. Luangphasi was eagerly looking forward to making the Plane Conspiracy come to fruition describing his meeting with Mr. Kesminas as “the most important meeting of my life”.

41In R. v. Ursino, 2019 ONSC 1171, the conspirators spoke of importing hundreds of kilograms of cocaine in barrels of jerk sauce, in cardboard or in frozen fish although no cocaine was ever imported. Mr. Ursino was a first offender and had personal circumstances which led Justice O’Marra to conclude that it was neither necessary nor appropriate to order that the offenders serve an increased portion of the respective sentences before they were eligible for parole and sentenced them to six years.

42Finally, owing to his personal circumstances and his rehabilitative potential Mr. Le asks that I impose a penitentiary term in respect of the Guyana Conspiracy and the Carpet Conspiracy followed by a Conditional Sentence Order on the cannabis exportation charge. I find this proposal is not supported by the law. Even if I was prepared to make a Conditional Sentence Order, I find that it is not legally permissible to blend a sentence in this fashion where the sentence in total is two years or more. See R. v. Ploumis, at paras. 13 to 22.

VI. Mitigating and Aggravating Factors

43Mr. Luangphasi has a family and I accept that a lengthy term of imprisonment will deprive his young family of a father and Mr. Luangphasi expressed a desire through counsel to be there for his son.

44Mr. Luangphasi spent 28 days in pretrial custody. He was arrested on July 7, 2021 and was released on August 4, 2021. He was released GPS monitoring and house arrest and that remained the case until April 15, 2023 when the house arrest lifted and was replaced with an 8:30 p.m. curfew. On September 12, 2023, the curfew was removed but the conditions remained in effect. The Defence argues that I could give one year credit for all, arguing I could give 45 to 60 days given the heavy lockdowns in the jails in 2021 and that the 20 months of house arrest could be credited by way of a Downes credit to five months. The Defence argues that the curfew be credited 20 days for a told credit of one year.

45Mr. Le is a first-time offender and that is a mitigating factor. I accept that his work at the temple, support for the family business, and care for his mother are also mitigating factors. He pleaded guilty to the Cannabis Conspiracy and this is a significant mitigating factor because it freed up court resources and it resulted in the trial being concluded in the amount of time set aside, notwithstanding some delays occasioned at the outset of the trial.

46The aggravating factor for both is the disregard for those affected by the drug trade.

VII. Application

47In respect of Mr. Luangphasi, the Plane Conspiracy attracts the highest sentence and I will address it first being mindful of the principle of totality.

48Of the cases put before me, I find that R. v. Malanca, 2007 ONCA 859, 88 O.R. (3d) 570 is the closest factually in respect of the circumstances of the offence and the circumstances of the offender. Mr. Malanca was convicted by a jury to import cocaine. The aggravating factors were that he was the boss, he had no regard those below him or the victims of drug use and that he was motivated by greed. Mr. Malanca was a first-time offender and in his late twenties when he committed the offence. He was sentenced to life but his sentence was reduced to 19 years on appeal. The amount of cocaine was 270 kilos.

49Mr. Luangphasi was a top principal. He directed others in the conspiracy. He had others set meetings for him. He drove the conspiracy and the plan. He was committed to and excited about the plan to import an illegal and destructive substance as was consistently evidenced on the wiretaps. He was driven by greed. His conduct is deserving of the top end of the range such that a 19-year custodial sentence is appropriate. I find that the appropriate Summers credit to be 45 days and that together with the conditions on bail, a sentence of 18 years properly accounts for the mitigating factors and takes into account the aggravating factors that Mr. Luangphasi was a leader and had no regard for others.

50On the Guyana Conspiracy, I also find that given the amount of cocaine sought to be imported that the Crown’s proposed sentence is too high to accord with the mid-range amount of cocaine to be imported and the Defence’s too low. In R. v. Brown, [2008] O.J. No. 2825 where the offender was a first-time offender and the amount of cocaine was 25-30 kilos, Mr. Brown was sentenced to 10 years. To accord with Mr. Luangphasi’s leadership role and the amount of cocaine, that he has a criminal record, the appropriate sentence to denounce this serious violent offence and deter importing cocaine as a business venture, I sentence him to a custodial sentence of 14 years concurrent.

51On the Carpet Conspiracy, I sentence Mr. Luangphasi to four years concurrent. He was not a leader in this conspiracy but was an intended buyer and used intimidation to deal with others connected to this conspiracy.

52I turn to Mr. Le.

53Mr. Le was not a leader, but he appeared as a close colleague of Mr. Luangphasi. In my view, he cannot be described as a mere courier in either the Carpet Conspiracy or the Guyana Conspiracy. He aided Mr. Luangphasi’s leadership on the Guyana Conspiracy.

54On the Guyana conspiracy, in my view, a 10-year sentence is proportionate to Mr. Le’s responsibility and quantum of cocaine which is in the mid-level range and considering that Mr. Le is a first-time offender. I also consider his rehabilitative potential, that he is a person who has taken some steps post-offence to contribute to society through his volunteer work and support for his family. In my view, the restrictiveness of his bail conditions and his community service should be taken into account and, as a result, on this count I impose a custodial sentence of nine years concurrent.

55On the Carpet Conspiracy, I find him to be in lockstep with Mr. Luangphasi and that he should receive the same custodial sentence of four years concurrent.

56On the Cannabis Conspiracy, he shall receive a sentence of two years less a day, concurrent. I accept that Mr. Le pleaded guilty on the condition that the Crown agree not to seek a sentence of more than two years less a day concurrent and on that basis, I am prepared to accept what I see as a joint submission.

VIII. Ancillary Orders

[57] For Adam Luangphasi there will be the following ancillary orders: (1) DNA order pursuant of the Criminal Code which are secondary designated offences; (2) Pursuant to s. 109(2) and (3) of the Criminal Code prohibiting him from possessing: (a) any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for life; and (b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

[58] For Alexander Le there will be the following ancillary orders: (1) DNA order pursuant to s. 487.051 of the Criminal Code based on the conspiracy charges which are secondary designated offences; (2) Pursuant to s. 109(2) of the Criminal Code prohibiting him from possessing: (a) any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for 10 years; and (b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

IX. Final Decision

59Mr. Luanghasi, please stand:

60On Count 1, I impose a sentence of four years imprisonment.

61On Count 5, I impose a sentence of 14 years imprisonment concurrent.

62On Count 7, I impose a sentence of 18 years imprisonment concurrent.

63You may sit down Mr. Luangphasi.

64In respect of Mr. Le,

65On Count 1, I impose a sentence of four years.

66On Count 5, I impose a sentence of nine years concurrent.

67On Count 16, I impose a sentence of two years less a day, concurrent.

68Thank you everyone for your assistance. Mr. Luangphasi and Mr. Le will now be taken into custody.