COURT FILE NO.: CR-23-90000409-0000 DATE: 20250521 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HIS MAJESTY THE KING – and – KEVIN NGUYEN David Wilson , for the Crown Naomi Lutes , for Mr. Nguyen HEARD: January 30 and March 11, 2025 R.F. GOLDSTEIN J.
Background
[ 1 ] On January 23, 2023, the Durham Regional Police executed a search warrant on a Volkswagen Jetta in the underground parking lot of 8 Spadina Road in Toronto. The police also executed a search warrant at unit 805 of that building. The police found a gun, magazines, cocaine, and drug paraphernalia suggesting a kilogram-level cocaine trafficking operation. Kevin Nguyen and Daphne Rose resided in Unit 805.
Procedural History And Facts Supporting Convictions
[ 2 ] The police arrested both Mr. Nguyen and Ms. Rose. Mr. Nguyen and Ms. Rose brought series of motions to exclude the seized evidence. On January 24, 2025, Justice Speyer dismissed those motions.
[ 3 ] On January 30, 2025, Mr. Nguyen was arraigned before me on four counts (Ms Rose was not arraigned):
• Count 1: possession of a prohibited device (an extended magazine) contrary to s. 91(2) of the Criminal Code ; • Count 3: Possession of 1,299.7 grams of cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act ; • Count 6: Possession of a loaded prohibited firearm (a Ruger Model LCP2, semi-automatic .380 calibre handgun with 7 rounds of readily accessible ammunition) contrary to s. 95(1) of the Criminal Code ; • Count 8: Possession of a firearm contrary to a prohibition order contrary to s. 117.01 of the Criminal Code .
[ 4 ] Mr. Nguyen pleaded not guilty. He did not contest the following facts filed by the Crown.
[ 5 ] In 2022 the Durham Regional Police investigated a suspected drug dealer named Dane Goodwin. The police conducted surveillance on Goodwin. They observed him having short meetings with Kevin Nguyen. The police suspected that Mr. Nguyen was also a drug dealer. They began to conduct surveillance on him. They observed him with Daphne Rose. The police learned that Mr. Nguyen and Ms. Rose lived at 9 Spadina Avenue, Unit 805. The police also observed that Mr. Nguyen regularly drove a Volkswagen Jetta.
[ 6 ] On January 23, 2023, the police executed search warrants for 8 Spadina Avenue, Unit 805, and for the Volkswagen Jetta. At 6:27 pm the police observed Mr. Nguyen entering the driver’s seat of the Jetta. It was parked in the underground parking garage of 8 Spadina Avenue. The police arrested Mr. Nguyen.
[ 7 ] The police then searched the Jetta. An officer found a loaded Ruger Model LCP2, Semi-Automatic .380 Calibre Handgun. There was one 9mm round in the chamber and 6 9mm rounds in the magazine. Although the weapon was .380 caliber, a firearms examiner was able to fire the weapon using the 9mm ammunition.
[ 8 ] The police executed the warrant for Unit 805 at 6:43 pm. The police entered the unit using a key obtained from Mr. Nguyen. Ms. Rose was in the unit. Near her was a 1 kg brick of cocaine in a shopping bag. The police seized the following from the unit:
• cocaine (256.9 grams and 1042.8 grams) • digital weigh scales • a money counter • a vacuum sealer • 2 extended Glock 9mm handgun magazines (prohibited devices – one had a 16 round capacity and the other had a 30 round capacity) • 1 Glock magazine (10 round capacity) • Various rounds of 9mm ammunition • Cellular phones • Identification and documents in the names of Mr. Nguyen and Ms. Rose • Drug packaging • Exacto knives
[ 9 ] Mr. Nguyen did not call any evidence. He did not contest the Crown’s case. I found him guilty of all four counts. He now comes before the court for sentencing.
Circumstances of Mr. Nguyen
[ 10 ] Mr. Nguyen is 28 years old. He is in a relationship with Ms. Rose. They have been together for several years.
[ 11 ] Mr. Nguyen has a significant criminal record, commencing as young offender. In fact, all but one of his convictions is as a young offender. In 2012 he was convicted of failure to comply with a recognizance, obstruct peace officer, and possession of a schedule II substance. He received probation. That year he was also convicted of trafficking in a schedule I substance, for which he also received probation. In January 2013 he was convicted of two sets of offences. In the first, he was convicted of possession of a firearm knowing its possession is unauthorized contrary to s. 92(1) of the Criminal Code ; as well as fail to comply with a youth disposition and possession of a Schedule II substance. He received custodial time. In the second set of offences, he was convicted of another s. 92(1) firearms offence, failure to comply with a youth sentence, and possession of a schedule II substance. He again received custodial time. In May 2014, Mr. Nguyen was convicted of two counts of trafficking in a schedule I substance. Again, he received custodial time.
[ 12 ] In 2019 Mr. Nguyen was convicted of his fourth (up until this time) firearms offence. It was an adult conviction. He was again convicted of possession of a firearm knowing its possession was unauthorized. He received one day in custody with credit for the equivalent of 46 months – or two months shy of five years – in custody.
[ 13 ] There are limits to the use that a sentencing court can make of youth convictions. As Jones J. pointed out in R. v. Atkinson , 2024 ONCJ 425 , there is a presumption of diminished moral culpability with young offenders. See also: R. v. D.B. , 2008 SCC 25 . Justice Jones also pointed to R. v. Able , 2013 ONCA 285 , where Tulloch J.A. (as he then was) noted about the Youth Criminal Justice Act :
While the preamble has a broad and general compass, it also "fosters responsibility and ensures accountability through meaningful consequences and effective rehabilitation and reintegration". Effective rehabilitation and reintegration require that young persons are given an opportunity to move on with their life and put their interaction with the criminal justice system behind them. However, a balance must be struck: strings must be attached when providing young persons with such an opportunity.
[ 14 ] I interpret this statement to mean that a youth conviction does not carry the same aggravating force as an adult conviction. At the same time, it is not irrelevant to a subsequent sentencing court. I therefore give the previous youth convictions some weight. That is because Mr. Nguyen’s record, as both a youth and an adult, features many of the same things that the current offence before the court features: drugs and guns. I place very little weight on youth convictions for possession of a schedule II drug. I do, however, note that Mr. Nguyen has four convictions for firearms offences (three as a youth) and finds himself facing sentence for further firearms offences as well as possession of a firearm in contravention of a prohibition order. I also note that Mr. Nguyen has two convictions for drug trafficking involving a schedule I drug (both as a youth) and now faces sentence for a very significant drug offence. The point about his youth record is that it reveals a pattern that has carried on into adulthood.
[ 15 ] I do not know that much about Mr. Nguyen. I do know that he only completed high school while in custody on these charges. I have also heard very little about employment. It seems to me that Mr. Nguyen has been leading the lifestyle of a professional criminal. As I will relate next when I deal with aggravating and mitigating factors, the people around him attribute his poor choices to a lack of structure and a lack of a male role model growing up, parental neglect (as his mother worked long hours to support him), and the bad influences of some of his friends while living in a poor and marginalized neighbourhood.
Aggravating and Mitigating Factors
[ 16 ] There are several aggravating factors in this case.
[ 17 ] The most important aggravating factor in this case is the combination of drugs and guns. Mr. Nguyen possessed well over a kilogram of cocaine for the purpose of trafficking. He was clearly trafficking at a significant commercial level. He had a gun concealed in his car. It is an inescapable conclusion that he possessed the gun for the purpose of protecting his drug business or enforcing drug debts. Either way, it is the toxic combination of guns and drugs that is most aggravating. I do not say that Mr. Nguyen is at the top of the drug hierarchy. The possession of a kilogram suggests that he was trafficking at the multi-ounce level, which makes him a mid-level trafficker although at the high end of the mid-level.
[ 18 ] Mr. Nguyen’s criminal record, which I have mentioned, is also aggravating. While I acknowledge that there is a gap in his record, I find it particularly aggravating that Mr. Nguyen’s criminality has centred on drugs and guns. Mr. Nguyen was arrested on these charges at the age of 26.
[ 19 ] I have heard no evidence of any kind of employment or education that he has undertaken since his final youth conviction and his arrest. The leads me to the unfortunate and uncomfortable conclusion that he has led a criminal lifestyle and for all intents and purposes he has been a professional criminal. I have read the support letters and I think I have some understanding of how he got to this place. He has not, like many other offenders we see in this court, led an otherwise pro-social life but made some bad decisions. His life has been a series of poor decisions, unfortunately. Those decisions have harmed him and the people around him. The bright spot is that Mr. Nguyen seems to have recognized that he will continue to experience a cycle of criminality and incarceration if he does not change his ways. He has taken steps while in custody towards rehabilitation and I find that mitigating and hopeful.
[ 20 ] I will review some of the letters filed on Mr. Nguyen’s behalf by friends and family. It is mitigating that Mr. Nguyen, despite his years of being in and out of trouble, has managed to maintain relationships with people who in turn have not washed their hands of him but continue to support him. He is lucky to have this support and I hope he understands just how lucky he is.
[ 21 ] Daphne Rose, Ms. Nguyen’s girlfriend (and former co-accused) wrote a letter on his behalf. Ms. Rose explained that Mr. Nguyen was raised in Parkdale, a challenging neighbourhood, by a single mother. It seems that he had little structure and guidance in his life. He had spent time in Children’s Aid (by which I assume Ms. Rose means foster care). He appears to have made poor choices in friends, which Ms. Rose describes as “bad influences.” However, she describes Mr. Nguyen as deeply compassionate, kind, humble, and a loyal friend. She described some of his challenges in custody, but also says that he has grown and understands that he has to break the cycle he is in.
[ 22 ] Ms. Rose’s letter is eloquent and compassionate. It is helpful but also difficult to read. It is clear she feels extremely close to Mr. Nguyen and believes that she understands his antecedents and the reasons for his criminal behaviour. I’m sure she has better insight into Mr. Nguyen’s behaviour than he does, frankly. I have two observations about the letter, however: first, Ms. Rose was Mr. Nguyen’s co-accused. She was arrested with him, and a brick of cocaine was found in close proximity to her, along with drug trafficking paraphernalia such as a money counter and a vacuum sealer. If she was not a party to the offences, she was certainly aware of them. My second observation is about Mr. Nguyen’s behaviour. If Ms. Rose was not a party to any of these offences, then he placed her in significant jeopardy. That speaks to a certain callousness about the consequences of his actions to other people. The Crown, very fairly, is ending the prosecution against her as part of this no-contest plea. It could have gone very differently, however, for Ms. Rose. I do, however, accept Ms. Rose’s description of some of the strides Ms. Nguyen has made while in custody, as they do accord with some of the other letters that have been filed as well as the letters from people at the institution.
[ 23 ] Harry Nguyen, Mr. Nguyen’s cousin, also provided some insight into Mr. Nguyen’s upbringing. He too described a lack of structure and parental support, as his mother worked hard to provide for him. He grew up in a disadvantaged neighbourhood. His family was financially unstable. According to Harry Nguyen, the lack of structure and a male role model led him to make very bad decisions. Mr. Nguyen’s cousin, Helen Ramrattan, stated much the same thing in her letter of support.
[ 24 ] Others who wrote letters include Tony Nguyen, Mr. Nguyens cousin; Joshua Bodomo (who grew up in the same neighbourhood); and Phillipe Huynh. These letters describe Mr. Nguyen in positive terms. Words like loyalty, compassion, kindness, and love are frequently used.
[ 25 ] I accept that Mr. Nguyen has the support of his family and friends and consider it a mitigating factor, as I have mentioned. I certainly hope that he will not let these people, who clearly care for him, down again when he gets out of custody.
[ 26 ] While in custody Mr. Nguyen completed his high school diploma. His teacher, Ali L., wrote a letter of support on his behalf. He has also enrolled in a literacy program through Centennial College and hopes to use it towards a college diploma. He is on a wait list for a business and marketing program at Centennial. Mr. Nguyen attached certificates of completion of the Centennial and high school programs. He also attached multiple certificates of completion of various Ministry and Ministry-adjacent courses that he took while in custody.
[ 27 ] Mr. Nguyen filed a letter of support from Keihlah Belleau, the Native Institutional Liaison Officer at Toronto East Detention Centre. Mr. Nguyen has participated in the NILO program. According to Mr. Belleau, Mr. Nguyen has shown determination, resilience, and a commitment to self-improvement. He has seen positive growth and change in Mr. Nguyen during his incarceration. He also filed a letter from Elaina McPherson of Brighter Dayz. Mr. Nguyen has attended several workshops put on by Brighter Dayz. According to Ms. McPherson, he has shown an eagerness to learn, participated in all workshops, and completed assignments.
[ 28 ] Mr. Nguyen also experienced harsh conditions of custody, which I will turn to next.
Credit For Harsh Conditions Of Custody
[ 29 ] Mr. Nguyen filed an affidavit describing the conditions of custody at the Toronto East Detention Centre and the Central East Correctional Centre. As of today, Mr. Nguyen has spent 809 days in custody: 543 days at Central East, and the remainder (266 days) at the Toronto East.
[ 30 ] At Central East Mr. Nguyen was subject to numerous lockdown days. According to his personal records he was fully locked down for 207 days and 284 days for part of the day. According to the Central East records he was locked down for less than six hours on 296 occasions, and for more than six hours on 124 occasions. Although the personal and institutional records for full and partial lockdown days are not that far apart (284 and 296) there is a more significant discrepancy for the full day lockdowns – 207 and 124. According to the Central East records Mr. Nguyen was triple bunked on 112 occasions (he says 113 from his personal records), including one stretch of 70 days in a row.
[ 31 ] According to the Toronto East records, Mr Nguyen was triple bunked on 14 occasions, and subject to full and partial lockdowns on 13 occasions.
[ 32 ] Mr. Nguyen described some fairly horrific conditions at Central East:
• Full lockdowns meant that inmates are in their cells most of the days. Inmates may be let out for a shower, but not everyone is able to have one. He says in his affidavit that he has gone as long as 10 days without a shower. • The ranges were frequently overcrowded, resulting in competition for space, phone calls, and even seats. • Triple bunking means that at least one inmate sleeps on the floor, with his head near the toilet. According to Mr. Nguyen, the cells at Central East are smaller than the cells at Toronto East or the Toronto South Detention Centre. That makes triple bunking highly challenging, especially during a lockdown when inmates have gone long periods without a shower. • Lockdowns mean a lack of yard time and fresh air, lack of programming, and lack of defence counsel access and family access. • Mr. Nguyen described the Central East as highly unsanitary. His cell was frequently infested with vermin. Mold grew in the showers, cells, and toilets. Urine and feces stained the walls. • Inmates, including Mr. Nguyen, frequently went without blankets. • The inmates appear to have had access to drugs and alcohol, with frequent overdoses and inmates sometimes dying as a result. Mr. Nguyen, who is no stranger to custodial institutions, stated that he has never experienced that at any other institution.
[ 33 ] Mr. Nguyen generally found the atmosphere at Central East to be hostile and stressful. He found the guards were frequently rude and disrespectful to the inmates, and the difficult conditions often led to fights.
[ 34 ] I am aware that the evidence about Central East is uncontradicted. I am also aware that there is no evidence about jail conditions from any staff at Central East. I am told that Central East was made aware of the allegations in Mr. Nguyen’s affidavit. I generally accept Mr. Nguyen’s uncontradicted evidence about conditions there, especially because in my experience as a sentencing judge it is consistent with what other inmates who have spent time at Central East have sworn to – especially the evidence about infestations and mold.
[ 35 ] This court cannot condemn too strongly the conditions at Central East. I understand that staff shortages are a chronic problem at the Ministry. I understand that it may be difficult to attract staff to do an incredibly difficult and often thankless job. I also understand that the Ministry is a large bureaucracy and that it is often slow and difficult to make decisions and that is not any individual’s fault. Nonetheless, there is no way that anyone should just shrug their shoulders that the conditions at Central East are the way they are, and that little or nothing can be done. The place is ripe for a Ministry investigation into the conditions there.
[ 36 ] The thing that gives Mr. Nguyen’s description of the conditions at Central East credibility, and is a lesson that conditions in an Ontario jail do not have to be horrific, is what he said about Toronto East, which I will quote in part:
Compared to CECC, my time spent at TEDC has been much more positive. There have been very few days of lockdown, meaning I am able to have regular phone calls and showers. I feel more like myself again, and have been able to start rebuilding my relationship with family members. The inmates and guards are more respectful. There is a much wider range of programming available, and I have taken every program available to me…
The only issue I have had at TEDC arose when I was briefly transferred back to CECC during my pre-trial motions in Oshawa. At some point during the transfer, my medical file was lost, and I was not given my medications for a month and a half as a result. I finally received my medications after I complained to the Ombudsman for the institution and they were able to locate portions of my medical file.
[ 37 ] In other words, it is not pre-ordained that a jail has to something familiar to Ivan Denisovich – and I am aware from many other cases that Toronto East is still unpleasant, as any jail would be.
[ 38 ] Thus, the harsh conditions of custody are a mitigating factor in this case. I prefer not to use a mathematical formula. To do so is not wrong, but as a general rule the Court of Appeal has suggested that treating harsh conditions of custody as a mitigating factor in relation to the overall sentence is preferrable: R. v. Duncan, 2016 ONCA 344 ; R. v. Marshall, 2021 ONCA 344 .
Positions Of The Parties And Cases In Support
[ 39 ] Mr. Wilson, for the Crown, argues that a global sentence in the range of 10-12 years is appropriate. Mr. Nguyen’s moral culpability is high. He was clearly dealing significant quantities of drugs. As well, he possessed a gun that was obviously connected to protecting his drug operation. Mr. Wilson points to several cases in support of his argument.
[ 40 ] The Court of Appeal has generally held that the range for mid-level cocaine traffickers is four to six years: R. v. Lynch , 2022 ONCA 109 at para. 14 . In that case the offender pleaded guilty to several counts of trafficking fentanyl, cocaine, and MDMA. The amount of cocaine involved was 965.01 grams. Ms. Lutes also referred to this case. In Lynch , Nordheimer J.A. for the Court referred to R. v. Maone , 2020 ONCA 461 , where the Court of Appeal upheld a 7 year sentence for four sales of cocaine totalling about 3.5 kilograms. In R. v. Brian , 2011 ONCA 273 , the Court of Appeal noted that 5-8 years is the proper range of sentence for someone with no record who is convicted of possession of a pound of cocaine for the purpose of trafficking.
[ 41 ] The courts have also considered cases of guns and drugs together. In R. v. Graham , 2020 ONCA 692 , the offender was found guilty after a jury trial and a Charter motion of the possession of a satchel containing nearly 3 ounces of cocaine, $14,800.00 in cash, two digital scales, a revolver, and 40 rounds of ammunition. The offender was subsequently found guilty of breach of a weapons prohibition order. The Court of Appeal upheld a global sentence of 11 years, with credit for pre-sentence custody.
[ 42 ] Crown counsel also referred me to two decisions of this court involving guns and drugs. In R. v. Wisdom and Wisdom , 2024 ONSC 4047 the two offenders, Jason Wisdom and Dae-Shan Wisdom, were found guilty after a jury trial of various drug and proceeds of crime offences. Jason was also convicted of possession of a firearm and breach of a weapons prohibition. The police seized significant amounts of drugs in various places. Justice Code, based on the jury’s verdict, attributed 293.4 grams of fentanyl, cutting agent, 161.2 grams of crack and powder cocaine to Jason Wisdom. Justice Code also attributed a 9mm handgun with one round in the chamber and 14 rounds in an overcapacity magazine, and an additional 30 loose rounds, to Jason Wisdom. He attributed 31.97 grams of fentanyl and 18.93 grams of cocaine to Dae-Shawn. He found that Jason and Dae-Shawn were in joint possession of 63.48 grams of fentanyl, 28.02 grams of methamphetamine, and 13.09 grams of powder cocaine. Jason was in his mid-thirties and had a lengthy criminal record including previous s. 95(1) firearms convictions; Dae-Shawn was young (22 at the time of the offences) but also had a criminal record. Importantly, after analyzing the authorities, Justice Code found that a sentence in the range of 6-9 years is appropriate for s. 95 recidivists. He would have sentenced Jason Wisdom to 12 ½ years on the fentanyl, but reduced that to 9 years after considering totality; he would have sentenced Jason Wisdom to nine years on the gun but reduced that to 7 years after considering totality; and sentenced him to a further 6 months consecutive on each of the weapons prohibitions. All other sentences ran concurrently. Thus, Justice Code sentenced Jason Wisdom to a global sentence of 17 years, less pre-sentence custody. He further sentenced Dae Shawn Wisdom to a global sentence of seven years and four months, consecutive to an unrelated sentence he was then serving.
[ 43 ] The Crown also referred to R. v. Jones , 2024 ONSC 3181 , where I sentenced the offender to a global sentence of 6 years less Summers custody. The offender had an atrocious criminal record (including convictions for robbery with a firearm and a s. 95(1) offence). An Enhanced Pre-Sentence Report also showed many mitigating factors. Mr. Jones had grown up in very difficult circumstances and subject to violence and crime as a very young person. The six year sentence included credit for very harsh conditions of custody.
[ 44 ] Ms. Lutes, on behalf of Mr. Nguyen, argued that I should sentence Mr. Nguyen to a global sentence of seven years, less Duncan credit (credit for harsh conditions of custody) and Summers credit (credit at the statutory rate of 1.5:1): R. v. Duncan, supra ; R. v. Marshall , supra ; R. v. Summers , 2014 SCC 26 ; Criminal Code s. 719(3.1) .
[ 45 ] Ms. Lutes filed several cases in support of her position. In R. v. Atkinson , supra , the offender pleaded guilty to one count of possession of a loaded, prohibited handgun with ammunition contrary to s. 95(1) of the Criminal Code (a Glock 95 together with 8 rounds of ammunition); one count of possession of a schedule I drug for the purpose of trafficking (a 1 kg brick of cocaine), and possession of the proceeds of crime. Jones J. found that he had endured “startling amounts of hardship, mistreatment, and tragedy” having grown up under extremely challenging circumstances. He was on bail at the time and subject to two youth gun prohibitions. Jones J. imposed a global sentence of five years after taking harsh conditions of custody into account as a mitigating factor.
[ 46 ] In R. v. Kabanga-Muanza , 2019 ONSC 1161 , Spies J. convicted the offender of several offences in relation to a gun that had been used in a shooting, including a s. 95(1) offence (although the offender was acquitted of offences in relation to the shooting) and a weapons prohibition breach (he was on three weapons prohibition orders). He had a very challenging upbringing. He also had a very serious criminal record, including several adult drug trafficking convictions and one youth robbery conviction. Spies J. imposed a global sentence of 4 ½ years less pre-sentence custody: 3 years on the gun offences, and one year consecutive on the weapons prohibition breach.
[ 47 ] Ms. Lutes filed other cases involving firearms possession contrary s. 95(1) and breaches of weapons prohibitions contrary to s. 117.01(1). In R. v. Brown , 2020 ONSC 6395 Roberts J. convicted the offender after a judge-alone trial of possession of a handgun while bound by two weapons prohibitions (he had earlier pleaded guilty to possession of cocaine and fentanyl for the purpose of trafficking found at the same time as the gun). Brown had a record, including a conviction for armed robbery. Roberts J. sentenced him to a global sentence 7 years, 9 months, and 10 days less pre-sentence custody. In R. v. Donison , 2022 ONSC 741 , the offender was a street-level drug trafficker who possessed two handguns. Schreck J. would have imposed a global 8-year sentence (four years on the firearm, one year consecutive [but concurrent to each other] on the weapons prohibitions, and three years on the drugs. He reduced the global sentence to seven years (less pre-sentence custody) to take account of the principle of totality. In R. v. Griffith, 2019 ONSC 358 , the police arrested the offender after observing what they believe were drug transactions. He had a handgun in his waistband. The gun had one round in the chamber and 11 rounds in the magazine. He also had 34.29 grams of cocaine and crack cocaine and $440.00 in cash. He was arrested after attending the John Howard Society to meet with his housing worker. He had the gun and drugs with him at the time. He was a young man, although he had a criminal record. He had taken some steps towards rehabilitation, such as going back to school to complete his high school diploma. A. O’Marra J. sentenced the offender to a global sentence of 6 years: 4 years on the gun, one year consecutive on the drugs, and one year consecutive for the breach of the weapons prohibition. In R. v. Douale , 2018 ONSC 3658 , the offender was convicted after a jury trial of three counts in relation to possession of a gun. He was on his way to sell drugs with a gun in his waistband, loaded, with the safety off. He carried it on the TTC and then became involved in an altercation. He pulled out the gun to threaten someone. Following the jury trial he was found guilty of breaching a weapons prohibition. He had a lengthy criminal record that included drug trafficking offences but no previous firearms offences. Justice Corrick sentenced him a global sentence of six years less nine months for harsh conditions of custody, and a further 40 months credit for time served.
[ 48 ] In R. v. Owusu , 2024 ONSC 671 , Code J. convicted the offender of guns and drug charges. He had two loaded handguns with two oversized magazines in the handguns. Code J. also convicted him of breaching a firearms prohibition, and possession of fentanyl for the purpose of trafficking. The offender tried to evade the police and crashed his car. He ran off and tried to hide the guns as well as a bag containing 127.75 grams of fentanyl. The police found all the items. The offender had an incredibly serious youth record, including convictions for murder, armed robbery, and possession of a loaded handgun. He had a challenging upbringing, lacking structure and stability. He became involved in the criminal justice system at an early age.
[ 49 ] After analyzing the cases in detail, and referring to his earlier decisions in Graham and Wisdom , Code J. found that the range of sentence for a first offender for a s. 95(1) offence is three to five years. For s. 95(1) recidivists, sentences can range from 6 years to 8-10 years, with breaches of weapons prohibitions calling for consecutive sentences. I agree with Justice Code’s analysis.
[ 50 ] I therefore find, after reviewing the cases, that possession of cocaine for the purpose of trafficking at the kilo level calls for a sentence in the range of 5 to 8 years for a first offender. I also agree that for a first offender, absent exceptional circumstances a penitentiary sentence commencing in the range of three years is appropriate for a first s. 95(1) offence and sentences in the range of 6-10 years for subsequent s. 95(1) offences, bearing in mind the principles of restraint and totality. Although I have placed Mr. Nguyen at the high end of mid-level trafficking, in my view the 5-8 year range applies given what was still a considerable drug operation.
Principles of Sentencing
[ 51 ] 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: Criminal Code , s. 718.1. Sentences involving firearms, drugs, and firearms and drugs together call for an especially heavy sentence, one that emphasizes deterrence and denunciation: R. v. Graham , supra , at para. 26 ; R. v. Owusu , supra , at paras. 29, 34 . Generally, sentences for guns, drugs, and weapons prohibitions should all run consecutively, subject to the principle of totality: R. v. Wisdom and Wisdom , supra , at paras. 34-36; R. v. Crevier , 2015 ONCA 619 at para. 129 .
[ 52 ] Rehabilitation plays a role, but in a case of this nature it must be balanced against the need for general and specific deterrence. I agree with Justice Code’s observation about Mr. Owusu that his “reduced moral culpability due to the social context in which he grew up when he was young must be tempered by the need to protect the public, given his flagrant and dangerous recidivism and given the gravity of the offences.” That applies to Mr. Nguyen.
Sentence Imposed and Ancillary Orders
[ 53 ] The principles of sentencing, and the aggravating and mitigating factors call for a significant penitentiary sentence in this case.
[ 54 ] The key mitigating factors in this case are the saving of court time; the family and community support that Mr. Nguyen enjoys; the attempts he has made towards rehabilitation while in custody; and the harsh conditions of custody, especially at the Toronto East, which I treat as a mitigating factor.
[ 55 ] The key aggravating factors are and the combination of drugs and a gun together, and Mr. Nguyen’s criminal record. I also find that Mr. Nguyen’s possession of the firearm was at the “true crime” end of the spectrum: I am satisfied beyond a reasonable doubt that he had it for the purposes of protecting his drug business. I say that because he had possession of a large amount of cocaine, he was clearly trafficking, and he appeared to have had no other employment besides professional drug dealer. See: R. v. Nur , 2013 ONCA 677 .
[ 56 ] I find as well that Mr. Nguyen is a firearms recidivist. He has four previous firearms convictions. Of course, these were not s. 95(1) convictions and three were as a youth. They are not as aggravating as adult s. 95(1) convictions. I find that a sentence below the low end of the range for s. 95(1) recidivists identified by Justice Code is required.
[ 57 ] Realistically, a proper sentence before taking totality and the harsh conditions of custody into account would be something in the range of 4-5 years for the gun offences, 5-6 years for the drug offence, and a further year for the breach of the weapons prohibition. That would mean a 10-12-year sentence, as the Crown suggests. That would be something akin to the sentence imposed by Justice Code on Jason Wisdom. Wisdom had a previous s. 95(1) conviction and possession of 293 grams of fentanyl and 191 grams of cocaine. Mr. Nguyen’s record isn’t quite as bad and he had no fentanyl, but he had over 1.2 kilograms of cocaine. Given Mr. Nguyen’s youth and his prospects of rehabilitation, however, an 10-12-year global sentence would violate the principles of totality and restraint: R. v. Borde (2003), 172 C.C.C. (3d) 225 (C.A.).
[ 58 ] When I take all the factors into account, especially the harsh conditions of custody described at Central East, I find that a global sentence of 8 ½ years or 3102 days is appropriate, less Summers credit.
[ 59 ] Mr. Nguyen has been in custody since January 23, 2023, a total of 809 days (or two years, two months, and 19 days). At the enhanced rate of 1.5:1 pursuant to s. 719(3.1) of the Criminal Code that works out to credit for 1213.5 days (which I will round up to 1214) or about 40 ½ months or just under 3.4 years. Mr. Nguyen will have 1888 days left to serve (approximately 63 months or about 5 years and 3 months).
[ 60 ] The warrant of committal will read as follows:
• Count 1: possession of a prohibited device (an extended magazine) contrary to s. 91(2) of the Criminal Code – 2 years, consecutive to Count 3 and concurrent to count six.
• Count 3: Possession of 1,299.7 grams of cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act – 4 years or 1460 days, with credit for 1214 days, leaving 246 days left to serve (or just over 8 months).
• Count 6: Possession of a loaded prohibited firearm (a Ruger Model LCP2, semi-automatic .380 calibre handgun with 7 rounds of readily accessible ammunition) contrary to s. 95(1) of the Criminal Code – 4 years, or 1460 days, consecutive to Count 3 and concurrent to Count 1.
• Count 8: Possession of a firearm contrary to a prohibition order contrary to s. 117.01 of the Criminal Code – six months (182 days, rounded down) consecutive to Count 6.
[ 61 ] In addition to the penitentiary sentence, there will be a s. 109 order for life and a DNA order in relation to the s. 5(2) Controlled Drugs And Substances Act offence and the s. 95(1) Criminal Code offence.
R.F. Goldstein J.
Released: May 21, 2025
COURT FILE NO.: CR-23-90000409-0000 DATE: 20250521 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HIS MAJESTY THE KING – and – KEVIN NGUYEN REASONS FOR SENTENCE R.F. Goldstein J.